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


                         EX PARTE MARTIN PENA, Applicant


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

       Y EARY, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The closest analog to the facts of this case that may be found in our case law is Ex

parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App. 2015). There, a forensic technician in the

employ of the State was shown to have issued a false lab report with respect to the content

of the contraband seized from Barnaby. The only remaining question in the false-evidence

due process analysis was whether that false lab report was “material” in the due process

sense. Because Barnaby had pled guilty, we had to decide the standard for materiality in the

context of a guilty plea. We determined that “the materiality of false evidence is measured

by what impact that false evidence had on the defendant’s decision to plead guilty.” Id. at

327. The applicant must establish that, had he known of the false lab report at the time he
                                                                                       Pena — 2

entered his guilty plea, he would not have accepted the plea arrangement but would have

insisted on going to trial instead. Id. at 325. We evaluate any assertion the applicant makes

to that effect by asking “whether the value of the undisclosed information . . . was

outweighed by the benefit of accepting the plea offer.” Id. at 326.

       Here, there is likewise no question that—at least in some sense—Applicant’s guilty

plea was predicated upon a falsehood perpetrated by a state actor.1 And he has claimed that,

but for that falsehood, he would have insisted on going to trial. The question that remains is

whether we find that assertion persuasive under the circumstances. Id.

       The plea bargain that Applicant accepted was for the most lenient sentence of

incarceration available for possession of the amount of cocaine he was charged with

possessing, plus a fine of a thousand dollars. It seems unlikely to me that knowledge of

Carrion’s illegal conduct would have caused Applicant to balk at the fine. Nor would

Carrion’s misconduct have rendered the evidence insufficient for a jury to convict him of

possession of the charged amount, as the plurality explains. Plurality Opinion at 7-8. Perhaps

Applicant would have insisted on going to trial because that would be the only way to

challenge this Court’s holding in Seals v. State. See 187 S.W.3d 417, 420 (Tex. Crim. App.


       1
          Had Carrion not swapped out the original cocaine for cocaine-laced sheetrock material, I
presume that what would have ultimately been placed in Applicant’s car would have been the purer
cocaine that Carrion stole. Given this Court’s broad construction of “adulterants and dilutants” in
Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005), and Jones v. State, 235 S.W.3d 783 (Tex.
Crim. App. 2007), however, it is not immediately clear how Carrion’s swap casts Applicant’s case
in a less incriminating light. In any event, I agree with the plurality today that Applicant was
convicted of the cocaine he actually possessed, not the cocaine he might have possessed but for
Carrion’s shenanigans. Plurality Opinion at 7.
                                                                                    Pena — 3

2005) (“[A]ny substance that is added to or mixed with a controlled substance, regardless of

when, how, or why that substance was added, may be added to the aggregate weight of the

controlled substance as an adulterant or dilutant.”). But he makes no such assertion in his

application or his brief.

       Instead, Applicant claims he would have insisted on going to trial because Carrion’s

misconduct rendered the contraband inadmissible. But the plurality today correctly rejects

Applicant’s premise that Carrion’s misconduct would call for suppression of the cocaine.

Plurality Opinion at 8-11. Applicant offers no other compelling reason why we should credit

his assertion that he would have insisted on going to trial.

       Even so, is it nevertheless reasonable to suppose that Applicant may still have insisted

on it? Presumably, Applicant would be able to introduce evidence of Carrion’s misconduct

were he to proceed to trial on the charges against him. And perhaps evidence of Carrion’s

manifest corruption would cause a jury to doubt the veracity of almost any testimony Carrion

might offer, or even to question the legitimacy of any arrest in which he might have been

involved. Such a jury might potentially be persuaded that, or at least harbor a reasonable

doubt whether, Applicant was aware of the actual contents of the ice chest that was placed

in his car. In such event, it might acquit him of knowingly possessing a Penalty Group 1

substance. Is this scenario sufficiently likely that it would cause us to accept his assertion

that, had he known of Carrion’s misconduct at the time of the plea, he would have insisted

on taking his chances in a full-blown trial?
                                                                                          Pena — 4

       The circumstances, as developed in Applicant’s oral statement to three police officers

(none of whom was Carrion) following his arrest, and as described in the plurality’s opinion,2

do not tend to support a plausible defensive theory that Applicant was unaware that he was

being paid to facilitate the transport of some type of contraband. At best, the circumstances

suggest a sort of willful ignorance on Applicant’s part, which a jury would not likely view

sympathetically.3 But the offense report also indicates that Applicant did not consent to have

the police record his oral statement,4 so it is doubtful it could be admitted over an objection

at trial under Article 38.22. T EX. C ODE C RIM. P ROC. art. 38.22, § 3.5 Given this circumstance,

it is not beyond the bounds of reason to believe that Applicant might have insisted on

proceeding to trial to try to obtain an acquittal. But Applicant does not claim this either.

       Still, Applicant has alleged at least bare facts which, if true, might entitle him to relief,




       2
        Plurality Opinion at 2-3. These circumstances are gleaned from the Houston Police
Department’s (HPD) offense report, which we permitted the State to add to the record as a
supplement after this cause was filed and set. See Ex parte Pena, 484 S.W.3d 428 (Tex. Crim. App.
2016).
       3
         According to his oral statement, Applicant agreed to do a “favor” for “Manny.” For $500,
Applicant allowed another man to take his car for approximately 20 minutes. When his car was
returned, there was a mysterious ice chest in the back seat that had not been there before. Manny told
Applicant to take his car to a mall parking lot, leave the keys, and walk away.
       4
           In relevant part, the offense report reads: “AT 0903   HRS SUSPECT PENA WAS READ HIS
MIRANDA WARNING BY OFFICER VALLES IN SPANISH . SUSPECT PENA STATED HE UNDERSTOOD HIS
RIGHTS. PENA WAS ASKED IF HE WAS WILLING TO TALK WITH US AND HE STATED HE WOULD . PENA WAS
ASKED IF THE OFFICERS COULD RECORD THE INTERVIEW AND HE ASKED THAT IT NOT BE RECORDED .”

       5
        An unrecorded oral statement may nevertheless be admissible if it is later found to be true
and “conduce[s] to establish the guilt of the accused[.]” TEX . CODE CRIM . PROC. art. 38.22, § 3(c).
But nothing in the record suggests this condition might have been met.
                                                                                           Pena — 5

consistent with Barnaby, if they can be proven—that, had he been aware of Carrion’s

misconduct, he would not have pled guilty. The convicting court recommends that we find

that Applicant would not have pled guilty, but it does not set out the circumstances that led

it to draw that conclusion.6 In my view, we should neither grant nor deny relief without

remanding the case for a more particularized assessment by the convicting court of the

credibility of Applicant’s assertion that he would have opted for a trial. Moreover, practically

all we presently have before us to illuminate the materiality question is the HPD offense

report. I would also give the convicting court the option of affording an opportunity for the

parties to present additional evidence at an evidentiary hearing. And finally, I would give the

parties an opportunity to brief the issues again in the wake of any further factual development

and additional findings and conclusions from the convicting court.

       Because the Court does not do so, I respectfully dissent.




FILED:         November 15, 2017
DO NOT PUBLISH




       6
          The convicting court signed proposed findings of fact and conclusions of law that were
prepared by Applicant. However, the trial court made some hand-written changes to Applicant’s
proposed findings before signing them. Most notably, the convicting court struck Applicant’s
proposed finding that Carrion’s misconduct would have rendered the cocaine seized from
Applicant’s car inadmissible as having been obtained illegally for purposes of Article 38.23, our
statutory exclusionary rule. TEX . CODE CRIM . PROC. art. 38.23. Thus, like us, the convicting court
apparently rejected the idea that Applicant would not have pled guilty because the contraband could
have been suppressed. But the convicting court’s proposed findings and conclusions offer no
alternative basis for us to credit Applicant’s assertion that he would have insisted on going to trial.
