Ivery, Graylon Taraye

• Court: Court of Criminal Appeals of Texas
• Decided: July 29, 2015
• Docket: WR-81,750-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-81,750-02 & WR-81,750-03

EX PARTE GRAYLON TARAYE IVERY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1323397A & 1323680B 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 these applications for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). In the -02 case, Applicant was convicted of

delivery of a controlled substance in a drug free zone and sentenced to ten years’ imprisonment. In

the -03 case, 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 to run consecutively with the -02

sentence. The Sixth Court of Appeals affirmed his conviction in the -02 case. Ivery v. State, No.

06-13-00250-CR (Tex. App. — August 12, 2014) (not designated for publication). Applicant did not 2

appeal in the -03 case.

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

because counsel did not investigate or file a motion for a hearing pursuant to Franks v. Delaware,

438 U.S. 154 (1978). Applicant alleges that the police officers who obtained the arrest warrant in

the -02 case made false statements in their affidavits in support of the warrant, and that the fruits of

the arrest warrant, which included the evidence in the -03 case should have been suppressed.

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). 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 trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.

Specifically, counsel shall state whether the police officers in their affidavits in support of the arrest

warrant falsely stated that they had witnessed the actual transfer of drugs between Applicant and the

confidential informant. Trial counsel shall state whether he considered requesting a Franks hearing

or filing a motion to suppress on this basis. The trial court may use any means set out in TEX . CODE

CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal

recollection. Id.

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.

1 This Court has reviewed Applicant’s other claims in both applications, and finds them to be without merit. 3

The trial court shall first supplement the habeas record with copies of the affidavits in support

of the search warrant. In addition, the trial court shall supplement the habeas record with a copy of

the complete record in the -02 case, including copies of all pre-trial motions and transcripts of any

pre-trial hearings, the trial itself, and the punishment hearing. If any pre-trial motions were filed and

ruled upon prior to Applicant’s plea in the -03 case, the trial court shall also supplement the habeas

record with copies of those motions and rulings. The trial court shall then make findings of fact and

conclusions of law as to whether the performance of Applicant’s trial counsel was deficient and, if

so, whether counsel’s deficient performance prejudiced Applicant. 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 claims for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues.

The 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: July 29, 2015 Do not publish