Opinion issued July 5, 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 the County Criminal Court at Law No. 14
                           Harris County, Texas
                       Trial Court Case No. 1547542



                          OPINION ON REHEARING

      Christopher Rios filed a motion for rehearing of our memorandum opinion

of December 29, 2011. We grant Rios’s motion for rehearing, withdraw our

opinion and judgment, and issue the following in their stead.
      Rios pleaded guilty to a class B misdemeanor charge of driving while

intoxicated. The trial court initially assessed punishment at a $200 fine and 180

days’ confinement, suspended the sentence, and placed Rios on community

supervision for one year; however, the trial court later granted the State’s motion to

revoke community supervision and sentenced Rios to 120 days’ confinement.

When the State informed Rios that the breath test results showing his blood alcohol

concentration to be approximately twice the legal limit were invalid, Rios applied

for and was denied post-conviction habeas corpus relief. On appeal, Rios contends

that the trial court’s ruling was in error. Because we have reviewed the record and

concluded that the trial court abused its discretion in denying Rios habeas relief,

we reverse.

                                    Background

      At around 2:00 a.m. on August 31, 2008, police officers stopped Rios after

he failed to stop for a stop signal. He explained that mechanical problems with his

vehicle caused him to “run” the stop signal. After speaking with officers and

performing field sobriety tests, which were recorded on video, Rios was arrested

for driving while intoxicated. Rios provided breath samples for an intoxilyzer test

that showed his blood alcohol concentration at 0.149 and 0.161. The record before

this Court does not show how much time elapsed between the time Rios was pulled

over and the time he provided the breath samples.

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      Rios pleaded guilty pursuant to a plea bargain. He was sentenced to 180

days’ confinement and fined $200, but the trial court suspended his sentence and

placed him on community supervision for one year. The conditions of his

community supervision prohibited Rios from using alcoholic beverages, mandated

that he submit to random alcohol tests, and required him to place an ignition

interlock device on his vehicle.       Alleging a number of violations of these

conditions, the State later moved to revoke his community supervision.

      Before the hearing on the State’s motion to revoke Rios’s community

supervision, the State discovered that the technician in charge of the intoxilyzer

used to test Rios’s blood alcohol concentration had falsified the calibration records

for that machine. The State informed Rios of these facts, and Rios applied for

habeas relief on the sole ground that his plea was involuntary because he relied on

the breath test results showing he had a blood alcohol concentration of

approximately twice the legal limit when he decided to plead guilty. The trial court

entered a judgment revoking community supervision and sentencing Rios to 120

days in jail and then conducted the habeas hearing less than one month later.

      At the habeas hearing, the State and Rios offered a stipulation of evidence of

the invalidity of the breath test results. The stipulation specifically states that the

intoxilyzer test “was invalid because the technical supervisor who maintained the

intoxilyzer that was used . . . had falsified the calibration records.” The stipulation

                                          3
also recites an agreement in anticipation of dismissal: “[Rios] . . . 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

[Rios].” When the trial court stated that it would not necessarily approve the

dismissal and asked if there was any other evidence, the prosecutor informed the

trial court that a video of Rios’s performance on the field sobriety tests existed but

was located “downstairs” and could not be vouched for. The trial court stated that

the tape should not be destroyed and “would remain as part of the Appellate

Record for this case.” When the trial court asked if there was any other evidence in

support of the request, and indicated that he was inclined to deny habeas relief,

Rios offered to testify. He testified that he pleaded guilty based on the breath test

results and that without the test results he would not have entered a plea of guilty.

      The trial court, not the State, then questioned Rios. Rios admitted that he

had consumed alcohol on the night of his arrest, that he was represented by counsel

when he entered into the plea, that he discussed the plea with his attorney, and that

he signed the preprinted plea forms that the court “marked . . . for Appellate

purposes as Court’s Exhibit . . . 1, that will go up with the Appellate Record[.]” He

also testified that the breath test results were discussed at the hearing on his plea,1


1
      While the trial court limited its questioning to the terms of the written plea itself,
      Rios made it clear that the breath test results were discussed at the plea hearing.
      The results showed an alcohol concentration above 0.15. The trial court had to be
                                            4
but conceded that the plea itself did not mention the intoxilyzer results.               He

admitted that he violated the terms of community supervision in a number of ways,

including violating the prohibition against alcohol consumption and failing to

attend required meetings with his community supervision officer, although he

testified that he always tried to call and explain why he could not attend. There was

no other evidence regarding the negotiations of the plea and whether its terms were

favorable. The State offered no evidence in opposition to the request for habeas

relief. Indeed, the State did not ask a question or voice any opposition to the

request.

      At the conclusion of his questioning, the trial court announced that because

Rios had failed to keep his promise regarding complying with the terms of

probation, Rios had “established [a] pattern of being less than truthful with the

court,” and the court did not find Rios credible on “the circumstances of [his]

plea,” particularly in light of his plea of guilty. The judge remarked “it [was] quite

possible” that Rios had “lost the normal use of [his] mental and physical faculties”

and that the record did not contradict that. (Emphasis added.) The trial court then

denied habeas relief in open court and by written order on January 3, 2011.


      informed of these results to comply with the statutory mandate to require the
      defendant to install the ignition interlock on his vehicle as part of the conditions of
      community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 13(i)
      (West Supp. 2011). Thus, Rios’s testimony that the breath test results were
      discussed at the hearing is supported by the procedure envisioned by the statute.

                                             5
      A few weeks later, the trial court signed findings of fact and conclusions of

law in support of its ruling. In these findings of fact, the trial court concluded that

Rios was not credible and stated that it did not believe Rios’s testimony regarding

his motivation for pleading guilty. The trial court also noted that the information

alleged only that Rios was intoxicated, but did not specify a blood alcohol

concentration or otherwise refer to the breath test results. Although the issue of

intoxication was not before the trial court at the time of the hearing and the

prosecution could not vouch for and did not offer the video as evidence, the trial

court specifically stated in its subsequent fact findings that the video supported a

finding that Rios did not have the normal use of his mental or physical faculties on

the night in question. See TEX. PENAL CODE ANN. § 49.01(2) (West 2011) (defining

“[i]ntoxicated” as both “not having the normal use of mental or physical faculties

by reason of the introduction of alcohol . . . into the body” or “having an alcohol

concentration of 0.08 or more”).2 The trial court further found that Rios was aware

of the evidence against him and pleaded guilty in order to “secure a favorable plea




2
      The trial court found that Rios’s “performance on video of the field sobriety tests
      demonstrated sufficient evidence that a reasonable jury could have found him
      guilty of the offense of which he was accused.” The video is of poor quality—the
      sound, in particular, cuts in and out and is often difficult to follow. Reasonable
      people, after viewing the video, could come to different conclusions concerning its
      significance. But the trial court could not rely on the videotape because it was
      never admitted into evidence.
                                           6
bargain and for no other reason.” The trial court ultimately concluded that Rios’s

guilty plea was “knowingly and voluntarily entered.”

                               Standard of Review

      An applicant seeking habeas corpus relief on the basis of an involuntary

guilty plea is required to prove his claim by a preponderance of the evidence, not

beyond a reasonable doubt. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006). In our review of the trial court’s ruling on Rios’s habeas claim, we

must view the record evidence in the light most favorable to the trial court’s ruling

and uphold the ruling absent an abuse of discretion. See id. “We afford almost total

deference to a trial court’s factual findings in habeas proceedings, especially when

those findings are based upon credibility and demeanor.” Ex parte White, 160

S.W.3d 46, 50 (Tex. Crim. App. 2004). The trial court, as the factfinder in the

underlying habeas proceeding, could accept or reject all or any part of Rios’s

testimony. Ex parte Peterson, 117 S.W.3d 804, 819 n.68 (Tex. Crim. App. 2003)

(citing Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993)), overruled

on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).

      A trial court abuses its discretion by acting without reference to any guiding

rules or principles or, in other words, acting arbitrarily or unreasonably. Ex parte

Alakayi, 102 S.W.3d 426, 430 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(citing Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993)). And although

                                         7
we afford almost total deference to a trial court’s factual findings, we may reject

those findings when they are not supported by the record. White, 160 S.W.3d at 50;

Ex parte Briseno, 135 S.W.3d 1, 13 (Tex. Crim. App. 2004).

                           Rios’s plea was involuntary

      Rios argues that his guilty plea was involuntary because he did not know

that the breath test results were inadmissible. According to Rios, but for that

erroneous information, he would not have pleaded guilty.

      “A guilty plea constitutes a waiver of three constitutional rights: the right to

a jury trial, the right to confront one’s accusers, and the right not to incriminate

oneself.” Kniatt, 206 S.W.3d at 664. “The ‘overriding concern’ in reviewing the

constitutional validity of a guilty plea is ‘whether a defendant has been deprived of

due process and due course of law.’” Holland v. State, 761 S.W.2d 307, 322 (Tex.

Crim. App. 1988) (quoting Ex parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App.

1979)). To satisfy due process, a guilty plea “must be entered knowingly,

intelligently, and voluntarily.” Kniatt, 206 S.W.3d at 664. We consider the entire

record in determining the voluntariness of a guilty plea. See Martinez v. State, 981

S.W.2d 195, 197 (Tex. Crim. App. 1998); Williams v. State, 522 S.W.2d 483, 485

(Tex. Crim. App. 1975); Burke v. State, 80 S.W.3d 82, 93 (Tex. App.—Fort Worth

2002, no pet.).




                                          8
      When, as here, the record reflects that the defendant was duly admonished

by the trial court before entering a guilty plea, it presents a prima facie showing

that the plea was both knowing and voluntary. Martinez, 981 S.W.2d at 197. The

burden then shifts to the defendant to show he entered the plea without

understanding the consequences of his actions and was harmed as a result. Id.

Rios’s sworn representation that his guilty plea was voluntary “‘constitutes a

formidable barrier in [this] subsequent collateral proceeding.’” Kniatt, 206 S.W.3d

at 664 (quoting Blackledge v. Allison, 431 U.S. 63, 73−74, 97 S. Ct. 1621, 1629

(1977)); see Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.]

2007, no pet.). However, a plea is involuntary when it is “induced by threats,

misrepresentations, or improper promises.” Kniatt, 206 S.W.3d at 664 (citing

Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)).

      Here, it is undisputed that “the technical supervisor who maintained the

intoxilyzer . . . had falsified the calibration records for that intoxilyzer during the

period which [Rios’s] test was conducted.” Thus, the technical supervisor—an

agent of the State—affirmatively misrepresented the scientific validity, and

therefore the legal admissibility, of Rios’s breath test results. See, e.g., Harrell v.

State, 725 S.W.2d 208, 209–10 (Tex. Crim. App. 1986) (providing predicate for

admissibility of breath test). And although the prosecutor did not know that the

State presented Rios with falsified evidence from an agent of the State, the

                                          9
prosecutor’s lack of knowledge of the misrepresentation is irrelevant. See Kyles v.

Whitley, 514 U.S. 419, 437−38, 115 S. Ct. 1555, 1567 (1995) (prosecutors must

not only disclose information within their own personal knowledge but have “a

duty to learn of any favorable evidence known to the others acting on the

government’s behalf in the case, including the police”); Brady v. Maryland, 373

U.S. 83, 87, 83 S.Ct. 1194, 1196–97 (1963) (“[T]he 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.”); Ex parte Chabot, 300 S.W.3d 768, 772 (Tex.

Crim. App. 2009) (agreeing with convicting court that conviction based on

perjured testimony violated defendant’s due process rights, notwithstanding that

State had no knowledge of perjured testimony at time of trial).

      Furthermore, Rios testified that he would not have pleaded guilty but for the

breath test results. Although the trial court in its findings of fact found that Rios

was not credible, the trial court also expressly stated that its conclusion was based

in part on Rios’s failure to comply with the conditions of community supervision

included as part of the terms of his plea bargain. Such after-the-fact failures do not

reflect a lack of credibility when Rios agreed to these conditions at the time of the

plea. To show dishonesty, the evidence had to show that when Rios made these

promises, he had no intention of keeping them. Cf. Schindler v. Austwell Farmers

                                         10
Co-op., 841 S.W.2d 853, 854 (Tex. 1992) (“For a promise of future performance to

be the basis of actionable fraud, it must have been false at the time it was made.”).

Not only is there no evidence of such intent, but such intent is highly unlikely

because non-compliance exposed him to the risk of imprisonment. These facts,

therefore, do not support the trial court’s credibility determination.3

      While a guilty plea is a formidable barrier to a subsequent collateral

proceeding, it must only be surpassed by a preponderance of the evidence, and

Rios satisfied that burden. See Kniatt, 206 S.W.3d at 664. At the time of the

original plea, the State represented to Rios that it had valid evidence which

appeared to any objective person to be formidable: the results of an intoxilyzer test,

with two readings nearly double the legal limit. But that was an affirmative

misrepresentation by an agent of the State, because the technical supervisor knew

the evidence was not valid. Further, there was no evidence to contradict Rios’s

testimony that his plea was based on the validity of the breath test results, and



3
      The trial court also stated that Rios’s testimony that he would not have entered a
      guilty plea had he not been confronted with the breath test results was not credible
      because it was “possible” that he did not have the normal use of his faculties on
      the night in question, and that Rios had not disproved the possibility. But the State
      offered no evidence of Rios’s impairment at the hearing so there was no reason for
      Rios to disprove this speculative possibility. The trial court announced its ruling
      before it watched the video. Its subsequent viewing of the video cannot support its
      conclusion here because the video was never offered or admitted into evidence.
      Thus, this evidence also does not support the trial court’s credibility
      determination.

                                           11
breath test results showing a blood alcohol concentration double the legal limit

would be strong evidence that a criminal defense lawyer would have to discuss

with the defendant and would influence a defendant’s decision of whether to

accept a plea.

      Finally, the State not only did not oppose habeas relief but entered into a

stipulation that the technician lied, that the breath test results were unreliable, and

that this tainted evidence would serve as a basis for vacating and dismissing the

charges against Rios. Based on this stipulation, the lack of support for the trial

court’s credibility determination, and Rios’s testimony, the trial court abused its

discretion by refusing to grant relief and vacate the underlying judgment.

      The trial court therefore erred in denying Rios habeas relief. Cf. Salazar v.

State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001) (trial court does not abuse its

discretion by overruling new trial motion when evidence adduced at hearing on

motion is conflicting); Ex parte Shah, No. 01-03-00789-CR, 2004 WL 36217, at

*2 (Tex. App.—Houston [1st Dist.] Jan. 8, 2004, pet. ref’d) (mem. op., not

designated for publication) (no abuse of discretion by trial court that was presented

with conflicting evidence in habeas proceeding); see also Ex Parte Bennett, No.

AP-76330, 2010 WL 1697559, at *1 (Tex. Crim. App. April 28, 2010) (not

designated for publication) (citing Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim.

App. 1985), and holding that applicant was entitled to habeas relief from driving

                                          12
while intoxicated conviction because of same misrepresentation by same state

agent as in this case); Ex parte Lewis, 587 S.W.2d at 703 (stating that “a defendant

and his attorney cannot make an intelligent decision on whether to plead guilty

when they have not received favorable information that is in the State’s file to

which they are entitled” and that “a showing of the State’s failure to disclose

favorable information before entry of a guilty plea leads as a matter of law to the

conclusion that the plea was not knowingly and intelligently made.”).

      We sustain Rios’s sole issue.

                                      Conclusion

      Rios is entitled to habeas corpus relief. Consequently, we reverse the order

of the trial court and remand this case to the trial court with instructions that the

judgment of conviction be set aside and for further proceedings consistent with this

opinion.




                                              Harvey Brown
                                              Justice

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

Justice Sharp, concurring. Concurring opinion to follow.

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




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