EX PARTE TOM E. HORTON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,779-01

EX PARTE TOM E. HORTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-98-0597-BWHC1 IN THE 158TH DISTRICT COURT

FROM DENTON 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 three counts of aggravated sexual assault of a child and three counts of indecency with a child by contact and sentenced to terms of forty-five years' imprisonment and fifteen years' imprisonment, respectively. The Second Court of Appeals affirmed his conviction. Horton v. State, No. 2-05-203-CR (Tex. App. - Fort Worth, December 7, 2006, pet. ref'd, untimely).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because the State presented evidence of numerous offenses on unspecified dates but counsel failed to request an election.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). If the defense had properly requested an election, the trial court would have committed constitutional error by failing to have the State elect. An election would have forced the State to formally differentiate the specific evidence upon which it relied as proof of the charged offenses from evidence of other offenses or misconduct that were offered only in an evidentiary capacity. Phillips v. State, 193 S.W.3d 904 (Tex. Crim. App. 2006). Here, an election would have also developed the record as to the ex post facto claim that was raised and rejected on direct appeal. 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.

Trial counsel filed one affidavit in which he addressed this claim as if Applicant had alleged ineffective assistance of counsel for failing to move for a severance. Counsel did not address the failure to request an election. The trial court shall provide Applicant's trial counsel with another opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 and court records. 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 the performance of Applicant's trial attorney in failing to request an election was deficient and, if so, whether counsel's deficient performance prejudiced 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: May 28, 2008

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