## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-85,986-01

EX P ARTE JOHN DAVID WAG UESPAC K, A ppl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2012-46-C1AIN THE 19T H DISTRICT COURT

F ROM MC LENNAN COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 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 was convicted of sexual assault and sentenc ed to imprisonment for life. The T en t h C o u rt of Appea ls aff irmed his conviction. W aguespack v. Stat e , No. 10-13-00416-CR (Tex. App.—Waco J une 18, 2015)(not desig nated for publication). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance becaus e counsel failed to object to the t estimony from psy cholog ist, Dr. W illiam L ee Carter, who descr ibed the char acte ristics of a person who commits sexual assault and the ch aracter istics of a2

person who become s a victim of sexual assault. Specifica lly , Applicant contends that the description Dr. Carter g ave of the ty

pe of pe rson who would commit a sexual assault focuse d on a controlling person, and Applicant is exactly this ty pe of p erson. There fore , Applicant contends that defe nse counsel shoul d h av e o b

jected to this testimony as inadmissable pursuant to Rules of Evidence 404(a) (1) a

nd 403. Applicant also a lleg es that Rules 404(a) (1) a nd 403 also prohibited Dr. Car ter from t es t i fy i n g t h at the victim in this case was the ty pe of person who, beca

use of her history , become s a victim of sexual assault. The trial court find s the testimony was admissible, but cited to no authority for the proposition. 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 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)

. It appea rs that Applicant is repres en t ed b y counsel. I f the trial court deter mines he is not repr esente d b y co u n s el and elec ts to hold a hearing, it shall then deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be re p rese nted by counsel, the trial court shall appoint an attorne y

to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make supplemental finding s of fac t and conclusions of law as to whether the complained of testimony from Dr. Carter was inadmissi b l e pursuant to Rules of Evidence 404(a) (1) and 403. The trial court shall also make additional finding s of fac t and conclusions of law

as nece ssary as to whether the perf ormanc e of Applicant’s trial coun s el wa s d ef icient and, if so,3

whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. 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 s up p l em en t al transcript 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 t his order . Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: F ebrua

ry 15, 2017 Do not publish