           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. WR-84,073-01



                       EX PARTE MARTIN PENA, Applicant



             ON APPLICATION FOR WRIT OF HABEAS CORPUS
          IN CAUSE NO. 1379020-A IN THE 184TH DISTRICT COURT
                            HARRIS COUNTY

        H ERVEY, J., announced the judgment of the Court and delivered an opinion in
which K ELLER, P.J., and K EASLER, J., joined. N EWELL, J., filed a concurring
opinion. R ICHARDSON, J., filed a dissenting opinion in which A LCALA and W ALKER,
JJ., joined. Y EARY, J., filed a dissenting opinion. W ALKER, J., filed a dissenting
opinion in which A LCALA and R ICHARDSON, JJ., joined. K EEL, J., concurred.

                                      OPINION

       Applicant, Martin Pena, pled guilty to intentionally possessing at least 400 grams

of cocaine with intent to deliver. He was sentenced to the statutory minimum of 15 years’

confinement and assessed a $1,000 fine. He did not appeal. After his conviction, it was

discovered that one of the arresting officers had been participating in a drug “swapping”

conspiracy that may have affected Pena’s case. He now claims in his writ application that
                                                                                      Pena–2

his conviction is based on fabricated evidence and that the State violated its duty under

Brady to disclose the misconduct before he pled guilty. He also argues that his guilty plea

is involuntary because, had he known, he would have insisted on going to trial. We will

deny relief.

                                     BACKGROUND

       On or about February 27, 2013, Officer Marcos Carrion and Officer D. Stewart

initiated a traffic stop when Pena failed to signal a lane change. As Pena’s vehicle came

to a stop, one of the officers noted that it did not have brake lights. Once police made

contact, one officer smelled the odor of alcohol on Pena’s person and observed that he

appeared nervous. Upon request, Pena produced his driver’s license but was unable to

provide proof of insurance. The police ran a warrant check and discovered Pena had an

active warrant from the City of Houston. Pena was arrested, and because he was the sole

occupant of the vehicle, an inventory search was performed and the car was impounded.

During the search, police discovered a large Rubbermaid ice chest in the backseat

containing about 26 kilograms of a substance that field-tested positive for cocaine. The

analysis of the Houston Police Department Crime Laboratory confirmed that the

substance contained cocaine. (Pena does not dispute this.) Carrion and Stewart called

narcotics officers to the scene who took custody of the drugs. On October 10, 2013, Pena

pled guilty to possession of at least 400 grams of cocaine with intent to deliver. He was

sentenced to the statutory minimum of 15 years and fined $1,000.
                                                                                        Pena–3

       Pena was interviewed at the central jail facility, and he gave a statement to police.

According to that statement, a friend asked for a favor and said that he would pay Pena

$500. Pena agreed because he needed money for rent. He was instructed to meet his

friend Manny at a local taqueria. Manny and two other men met Pena, and one of the men

took Pena’s vehicle. When the man returned with the car, there was a black ice chest

sitting in the backseat. Pena was told to take the car to a mall, to leave the keys in the car,

and to walk away.

       Unbeknownst to the State, federal authorities had received information from a

confidential informant that Carrion was “dirty.” They discovered that Carrion was

working for narcotic traffickers and using his position as a police officer to provide them

with information, protection, and security.1 However, authorities also learned that

Carrion’s misconduct was not limited to working with them. He also used his inside

information to steal from the traffickers he worked for. When a shipment was identified,

Carrion and his cohorts replaced the trafficker’s cocaine with sheetrock and trace

amounts of cocaine sprinkled on top. Carrion would then seize the “fake” drugs once they

reached their destination (usually a courier), knowing that the replaced sheetrock with the

sprinkling of cocaine would field-test positive and that it would not be tested for purity.

By doing this, Carrion was able to steal narcotics from the traffickers he was working for,

and because the traffickers believed that their drugs were in the possession of the State,

       1
         For example, in June 2013, Carrion was paid $5,000 to provide “protection” for an
illegal drug deal.
                                                                                       Pena–4

they never learned that the drugs had been stolen.

       In February 2014, Carrion eventually confessed to several acts of criminal activity,

including public corruption, drug conspiracy, and theft. In April of that year, Carrion was

federally indicted for conspiracy to possess with the intent to distribute five kilograms or

more of a substance containing a detectable amount of cocaine. He was convicted that

October. A month later, the DEA tested the drugs seized from Pena and discovered that

they contained only trace amounts of cocaine.

       On December 22, 2014, about fourteen months after Pena pled guilty, the Harris

County District Attorney’s Office learned of Carrion’s misconduct. The office notified

the judge of the 184th District Court, in which Pena was convicted, who appointed the

Harris County Public Defender’s Office to represent Pena. In March 2015, the Harris

County District Attorney’s Office tendered a formal Brady notice. This post-conviction

writ application followed.

                  FINDINGS OF FACT & CONCLUSIONS OF LAW

       The habeas court adopted, with handwritten changes, Pena’s proposed findings of

fact and conclusions of law. The court found that Carrion conspired to tamper with

evidence in Pena’s case and to place that fabricated evidence2 in Pena’s vehicle. It further

found that Carrion was essential to Pena’s conviction and that Carrion’s participation in a

conspiracy to tamper with and fabricate evidence as well as his federal conviction render

       2
        According to the habeas court, the DEA “confirmed that the evidence in [Pena]’s case
was an elaborate fake.”
                                                                                     Pena–5

him a non-credible witness.

       The habeas court recommends that we grant relief because the State violated Brady

by failing to disclose Carrion’s misconduct to Pena before he entered his guilty plea. As a

result of that violation, the court further found that Pena’s plea was involuntary because,

had he known about Carrion’s misconduct, he would have insisted on going to trial.

                                       FILED AND SET

       We filed and set Pena’s post-conviction writ application and ordered briefing from

the parties on the following issues:

       (1) Whether the misconduct in Pena’s case should be imputed to the
       prosecution for purposes of Pena’s Brady claim;

       (2) Whether the misconduct in Pena’s case is favorable to him; and

       (3) Whether Pena’s plea was involuntary because of “impermissible
       conduct by state agents.”

                               STANDARD OF REVIEW

       In post-conviction writ proceedings, the convicting court is the original factfinder,

and this Court is the ultimate factfinder. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim.

App. 2008). We generally defer to and accept the findings and conclusions of the

convicting court when they are reasonably supported by the record. Id. However, if our

own independent review of the record shows that the findings or conclusions are not

reasonably supported by the record, this Court can exercise its authority to make contrary

or alternative findings and conclusions. Id.
                                                                                            Pena–6

                            IS THE EVIDENCE FAVORABLE?

       One of the issues the parties were asked to brief is whether the evidence of

Carrion’s misconduct is favorable to Pena for purposes of his Brady claim. Pena claims

that it is. According to him, the disclosure that Carrion fabricated evidence in his case

renders that evidence (the drugs seized from Pena’s car) inadmissible under the Fourth

Amendment and state law.3 According to him, the fabricated evidence was subject to

suppression under the Texas exclusionary rule because we have held that a violation of

the “tampering with or fabricating physical evidence” statute “bars the admission of other

evidence obtained through that violation.” Wilson v. State, 311 S.W.3d 452, 464 (Tex.

Crim. App. 2010); see T EX. P ENAL C ODE § 37.09 (statute criminalizing tampering with or

fabrication of physical evidence); T EX. C ODE C RIM. P ROC. art. 38.23 (state suppression

rule). He claims that Wilson applies here because, in both cases, confessions were

obtained on an improper basis—by the use of fabricated evidence.

       Next, Pena argues that the evidence is favorable because the State violated his

right to due process when it obtained his conviction through the use of fabricated

evidence and by not disclosing that his conviction was obtained using false evidence.

United States v. Agurs, 427 U.S. 97 (1976). Alternatively, he concludes, the evidence is

favorable to him because it constitutes valuable impeachment evidence that the State was


       3
         We do not address Pena’s Fourth Amendment claim because it is inadequately briefed.
Pena’s argument is limited to a single sentence citing a non-binding Fifth Circuit case stating that
“[p]retrial use of fabricated evidence to secure a person’s arrest can violate the Fourth
Amendment.” Cole v. Carson, 802 F.3d 752, 764 (5th Cir. 2015) (emphasis added).
                                                                                              Pena–7

required to disclose under Brady.

                                            Discussion

                             1. What Pena was Convicted of Possessing?

       The first question in this case is whether Pena was convicted of possessing the

“real” drugs that were destined for Pena’s car but stolen by Carrion or the substance he

had in his possession when he was pulled over.4 The second question is whether the

substance seized from Pena is cocaine. The habeas court agreed with Pena that he was

convicted of possessing the “real” cocaine that was never in his possession and that the

substance seized from Pena’s case was “an elaborate fake.” We conclude, however, that

the record does not support the court’s findings or Pena’s arguments.

       Although Pena, in a sense, was carrying the “wrong” cocaine because of Carrion’s

drug-swapping actions; his conviction is based on the substance seized from his vehicle,

not the cocaine he never possessed. And, as a matter of state law, the substance he

possessed is cocaine. In Texas, a controlled substance includes the substance and any

adulterants and dilutants. T EX. H EALTH & S AFETY C ODE § 481.002(5). The term also



       4
           Pena states in his brief that,

       [T]he arresting officer in [Pena]’s case conspired to steal the very evidence [Pena]
       was charged with possessing, replaced the evidence with a fake drug, interfered
       with an ongoing investigation in [Pena]’s case, and then used [Pena]’s arrest and
       conviction to cover up the conspiracy’s crime from both the police and the
       narcotics traffickers.

Applicant’s Brief on the Merits at 1.
                                                                                         Pena–8

includes the aggregate weight of any mixture containing a controlled substance. The Code

makes no exceptions for cocaine with “a lot” of sheetrock in it or based on the purity of

the controlled substance. Pena essentially concedes that the substance is cocaine when he

states in his brief that “Carrion swapped the cocaine from Mexico for ‘a mixture of

gypsum sheetrock, other fillers, and a tiny amount of cocaine.’”5 To be sure, Carrion’s

misconduct was willful, brazen, and appalling, but it does not change the fact that Pena

was in possession of about 26 kilograms of cocaine (together with adulterants and

dilutants) and that his conviction is based on that possession.

                                 2. Texas Exclusionary Rule

       Pena next argues that the evidence is favorable to him because Carrion tampered

with or fabricated the drugs found in Pena’s car before Pena took possession of them, and

because Carrion violated Pena’s personal rights when he did so, the drugs would have

been suppressed under state law had a motion to suppress been filed. T EX. P ENAL C ODE

§ 37.09 (tampering with or fabricating physical evidence); T EX. C ODE C RIM. P ROC. art.

38.23 (statutory suppression rule); Wilson, 311 S.W.3d at 464. The habeas court did not

adopt Pena’s proposed conclusion of law that the drugs seized from Pena were subject to

suppression, and we agree that the record does not support such a conclusion.



       5
        In his dissenting opinion, Judge Walker claims that it would have been reasonable for
Pena to argue that the sheetrock was not “added to” or “mixed” with the cocaine, but Pena
himself refutes that argument, repeatedly referring to the drugs seized from his vehicle as a
“mixture” and noting that the “mixture” was made by adding cocaine to a combination of
sheetrock and other fillers. Dissenting Op. at 14–15 (Walker, J.) (emphasis removed).
                                                                                      Pena–9

       To show that Carrion tampered with or fabricated the drugs seized from his car,

Pena would have to show that Carrion knew that an investigation or official proceeding

was pending or in progress and that he made, presented, or used the seized cocaine with

knowledge of its falsity and with intent to affect the course or outcome of the

investigation or official proceeding. T EX. P ENAL C ODE § 37.09(a)(2); Wilson, 311 S.W.3d

at 464. In addition, he would have to show that the misconduct in question took place

before the commission of his crime because the state suppression rule “deals with

exclusion of illegally obtained evidence of a prior crime[,]” not a crime committed after

the misconduct. Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App. 2002) (emphasis

in original). Interpreting the suppression statute to require the exclusion of evidence of a

crime committed after the illegal conduct would lead to absurd results. For example, such

an interpretation would “provide legal protection to the murderer of a police officer, who

proves that the officer detained him without articulable suspicion prior to the murder.

Under [that] theory, evidence of that killing would have to be suppressed under [A]rticle

38.23 because the murder occurred after and because of the officer’s initial ‘illegal’

conduct.’” Id.

       Here, there is no dispute that drug dealers returned Pena’s car after placing an ice

chest full of cocaine in the backseat, that Pena retook possession of the car and was the

sole occupant of the vehicle when he was pulled over, or that Carrion’s misconduct took

place before Pena took possession of the cocaine in his car. Based on this, Pena cannot
                                                                                     Pena–10

prove that Carrion tampered with or fabricated the drugs in Pena’s car within the meaning

of Section 37.09 of the Texas Penal Code.

       According to Pena, he is entitled to relief in light of our decision in Wilson.

However, for the reasons we explain, that case is distinguishable. In Wilson, the appellant

was walking home one day with his son when they discovered a body. Id. at 454. The

victim, Amos Gutierrez, had been shot and killed. Id. Police began an investigation,

during which they received information that Wilson was involved in Gutierrez’s murder.

Id. Wilson was subsequently arrested and confessed to shooting the victim. Id. During the

interrogation, he initially denied any involvement in the murder, but he later confessed

after the interrogating officer presented him with a forensic laboratory report indicating

that his fingerprints were found at the murder scene. Id. The report was wholly fabricated

by the interrogating officer. Id. at 454.

       Wilson filed a motion to suppress, arguing that his confession was involuntary. At

a hearing on the motion, the interrogating officer admitted that he violated the “tampering

with or fabricating physical evidence” statute because he had created a false document

that he presented to Wilson as genuine, and he intended for Wilson to rely upon it. Id.;

T EX. P ENAL C ODE § 37.09 (a person commits an offense if, knowing that an investigation

or official proceeding is pending or in progress, he makes, presents, or uses any document

with knowledge of its falsity and with intent to affect the course or outcome of the

investigation or official proceeding). Wilson argued that, because the interrogating officer
                                                                                      Pena–11

violated Section 37.09 of the Penal Code, and the documentary evidence was used to

obtain his confession, his confession was subject to suppression under the state

exclusionary rule. T EX. C ODE C RIM. P ROC. art. 38.23 (stating that no evidence obtained in

violation of the laws of the State of Texas shall be admitted into evidence against the

accused). Once the issue reached this Court, we held that the confession should have been

suppressed. Wilson, 311 S.W.3d at 465. In reaching that decision, we explained that

fabricating evidence in an official investigation to obtain a confession is at the core of

what the exclusionary rule forbids and that, because the interrogating officer fabricated a

laboratory report with the intent that Wilson rely on it as genuine, and Wilson

subsequently confessed to capital murder based on the false documentary evidence, his

confession was inadmissible. Id. at 461.

       In Wilson, the crime at issue was capital murder. As part of the investigation

following the crime, the interrogating officer fabricated a forensic laboratory report and

obtained a confession for capital murder based on that false evidence. The issue in Pena’s

case, however, is whether Carrion’s actions before Pena took possession of the cocaine

constitutes tampering or fabrication and renders the evidence inadmissible. As a result,

Wilson is distinguishable.

                                 3. Impeachment Evidence

       Finally, Pena argues that the evidence of Carrion’s misconduct is favorable to him

because it is valuable impeachment evidence that the State was required to disclose.
                                                                                          Pena–12

According to him, he could have argued, had he filed a motion to suppress, that Carrion

was not credible in light of his misconduct. We agree that Carrion’s misconduct

constitutes impeachment evidence. However, no matter how loathsome Carrion’s conduct

is, it is not exculpatory because it does not tend to show that Pena is not guilty of the

crime. And, while we condemn the abuse of power by a public official such as the

conspiracies Carrion orchestrated and participated in, jury nullification is not a valid legal

argument.6

       Pena further claims that, because the evidence of Carrion’s misconduct is

favorable impeachment evidence, the State was required to disclose it.7 We disagree. The

United States Supreme Court has squarely addressed the issue—“We must decide

whether the Constitution requires that preguilty plea disclosure of impeachment


       6
          Even if Pena knew about Carrion’s conduct before he pled guilty and chose to file a
motion to suppress—which is what Pena argues he would have done—he could not
(successfully) argue that the drugs should be suppressed because of Carrion’s misconduct.
Instead, he would have to argue that, although he is in fact guilty of the crime, the factfinder
should nonetheless suppress the drugs to “send a message” to police that Carrion’s ilk will not be
tolerated. The problems with this jury-nullification line of reasoning, however, are two-fold.
First, it presents no legal reason for a judge to grant a motion to suppress. Second, Carrion’s
conduct was not endorsed by the police, and suppressing it would serve no policy purpose, but it
would result in a guilty person going free. Given these circumstances, it would be difficult to
argue that Pena would not have accepted a sentence of the statutory minimum when, had he gone
to trial, he could have been sentenced up to 99 years’ confinement. TEX . HEALTH & SAFETY
CODE § 481.112(f).
       7
          Today we address only whether impeachment information must be disclosed preguilty
plea. We leave for another day the question of whether exculpatory information must be
disclosed preguilty plea. Ex parte Palmberg, 491 S.W.3d 804, 814 n.18 (Tex. Crim. App. 2016)
(“It is unclear whether or not Brady v. Maryland goes so far as to render guilty pleas involuntary
if the prosecution does not disclose exculpatory information at the time of the plea, especially
after the Supreme Court’s holding in United States v. Ruiz.”).
                                                                                         Pena–13

information. We conclude that it does not”—and we have adopted its holding. United

States v. Ruiz, 536 U.S. 622 (2002); Ex parte Palmberg, 491 S.W.3d 804, 807–10 (Tex.

Crim. App. 2016) (discussing the reasoning of Ruiz and apply its holding). As the

Supreme Court noted in its decision, impeachment information is special in relation to a

fair trial, not whether a plea is voluntary, and a defendant’s plea is not involuntary merely

because he does not have complete knowledge of every relevant circumstance of the case,

including all information that could be used to impeach the State’s witnesses. Ruiz, 536

U.S. at 629. As such, the State was not required to disclose information regarding

Carrion’s misconduct before Pena pled guilty.

                                  INVOLUNTARY PLEA

       Finally, Pena argues that his plea was involuntary because he would have insisted

on going to trial had the State not violated Brady by failing to disclose information about

Carrion’s misconduct. The habeas court agreed with Pena that he is entitled to relief. As

we have explained, however, the State was under no duty to disclose impeachment

evidence before Pena pled guilty, and as a result, he cannot show that his plea was

involuntary on that basis.8


       8
         Judge Richardson claims that we dispose of this case on a sufficiency basis in lieu of
Pena’s claim that his plea was involuntary. Dissenting Op. at 10 (Richardson, J.). That is not
correct. Our discussion of the Health & Safety Code definition of “controlled substance” was
only in the context of refuting Pena’s argument that he was prosecuted for possessing drugs he
never possessed and that his conviction is based on false evidence. It was necessary to address
that contention before the remaining issues in the case could be resolved.

       Judge Richardson also asserts that Carrion’s misconduct was a “crucial fact” not known
                                                                                       Pena–14

                                       CONCLUSION

       Having examined and rejected Pena’s claims, we deny relief.

Delivered: November 15, 2017

Do Not Publish




by Pena at the time of his plea. Id. at 11. We agree that Carrion’s misconduct was not known to
the parties before Pena pled guilty and that a defendant’s guilty plea must be made “with
sufficient awareness of the relevant circumstances and likely consequence.” Ex parte Barnaby,
475 S.W.3d 316, 322 (Tex. Crim. App. 2015). However, as we have already explained, the
evidence of Carrion’s misconduct constitutes only impeachment evidence, and the United States
Supreme Court has made it crystal clear that impeachment evidence need not be disclosed to the
defense preguilty plea. Therefore, under the current state of the law and for purposes of his
involuntary-plea claim, Carrion’s misconduct was not the type of circumstance to which Pena
was entitled to be aware of before pleading guilty.
