IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-96,385-01
EX PARTE DENISE ELAINE MILLS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1420310-A IN THE 177TH DISTRICT COURT FROM HARRIS COUNTY
FINLEY, J., filed a dissenting opinion, in which SCHENCK, P.J., and PARKER, J., joined.
DISSENTING OPINION
In this instant writ of habeas corpus, Applicant raises two claims for
post-conviction relief: (1) she “was denied due process when the State used
material[,] false evidence to induce her guilty plea”; and (2) her “guilty plea
was involuntary.” Today, the Court agrees and grants Applicant post-
conviction habeas relief. I would file and set this application to determine
whether Applicant is entitled to post-conviction relief. Mills Dissent – 2
Applicant’s involuntary plea claim for which the Court grants relief is
premised on her being unaware of a police officer’s pattern of mendacity or as
the majority puts it, “bad acts.” Maj. Op. at 1. But a pattern of mendacity does
not render a plea involuntary. Rather, false evidence (whether proved or
inferred) does, but only if such evidence was material in a defendant’s decision
to plead guilty. It appears that the Court mistakenly conflates a pattern of
mendacity with an unrebutted inference of falsity, as discussed below.
Given this analytic gap, I believe the Court should file and set this writ
application. The Court does not. Therefore, I respectfully dissent.
I. Background
a. The Facts from Officer Gerald Goines’s Police Report1
On March 6, 2014, Officer Gerald Goines was undercover in an
unmarked vehicle in a high-traffic drug area in Houston, Texas. Officer Goines
spoke with Applicant to purchase crack cocaine, specifically “2-$10 rocks of
crack cocaine.” Applicant entered the unmarked vehicle and directed Officer
Goines to a residence. When they arrived, Officer Goines gave Applicant $20.
Applicant entered the residence alone and then returned with “one rock like
substance.” Even though Officer Goines sought to purchase two $10 rocks of
1 The official police report’s text is fully capitalized. The capitalization has been converted to lower case for ease of reading. Mills Dissent – 3
crack cocaine, Applicant informed him that the singular rock she gave him
“was a ‘twenty,’” which is a “street term for $20 of rock cocaine.”
After receiving the crack cocaine, Officer Goines drove off, dropped
Applicant off at a street’s intersection, and gave her an additional $5 bill for
assisting with the buy. As Applicant walked away, Officer Goines informed
arresting officers to make an arrest. An arresting officer found “one rock like
substance . . . in her right hand along with the $5 bill which was given by
[Officer Goines].” Officer Goines verified that the $5 bill was the same one he
gave Applicant when dropping her off. Officer Goines field tested the rock
Applicant purchased for him and the one found in her hand. Both tested
positive for crack cocaine, at which point Officer Goines submitted them to a
narcotics lock box for evidence.
b. The Plea
On June 25, 2014, a grand jury indicted Applicant on the felony charge
of delivery of a controlled substance, specifically cocaine “weighing by
aggregate weight, including any adulterants and dilutants, less than one
gram.” Two prior state jail felony convictions were included in the indictment
as enhancements: (1) prostitution, and (2) delivery of a controlled substance. Mills Dissent – 4
With these prior convictions and upon conviction for this instant felony charge,
Applicant was facing two to ten years’ imprisonment.2
Less than one week later, Applicant, represented by counsel, and the
State entered into a plea deal in which Applicant pleaded guilty to delivery of
cocaine of less than one gram. In exchange for Applicant’s plea, the State
recommended 180 days confinement on the state-jail felony offense and agreed
to abandon both enhancement paragraphs. The trial court granted the State’s
motion to abandon the enhancements and sentenced Applicant to 180 days
confinement, in accordance with the plea.3
c. Post-Conviction Proceedings
In March of 2019, the Harris County District Attorney’s Office sent a
letter to Applicant, disclosing that Officer Goines had been relieved of duty and
was under criminal investigation. More than five years after receiving the
letter, Applicant filed this instant application for writ of habeas corpus.
Applicant’s alleges two grounds for post-conviction habeas relief: (1) she
“was denied due process when the State used material[,] false evidence to
induce her guilty plea”; and (2) her guilty plea was involuntary. For the first,
Applicant alleges that Officer Goines’s version of events, as provided in his
2 TEX. PENAL CODE § 12.425(a) (West 2012); id. § 12.34(a). 3 TEX. HEALTH & SAFETY CODE § 481.112 (West 2012); TEX. PENAL CODE § 12.35 (West
2012). Mills Dissent – 5
offense report, see supra Section I.a., are presumptively false, and were
material to her decision to plead guilty because Officer Goines’s allegations
were the only evidence against her. For the second, Applicant alleges that
Officer Goines’s undisclosed pattern of falsifying evidence in official police
reports and court documents rendered her plea involuntary because had she
known of such conduct, she would have insisted on going to trial. Applicant’s
unsworn declaration asserts that she did not “commit this offense,” “possess
any drugs on March 6, 2014,” and “give any drugs to Gerald Goines or anyone
else.”
On January 16, 2025, the habeas court adopted the State’s and
Applicant’s agreed proposed findings of fact and conclusions of law. The habeas
court recommends that this Court grant relief. The following excerpts from the
adopted document are pertinent to my discussion below:
14. In contrast to Coty, the Court finds the State has not presented evidence which effectively rebuts the presumptively false evidence. Cf. Coty, S.W.3d at 344.
15. Applicant’s unsworn declaration contains the following regarding Goines’ pattern of false evidence: “If l had known that Goines was making up charges against other people during the same time he was lying about me, I would not have pleaded guilty. If I could somehow have shown that he was doing this to other people too, I would have insisted on a trial.” (Ex. C., Unsworn Declaration). Mills Dissent – 6
16. The Court finds this portion of Applicant’s unsworn statement relevant and credible considering Goines’ multiple documented instances of misconduct between 2008 and 2019.
17. The Court finds Applicant’s plea to be involuntary. Barnaby, 475 S.W.3d at 325–26.
***
19. The Court concludes Applicant successfully demonstrates by a preponderance of the evidence that the presumptively false evidence provided by Goines in the offense report is material, and that the Applicant is entitled to habeas corpus relief. Cf. Coty, 432 S.W.3d at 344.
20. The Court also concludes Applicant successfully demonstrates by a preponderance of the evidence that her plea was involuntary. Cf. Barnaby, 475 S.W.3d at 325–26.
Today, the Court grants relief on Applicant’s involuntary plea claim
because she did not know of Officer Goines’s bad acts when pleading guilty. See
Maj. Op. at 1–2. In doing so, the Court relies on Ex parte Mathews, 638 S.W.3d
685 (Tex. Crim. App. 2022) (Mathews I), Ex parte Coty, 418 S.W.3d 597 (Tex.
Crim. App. 2014), and Brady v. United States, 397 U.S. 742 (1970). For the
reasons explained below, I do not believe Applicant is entitled to relief, at least
without further analysis and explanation.
II. Analysis
a. Mathews I incorrectly conflated a pattern of mendacity with an inference of falsity. Under most false-evidence habeas claims, an applicant must show that
the State used false evidence against her and that the false evidence was Mills Dissent – 7
material to her conviction or punishment. See, e.g., Ex parte Weinstein, 421
S.W.3d 656, 665 (Tex. Crim. App. 2014). Each prong of this two-pronged
inquiry is distinct. Id. This Court will deny relief if either prong is not proven.
See id. at 669.
In 2014, this Court recognized that in unique circumstances an applicant
may establish falsity by a rebuttable inference rather than by direct evidence.
Coty, 418 S.W.3d at 604–05. Even though Coty implemented a shifting burden
for falsity, it held that for materiality—regardless of how falsity is proven—
“the applicant must prove that the false evidence was material to his or her
conviction.” Id. at 605. So while Coty provided an alternative route to establish
the falsity prong of false-evidence habeas claims, it did not change the
fundamental requirement that the false evidence itself must be material. Id.;
accord Ex parte Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2012) (“To
constitute a due-process violation, the record must show that the testimony
was material, namely, that there is ‘a reasonable likelihood’ that the false
testimony affected the judgment of the jury.” (citing Ex parte Ghahremani, 332
S.W.3d 470, 478 (Tex. Crim. App. 2011))).
One year later, this Court explicitly extended Coty to the plea-bargaining
context. Ex parte Barnaby, 475 S.W.3d 316, 322–27 (Tex. Crim. App. 2015) (per Mills Dissent – 8
curiam).4 In doing so, Barnaby permitted plea-bargaining habeas applicants to
use Coty’s inference of falsity for claims involving a laboratory technician’s
malfeasance. Id. at 323–25. Barnaby further noted that because guilty pleas
are contextually different than false testimony or evidence produced at trial,
the materiality question must ask the following: “Would the defendant,
knowing of the falsity of the evidence, still have plead[ed] guilty or would he
have insisted on going to trial?” See id. at 325–26. “If he would have chosen
trial, the false evidence was material.” Id. at 326. But like Coty, Barnaby
reaffirmed the basic principle that “[a]fter an applicant makes the initial
showing of falsity, he must still prove that the false evidence (whether proved
or inferred) was material to the decision to plead guilty.” Id. at 323–24 (citing
Coty, 418 S.W.3d at 606).
Mathews I tampered with that basic principle. 638 S.W.3d at 692.
Mathews I extended the rebuttable inference of falsity to “cases involving police
officers who display a pattern of mendacity in obtaining drug arrests and
convictions.” Id. at 690–91.5 To obtain the rebuttable inference of falsity, an
applicant must prove: (1) the officer is a state actor; (2) the officer has
4 Even though Coty also involved a plea deal, the Court did not “did not discuss
materiality in the context of a guilty plea.” Barnaby, 475 S.W.3d at 324 n.11 5 Matthews I’s underlying facts are strikingly similar and indeed also involve Officer
Goines. See 638 S.W.3d at 687–89. Mills Dissent – 9
“committed multiple instances of misconduct ‘in another case or cases’”; (3) the
officer is “the same state actor in the current case”; (4) the officer’s “previous
misconduct is of a kind ‘that would have affected the evidence in’ [a]pplicant’s
case”; and (5) the officer acted “‘within roughly the same period of time’ that he
committed his other acts of misconduct.” See id. at 691 (citing Coty, 418 S.W.3d
at 605). This, too, applies to pleas. Id. at 690–91.
While nothing previously discussed is surprising, Mathews I’s
materiality discussion is. It began by underscoring Barnaby, 475 S.W.3d at
326, and Ex parte Owens, 515 S.W.3d 891, 898 (Tex. Crim. App. 2017), as
examples of situations in which the challenged plea was held voluntary, even
in light of false evidence, because the applicant failed to prove materiality.
Mathews I, 638 S.W.3d at 691; see also Barnaby, 475 S.W.3d at 326; Owens,
515 S.W.3d at 898. This is no surprise because a successful false-evidence
involuntary plea claim must satisfy two prongs: (1) false evidence, and (2)
materiality. But then Mathews I stumbled. It considered the officer’s “history
of falsification” in determining whether materiality was satisfied—rather than
considering the unrebutted, inferentially false evidence at issue that was
analyzed previously in the opinion’s section entitled “Applying the Coty
Factors.” Mathews, 638 S.W.3d at 691–92 (noting that applicant “insist[ed]
that he would not have taken th[e] deal had he known of Goines’s history of Mills Dissent – 10
falsification beforehand”). Mathews I did not consider whether unrebutted,
inferentially false evidence induced the applicant’s guilty plea as required by
Barnaby. Mathews I, 638 S.W.3d at 692. Instead, Mathews I allowed the
applicant to, on remand, establish the inference of falsity and then swap it out
for the officer’s “pattern of mendacity” to establish materiality. Id. at 691.
But the “pattern of mendacity” in Mathews I is simply the police officer
version of “the extent of the pattern of misconduct the technician is accused of”
in Coty. Compare id. at 690 (stating that Coty’s five-factor test applies “to cases
involving police officers who display a pattern of mendacity in obtaining drug
arrests and convictions”), with Barnaby, 475 S.W.3d at 323 (stating that Coty’s
five-factor test was needed for situations in which “a laboratory technician has
demonstrated a pattern of misconduct” (citing Coty, 418 S.W.3d at 606)).
Mathews I failed to differentiate the two. It mistakenly conflated the false
evidence inference and a pattern of mendacity when articulating the
materiality prong of false-evidence involuntary plea claims. Thus, Mathews I
allowed something that is not false evidence to potentially invalidate a plea.
The Court should file and set this writ application to correct this
mistake. Mills Dissent – 11
b. Is a pattern of mendacity a distinct, functional equivalent of false evidence? If a pattern of mendacity is a distinct but functional equivalent of false
evidence, thereby becoming a meritorious ground for a false-evidence
involuntary-plea claim, then the Court should explain why.6
At the outset, I am reluctant to believe that a pattern of mendacity
should be treated like false evidence because mendacity’s scope is used to limit
the inference of falsity. Coty, 418 S.W.3d at 605 & n.11. While mendacity is
certainly probative of the degree to which we believe that false evidence
infected an applicant’s conviction or plea, it is nevertheless a separate concept.
See id.
As mendacity relates to materiality, I do not think that had Applicant
known of Officer Goines’s pattern of mendacity, she would have proceeded to
trial. See Barnaby, 475 S.W.3d at 325–26; id. at 323 (“The voluntariness of a
plea ‘can be determined only by considering all of the relevant circumstances
surrounding it.’” (quoting Brady, 397 U.S. at 749)). The grand jury indictment
alleged that Applicant delivered cocaine to Officer Goines on March 6, 2014. So
too did Applicant’s stipulation and judicial confession. Officer Goines’s
“unknown” or “undisclosed” pattern of mendacity is unrelated to Applicant’s
6 As an aside, I am unsure whether the State even had a duty to disclose a pattern of
mendacity. See United States v. Ruiz, 536 U.S. 622, 629 (2002). Mills Dissent – 12
decision to plead guilty because at the time of her plea only one of two mutually
exclusive situations could be true: (1) Applicant did not deliver cocaine to
Officer Goines, so Applicant knew that Officer Goines was lying; or (2)
Applicant did deliver cocaine to Officer Goines, so Officer Goines was truthful.
Officer Goines’s pattern of mendacity is not implicated in the latter. For the
former, Officer Goines’s pattern of mendacity—specifically, fabricating
charges, and falsifying official police records and court documents—was known
by Applicant at the time she pleaded guilty because Officer Goines’s falsehoods
were before her, in writing. And yet, Applicant pleaded anyways.
Moreover, while Officer Goines was the only witness, other than
Applicant, to the purported drug transaction, an arresting officer found crack
cocaine in Applicant’s hand and the $5 bill that Officer Goines allegedly gave
to Applicant. These two facts would tend to weigh against materiality because
they serve as additional, circumstantial evidence that Officer Goines’s police
report was not the only evidence against Applicant. The other crack rock may
also rebut the inference of falsity because it substantiates the truthfulness of
Officer Goines’s report. Namely, Officer Goines provided Applicant with $20 to
purchase two crack rocks. After the drug buy, Applicant gave Officer Goines
one rock under the guise that it was individually worth $20. And yet, when
Applicant was arrested, the officer found a crack rock in her hand. It does not Mills Dissent – 13
take a sleuth to conclude that Applicant could have, in fact, purchased two
rocks according to her initial deal with Officer Goines and then decided to keep
one for herself. The arresting officer who found the rock, to the Court’s
knowledge, has not engaged in misconduct, and Applicant did not contend that
anyone planted that rock on her person. Applicant’s application is curiously
silent as to this mysterious second rock.
Alternatively, maybe the Court means to say false evidence whenever it
uses the term pattern of mendacity. If this is the case, then the Court should
clarify as such because our jurisprudence indicates otherwise.
But again, I am uncertain whether Applicant would be entitled to relief
even if such clarification is warranted. If the Court means to say false evidence
when it uses the term pattern of mendacity, then Officer Goines’s pattern of
mendacity would actually mean his underlying police report (i.e., the allegedly
false evidence). Yet an officer’s report is not admissible evidence. TEX. R. EVID.
803(8). Before Mathews I, false evidence claims seemed to be restricted to false
admissible evidence. See, e.g., Barnaby, 475 S.W.3d at 319–20 (lab report);
Coty, 418 S.W.3d at 598–602 (lab report); Ghahremani, 332 S.W.3d at 476–77
(trial testimony). Assuming that a police report falls under the umbrella of
false evidence claims, at the time of her plea, Applicant knew whether or not
Officer Goines was lying. Mills Dissent – 14
Applicant alleges that Officer Goines’s version of facts in the offense
report was the only evidence to support her conviction. Taken at face value,
this indicates that Applicant would have known about the misrepresentation
and pleaded anyways, thereby knowingly and voluntarily entering the plea.
The habeas court did not inquire into why Applicant accepted the plea under
these circumstances, so it is unknown. But “the question of whether the value
of the undisclosed information . . . was outweighed by the benefit of accepting
the plea offer” is one of the relevant facts and circumstances that should be
considered during the materiality analysis. Barnaby, 475 S.W.3d at 325–27;
see also id. at 326 n.19 (“Applicant had a clear incentive to plead guilty in this
case, despite his professed belief in his innocence.” (citing North Carolina v.
Alford, 400 U.S. 25, 38 (1970))). For Applicant, the value of the undisclosed
information is zero; either Officer Goines’s statements were true, or Applicant
knew they were false before she accepted the plea. This inquiry is relevant and
may result in Applicant failing to establish materiality, yet it received no
consideration.
c. When the only instances of proven misconduct are separated by ten years, does it make sense to infer falsity for every Goines-related case that falls within this ten-year window?
Of the five factors required to infer falsity, factors two and five have a
temporal aspect. Coty, 418 S.W.3d at 605; Mathews I, 638 S.W.3d at 691. While Mills Dissent – 15
the second factor requires proof of other instances of intentional misconduct,
the fifth factor requires proof that the currently alleged instance of misconduct
occurred “within roughly the same time” as the previously proven, not inferred,
instances of misconduct. See Mathews I, 638 S.W.3d at 691. In essence, these
factors create a permissible “window in time,” and if the currently alleged
instance of misconduct falls within that window, the Court will presumptively
infer that the evidence in question is false. See id.; see also Ex parte Mathews,
666 S.W.3d 475, 476 (Tex. Crim. App. 2023) (Mathews II). But in doing so, the
Court opened the floodgates for any post-conviction writs that mention Officer
Goines.
In Mathews II, there were two instances of proven misconduct—one in
2008 and another in 2018. 666 S.W.3d at 476. The alleged instance of
misconduct occurred in 2013. Id. Even though it happened five years before
and after the only instances of proven misconduct, the Court concluded that it
“occurred within roughly the same period of time as the other misconduct.” Id.
Thus, the Court effectively created a ten-year window in which any evidence
handled by Officer Goines is inferred as false. See id.
This ten-year window is too liberal of an application of Coty, which was
fashioned only because the Court realized that is inappropriate “to presume
error and materiality in every case” involving bad actors, such as Officer Mills Dissent – 16
Goines. 418 S.W.3d at 606. Now the Court effectively presumes error in any
case involving Officer Goines that falls within 2008 and 2018.
Applicants are now able to engage in inference stacking. Instead of
proving actual instances of intentional misconduct, besides what this Court
has previously recognized regarding the separate instances in 2008 and 2018,
applicants can rely on instances in which this Court has inferred false
evidence. In the habeas court’s findings of fact and conclusions of law, for
example, the court concluded that “Goines has been found to have provided
false evidence in the following cases, on the dates indicated, all of which have
resulted in the Court of Criminal Appeals Granting relief[.]” The habeas court
cited an astonishingly high number of cases: twenty-nine. For reference, the
following were cited:
• Ex parte Otis Mallet Jr., Nos. WR-90,980-01 & WR-90,980-02, 2020 WL 3582438 (Tex. Crim. App. July 1, 2020); • Ex parte Steven Mallet, 620 S.W.3d 797 (Tex. Crim. App. 2021); • Ex parte Derek Hams, No. WR-94,870-01 (Tex. Crim. App. April 24, 2024); • Ex parte Byron Prophet, No. WR-95,386-02 (Tex. Crim. App. August 21, 2024); • Ex parte Jeffrey Vance, No. WR-32316-02 (Tex. Crim. App, June 19. 2024); • Ex parte Lisa Brown, No. WR-93,640-01 (Tex. Crim. App. May 3, 2023); • Ex parte Andre Rashad Dillard, No. WR-94,879-01 (Tex. Crim. App. August 23, 2023); • Ex parte Doris Martin, No. WR-95,686-01/02 (Tex. Crim. App. August 21, 2024); • Ex parte Chris Dewayne Flowers, No. WR-94,786-01 (Tex. Crim. App. June 7, 2023); Mills Dissent – 17
• Ex parte Corey Johnson, No. WR-95,268-01 (Tex. Crim. App. December 20, 2023); • Ex parte Roderick Bell, No. WR-95,159 01 (Tex. Crim. App. December 6, 2023); • Ex parte Terrance Spriggs, No. WR-94,947-01 (Tex. Crim. App. September 13, 2023); • Ex parte Melvin Mitchell, No. WR-95,393-01 (Tex. Crim. App. April 17, 2024); • Ex parte Cedric Woods, No. WR-94,858-01 (Tex. Crim. App. August 23, 2023); • Ex parte Sharay Thomas, No. WR-95,674-01 (Tex. Crim. App. June 19, 2024); • Ex parte Joyce Coby, No. WR-95,132-01 (Tex. Crim. App. November 15, 2023); • Ex parte Aaron Mathews, No. WR-91,731-01, 2023WL 151296 (Tex. Crim. App. January 11, 2023); • Ex parte Bobby Lee Garnous, No. WR-94,841-01 (Tex. Crim. App. December 6, 2023); • Ex parte Damian McGinnis, No. WR-95,123-01 (Tex. Crim. App. October 5, 2023); • Ex parte James Ybarra, No. WR-95,148-01 (Tex. Crim. App. January 10, 2024); • Ex parte Michael Gastille, No. WR-95,535-01, 2024 WL1295816 (Tex. Crim. App. March 27, 2024); • Ex parte Macarthur Ross, No. WR-95,087-01 (Tex. Crim. App. September 27, 2023); • Ex parte Harry Gradney, No. WR-95,160-01 (Tex. Crim. App. October 18, 2023); • Ex parte Dequentun Mitchell, No. WR-95,208-01 (Tex. Crim. App. December 13, 2023); • Ex parte Shanta Renchie, No. WR-94,940-01 (Tex. Crim. App. August 23, 2023); • Ex parte Tony Vaughn, No. WR-92,339-01, 2023 WL 152256 (Tex. Crim. App. January 11, 2023); • Ex parte Kattina Barley, No. WR-95,818-02, 2024 WL 4033579 (Tex. Crim. App. September 4, 2024); • Ex parte Frederick Jeffrey, No. WR-92,544-01, 2022 WL 4088689 (Tex. Crim. App. September 7, 2022); and • Ex parte Tyrik Guy, No. WR-95,476-01 (Tex. Crim. App. February 28, 2024). Mills Dissent – 18
Yet this Court has actually concluded that Officer Goines provided false
evidence in only three of those cases, not all twenty-nine: Otis Mallet Jr.,
Steven Mallet, and Jeffrey. Thus, in almost 90% of the cases relied upon by the
habeas court and in which this Court has granted relief, this Court inferred
false evidence without actually finding that Officer Goines engaged in
misconduct. By repeatedly permitting applicants to obtain post-conviction
relief under these circumstances, the Court has diluted Coty. Applicants now
have free-standing false evidence relief without ever having to prove that the
alleged misconduct in question occurred in close proximity to a previously
proven instance of misconduct.
Inference stacking allows applicants to artificially close the temporal gap
by falsely equating previous presumptive inferences of false evidence with
previous, proven instances of actual misconduct. Permitting inference stacking
also alleviates an applicant’s need to prove multiple instances of similar
misconduct. This disregards how “it is incumbent upon the applicant to
establish the extent of the pattern of misconduct the [state actor] is accused
of.” Coty, 418 S.W.3d at 605. Rather than making this showing, inference
stacking permits and encourages applicants to “establish” a pattern of what is
supposed to be actual misconduct by relying upon inferred, unproven instances
of misconduct. But unproven instances of misconduct establish nothing. They Mills Dissent – 19
establish that this Court inferred false evidence in previous situations. That
inference is unrelated to whether the state actor in question actually
committed multiple instances of misconduct. In fact, judicial notice of prior
inferences establishes the exact opposite—previously inferred false evidence
claims establish that there was insufficient evidence of misconduct in that
prior writ. How could insufficient evidence of misconduct in one writ serve as
competent, sufficient evidence of misconduct in another? It cannot. Inferred,
unproven instances of misconduct cannot satisfy any of the Coty factors. And
yet, that is precisely what inference stacking does—unproven misconduct
magically becomes proven, thereby creating innumerable instances of
misconduct when there are none.
The Court should file and set this writ application to determine whether
inference stacking is permissible, and the requisite temporal proximity
between previously proven instances of misconduct and the alleged misconduct
at issue. See Mathews I, 638 S.W.3d at 691 (noting that five years alone is likely
too much).
d. Should someone who commits perjury during the heart of the plea process be rewarded with post-conviction habeas relief because they allege that there is a possibility of false evidence?
Applicant presents this Court with two contradictory statements: her
2014 plea, and her unsworn declaration. To circumvent their mutual Mills Dissent – 20
exclusivity, Applicant asks the Court to disregard her prior, sworn admission
and to believe her unsworn declaration that conveniently provides her with
post-conviction relief. The Court does. Why?
The Court has yet to squarely address the issue of why someone who may
have lied when pleading guilty should be allowed to collaterally attack their
plea under the guise that it was involuntarily entered into due to the State’s
use of false evidence. But we have come close. In Ex parte Tuley, this Court
filed and set a writ application to determine whether an actual innocence claim
under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), is cognizable
on habeas review when an applicant pleads guilty. 109 S.W.3d 388, 390 (Tex.
Crim. App. 2002). The Court held that it is. Id.
To reach its conclusion, Tuley had to determine whether or not granting
such relief would reward and encourage perjury. Id. at 391, 393. Tuley
dismissed these concerns because they “ignore[d] the realities of pursuing a
bare innocence claim” and “[a] defendant would have to assume that new
evidence that affirmatively shows his innocence will appear from nowhere.” Id.
Thus, the crux of the Court’s reasoning appears to rest upon Elizondo’s
“Herculean” burden, Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.
2006), that requires an applicant to establish “by clear and convincing evidence
that no reasonable juror would have convicted him in light of the new Mills Dissent – 21
evidence,” Elizondo, 947 S.W.2d at 209 (original emphasis). Those
considerations are unlike Applicant’s.
In a scenario like Tuley, the perjury concerns are outweighed by the
simple fact that a Tuley applicant is relying on Elizondo for relief. See Tuley,
109 S.W.3d at 389–90, 393 & n.2. An innocent applicant under Elizondo
“unquestionably shows that he did not commit the offense for which he is
incarcerated.” Id. at 392. This undermines the entire purpose of the underlying
criminal proceeding because unless the perjury is disregarded, an individual
who has demonstrated their actual innocence would remain incarcerated. See
id. at 392 (“The purpose of criminal proceedings is to separate the guilty from
the innocent.” (citing Herrera v. Collins, 506 U.S. 390, 398 (1993))). But those
concerns are absent here, as Applicant neither claims nor demonstrates that
she is entitled to relief under Elizondo. See id. at 392 (“There is nothing
equitable about permitting an innocent person to remain in prison when he
produces new evidence that unquestionably shows that he did not commit the
offense for which he is incarcerated.”). It is unclear why Elizondo’s
considerations should be imported here and prohibit the Court from
considering the relevance of perjury. Simply put, the Tuley–Elizondo logic does
not easily extend. Mills Dissent – 22
By pleading guilty, Applicant received the benefit of her bargain because
she was only sentenced to 180 days in the state jail, and the State abandoned
two enhancement paragraphs.7 Yet now, Applicant attempts to renege. In
doing so and at some point, Applicant affirmatively lied to the State, the trial
court, and presumably defense counsel. Applicant effectively created the
underlying basis of her writ application because at the time she pleaded guilty,
she knew whether Officer Goines lied in his report. It seems inappropriate to
allow someone like Applicant to collaterally attack their plea when they both
intentionally lied and failed to demonstrate relief under Elizondo.
Again, I would file and set this writ application to discuss these concerns.
III. Conclusion
I am unsure whether Applicant is entitled to relief under our false-
evidence involuntary-plea habeas jurisprudence. Moreover, I am skeptical of
continually permitting writ applicants to use inference stacking to satisfy
Coty’s five-factor test as applied in Mathews I. I believe the Court should file
7 It is unclear from the habeas record, but after Applicant’s arrest and according to
Officer Goines’s offense report, she was charged with both delivery and possession of a controlled substance, “bond was set at $15,000[] for each case,” and each case had distinct cause numbers. The possession charge does not appear in Applicant’s criminal history report. The State very well may have dropped that charge and only pursued the delivery offense with an understanding that Applicant would plead to the delivery offense. Mills Dissent – 23
and set this application to clarify Mathews I and explain why Applicant is
entitled to relief. Because the Court does not, I respectfully dissent.
Filed: March 26, 2025 Publish