                         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

       WALKER , J., filed a dissenting opinion in which ALCALA and RICHARDSON , JJ., joined.

                             DISSENTING OPINION

       I agree with Judge Richardson’s dissenting opinion and join it. However, I feel compelled

to further explore the matters raised by Applicant. His application for writ of habeas corpus relief

raises two distinct claims: Ground One, “Involuntary plea (due to police misconduct)” and Ground

Two, “Failure to disclose exculpatory evidence of police misconduct at the time of plea (under Kyles

v. Whitley and Brady v. Maryland), in violation of Martin Pena’s right to due process.”

                       BRADY VIOLATION CLAIM

       I shall first address Ground Two, the claim of a due process violation due to Brady error.

Brady v. Maryland, 373 U.S. 83, 87 (1963), held that the prosecution violates due process when it
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suppresses evidence in its possession which is favorable to the accused where the evidence is

material to guilt or punishment. Impeachment, as well as exculpatory, evidence is included within

the purview of the Brady rule. United States v. Bagley, 473 U.S. 667, 676 (1985). However, the

United States Supreme Court has held that while Brady requires exculpatory evidence to be

disclosed prior to a plea, evidence that is merely impeachment evidence does not have to be

disclosed prior to a plea. United States v. Ruiz, 536 U.S. 622, 625, 633 (2002). But in this case, I

believe that the evidence of Officer Carrion’s extreme misconduct is exculpatory as well as

impeaching. I acknowledge that the evidence at issue is the type of evidence that would normally

be classified as impeachment evidence. However, I feel certain that the evidence at issue, while

certainly impeaching, is effectually exculpatory as well as being actually exculpatory.

        The evidence at issue centers around the illegal conduct of Officer Carrion. Officer Carrion

was one of the officers that made the traffic stop of Applicant. Officer Carrion was working with

the Cartel. He was directly involved in the drug trafficking in which Applicant was arrested and

convicted. Carrion stole the cocaine that was to be placed in the vehicle driven by Applicant, and

replaced it with an ice chest full of sheetrock that had less than one gram of cocaine sprinkled on top.

He then stopped and arrested Applicant, charged him with possessing cocaine, and seized the cocaine

and sheetrock so the Cartel would not know that Carrion stole the actual cocaine. These facts

illustrate the perfect scenario in which impeachment evidence is so impeaching that it is effectually

exculpatory. If these facts had been presented to a jury, it would be likely that the jury would not

have believed any of Officer Carrion’s testimony, or even the testimony of the other officer involved

in the traffic stop. A reasonable jury could easily conclude that it should not find any of the State’s

evidence credible after realizing that Officer Carrion was actually working for the drug Cartel.
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“Exculpatory evidence is that which may justify, excuse, or clear the defendant from alleged guilt,

and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence.”

Jose Luis Pena v. State, 353 S.W.3d 797, 811-12 (Tex. Crim. App. 2011). Evidence that the

arresting officer was not only working for the drug cartel that was trafficking the cocaine in

Applicant’s car, but had also stolen the actual cocaine and replaced it with sheetrock, is certainly

enough to make a reasonable jury believe the defendant is not the guilty party and that he should be

cleared of any wrongdoing. The evidence of Officer Carrion’s misconduct is not only impeaching,

but it is also very much effectually exculpatory. Therefore, Ruiz, which holds that evidence which

is merely impeachment evidence need not be disclosed prior to a plea, is not applicable in this case.

        While the evidence of Officer Carrion’s misconduct is impeachment evidence that is

effectually exculpatory, it is also actually exculpatory because it showed that the substance was

actually less than one gram of cocaine sprinkled on top of 26,000 grams of sheetrock when Applicant

was charged with possession of over 400 grams of cocaine. While this will be explored more

thoroughly in the involuntary plea context, the argument is basically that since there is a reasonable

argument that, under Texas law, the substance possessed by Applicant was less than one gram of

cocaine, the suppressed evidence could have certainly been enough to create reasonable doubt as to

Applicant’s guilt of the alleged offense of possession of 400 or more grams of cocaine. Again, Ruiz,

which holds that evidence which is merely impeachment evidence need not be disclosed prior to a

plea, is not applicable in this case.

        Also, under Brady jurisprudence, the prosecution includes “members of law enforcement

connected to the investigation and prosecution of the case.” Ex parte Miles, 359 S.W.3d 647, 665

(Tex. Crim. App. 2012). And, the Supreme Court has held that Brady suppression occurs when the
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government fails to turn over evidence that is known only to police and not the prosecutor.

Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006).

       Pointedly, the Supreme Court stated:

       In Brady this Court held “that the 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 or bad faith
       of the prosecution.” [Brady v. Maryland,] 373 U.S., at 87, 83 S.Ct. 1194. We have
       since held that the duty to disclose such evidence is applicable even though there has
       been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct.
       2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence
       as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105
       S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material “if there is a
       reasonable probability that, had the evidence been disclosed to the defense, the result
       of the proceeding would have been different.” Id., at 682, 105 S.Ct. 3375; see also
       Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
       Moreover, the rule encompasses evidence “known only to police investigators and
       not to the prosecutor.” Id., at 438, 115 S.Ct. 1555. In order to comply with Brady,
       therefore, “the individual prosecutor has a duty to learn of any favorable evidence
       known to the others acting on the government’s behalf in this case, including the
       police.” Kyles, 514 U.S., at 437, 115 S.Ct. 1555.

                                             *    *   *

       [S]trictly speaking, there is never a real “Brady violation” unless the nondisclosure
       was so serious that there is a reasonable probability that the suppressed evidence
       would have produced a different verdict. There are three components of a true Brady
       violation: The evidence at issue must be favorable to the accused, either because it
       is exculpatory, or because it is impeaching; that evidence must have been suppressed
       by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 280-82 (1999). Regarding the materiality inquiry, “the question

is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.’” Id. at 289-90, quoting Kyles, 514 U.S. at 434.

       In Ex parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App. 1993), we recognized that

a police officer who collaborated with another witness to fabricate evidence against the defendant
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was acting under color of law, and we held that the officer’s knowledge of such evidence was

imputable to the prosecution. In this case, as one of the arresting officers, Carrion was part of the

prosecution team; thus, the State had a duty to disclose exculpatory evidence known by Carrion.

Furthermore, the State agrees that Officer “Carrion’s misconduct is imputed to the prosecution.”

State’s Brief at 7, 13.

        As discussed above, there are three components of a true Brady violation: 1) the evidence

at issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; 2) that evidence must have been suppressed by the State, either willfully or

inadvertently; and 3) prejudice must have ensued. As discussed, the first component of the Brady

claim in this case is met because the evidence was both impeaching and exculpatory. The second

component is met because the effectually exculpatory evidence, while not known by the prosecutors

at the time of the plea, was known by Officer Carrion who was an arm of the prosecution team for

Brady purposes. The third component of a true Brady violation is whether the defendant was

prejudiced. I believe the defendant was certainly prejudiced.

        The standard of prejudice that must be satisfied in order to obtain relief under a Due Process

Brady claim is that there is a reasonable probability that the result of the trial would have been

different if the suppressed evidence had been disclosed to the defense. Strickler, 527 U.S. at 289.

Quoting Kyles, the Supreme Court pointed out that “[t]he question is not whether the defendant

would more likely than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id.

at 289-90. In my view, Brady error is shown because the suppressed evidence of Officer Carrion’s

extreme misconduct was favorable to Applicant as exculpatory as well as impeachment evidence,
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prejudice ensued in that a trial resulted in a verdict not worthy of confidence, and that there is a very

reasonable probability that the result of the proceeding would have been different had the evidence

been disclosed. In my opinion, a verdict predicated on the extreme misconduct of Officer Carrion

could not be a verdict worthy of confidence. I also believe that the verdict would have certainly been

different had the misconduct of Officer Carrion been disclosed to Applicant.

        The first reason that it is apparent that the result would have been different if the misconduct

had been disclosed, is that the prosecution would certainly have offered a much lower sentence than

the fifteen years offered, had they known that the arresting officer was involved in the drug

trafficking scheme, and that the actual amount of cocaine was less than one gram. I can’t imagine

any reasonable prosecutor being willing to go to trial with these extremely detrimental facts. After

all, as Judge Richardson points out, the prosecutor’s office had expressed concern that Applicant

should have been charged with possessing less than one gram.

        The second reason that the result would have been different is that Applicant did not possess

twenty-six kilos of cocaine, but actually possessed twenty-six kilos of sheetrock sprinkled with less

than one gram of cocaine. As Applicant asserts, it appears certain that he would not have pled guilty

to the alleged offense and accepted a fifteen year sentence had the evidence of Officer Carrion’s

misconduct been disclosed to him. There is no way he would have pled guilty to possessing 400 or

more grams of cocaine when in reality he possessed only a trace amount of cocaine which had been

sprinkled on top of sheetrock. In the absence of the suppressed evidence of Officer Carrion’s

misconduct, it is evident that Applicant did not receive a fair trial, i.e., a trial resulting in a verdict

worthy of confidence. Based upon the suppressed evidence, indisputably Applicant possessed a

large amount of sheetrock with only a trace amount of cocaine sprinkled on top, while he was
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convicted of possessing 400 or more grams of cocaine. In my view, such a verdict is not worthy of

confidence. A conviction based on these facts does not resemble a conviction in which an individual

was afforded due process of law.

                               INVOLUNTARY PLEA CLAIM

       Applicant asserts that his plea was involuntary because of the suppressed evidence of Officer

Carrion’s misconduct. In my view, Applicant’s plea cannot be deemed to be knowing and voluntary

when he was not made aware of Officer Carrion’s illegal activities.

       A guilty plea must be entered knowingly and voluntarily, and cannot be truly voluntary unless

the defendant possesses an understanding of the law in relation to the facts; thus, the defendant must

have sufficient awareness of the relevant circumstances. Ex parte Mable, 443 S.W.3d 129, 131 (Tex.

Crim. App. 2014). “The standard is whether the plea is a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Id.

       As in a Brady claim, an involuntary plea claim encompasses the element of materiality. “In

the context of a guilty plea, materiality affects the voluntariness of the plea, and the voluntariness

of the plea affects whether the information that was considered by the defendant in making a

decision to plead guilty was material.” Ex parte Barnaby, 475 S.W.3d 316, 325 (Tex. Crim. App.

2015). In Barnaby, we discussed materiality in the context of a plea agreement. We held that “the

materiality of false evidence is measured by what impact that false evidence had on the defendant’s

decision to plead guilty.” Barnaby, 475 S.W.3d at 327. Although the instant case arguably involves

undisclosed, rather than false, evidence, in pleading guilty Applicant was unaware of the undisclosed

evidence just as Barnaby was unaware of the false evidence when he made his plea. So the analysis

should be applicable whether the case involves undisclosed or false evidence. The materiality
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determination was made based upon whether Barnaby, knowing the falsity of the evidence, still

would have pled guilty or would have insisted upon going to trial. If he would have chosen trial, the

false evidence would have been material. Id. at 325-26.

        Applicant asserts that, had he known about the misconduct of Officer Carrion, he certainly

would not have entered the plea of guilty and accepted the fifteen year sentence, but instead would

have filed a motion to suppress that would have been granted. The majority may be correct in the

assertion that the motion would not have been granted. However, whether he was mistaken about

the probable outcome of a suppression hearing has no bearing on whether he would have accepted

the plea. If he would have rejected the plea because of a mistaken belief, he still would have rejected

the plea. A plea rejection in favor of a trial is all it takes to meet the materiality requirement. Even

had Applicant not made the above assertion, it still would be very obvious that he would not have

accepted a fifteen year sentence had he been aware that the arresting officer was actually working

with the drug Cartel, had stolen the actual cocaine from the Cartel, and had played a significant role

in the drug trafficking scheme. Facts like these fulfill a criminal defense attorney’s dream. A case

like this is as close to a slam dunk not guilty as any criminal defense attorney can imagine. Any

good trial attorney would have advised Applicant to reject the fifteen year offer had he known about

Officer Carrion’s egregious misconduct. If you add to the misconduct of Officer Carrion, the fact

that Applicant actually possessed less than one gram of cocaine sprinkled on top of 26,000 grams

of sheetrock, the facts actually escalate far beyond any criminal defense attorney’s dream of ideal

trial facts. I cannot imagine any competent criminal defense attorney advising Applicant to accept

the fifteen year sentence. The suppressed evidence deprived Applicant of critical circumstances

relevant to his decision to make the plea agreement.
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       While this case is not a sufficiency case and the question as to whether the Health and Safety

Code allows for a conviction for over 400 grams of cocaine when there is actually less than one gram

of cocaine sprinkled over 26,000 grams of sheetrock is not the central issue in this case, and is not

even dispositive of the actual issues, it is relevant to the question of whether the plea was knowing

and voluntary. Therefore, an analysis of the statute is warranted.

       Applicant was convicted of the offense of possessing with intent to deliver cocaine, weighing

at least 400 grams by aggregate weight, including any adulterants and dilutants. Conversely, as the

majority opinion points out, the substance which Applicant was convicted of possessing contained

only trace amounts of cocaine. It was and is a disputed question whether the non-cocaine remainder

of that substance was properly included as adulterants or dilutants in the aggregate weight of

approximately 26,000 grams. Even so, had Applicant known about the evidence of Officer Carrion’s

criminal acts of replacing the trafficker’s cocaine with sheetrock which had trace amounts of cocaine

sprinkled on top, Applicant would have had evidence that could have vindicated him of the alleged

possession of approximately 26,000 grams. Possession of such a lesser quantity had a much lower

punishment range, i.e., possession of such a trace amount of less than one gram is a state jail felony

with such state jail punishments, which are significantly less than the punishments for possessing

400 grams or more. State jail felony punishment range is confinement in a state jail for not more

than two years or less than 180 days and a fine not to exceed $10,000, while punishment for

possessing with intent to deliver 400 grams or more of cocaine is imprisonment for life or a term not

more than 99 years or less than 15 years, and a fine not to exceed $250,000. TEX . PENAL CODE ANN .

§ 12.35; TEX . HEALTH & SAFETY CODE ANN . § 481.112(f).

       An adulterant or dilutant is “any material that increases the bulk or quantity of a controlled
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substance, regardless of its effect on the chemical activity of the controlled substance.” TEX . HEALTH

& SAFETY CODE ANN . § 481.002(49). I recognize that in the evidence sufficiency context we have

said, “The literal meaning of the legislature’s adulterant and dilutant definition is that any substance

that is added to or mixed with a controlled substance, regardless of when, how, or why the substance

was added, may be added to the aggregate weight of the controlled substance as an adulterant or

dilutant.” Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005) (emphasis added). However,

in my opinion, when Officer Carrion sprinkled the cocaine on top of the sheetrock, the bulk or

quantity of the cocaine was not increased. The result was still a small amount of cocaine sprinkled

on top of a large quantity of sheetrock. Furthermore, sprinkling the sheetrock with cocaine did not

constitute adding the sheetrock to the cocaine as would be required by the language in Seals.

Conversely, the cocaine was added to the sheetrock. Also, there is no evidence that the sheetrock

and cocaine were mixed together, as is required by the language in Seals. Therefore, the sprinkling

of cocaine on top of the sheetrock does not fit within the language of the statute or the language in

Seals, and it does not miraculously transform 26,000 grams of sheetrock sprinkled with less than one

gram of cocaine into 26,001 grams of cocaine. The result of Carrion’s sprinkling cocaine on the

sheetrock was still a lot of sheetrock with a small amount of cocaine sprinkled on top. Even so, this

case does not involve a claim of insufficient evidence. Rather, Applicant’s due process and knowing

plea voluntariness rights were infringed upon by having made his plea to the offense of possessing

400 or more grams of cocaine when members of the prosecution team, i.e., arresting Officer Carrion,

knew that the substance possessed contained only a “sprinkling” of cocaine. And as the cocaine was

sprinkled onto the sheetrock, it was certainly reasonably arguable that the sheetrock was not added

to or mixed with the cocaine, but rather the sprinkled cocaine was added to the sheetrock. The fact
                                                                                                   11

that there is a reasonable argument that the substance possessed by Applicant was less than one gram

of cocaine could certainly be enough to create reasonable doubt as to Applicant’s guilt of the alleged

offense of possession of 400 or more grams, and the evidence should have been disclosed prior to

the plea for the plea to have been truly knowing and voluntary. It must be noted, that this analysis

is independent of the Brady analysis. In a knowing and voluntary plea claim, it is irrelevant whether

the evidence is exculpatory or merely impeachment evidence.

       I would also add that applying the language in Seals to conclude, as the majority opinion

does, that Applicant was in possession of 26,000 grams of cocaine leads to absurd results. Applying

that logic would mean that if a person was loading a dump truck with sand, and decided to sprinkle

his small baggie of cocaine on top of the sand, he would then be guilty of possessing a dump truck

load of cocaine. This cannot be the law in Texas, and I agree with Judge Richardson that it is absurd

to conclude that our Legislature intended such a result.

       As discussed above, the undisclosed evidence exculpating Applicant of possessing

approximately 26,000 grams would have resulted in a significantly lower penalty range, with state

jail rather than prison confinement. Had the evidence been disclosed, Applicant assuredly would

not have pled guilty and accepted a fifteen year sentence when the disclosed evidence would have

revealed he was potentially only guilty of a state jail felony offense with a maximum sentence of two

years confinement in state jail. Applicant would not have pled guilty to the alleged offense and

instead would have gone to trial had the State insisted upon prosecuting such a trial, which in this

case seems extremely unlikely. After all, as Judge Richardson points out, the prosecutor’s office had

expressed concern that Applicant should have been charged with possessing less than one gram.

Thus, there is a reasonable probability the result of the proceeding would have been different, i.e.,
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it undermines confidence in the outcome, had the undisclosed evidence been disclosed. And without

knowledge of the suppressed evidence, Applicant’s decision to plead guilty to the alleged offense

was not knowing and voluntary, as he was unaware of the critical relevant circumstances of the

actual cocaine amount.

       Again, Applicant raised two separate and distinct claims in his writ of habeas corpus. I have

addressed each claim separately, and believe that he is entitled to relief under either claim.

       With these comments, I respectfully dissent and join Judge Richardson’s dissenting opinion.



Filed: November 15, 2017
Do not publish
