Ivy, Clinton Ray

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2022
• Docket: WR-94,232-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,232-01

EX PARTE CLINTON RAY IVY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F43633-A IN THE 413TH DISTRICT COURT FROM JOHNSON COUNTY

Per curiam. YEARY , J., filed a concurring opinion.

ORDER

Applicant was convicted of continuous sexual abuse of a young child and sentenced to fifty

years’ imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Ivy v. State, No.

14-10-00028-CR (Tex. App. — Houston [14th Dist.] March 17, 2011) (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 request a jury

instruction on the voluntariness of Applicant’s statement pursuant to Article 38.22, §6 of the Texas

Code of Criminal Procedure, and failed to object that the jury charge given misstated the burden of

proof for determining the voluntariness of Applicant’s statement. Applicant also alleges that 2

appellate counsel was ineffective for failing to raise these jury charge issues on direct appeal.

Applicant has alleged facts that, if true, might entitle him to relief. 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 and appellate counsel to respond to Applicant’s claims. 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 findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court shall also make findings

of fact and conclusions of law as to whether appellate 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. 3

Filed: November 09, 2022 Do not publish