Silva, Gabriel
WR-62,930-04
| Tex. App. | Dec 18, 2015Background
- Gabriel Silva was convicted by a jury of aggravated robbery with a deadly weapon on Sept. 27, 2002, pleaded true to repeat-offender enhancement, and received 35 years' imprisonment.
- The Second Court of Appeals affirmed the judgment on Jan. 29, 2004; Silva’s first art. 11.07 habeas application was denied in 2005.
- Silva, pro se and claiming indigence, filed a later habeas application arguing his sentence is illegal and raising parole/weapon-finding issues.
- Silva contends a conflict exists between the trial judge’s oral pronouncement (which he says did not expressly find a deadly-weapon) and the written judgment that includes a deadly-weapon finding.
- He seeks reformation of the judgment to reflect the oral pronouncement, appointment of counsel, and relief from the effect of the deadly-weapon finding on parole eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether art. 11.07 §4 procedural bar applies | Silva: §11.07.4 bars only challenges to guilt; illegal-sentence and parole claims are not procedurally barred | State: argued Silva’s writ is barred by art. 11.07 §4 | Not decided in this filing — Silva urges court to apply Ex parte Evans reasoning and consider claims on merits |
| Whether the sentence is illegal and cognizable in habeas | Silva: sentence is unauthorized/outside punishment range because deadly-weapon finding is not supported by oral pronouncement | State: did not substantively respond to Silva’s illegal-sentence claim in this filing | Not decided in this filing — Silva asks court to recognize illegal-sentence cognizable at any time |
| Whether oral pronouncement or written judgment controls deadly-weapon finding | Silva: oral pronouncement controls; record shows judge did not expressly find deadly-weapon, so written finding is erroneous; nunc pro tunc inappropriate for judicial errors | State: (implicit) written judgment controls or supports current parole treatment | Not decided in this filing — Silva requests reformation to match oral pronouncement and cites authorities that oral pronouncement controls when conflict exists |
| Whether Silva is actually innocent of deadly-weapon finding for parole purposes | Silva: asserts prima facie actual innocence of weapon finding; invokes Schlup/Murray standard for showing no reasonable juror would find weapon guilt; requests relief from half-sentence parole requirement | State: (not addressed in this filing) | Not decided in this filing — Silva requests habeas relief and counsel; no court ruling included here |
Key Cases Cited
- Haines v. Kerner, 404 U.S. 519 (1972) (pro se pleadings are construed liberally)
- Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) (art. 11.07 §4 limited to applications attacking guilt/conviction)
- Ex parte Brooks, 219 S.W.3d 396 (Tex. Crim. App. 2007) (discussion of jury findings and habeas review for actual innocence claims)
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App.) (trial court’s general finding of guilt does not equal an affirmative deadly-weapon finding)
- Donovan v. State, 232 S.W.3d 192 (Tex. Crim. App. 2007) (oral pronouncement of sentence in open court is controlling over inconsistent written judgment)
- Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (illegal sentence is one not authorized by law and is cognizable in habeas)
- Jones v. State, 795 S.W.2d 199 (Tex. Crim. App. 1990) (nunc pro tunc judgments can correct clerical errors but not judicial errors)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual-innocence gateway standard for habeas review)
- Murray v. Carrier, 477 U.S. 478 (1986) (procedural-default/actual-innocence framework)
- Smith v. State, 15 S.W.3d 294 (Tex. Crim. App.) (distinguishing clerical from judicial error for nunc pro tunc relief)