## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-81,786-01

EX P ARTE CHARLES COX, S R., Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 17507 IN THE 6 DISTRICT COURT T H F ROM LAMA R COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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 pleade d guilty to ag g ravated sexual

as s au lt of a child and was sentenc ed to twenty -five y ear s’ imprisonment. He did not appea l h i s conviction. Applicant contends, among other things, that his tri a l c o u n s e l r e n d e r e d in eff

ective assistance 1 beca use counsel did not advise Applicant that he had the option of pleading “not guilty ” and having

This Court has review ed Applica nt’s other c laims, and finds them to be without merit. 12

a trial by jury , then elec ting to have the trial court deter mine punishment if he wer e found guilty by the jury

. Applicant also alleg es that counsel did not advise him of the possibili ty of seeking a lesserincluded off

ense instruc tion on indecenc y with a child by contac t if he ele cted to g o to trial on the char g es. Applicant alleg es that trial counsel should have require d the State to elec t which para g raph of the two-par ag raph indictment it intended to proce ed upon. P o i n t i n g o ut that the indictment appea rs to alleg e two differ ent manner and means for committing a single offe nse, Applicant alleg es that t he judgme nt showing that he was convicted of “Para g raphs 1 & 2” is improper. Applicant alleg es that the judgme nt is being used to la bel him a s a repe at sexually violent offende r under the civil commitment st atute, whe n in fac t he has only been c onvicted of a

single sex offense. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). In these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order trial counsel to r espond to A pplicant’s claims of ineffe ctive assistance of counsel. 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)

. I f t he trial court elects t o hold a hearing , it shall deter mine wh ether Applicant is indige nt. I f Applicant is indige nt and wishes t o b e represente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. Be cause Applicant is challeng ing a conviction from 1999 in this application but did not file this application until approximately fiftee n year s later, there is a possibili ty that Applicant’s claims may be pre cluded by

lache s. Howeve r, bec ause the rec ord is silent on the circumstanc es that may3

excuse this substantial delay , we rese rve judgme nt as to whether lache s bars Applicant’s reque st for relief until he is g iven an opportunity to explai n his delayed application. See Ex part e Smith , 444 S.W .3d 661 (Tex. Crim. App. 2014). The tr ial court shall provide Applicant with the opportunity to explain his delay in seeking habea s relief , and there afte r the trial court shall make finding s of fac t and conc lusions of law as to whethe r Applica nt’s claims should be bar

red by lache s. The t ri al co urt shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Ap p l i cant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf o rm an ce prejudice d Applicant. The trial court shall also make finding s as to whether the judgme nt showing t h at Ap p l i cant was convicted of the offe nse char g ed in both para g raphs of the indictment is a cler ical err or subject to corr ection by way of a judgme nt n u n c p r o t u n c . The trial court shall also make any other findings of fac t and co n cl u s i o n s of l aw that it deems relevant and appropr iate to the disposition of Applicant’s cla im for habe as cor pus relief

. 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 supplemental t ra n s cr i p t containing all aff idavits and int err og atories or the t ransc ription of t he 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 for war ded to this Court withi n 120 day s of the date of this order

. Any extensions of ti me shall be obtained f

rom this Court.

Filed: Jul y

29, 2015 Do not publish