EX PARTE ALEJANDRO CARBAJAL GARZA, JR. (other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-73,105-02
EX PARTE ALEJANDRO CARBAJAL GARZA, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 06-07-11915 IN THE 79TH JUDICIAL DISTRICT COURT
FROM JIM WELLS COUNTY
Per curiam.O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentenced to life imprisonment without possibility of parole. The Fourth Court of Appeals affirmed his conviction. Garza v. State, No. 04-07-00446-CR (Tex. App. - San Antonio, February 25, 2009, pet. ref'd).

On September 14, 2011, this Court remanded to the trial court to obtain affidavits and findings addressing Applicant's claim that trial counsel failed to convey a plea offer to Applicant before trial. The trial court obtained an affidavit from one of Applicant's two trial attorneys, and entered findings of fact and conclusions of law recommending that relief be denied. However, the attorney who submitted the affidavit is not the attorney who, according to Applicant, received and failed to communicate the plea offer in question. Therefore, the trial court shall order Applicant's other trial attorney, Adam Poncio to respond to Applicant's claim of ineffective assistance of counsel by submitting an affidavit stating whether the prosecutor made any plea offers prior to trial, and if so, whether counsel conveyed such offers to Applicant. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether a plea offer of thirty to forty years' imprisonment was made to attorney Adam Poncio prior to trial, and if so, whether the offer was communicated to Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

 

Filed: January 11, 2012

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