## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-82,005-03

EX P ARTE SONNY D. SILVAS, Ap plicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. A-37,468-B IN THE 70TH DIS TRICT COURT

F ROM ECTOR COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of ag gravated assault and s en t en ce d to thirty -five year s’ imprisonment. The Eleventh Court of Appeals aff irmed his conviction. Silvas v. State , No 11-11-00169- CR (Tex. App.—Eastland June 6, 2013) (not designated for publication). In a single ground, Applicant contends that appellate counsel failed to argue that th e trial court err ed in assessing $3,000.00 in attorney ’s fee s. See Maye r v. State , 309 S.W .3d 552, 556 (Tex. Crim. App. 2010). Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v.2

W a shington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). In these c ircumstance s, additional fac ts are ne eded. A s we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for finding s of fac t. The trial court shall order appellate counsel to respond to Applicant’s claim. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). In the appropriate case , the trial court may rely on its personal re collection. Id

. I f the trial court elects t o hold a hearing , it shall deter mine whether Applican t is indige nt. I f Applicant is indige nt and wi s h es to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. After revie wing appellate counsel’s response , the trial court shall make finding s of fac t and conclusions of law as to whether : (1) the trial court assessed $3,000.00 in attorney ’s fee s; (2) if so, these fee s wer e i mp ro p er l y as s essed, see Maye r , 309 S.W .3d at 556 (Tex. Crim. App. 2010); (3) appellate counsel kne w o r s h o u l d have known that $3000.00 in attorney ’s fees were assessed and could have litigated the ass essm ent of fee s on appea l; (4) appellate counsel was deficient; and (5) Applicant was prejudice d. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applicant’s claim for habea s corpus r elief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supp l em en tal transcript containing all aff idavits and int err og atories or the transc ription of the court repor ter’s notes from any hearing or deposition, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwa rded to this Court within 120 day s of the date of this order

. Any extensions of time must be3

reque sted by

the trial cour

t and shall be obtaine d from this Court.

Filed: Nove mber 20, 2019 Do not publish