                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-84,501-01


                     EX PARTE MICHAEL DWAIN BONNETTE, Applicant


                   ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. CR2011-202-1 IN THE 207TH DISTRICT COURT
                               FROM COMAL 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 aggravated sexual

assault of a child and sentenced to life imprisonment. The Third Court of Appeals affirmed his

conviction. Bonnette v. State, No. 03-12-00697-CR (Tex. App. — Austin, August 7, 2014) (not

designated for publication).

        Applicant contends, among other things1, that his trial counsel rendered ineffective assistance



        1
            This Court has reviewed Applicant’s other claims and finds them to be without merit.
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because trial counsel presented evidence of extraneous offenses and bad acts by Applicant during

the guilt/innocence phase, although the State had not sought to present such evidence during its case

in chief. Applicant also alleges that trial counsel failed to present testimony during the punishment

phase from available character witnesses, but did present testimony from Applicant’s half-sister that

she would continue to allow Applicant to be around her children despite the jury having found him

guilty of sexually abusing his step-daughter.

        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. Although trial

counsel has provided an affidavit responding to some of Applicant’s allegations, there is no affidavit

specifically addressing the above-described issues. The trial court shall order trial counsel to respond

to Applicant’s claims of ineffective assistance of counsel. Specifically, trial counsel shall state why

he elected to present evidence about extraneous offenses and bad acts during the guilt/innocence

stage, when the State had not introduced that evidence during its case in chief. Trial counsel shall

state what advice he gave to Applicant with regard to the decision to take the stand and testify on his

own behalf. Trial counsel shall state why he elicited testimony from Applicant’s half-sister during

the punishment stage that she would allow Applicant to be around her own children if he was not

in prison. 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
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attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

       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 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: March 9, 2016
Do not publish
