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
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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
Bonnette, Michael Dwain
Combined Opinion