Ivery, Graylon Taraye

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