Irizarry, Felix Javier

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 228TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
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 [14th Dist.] May 24, 2016) (not designated for publication).
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
carry his burden to prove ineffective assistance. However, Applicant specifically alleged 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 . CODE CRIM .
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