Concurring opinion issued August 6, 2012




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                              ————————————

                               NO. 01-11-00082-CR
                            ———————————
                       CHRISTOPHER RIOS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



            On Appeal from County Criminal Court at Law No. 14
                           Harris County, Texas
                       Trial Court Case No. 1547542



                         CONCURRING OPINION

      As there is little about this case that cannot be but very disturbing to people

of good will seeking justice, I write separately to express my visceral revulsion.

      When the State and defense came to the table to negotiate, the State claimed

to have three cards in its hand: a video and the results of two intoxilyzer samples,
both nearly double the legal limits—strong stuff.                Based upon the State’s

representations, the defense folded and entered a plea agreement. Later it learned

that two of those three cards were not what they were represented to be.

      If our jurisprudence is to regard a plea agreement as a contract between the

defendant and State, there cannot be permitted even the slightest measure of

fraudulent inducement to that contract.           Here, an agent of the State falsified

intoxilyzer records. Rios’s guilty plea was induced by dealing Rios a tainted hand.

Sadly, by the time this shameful little secret came to light, the State and Rios had

long since negotiated a plea deal based upon the “cooked” results.1 When Rios

was advised that an operative of the state prosecutorial apparatus had falsely

certified the results and the assistant district attorney prosecuting this case

conceded “the intoxilyzer test was invalid . . . The state cannot verify the validity

of the test,” he sought to challenge his conviction.

      Plea agreements on misdemeanor driving-while-intoxicated cases are

concerned with two fundamental pieces of evidence: the video from the law

enforcement officer’s dashboard camera and the results from the intoxilyzer, a

piece of equipment that quantifies one’s blood alcohol content (BAC). The dash



1
      I take judicial notice that more than 1200 other cases were set aside as a result of these
      intoxilyzer falsifications. See Brian Rogers, Fake Intoxilyzer Tests Invalidate Stacks of
      DWIs, HOUS. CHRON., Oct. 9, 2009, http://www.chron.com/default/article/Fake-
      Intoxilyzer-tests-invalidate-stacks-of-1722652.php.

                                              2
cam video of Rios’s performance of the sobriety exercises depicts Rios as perfectly

steady, cooperative, and polite (albeit, given the hour, tired).2 Despite the officer’s

varying (and conflicting) directives to Rios with respect to some of the

field-sobriety exercises, most notably the walk-and-turn exercise, the video reveals

only two possible departures from a near-perfect execution of the exercises by

Rios. On the walk-and-turn exercise, Rios took a single additional half-step more

than one of the varying versions of the officer’s directives instructed him to take 3;

and on the follow-the-piercing-light-in-your-eye-at-night-without-moving-your-

head exercise, only when the officer had his light at the very farthest extremes of

the span of the officer’s arm’s length, did Rios make a nearly imperceptible turn of




2
      The majority correctly notes the poor quality of the video. I, however, strongly disagree
      with the majority’s assertion that “[r]easonable people, after viewing the video, could
      come to different conclusions concerning its significance.” The tape is generally difficult
      to hear, as there is a loud, heavy buzz that runs throughout the tape, and the sound often
      cuts out for minutes at a time. But that which can be heard and seen serves to exculpate
      Rios.
3
      On the walk-and-turn test, the audio is particularly bad, at one point cutting out for
      almost ninety seconds. Moreover, from that which is audible, the officer described how
      to make the turn in four completely different ways over the course of about three
      minutes, alternatively describing it as:
             - “using your right foot . . . just take a series of small steps”
             - “kinda like” an about-face
             - “keep[ing] your left foot planted, and just turn[ing] like this. See how I’m
             pivoting?” (while moving his left foot and taking three small steps to make the
             turn)
             - “turn around using two small steps”
4
      After which Rios followed the penlight for over a full minute without moving his head.

                                              3
his head.4 To require any more of these “exercises” would demand precision more

akin to fighter pilots and Olympic gymnasts than typical citizens at all hours of the

day or night.

      Even with such an innocuous video, and notwithstanding the State’s burden

of proof, a defendant is still faced with a steep, well-nigh insurmountable hurdle

when the intoxilyzer results are markedly higher than the permissible .08% blood

alcohol level. Scientific measurement, after all, is usually pretty compelling and

not easily refuted. Thus, as the intoxilyzer numbers rise, so do the prospects of a

plea bargain, and the likelihood the defense will desire to take the case to trial falls.

      Despite the fact that the State, at the time of the original plea, was unaware

of the falsification of the intoxilyzer results, regardless of the good faith or bad

faith of the prosecution, the responsibility for the validity of the evidence used to

extract a guilty plea in a plea-bargain case rests with the prosecutorial arm of the

State. As Justice Kennedy reasoned in Kyles:

      [N]o one doubts that police investigators sometimes fail to inform a
      prosecutor of all they know. But neither is there any serious doubt
      that “procedures and regulations can be established to carry [the
      prosecutor’s] burden and to insure communication of all relevant
      information on each case to every lawyer who deals with it.” Giglio
      v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d
      104 (1972). Since, then, the prosecutor has the means to discharge the
      government’s Brady responsibility if he will, any argument for
      excusing a prosecutor from disclosing what he does not happen to
      know about boils down to a plea to substitute the police for the



                                           4
      prosecutor, and even for the courts themselves, as the final arbiters of
      the government’s obligation to ensure fair trials.

Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568 (1995). It is axiomatic

that the Due Process Clause of the Fourteenth Amendment is violated when the

State knowingly or unknowingly uses perjured testimony to obtain a conviction.

Ex Parte Robbins, 360 S.W.3d 446, 476 (Tex. Crim. App. 2011) (Alcala, J.,

dissenting) (citing Ex parte Chabot, 300 S.W.3d 768, 770–71 (Tex. Crim. App.

2009); Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App. 2010), cert.

denied, 132 S. Ct. 2374 (2011)).

      However, when Rios pursued legal relief from the State’s duplicity

(unwitting/hapless/unintentional though it may have been) via a writ of habeas

corpus, he was confronted at the hearing not by an adversarial prosecutor (who

stood as silent as Rios’s own counsel),5 but a judge who usurped the role of the

prosecutor and proceeded to grill Rios with leading questions interlaced with

accusations. Indeed, the judge treated the habeas hearing as if it were for a motion

to revoke the very probation the court had previously granted in exchange for

Rios’s guilty plea based on falsified evidence.




5
      Reciting no grounds therefore, Rios’s attorney made but one global objection to the
      Court’s examination of Rios (on which the court’s “ruling” was: “I appreciate your
      objection,” before immediately repeating the very question that had drawn the objection)
      and made no further effort to guide, direct, or otherwise protect his client.


                                             5
      In light of the State’s concession during the habeas hearing (“I cannot vouch

for the video”), the record as it comes to us strongly suggests that this Court was

the first to have viewed the video which, important to note, was never introduced

into evidence nor viewed by the trial court prior to the judge’s denial of

habeas-relief at the hearing. Indeed, by its refusal to “vouch” for it, the State

effectively disavowed it.

      First, there is the original defense attorney who either advised or permitted

his client to plead guilty despite a most exculpatory dash-cam video. Nothing in

the record indicates that the attorney responsible for the protection of Rios’s legal

interests viewed the officer’s dashboard video of the stop and Rios’s near-flawless

performance on the field-sobriety exercises. Indeed, had it been viewed, the video

would have sounded the alarm that the high numbers of the intoxilyzer results were

suspect.

      Then, there is the subsequent defense attorney who, as is evident from the

transcript of the hearing on the habeas writ, came to court with sparse evidence,

put on his defendant witness almost as an afterthought, was insufficiently familiar

with charging instruments to have recognized the information by which his client

had been charged, and allowed the judge to verbally spar with a wholly unprepared

and nervous young defendant.




                                         6
      What is perhaps most disturbing, however, is the demeanor of the trial

judge— an “arbiter[] of the government’s obligation to ensure fair trials”—at the

habeas hearing. See Kyles, 514 U.S. at 438, 115 S. Ct. at 1568. At the habeas

hearing, having stipulated the breathalyzer results were inadmissible, the assistant

district attorney neither opposed the requested habeas relief nor asked a single

question. The judge, however, subjected Rio to a blistering twenty-two questions,6

inquiring as to a number of relevant, as well as irrelevant, issues, including

whether Rios remembered taking the breathalyzer test and what type of drink Rios

may have been drinking on the night he was arrested. At one point during the

hearing, Rios, who is speaking haltingly, and clearly struggling to grasp the judge’s

questions, begins to answer the question posed to him, only to have the judge, who

felt as if he had been interrupted, threaten him with contempt.7

      The record contains additional indications that, rather than acting an

impartial arbiter, the judge was effectively acting as part of the prosecutorial arm


6
      While a trial judge has the right to ask a defendant questions, “the law contemplates that
      the trial judge shall maintain an attitude of impartiality throughout the trial.” Blue v.
      State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.). Moreover, a trial
      judge should not usurp the role of prosecutor by asking leading questions or far more
      questions than the prosecutor and defense ask put together. See United States v. Lanham,
      416 F.2d 1140, 1145 (5th Cir. 1969). Here the judge’s aggressive, leading, and bullying
      questionings breached both these standards.
7
      There is also an entire line of the judge’s inquiry that, curiously, is preoccupied with the
      absence of any recitation of intoxilyzer test results in the plea papers . . . as though the
      particular evidence with which the State induces a defendant to plea has some place in
      plea papers.


                                               7
of the State during the hearing. Specifically, very early-on in the hearing, and,

tellingly, prior to any examination or discussion of evidence except for the

bare-bones stipulation of evidence,8 the judge, not the prosecutor, repeatedly made

reference to the “appellate record,” foreshadowing a need for same from his own,

not-as-yet pronounced decision in this case. Indeed, it was the judge himself, not

the prosecutor, who had the preprinted plea forms of his court “marked . . . for

Appellate purposes as Court’s Exhibit . . . 1, that will go up with the Appellate

Record.”

      Inexplicably, the trial judge later found that a reasonable jury could have

convicted Rios based on the videotape of his stop—a video that the State not only

never introduced into evidence but affirmatively disavowed (“I cannot vouch for

the video”). The trial judge’s findings are not supported by the video, or any other

evidence in the record.




8
      The stipulation of evidence recites what one might fairly characterize as an agreement
      in anticipation of dismissal: “Defendant . . . and the State, have entered into this
      stipulation of the evidence serving as the basis of the vacating of judgment and
      subsequent dismissal of the subject charge against the Defendant.” [Emphasis added.]


                                            8
      I concur with this Court’s judgment.




                                             Jim Sharp
                                             Justice


Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Publish. TEX. R. APP. P. 47.2(b).




                                        9
