             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-84,915-01


                           EX PARTE KENNIS GATSON, Applicant


            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
   CAUSE NO. W10-55338-Y (A) IN THE CRIMINAL DISTRICT COURT NUMBER
                                  SEVEN
                          FROM DALLAS COUNTY


        Per curiam. Alcala, J., concurs.

                                              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 was convicted of the offense of

aggravated sexual assault with a deadly weapon and sentenced to imprisonment for seventy-five

years. The Fifth Court of Appeals affirmed his conviction. Gatson v. State, No. 05-11-00392-CR

(Tex. App.—Dallas Oct. 7, 2012) (not designated for publication).

        Applicant’s alleges, inter alia, that he received ineffective assistance of counsel at his trial.

The trial court, in response to a remand order from this Court, obtained an affidavit from trial
counsel that sufficiently addresses most of the ineffective assistance claims raised by Applicant in

this case.1 However, the affidavit does not sufficiently address Applicant’s allegations that counsel

was ineffective for:

       A. Failing to give an opening statement;

       B. Failing to question the DNA analyst who testified at trial;

       C. Failing to cross-examine the complainant at sentencing; and

       D. Failing to call any witnesses or submit any “positive attributes” of the Applicant
       during punishment.

       The trial court shall order trial counsel to file an additional response to Applicant’s claim of

ineffective assistance of counsel. In order to resolve this issue, 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. 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 additional 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 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



       1
           The trial court recommends that we deny relief in this application.
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 must

be requested by the trial court and shall be obtained from this Court.



Filed: October 19, 2016
Do not publish
