             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-85,986-01


                    EX PARTE JOHN DAVID WAGUESPACK, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 2012-46-C1A IN THE 19TH DISTRICT COURT
                            FROM MCLENNAN 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 was convicted of sexual assault

and sentenced to imprisonment for life. The Tenth Court of Appeals affirmed his conviction.

Waguespack v. State, No. 10-13-00416-CR (Tex. App.—Waco June 18, 2015)(not designated for

publication).

        Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because counsel failed to object to the testimony from psychologist, Dr. William Lee Carter, who

described the characteristics of a person who commits sexual assault and the characteristics of a
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person who becomes a victim of sexual assault. Specifically, Applicant contends that the description

Dr. Carter gave of the type of person who would commit a sexual assault focused on a controlling

person, and Applicant is exactly this type of person. Therefore, Applicant contends that defense

counsel should have objected to this testimony as inadmissable pursuant to Rules of Evidence

404(a)(1) and 403. Applicant also alleges that Rules 404(a)(1) and 403 also prohibited Dr. Carter

from testifying that the victim in this case was the type of person who, because of her history,

becomes a victim of sexual assault.

       The trial court finds the testimony was admissible, but cited to no authority for the

proposition.

       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

may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

       It appears that Applicant is represented by counsel. If the trial court determines he is not

represented by counsel and elects to hold a hearing, it shall then 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 supplemental findings of fact and conclusions of law as to whether

the complained of testimony from Dr. Carter was inadmissible pursuant to Rules of Evidence

404(a)(1) and 403. The trial court shall also make additional findings of fact and conclusions of law

as necessary as to whether the performance of Applicant’s trial counsel was deficient and, if so,
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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

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: February 15, 2017
Do not publish
