             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
                 OF HARRIS COUNTY

     N EWELL, J., filed a concurring opinion.

     What makes this case so difficult is the nature and degree of the

misconduct engaged in by Marcos Carrion, one of the arresting officers in

the case. At the time he arrested Applicant, Carrion was a “dirty” cop on

the payroll for drug traffickers. And, proving there is no honor among

thieves (or drug traffickers as the case may be), Carrion was also stealing

from his employer (the drug traffickers not the police) by taking cocaine

before it was delivered to a courier and replacing it with sheetrock and
                                                       Pena Concurring – 2

trace amounts of cocaine. Then, Carrion would provide cover for himself

with the drug traffickers by arresting the courier with the fake drugs for

possession of the full amount in order to make the drug traffickers think

the real drugs had been seized.       To be clear, Carrion manufactured

evidence.   In this case.   Against this defendant.    As the Court rightly

notes, “Carrion’s misconduct was willful, brazen, and appalling.”

     Yet, I ultimately agree with the Court that Applicant is not entitled

to relief because Applicant tried to possess evidence that was even more

damning than the evidence Carrion manufactured. I do not wholly join

the Court’s opinion because it decides a number of issues left open in

other cases without explaining why. But I also cannot join the dissents

because I do not believe Applicant is entitled to relief under the rationales

provided in those opinions. Ultimately, I concur in the result.

                  Part I: The Part of My Opinion
                 Where I Disagree with the Majority

     In Ex parte Palmberg, we left open the possibility that we could,

under our own false-evidence jurisprudence, grant relief where false

evidence might undermine the integrity of the plea bargain process 491

S.W.3d 804, 812 (Tex. Crim. App. 2016). As we noted, “It is unclear to

what extent a defendant, at least so far as the United States Constitution
                                                        Pena Concurring – 3

is concerned, is afforded protection on the basis of fairness in the pre-trial

phase of a prosecution.” Id. at 813. And we explained that, “Obviously,

states are free, through their own constitutions or statutes, to provide

greater protection for defendants in the pre-trial phase of prosecution.”

Id. at 813 n. 17 (citing Heitman v. State, 815 S.W.2d 681, 690 (Tex.

Crim. App. 1991)).     As an example, we suggested that intentionally

misrepresenting information to induce a plea would be “unfair” and would

render the plea involuntary. Id.

      Nevertheless, we rejected the application of a false-evidence theory

in Palmberg because there was no indication that the State had used false

or misleading evidence, knowing or otherwise. Id. at 814. In that case,

the defendant pleaded guilty to possession of what he believed to be

cocaine “[k]nowing exactly as much as the State did–that there was a

substance found during the search incident to arrest that may or may not

be subject to later testing in a forensic laboratory.”     Id. Even though

later testing established that the substance collected had been used up

by the field tests, pleading the defendant out before disclosing that fact

to him did not “impugn the fairness or integrity of the process[.]” Id. So,

while we seemed to have acknowledged that we might, under the right

circumstances, grant relief where the fairness of the plea bargain process
                                                           Pena Concurring – 4

was compromised by intentional misrepresentations, Palmberg was not

the case or the circumstances in which to do that.

       Carrion’s misconduct and misrepresentations in this case, however,

were intentional not inadvertent. We suggested in Palmberg that whether

a plea bargain is voluntary and whether the plea-bargain process was fair

are two separate, but intertwined inquiries. Id. at 812-13 (“Admittedly,

whether the plea was voluntary and whether the plea-bargain process

was fair can involve overlapping considerations.”). And we allowed that

“the State going so far as to misrepresent information to induce a plea

would be unfair.” Id. at 813. But we never clarified what that means.

       The United States Supreme Court has acknowledged that a guilty

plea may be involuntary if it is induced by misrepresentations. Brady v.

United States, 397 U.S. 742, 755 (1970). The Fourth Circuit has relied

upon    this   language      to    hold   that   an   affirmative   government

misrepresentation that strikes at the integrity of the prosecution as a

whole can result in an involuntary plea even where the misrepresentation

comes from a law enforcement officer. United States v. Fisher, 711 F.3d

460, 466 (4th Cir. 2013); see also Ferrara v. United States, 456 F.3d

278,    291    (1st   Cir.        2006)   (“Under     limited   circumstances,

however–everything depends on context-the prosecution’s failure to
                                                     Pena Concurring – 5

disclose evidence may be sufficiently outrageous to constitute the sort of

impermissible conduct that is needed to ground a challenge to the validity

of a guilty plea.”). With today’s decision, we seem to hold an Applicant

is only entitled to relief from a plea bargain upon an intentional

misrepresentation claim if that intentional misrepresentation comes from

the line prosecutor rather than a member of the prosecution team such

as an arresting officer.   We do not address whether an intentional

misrepresentation, unknown by the prosecutor at the time of the plea, by

an officer, might render the plea-bargaining process unfair similar to the

situation presented in Fisher. In this way, we seem to limit Palmberg

without explaining why. To that extent, I cannot join the Court’s opinion.

     Moreover, the Court’s “favorable evidence” analysis appears to

apply the definition of materiality associated with the late disclosure of

Brady evidence. By that I mean, the Court looks, in this case, to whether

there is a reasonable probability that the outcome of the trial would have

been different had the prosecutor made a timely disclosure. See Pena v.

State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011). I do not mean to

suggest that the Court applies a legal sufficiency analysis.          The

Brady materiality standard is not that. Id. Rather, the Court spells out

very persuasively that any effort Applicant might have engaged in would
                                                     Pena Concurring – 6

have been fruitless as he still would have been found guilty had he gone

to trial.

      We held in Ex parte Barnaby that our standard for materiality is

different when we are considering a claim that a plea is rendered

involuntary by the failure to disclose false evidence. 475 S.W.3d 316,

325 (Tex. Crim. App. 2015). To show materiality in that context we ask

whether there is a reasonable likelihood that the false evidence affected

the defendant’s decision to plead guilty, not whether it affected the

conviction or sentence. Id. By way of comparison, we found the false

evidence in Barnaby immaterial because the record showed that the

applicant had gotten a good deal by pleading guilty, supporting the

conclusion that there was no reasonable likelihood that his decision to

plead guilty would have been affected by the false lab test results in

question. Id. at 326. While we did rely upon significant evidence of guilt

in our recent case Ex parte Owens to uphold the voluntariness of a plea,

we also noted evidence that the applicant had received a favorable plea

offer and that there was also no evidence that he was waiting on lab

testing to make up his mind. 515 S.W.3d 891, 899 (Tex. Crim. App.

2017).

      In this case, the Court’s primary focus seems to be on whether
                                                                     Pena Concurring – 7

Applicant would still be found guilty had he gone to trial. The Court does

not consider whether the misinformation could have affected Applicant’s

decision to enter into the plea bargain.1                   In this sense, the Court’s

decision undermines the Barnaby materiality-to-the-decision-to-plea

standard in favor of the Brady materiality-to-the-outcome-of-trial

standard.

       Further, the Court specifically recognizes the distinction between

exculpatory and impeachment evidence under Brady, and characterizes

the evidence at issue as impeachment evidence. But the Court does not

consider whether the impeachment evidence might have affected

Applicant’s decision to plead guilty other than to explain why he still

would have been found guilty however he tried to use the impeachment

evidence.      As mentioned above, even if the impeachment evidence at

issue in this case would not undermine Applicant’s challenge to his

conviction, it could at least have played a role in whether to agree to a




       1
         The Court does note that Applicant avoided the risk of getting the m axim um
sentence in his case by pleading guilty to the statutory m inim um , but that’s pretty weak
sauce. A plea to the statutory m inim um shows that Applicant got a benefit for his bargain,
but the Court still doesn’t attem pt to weigh the value of the false evidence against the
benefit Applicant received. Barnaby, 475 S.W.3d at 326. The Court apparently believes
that im peachm ent evidence in this case has no value because only “exculpatory” evidence
would have any effect on the ultim ate outcom e of the case. In that m anner, the Court’s
analysis is still only focused upon the ultim ate outcom e of the case, not Applicant’s decision-
m aking process.
                                                                   Pena Concurring – 8

particular sentence. In this way, the Court appears to conclude that the

evidence     in this case is not material simply because it is not

“exculpatory.” I do not join this aspect of the opinion.

                      Part II: The Part of My Opinion
                     Where I Disagree with the Dissents

       But on the other hand, the distinction between “exculpatory” and

“impeachment” evidence helps bring Palmberg into sharper focus. In Ex

parte Mable, the lab test provided affirmative evidence that the defendant

did not possess any drugs, providing the applicant with exculpatory

evidence regarding the charged offense.                  443 S.W.3d 129, 130 (Tex.

Crim. App. 2014). In Palmberg, the revelation that there were no drugs

left to test provided evidence suitable to impeach the arresting officer,

but not affirmative evidence exculpating the applicant. 491 S.W.3d at

815. And though we did not consider the materiality of “false” evidence

in Palmberg, had we done so any possible impeachment value of the

evidence in that case was considerably lower than the impeachment value

of the evidence at issue in this case.2               To be sure, discerning where



       2
         I refer to the evidence at issue in Palm berg as “false” evidence only for ease of
discussion of the relevant legal concepts. W e did not determ ine the evidence at issue in
Palm berg to be false, and that is why we never considered the m ateriality of that evidence.
491 S.W .3d at 811 (“Applicant has presented no evidence suggesting that the facts of this
case were not exactly what all the parties involved in the case believed them to be at the
tim e he entered his plea.”).
                                                                   Pena Concurring – 9

impeachment evidence ends and exculpatory evidence begins is a difficult

task, but as the United States Supreme Court seems to recognize this

distinction, I see no problem with this Court recognizing it as well.3

       And I do agree with the Court that Article 38.23 would not require

the suppression of the evidence. As the Court rightly explains, to show

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

Applicant needs to show that Carrion knew 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 of the outcome of the investigation or official

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

452, 464 (Tex. Crim. App. 2010). Under the unique facts of this case, I

think the evidence shows that Carrion knew an investigation was pending

because his entire plan depended upon it.

       “Pending” in the tampering statute means “impending, or about to

take place,” a definition consistent with the Model Penal Code.                         See

Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App. Houston [1st Dist.]


       3
          Of course, this Court’s opinion in Ex parte Broussard m ay have rendered the
distinction between exculpatory evidence and im peaching evidence a distinction without a
difference. 517 S.W .3d 814, 825 (Tex. Crim . App. 2017)(Newell, J., concurring in denial of
rehearing) (suggesting that Broussard’s expansion of Palm berg has im plicitly overruled Ex
parte Mable, 443 S.W.3d 129 (Tex. Crim . App. 2014)).
                                                    Pena Concurring – 10

2004, pet. ref’d.); see also Thurston v. State, 465 S.W.3d 255, 256 (Tex.

Crim. App. 2015) (Keller, P.J., concurring). We can take it as a certainty

that there was an investigation pending at the time Carrion engaged in

misconduct in this case because Carrion controlled when the investigation

would commence. Moreover, Carrion needed the investigation to take

place, and quickly, so that he could use the criminal justice system to

essentially launder the cocaine he stole from his employer (again, the

drug traffickers not the police). However, it is debatable that Carrion

actually acted “with intent to affect the course or outcome of the

investigation” as his plan to cover his tracks also required an intent that

the investigation proceed exactly as it would have if he had not altered

the package of cocaine in question.

     Yet, even if we assume that Carrion manufactured evidence in

violation of the tampering statute, the Court correctly notes that we have

previously interpreted the word “obtained” in Article 38.23 to require a

showing that illegality follow the crime under investigation rather than

precede it.   Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App.

2002). A situation where a dirty cop plants evidence upon a defendant

after an arrest would fall under this understanding of Article 38.23. But

while Carrion undisputedly manufactured evidence (and at least arguably
                                                     Pena Concurring – 11

did so in violation of the tampering statute), Applicant still took

possession of the package with the intent that he possess the exact

quantity of cocaine he was charged with possessing. His argument is not

that he never possessed drugs, it’s that the drugs he intended to possess

had been severely “stepped on” by the cops. So I agree with the Court

that Applicant would not have had a legal basis for the suppression of his

evidence.

     For similar reasons, I agree that Applicant would not have been

entitled to a lesser-included-offense instruction for possession of a lesser

amount of cocaine. A defendant is not entitled to a jury instruction on a

lesser-included offense unless there is some scintilla of evidence from

which a rational jury could acquit the defendant of the greater offense

while convicting him of the lesser-included offense. Sweed v. State, 351

S.W.3d 63, 68 (Tex. Crim. App. 2011). In Cawthon v. State, we held that

to include an adulterant or dilutant in the aggregate weight of a controlled

substance, the State must prove four elements: (1) the identity of the

named illegal substance, (2) that the added remainder (adulterants or

dilutants) has not affected the chemical activity of the named illegal

substance, (3) that the remainder (adulterants or dilutants) was added

to the named illegal substance with the intent to increase the bulk or
                                                    Pena Concurring – 12

quantity of the final product, and (4) the weight of the illegal substance,

including any adulterants or dilutants. 849 S.W.2d 346, 349 (Tex. Crim.

App. 1992).

     But after we issued Cawthon, the legislature amended the

Controlled Substances Act to provide a specific, and very broad definition

of “adulterants and dilutants.” Seals v. State, 187 S.W.3d 417, 420 (Tex.

Crim. App. 2005). As we observed in Seals, the legislature specifically

intended to abolish any limits on what substances are to be considered

adulterants or dilutants.   Id.   Under this new definition, the State no

longer has to prove the amount of controlled substance and the amount

of adulterants and dilutants that makes up a mixture of a controlled

substance. Id. The State need only prove that the aggregate weight of

the controlled substance mixture equals the alleged minimum weight

under the statute. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim.

App. 2003).

     Under this definition, we have held that the defendant’s blood found

in a vial of methamphetamine was an “adulterant or dilutant” even

though it was not used in the manufacture or transportation of the drug

in question. Seals, 187 S.W.3d at 422. We have even held that pouring

liquid methamphetamine into a bottle of bleach in an attempt to destroy
                                                   Pena Concurring – 13

the drugs resulted in the bleach becoming an “adulterant or dilutant.”

Jones v. State, 235 S.W.3d 783, 786 (Tex. Crim. App. 2007).        As we

noted in Jones, the bleach was an adulterant or dilutant “[r]egardless of

when, how, or why it was added[.]”        Id.   If bleach or blood is an

adulterant or dilutant, then so is sheet rock regardless of when, how, or

why it was added.

     Proof that the cocaine in this case was not nearly as pure as

Applicant originally thought when he took possession of it would not have

provided a valid, rational alternative to possession of at least 400 grams

of cocaine with intent to deliver. The Court is right that a jury finding

that Applicant possessed less than the aggregate weight of the mixture

could only be arrived at if the jury intentionally disregarded the law

applicable to the case. Consequently, I agree with the Court that the

evidence of Carrion’s misconduct was not “exculpatory” and that it would

not have entitled Applicant to a jury instruction on a lesser-included

offense for possession of a lesser amount of cocaine.

                    Part III: The Part of My Opinion
                     Where I Throw Up My Hands

     So there appears to be a pox on both houses. On the one hand

there is a palpable sense of injustice from allowing a conviction to stand
                                                        Pena Concurring – 14

when it is infected by such misconduct from a member of law

enforcement. But the legal value of the false evidence in this case lay in

its ability to undercut the credibility of an officer who did not testify rather

than negate any element of the offense.            On the other hand, the

applicable legal standards do not seem to account for the very real-world

impact that finding out about systemic, invasive misconduct on the part

of a member of the prosecution team might have upon a defendant’s

decision to plead guilty. Yet, relying upon simple resort to “fairness” risks

substituting speculative anecdotalism and emotional outrage for clearly

defined legal standards that can be applied by courts in the future.

      We tried a nebulous “this isn’t right” due process standard when we

first started dealing with the systemic misconduct of lab technician

Jonathan Salvador. See Owens, 515 S.W.3d at 896 (“These ‘Salvador

cases’ all shared a common finding by this Court that there had been a

presumptive due-process violation in each case in which Salvador was the

laboratory technician.”). But we abandoned that approach rather quickly

in Ex parte Coty because the “this isn’t right” standard failed to

adequately address the issue of falsity and materiality.          Id.   Neither

approach seems wholly satisfying, but at least the approach in Coty

provides a workable standard and seems likely to be applied to Carrion’s
                                                   Pena Concurring – 15

“drug swapping” scheme in the future. 418 S.W.3d 597, 605 (Tex. Crim.

App. 2014) (announcing five-factor test for a presumption of falsity in

cases involving systemic, intentional misconduct, and requiring the

applicant to prove materiality). Still, the Coty standard was designed to

address the fallout from Jonathan Salvador’s misconduct not the cases

involving his intentional misconduct. This case is ground zero; it’s not

about the fallout.

     I see how under the Barnaby standard the intentional misconduct

in this case could have affected Applicant’s decision to plea.   In that

sense, there seems to be room for a finding that Carrion’s misconduct

was “material” under Barnaby.     But I also recognize that the United

States Supreme Court has held that, in the context of an involuntary plea

based upon a Brady claim, due process does not require disclosure of

material impeachment evidence prior to a defendant pleading guilty of a

crime. United States v. Ruiz, 536 U.S. 622, 630 (2002). It makes no

sense that the failure to disclose impeachment evidence would require

relief under a false-evidence claim but not under a Brady claim when both

claims allege a violation of due process and both involve the same

evidence and the same allegations of intentional misconduct.

     Of course, Ruiz dealt with a blanket waiver of the right to notice
                                                                 Pena Concurring – 16

regarding potential impeachment evidence.                     To the extent that the

Supreme Court considered the impact of undisclosed impeachment

evidence it did so on a theoretical basis. It remains to be seen whether

this standard would hold up in the face of concrete (and particularly

compelling) impeachment evidence. Perhaps the egregious nature of the

misconduct in this case will prompt the Supreme Court to re-evaluate

Ruiz, particularly in light of the Court’s recent acknowledgment that

“criminal justice today is for the most part a system of pleas, not a

system of trials.”        Lafler v. Cooper, 566 U.S. 156, 170 (2012).                     Or

perhaps not. Nevertheless, Ruiz is the law today and I see no indication

that it will cease to be the law tomorrow. I cannot fault the Court for

applying it.

       In the end, I join the result in light of Ruiz. We have tried holding

that intentional misconduct obviates the need for a determination of

materiality, but we abandoned that approach in Coty.                       Under Ruiz, a

defendant is not constitutionally entitled to pre-plea notice of even

material impeachment evidence, so it is hard to see how the subsequent

discovery of such evidence would render a plea involuntary.4 In the end,


       4
         Under Article 39.14(h) of the Code of Crim inal Procedure the State has a statutory
duty to disclose any im peachm ent evidence. However, this case does not involve a claim
that the State violated Article 39.14(h) because that statutory subsection becam e effective
                                                  Pena Concurring – 17

Ruiz seems to make a showing of materiality immaterial so long as the

evidence at issue can be characterized as impeachment evidence. So, if

the United States Supreme Court is okay with allowing a defendant to

plead guilty before he is apprised of all material impeachment evidence,

this Court must be okay with it too.

       With these thoughts I concur.

Filed: November 15, 2017

Do Not Publish




after Applicant pleaded guilty.
