Cox, Charles Sr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,786-01
EX PARTE CHARLES COX, SR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 17507 IN THE 6TH DISTRICT COURT
FROM LAMAR COUNTY
Per curiam.
ORDER
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated sexual
assault of a child and was sentenced to twenty-five years’ imprisonment. He did not appeal his
conviction.
Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance
because counsel did not advise Applicant that he had the option of pleading “not guilty” and having
1
This Court has reviewed Applicant’s other claims, and finds them to be without merit.
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a trial by jury, then electing to have the trial court determine punishment if he were found guilty by
the jury. Applicant also alleges that counsel did not advise him of the possibility of seeking a lesser-
included offense instruction on indecency with a child by contact if he elected to go to trial on the
charges.
Applicant alleges that trial counsel should have required the State to elect which paragraph
of the two-paragraph indictment it intended to proceed upon. Pointing out that the indictment
appears to allege two different manner and means for committing a single offense, Applicant alleges
that the judgment showing that he was convicted of “Paragraphs 1 & 2” is improper. Applicant
alleges that the judgment is being used to label him as a repeat sexually violent offender under the
civil commitment statute, when in fact he has only been convicted of a single sex offense.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these
circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. The
trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
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.
Because Applicant is challenging a conviction from 1999 in this application but did not file
this application until approximately fifteen years later, there is a possibility that Applicant’s claims
may be precluded by laches. However, because the record is silent on the circumstances that may
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excuse this substantial delay, we reserve judgment as to whether laches bars Applicant’s request for
relief until he is given an opportunity to explain his delayed application. See Ex parte Smith, 444
S.W.3d 661 (Tex. Crim. App. 2014). The trial court shall provide Applicant with the opportunity
to explain his delay in seeking habeas relief, and thereafter the trial court shall make findings of fact
and conclusions of law as to whether Applicant’s claims should be barred by laches.
The trial court shall make findings of fact and conclusions of law as to whether the
performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant. The trial court shall also make findings as to whether the
judgment showing that Applicant was convicted of the offense charged in both paragraphs of the
indictment is a clerical error subject to correction by way of a judgment nunc pro tunc. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: July 29, 2015
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