IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-89,889-01

EX PARTE FELIX JAVIER IRIZARRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1382346-A IN THE 228 DISTRICT COURT TH

FROM HARRIS COUNTY

Per curiam.

O R D E R

Applicant was convicted of injury to a child and sentenced to twenty-five years’

imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Irizarry v. State, No. 14-

14-00827-CR (Tex. App.—Houston [14 Dist.] May 24, 2016) (not designated for publication). th

Applicant filed this application for a writ of habeas corpus in the county of conviction, and the

district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant contends, among other things, that trial counsel was ineffective because he did not

preserve error relating to hearsay. In its findings of fact, the trial court found that Applicant did not

carryhis burden to prove ineffective assistance. However,Applicant specificallyalleged that the only

evidence identifying him as the actor was inadmissible hearsay. Applicant has alleged facts that, if
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true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Taylor v. State, 268

S.W.3d 571 (Tex. Crim. App. 2008). Accordingly, the record should be developed further. The trial

court is the appropriate forum for findings of fact and has entered findings of fact. TEX.CODECRIM.

PROC. art. 11.07, § 3(d). If necessary to its supplemental fact finding, the trial court shall order trial

counsel to file a supplemental response to Applicant’s claim. In developing the record, the trial court

may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall

determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by

counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX.CODE CRIM.

PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this

Court of counsel’s name.

The trial court shall make supplemental findings of fact and conclusions of law addressing

Applicant’s claim that counsel did not preserve error relating to the admission of hearsay testimony.

The trial court shall make specific findings addressing Applicant’s claim that statements purporting

to identify him as the perpetrator of the offense were not admissible under Texas Rule of Evidence

803(4) and that counsel was ineffective for not preserving error. The trial court may make any other

supplemental findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make supplemental findings of fact and conclusions of law within ninety

days from the date of this order. The district clerk shall then immediately forward to this Court the

trial court’s findings and conclusions and the record developed on remand, including, among other

things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts

from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be

requested by the trial court and obtained from this Court.
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Filed: February 12, 2020

Do not publish