The opinion
In the Court of Criminal
Appeals of Texas
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Nos. WR-95,686-01, WR-95,686-02
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EX PARTE DORIS ANN MARTIN,
Applicant
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On Applications for Writs of Habeas Corpus
In Cause Nos. 1304900-A and 1304899-A
In the 177th District Court
Harris County
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YEARY, J., filed a concurring and dissenting opinion in which
KELLER, P.J., and KEEL and SLAUGHTER, JJ., joined.
Applicant has filed two separate writ applications. Each
application alleges that her due process rights were violated: (1) because
the evidence used to obtain her convictions was presumptively false; and
(2) because the State failed to disclose Houston Police Officer Gerald
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Goines’s previous misconduct to her prior to her pleas of guilty,
rendering those pleas involuntary. Today, the Court grants Applicant
relief from both her delivery of hydrocodone conviction in cause number
WR-95,686-02; and her possession of cocaine conviction in cause number
WR-95,686-01. Majority Opinion at 2. As to both convictions, the Court
reasons that Applicant was denied due process by the use of false
evidence against her and that her guilty pleas were involuntary, citing
only Ex parte Mathews, 638 S.W.3d 685 (Tex. Crim. App. 2022) and Ex
parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), as authority.
Majority Opinion at 1.
I concur with the Court’s decision to grant Applicant relief from
her delivery of hydrocodone conviction, in cause number WR-95,686-02.
As to her conviction of possession of cocaine, in cause number WR-
95,686-01, I believe relief is premature and that the Court should file
and set the writ application to determine whether Coty and Mathews,
properly construed, even apply to that case. Because the Court, instead,
grants relief, I respectfully dissent.
I. BACKGROUND
According to Officer Gerald Goines, who was then a narcotics
officer with the Houston Police Department, on May 2, 2011, Applicant
allegedly sold him hydrocodone. According to his offense report, Goines
was in an unmarked vehicle during their interaction. After the deal was
allegedly made, Goines drove off and radioed Applicant’s location and
description to another officer, Officer Amador. As Amador approached
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Applicant, he witnessed her place an unknown object into her mouth. 1
Amador then called for a female officer, Officer Garcia, to search
Applicant. During Garcia’s search, Applicant was discovered to have
cocaine in her possession.
On May 4, 2011, two days after her arrest, Applicant pled guilty
to delivery of hydrocodone and possession of less than a gram of cocaine, 2
both state jail felonies. She was convicted of both felonies and was
sentenced to 180 days’ confinement, to be served concurrently in the
Harris County Jail. See TEX. PENAL CODE § 12.44(a) (permitting state
jail felonies to be punished as Class A misdemeanors in the interest of
justice). 3
Nearly eight years after Applicant’s plea, on March 8, 2019, the
Harris County District Attorney sent a letter to Applicant disclosing
that Goines had been relieved from duty and was under criminal
investigation. Furthermore, on February 20, 2020, the Harris County
District Attorney’s office sent a request to the trial court to appoint
1In addition to cocaine, Goines’s incident report states that law
enforcement recovered “6 GRAMS OF MARIJUANA FOUND IN THE MOUTH
OF SUSPECT MARTIN UPON UNIFORMED OFFICER’S ARRIVAL.”
2 See TEX. HEALTH & SAFETY CODE §§ 481.104 (designating
hydrocodone in certain circumstances as a Penalty Group 3 controlled
substance), 481.114(b) (establishing delivery of less than 28 grams of a Penalty
Group 3 or 4 controlled substance as a state jail felony); TEX. HEALTH & SAFETY
CODE §§ 481.102 (designating heroin as a Penalty Group 1 controlled
substance), 481.115(b) (establishing possession of less than one gram of a
Penalty Group 1 controlled substance as a state jail felony).
3Applicant has completed her sentence, but she has alleged collateral
consequences “sufficient to establish ‘confinement’ so as to trigger application
of art. 11.07.” Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App.
2010).
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habeas counsel to Applicant due to Goines’s involvement in her case.
According to Applicant’s unsworn declaration, she did not receive this
letter and was unaware of Goines’s record of misconduct until she spoke
to an investigator with the Harris County Public Defender’s Office on
November 21, 2023. With the assistance of counsel, Applicant filed the
instant applications for writs of habeas corpus in March of 2024.
Applicant pleads the same two grounds for relief in both of her
applications. First, she alleges that the State violated her due process
rights by using materially false evidence to induce her pleas of guilty.
Specifically, under the test established by this Court in Ex parte Coty,
Applicant argues that Goines’s claims against her must be presumed
false and that the State cannot rebut this presumption of falsity. 432
S.W.3d 341 (Tex. Crim. App. 2014); Ex parte Mathews, 638 S.W.3d 316
(Tex. Crim. App. 2015). But for the use of this evidence against her, she
argues, she would not have pled guilty. Ex parte Barnaby, 475 S.W.3d
316 (Tex. Crim. App. 2015). Second, Applicant alleges that her guilty
pleas were involuntary. In particular, she argues that Goines was a
member of the prosecution team whose record of misconduct the State
had a duty to disclose to her prior to her pleas, under Brady v. Maryland,
373 U.S. 83 (1963)—whether the individual prosecutor was actually
aware of that misconduct or not. Consequently, she argues, she lacked
sufficient awareness of the relevant circumstances surrounding the
entry of her plea to make it knowing and voluntary. 4
4 See Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016)
(quoting State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013)):
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II. DELIVERY OF HYDROCODONE
I concur with the Court in granting Applicant relief from her
conviction for delivery of hydrocodone, in cause number WR-95,686-02,
because she has satisfied the factors set forth in Coty and extended in
Mathews.
In Mathews, the Court extended the Coty presumption to “cases
involving police officers who display a pattern of mendacity in obtaining
drug arrests and convictions[.]” 638 S.W.3d at 690. Thus, when an
applicant demonstrates that (1) a police officer who (2) “has committed
multiple instances of intentional misconduct in another case or cases”
(3) is the same state actor as in the current case, (4) has previously
committed “the type of misconduct that would have affected the evidence
in the applicant’s case[,]” and (5) acted in the applicant’s case “within
roughly the same period of time as the other misconduct[,]” the Court
will infer that evidence derived from that officer is false. Id. at 690–91.
And if the State fails to rebut that inference, the Court will then go on
to inquire whether the use of the presumptively false evidence was
material. Id. at 689; Coty, 418 S.W.3d at 605.
The applicant, of course, continues to shoulder the additional and
exclusive burden of showing the materiality of the false evidence.
Mathews, 638 S.W.3d at 691. In Barnaby the Court decided that when
A defendant “must have sufficient awareness of the relevant
circumstances,” and must possess an understanding of the law
in relation to the facts. . . . To determine whether a defendant’s
“awareness” was “sufficient” at the time of h[er] plea, a
reviewing court looks to whether the plea was a voluntary and
intelligent choice among the alternative courses of action open
to the defendant.
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an applicant claims she has entered an involuntary plea based on the
use of false evidence, the question devolves into “whether there is a
reasonable likelihood that [the false evidence] affected the defendant’s
decision to plead guilty[.]” 475 S.W.3d 316, 325. Similarly, here, the
question also devolves into: “Would the defendant, knowing of the falsity
of the evidence, still have plead guilty or would [s]he have insisted on
going to trial? If [s]he would have chosen trial, the false evidence was
material.” Id. at 325–26.
Applying the Mathews factors, in my view, Applicant meets her
burden, at least as it pertains to her conviction for delivery of
hydrocodone: (1) when Applicant was arrested, Goines was a state actor;
(2) Goines had engaged in multiple instances of intentional misconduct:
(a) it has been determined that he presented false information in two
cases from 2008, where this Court granted relief, 5 and (b) it has been
determined that he also used false information in support of a search
warrant in 2016 and provided false testimony in 2018 which led to this
Court granting relief; 6 (3) Goines was the sole state actor whose evidence
was relied upon to obtain the conviction; (4) the intentional misconduct
committed by Goines in the other cases is the same type of misconduct
that would have affected Applicant’s case; and (5) Goines’s involvement
in Applicant’s case (2011) took place within the same time frame (2008-
2019) as Goines’s other instances of misconduct. Furthermore, I am
persuaded that the evidence showing that she delivered hydrocodone to
Goines—being limited to Goines’s own claims as reflected in his report—
5 See WR-90,980-01, -02 (Otis Mallet); WR-90,986-01 (Steven Mallet)
6 See WR-92,544-01 (Fredrick Jeffery)
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was material to her decision to forgo a jury trial. For that reason, I
concur with the Court’s decision to grant relief in cause number WR-
95,686-02.
III. POSSESSION OF COCAINE
A. Coty and Mathews
I am hesitant, at least without further inquiry, however, to say
the same for Applicant’s conviction for possession of cocaine, and the
Court should be too. The facts in cause number WR-95,686-01 are
distinguishable from the other cases in which the Court has applied Coty
and Mathews. I emphatically believe that the proverbial brakes should
be pumped in deciding whether to apply Coty and Mathews to cases
where a conviction can be corroborated by evidence obtained apart from
any presumed falsity arising from Goines’s involvement in the case.
The evidence that was acquired by officers Amador and Garcia,
which led to Applicant’s plea of guilty to the charge of possession of
cocaine, does not meet the criteria set forth by this Court in Mathews.
Goines was not the sole state actor involved. Amador and Garcia were
also present and could at least presumably attest to Applicant’s
possession of cocaine. In fact, Goines appears not to have been involved
at all in the actual discovery of cocaine on Applicant’s person. And
nothing in the record suggests that either of these two officers have
records of falsifying evidence or other misconduct. Presuming the
evidence of Applicant’s possession of cocaine was false, therefore, seems
to be a significant expansion of Coty and Mathews—and lacks any good
explanation.
That is, in Coty, Mathews, and Barnaby, the applicants alleged
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only that the evidence of their guilt was false. See Coty, 418 S.W.3d at
602; Mathews, 638 S.W.3d at 687–88; Barnaby, 475 S.W.3d at 320–21.
But here Applicant raises a different type of claim. She alleges that, but
for Goines providing false information of a sale of hydrocodone to
Amador, who called in Garcia to search Applicant, Applicant would not
have been searched and the cocaine would never have been found. In
other words, Applicant is not claiming that the use of false evidence of
her guilt induced her to plead guilty to possession of cocaine, but that
the presumptively false report made by Goines to Amador led to her
search and ultimately, then, to her arrest.
During the search of Applicant conducted by Garcia, Applicant
was found to possess cocaine and her apparent guilt for that offense is
probably what induced her to forgo a jury trial. Before granting
Applicant relief, the Court should consider whether the Coty and
Mathews inference of falsity and the Barnaby standard of materiality
ought to apply in circumstances such as these—and if so, how. I would
file and set Applicant’s case to consider that question.
Instead, the Court, without any explanation, leaps to the
apparent conclusion that whenever Goines is involved in an arrest,
whatever the circumstance, relief from an applicant’s conviction should
be granted. The Court justifies its decision only by citation to Coty and
Mathews without any analysis of the applicable facts. In other words,
the Court seems to ignore the possibility that the taint of Goines’s
presumed misconduct with respect to Applicant’s hydrocodone charge
could have been attenuated by the intervening circumstance of Garcia’s
and Amador’s involvement with respect to Applicant’s cocaine charge.
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Cf. Massey v. State, 667 S.W.3d 784 (Tex. Crim. App. 2023). 7
B. Involuntary Plea
Applicant’s involuntary plea claim, as it pertains to her conviction
for possession of cocaine, is based on her argument that the disclosures
required by Brady v. Maryland apply to guilty plea cases—a legal
question that neither this Court nor the Supreme Court of the United
States has yet squarely decided.
In Brady, the Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith of the prosecution.” 373 U.S.
at 87. The Supreme Court has since held that the duty to disclose
impeachment and exculpatory evidence applies even without a request
by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999). And “the
individual prosecutor has a duty to learn of any favorable evidence
known only to the others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Nevertheless, in United States v. Ruiz, the United States
Supreme Court concluded, with respect to guilty plea proceedings, that
“the Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a
criminal defendant.” 536 U.S. 622, 633 (2002) (emphasis added). In this
7 The question that was decided in Massey was “whether the Appellant’s
commission of the new offenses constitutes an intervening circumstance under
Brown, so as to attenuate the taint of police misconduct with regard to evidence
of still another, different offense—possession of a controlled substance—
discovered subsequent to the alleged police misconduct.” 667 S.W.3d at 789.
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case, the question arises whether the information about Goines’s past
misconduct, which was only more recently disclosed to Applicant by the
State, is mere impeachment evidence that was not required to be
disclosed, or whether it might indeed be more properly characterized as
exculpatory. And even then, and perhaps more importantly, to this day,
neither the Supreme Court nor this Court has answered whether “the
constitutional mandate to disclose exculpatory evidence to defendants
under Brady v. Maryland extends to the plea-bargaining stage of a
prosecution[.]” Ex parte Palmberg, 491 S.W.3d 804, 814–15 & n.18 (Tex.
Crim. App. 2016) (emphasis added). That remains an open question. Id.
Consequently, before deciding whether the State violated its
disclosure obligations under Brady when it failed to inform Applicant of
Goines’s history of misconduct prior to her plea, the Court should at
least file and set WR-95,686-01 to decide whether Brady even required
her to be notified. To reach the conclusion that the State violated its
disclosure obligations, the Court would have to decide (1) that Brady
requires the State to disclose exculpatory evidence prior to a negotiated
plea, and (2) that Goines’s record of misconduct in other cases
constituted exculpatory evidence, in cause number WR-95,686-01.
But the Court declines to undertake that inquiry. Instead, it
merely states that “[t]he State and the trial court both recommend
granting relief” on Applicant’s claim of involuntary plea under Coty and
Mathews, and that it agrees. If the Court means to endorse Applicant’s
Brady argument by its opinion today, then it should say so explicitly. If
not, then it is incumbent on the Court to explain by what rationale it
concludes, despite rejecting her Brady argument, that Applicant’s plea
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was involuntary. Because the Court does neither, I cannot join its
opinion.
III. CONCLUSION
For the reasons explained here, I respectfully concur as to the
Court granting relief from Applicant’s delivery of hydrocodone
conviction (WR-95,686-02) and dissent to the Court’s grant of relief from
the possession of cocaine conviction (WR-686-01). While she may
ultimately be entitled to such relief in the latter case, I hesitate to join
the Court until the issue of extending Coty and Mathews is resolved and
until the Court explicitly establishes whether Brady applies to guilty
pleas.
FILED: August 21, 2024
PUBLISH