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,
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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
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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
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