## 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-89,889-01

EX P ARTE F ELIX JAVIER IRIZARR Y, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1382346-A IN THE 228 DISTRICT COURT T H F ROM HARRIS COUNTY

Per curiam . O R D E R Applicant was convicted of injury to a child and sentenc ed to tw enty -five y ear s’ imprisonment. The Four

teenth Court of Appea ls aff irmed his conviction. Irizarry v. State , No. 14- 14-00827-CR (Tex. App.—Houston [14 Dist.] M ay 2 4 , 2016) (not desig nated for publication). t h Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district clerk f

orwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant contends, among other things, that trial counsel was ineffe ctive beca use he did not prese rve err or rela ting to hear say . I n its finding s of fac t, the trial court found that Applicant did not

car ry his burden to prove ineffe ctive assistance

. Howeve r , A p p li c a n t s p e c if ic ally alleg ed that the only evidenc e identify ing him as the actor was inadmissible he arsa y . Applicant has alleg ed fac ts that, if2

true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Taylor v. State , 268 S.W .3d 571 (Tex. Crim. App. 2008). Acc ording ly , the rec ord should be develope d further

. The trial court is the appropr iate forum for finding s of fac t and has enter ed finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I f nece ssary to its supplemental fac t finding , the trial court shall order trial counsel to file a supplemental response to Applicant’s claim. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Ap p l i cant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial cou rt s h al l i m mediately notify this Court of counsel’ s name. The trial court shall make supplemental finding s of fac t a nd conclusions of law addre ssing Applicant’s claim that counsel did not prese rve err or rela ting to the admission of hear say testimony

. The trial court shall make specific finding s addre ssing Applicant’s claim that statements purporting to identify him as the perpe trator of the offe nse wer e not admissible under Texas Rule of Evidence 803(4) and that counsel was ineffe ctive for not prese rving err or. The trial court may make any other supplemental finding s and conclusions that it deems appropr iate in response to Applicant’s claims. The trial court shall make supplemental finding s of fac t and conclusions of law within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff

idavits, motions, objections, proposed findings an d conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b) (4 ). Any extensions of time must be reque sted by

the trial cour

t and obtained f

rom this Court.3

Filed: Fe bruar

y 12, 2020 Do not publish