Ivery, Graylon Taraye

• Court: Court of Criminal Appeals of Texas
• Decided: August 20, 2014
• Docket: WR-81,750-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,750-01

EX PARTE GRAYLON TARAYE IVERY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1323680 IN THE 8TH DISTRICT COURT FROM HOPKINS 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 entered an open plea of guilty to

possession of a controlled substance in a drug free zone, and was sentenced to twenty years’

imprisonment.

Applicant contends that he was denied his right to appeal, because trial counsel failed to

timely file a notice of appeal. Applicant alleges that the trial court certified that he had the right to

appeal, but that he was not afforded the opportunity to tell trial counsel or the trial court that he did, 2

in fact, desire to appeal.

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); Ex parte

Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). 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. The trial court shall order counsel to respond to

Applicant’s claims. Specifically, trial counsel shall state whether Applicant advised him, or had the

opportunity to advise him that he wanted to appeal. The trial court may use any means set out in

TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact as to whether Applicant had the opportunity to or

did advise trial counsel or the trial court that he wanted to appeal. If Applicant did indicate a desire

to appeal, the trial court shall make findings as to whether appellate counsel was appointed to

represent Applicant, and as to whether a motion for new trial and/ or notice of appeal was filed on

his behalf. The trial court shall make findings of fact and conclusions of law as to whether Applicant

was denied his right to a meaningful appeal because Applicant was not provided with the opportunity

to express his desire to appeal, or because Applicant’s counsel failed to timely file a notice of appeal.

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 3

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: August 20, 2014 Do not publish