Gutierrez, Isaac Zuniga

• Court: Court of Criminal Appeals of Texas
• Decided: March 2, 2022
• Docket: WR-93,528-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,528-01

EX PARTE ISAAC GUTIERREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1514075-A IN THE 178TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of super aggravated sexual assault and sentenced to forty years’

imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Gutierrez v. State, 14-18-

00404-CR (Tex. App.—Houston [14th] June 8, 2020)(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 that trial counsel was ineffective because he failed to investigate and call

witnesses, failed to investigate and challenge the qualifications of the police officer who translated

Applicant’s statement to police from Spanish to English, and failed to file a motion to limit the

introduction of prior bad acts. Applicant has alleged facts that, if true, might entitle him to relief. 2

Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The

trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

The trial court shall order trial counsel to respond 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. It appears that Applicant is

represented by counsel. 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 findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

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

The trial court shall make 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.

Filed: March 2, 2022 Do not publish