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 OF HARRIS COUNTY
N EWELL, J., filed a concurring opinion.
What makes this case so difficult is the nature and degree of the
misconduct engaged in by Marcos Carrion, one of the arresting officers in
the case. At the time he arrested Applicant, Carrion was a “dirty” cop on
the payroll for drug traffickers. And, proving there is no honor among
thieves (or drug traffickers as the case may be), Carrion was also stealing
from his employer (the drug traffickers not the police) by taking cocaine
before it was delivered to a courier and replacing it with sheetrock and Pena Concurring – 2
trace amounts of cocaine. Then, Carrion would provide cover for himself
with the drug traffickers by arresting the courier with the fake drugs for
possession of the full amount in order to make the drug traffickers think
the real drugs had been seized. To be clear, Carrion manufactured
evidence. In this case. Against this defendant. As the Court rightly
notes, “Carrion’s misconduct was willful, brazen, and appalling.”
Yet, I ultimately agree with the Court that Applicant is not entitled
to relief because Applicant tried to possess evidence that was even more
damning than the evidence Carrion manufactured. I do not wholly join
the Court’s opinion because it decides a number of issues left open in
other cases without explaining why. But I also cannot join the dissents
because I do not believe Applicant is entitled to relief under the rationales
provided in those opinions. Ultimately, I concur in the result.
Part I: The Part of My Opinion Where I Disagree with the Majority
In Ex parte Palmberg, we left open the possibility that we could,
under our own false-evidence jurisprudence, grant relief where false
evidence might undermine the integrity of the plea bargain process 491
S.W.3d 804, 812 (Tex. Crim. App. 2016). As we noted, “It is unclear to
what extent a defendant, at least so far as the United States Constitution Pena Concurring – 3
is concerned, is afforded protection on the basis of fairness in the pre-trial
phase of a prosecution.” Id. at 813. And we explained that, “Obviously,
states are free, through their own constitutions or statutes, to provide
greater protection for defendants in the pre-trial phase of prosecution.”
Id. at 813 n. 17 (citing Heitman v. State, 815 S.W.2d 681, 690 (Tex.
Crim. App. 1991)). As an example, we suggested that intentionally
misrepresenting information to induce a plea would be “unfair” and would
render the plea involuntary. Id.
Nevertheless, we rejected the application of a false-evidence theory
in Palmberg because there was no indication that the State had used false
or misleading evidence, knowing or otherwise. Id. at 814. In that case,
the defendant pleaded guilty to possession of what he believed to be
cocaine “[k]nowing exactly as much as the State did–that there was a
substance found during the search incident to arrest that may or may not
be subject to later testing in a forensic laboratory.” Id. Even though
later testing established that the substance collected had been used up
by the field tests, pleading the defendant out before disclosing that fact
to him did not “impugn the fairness or integrity of the process[.]” Id. So,
while we seemed to have acknowledged that we might, under the right
circumstances, grant relief where the fairness of the plea bargain process Pena Concurring – 4
was compromised by intentional misrepresentations, Palmberg was not
the case or the circumstances in which to do that.
Carrion’s misconduct and misrepresentations in this case, however,
were intentional not inadvertent. We suggested in Palmberg that whether
a plea bargain is voluntary and whether the plea-bargain process was fair
are two separate, but intertwined inquiries. Id. at 812-13 (“Admittedly,
whether the plea was voluntary and whether the plea-bargain process
was fair can involve overlapping considerations.”). And we allowed that
“the State going so far as to misrepresent information to induce a plea
would be unfair.” Id. at 813. But we never clarified what that means.
The United States Supreme Court has acknowledged that a guilty
plea may be involuntary if it is induced by misrepresentations. Brady v.
United States, 397 U.S. 742, 755 (1970). The Fourth Circuit has relied
upon this language to hold that an affirmative government
misrepresentation that strikes at the integrity of the prosecution as a
whole can result in an involuntary plea even where the misrepresentation
comes from a law enforcement officer. United States v. Fisher, 711 F.3d
460, 466 (4th Cir. 2013); see also Ferrara v. United States, 456 F.3d
278, 291 (1st Cir. 2006) (“Under limited circumstances,
however–everything depends on context-the prosecution’s failure to Pena Concurring – 5
disclose evidence may be sufficiently outrageous to constitute the sort of
impermissible conduct that is needed to ground a challenge to the validity
of a guilty plea.”). With today’s decision, we seem to hold an Applicant
is only entitled to relief from a plea bargain upon an intentional
misrepresentation claim if that intentional misrepresentation comes from
the line prosecutor rather than a member of the prosecution team such
as an arresting officer. We do not address whether an intentional
misrepresentation, unknown by the prosecutor at the time of the plea, by
an officer, might render the plea-bargaining process unfair similar to the
situation presented in Fisher. In this way, we seem to limit Palmberg
without explaining why. To that extent, I cannot join the Court’s opinion.
Moreover, the Court’s “favorable evidence” analysis appears to
apply the definition of materiality associated with the late disclosure of
Brady evidence. By that I mean, the Court looks, in this case, to whether
there is a reasonable probability that the outcome of the trial would have
been different had the prosecutor made a timely disclosure. See Pena v.
State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011). I do not mean to
suggest that the Court applies a legal sufficiency analysis. The
Brady materiality standard is not that. Id. Rather, the Court spells out
very persuasively that any effort Applicant might have engaged in would Pena Concurring – 6
have been fruitless as he still would have been found guilty had he gone
to trial.
We held in Ex parte Barnaby that our standard for materiality is
different when we are considering a claim that a plea is rendered
involuntary by the failure to disclose false evidence. 475 S.W.3d 316,
325 (Tex. Crim. App. 2015). To show materiality in that context we ask
whether there is a reasonable likelihood that the false evidence affected
the defendant’s decision to plead guilty, not whether it affected the
conviction or sentence. Id. By way of comparison, we found the false
evidence in Barnaby immaterial because the record showed that the
applicant had gotten a good deal by pleading guilty, supporting the
conclusion that there was no reasonable likelihood that his decision to
plead guilty would have been affected by the false lab test results in
question. Id. at 326. While we did rely upon significant evidence of guilt
in our recent case Ex parte Owens to uphold the voluntariness of a plea,
we also noted evidence that the applicant had received a favorable plea
offer and that there was also no evidence that he was waiting on lab
testing to make up his mind. 515 S.W.3d 891, 899 (Tex. Crim. App.
2017).
In this case, the Court’s primary focus seems to be on whether Pena Concurring – 7
Applicant would still be found guilty had he gone to trial. The Court does
not consider whether the misinformation could have affected Applicant’s
decision to enter into the plea bargain.1 In this sense, the Court’s
decision undermines the Barnaby materiality-to-the-decision-to-plea
standard in favor of the Brady materiality-to-the-outcome-of-trial
standard.
Further, the Court specifically recognizes the distinction between
exculpatory and impeachment evidence under Brady, and characterizes
the evidence at issue as impeachment evidence. But the Court does not
consider whether the impeachment evidence might have affected
Applicant’s decision to plead guilty other than to explain why he still
would have been found guilty however he tried to use the impeachment
evidence. As mentioned above, even if the impeachment evidence at
issue in this case would not undermine Applicant’s challenge to his
conviction, it could at least have played a role in whether to agree to a
1 The Court does note that Applicant avoided the risk of getting the m axim um sentence in his case by pleading guilty to the statutory m inim um , but that’s pretty weak sauce. A plea to the statutory m inim um shows that Applicant got a benefit for his bargain, but the Court still doesn’t attem pt to weigh the value of the false evidence against the benefit Applicant received. Barnaby, 475 S.W.3d at 326. The Court apparently believes that im peachm ent evidence in this case has no value because only “exculpatory” evidence would have any effect on the ultim ate outcom e of the case. In that m anner, the Court’s analysis is still only focused upon the ultim ate outcom e of the case, not Applicant’s decision- m aking process. Pena Concurring – 8
particular sentence. In this way, the Court appears to conclude that the
evidence in this case is not material simply because it is not
“exculpatory.” I do not join this aspect of the opinion.
Part II: The Part of My Opinion Where I Disagree with the Dissents
But on the other hand, the distinction between “exculpatory” and
“impeachment” evidence helps bring Palmberg into sharper focus. In Ex
parte Mable, the lab test provided affirmative evidence that the defendant
did not possess any drugs, providing the applicant with exculpatory
evidence regarding the charged offense. 443 S.W.3d 129, 130 (Tex.
Crim. App. 2014). In Palmberg, the revelation that there were no drugs
left to test provided evidence suitable to impeach the arresting officer,
but not affirmative evidence exculpating the applicant. 491 S.W.3d at
815. And though we did not consider the materiality of “false” evidence
in Palmberg, had we done so any possible impeachment value of the
evidence in that case was considerably lower than the impeachment value
of the evidence at issue in this case.2 To be sure, discerning where
2 I refer to the evidence at issue in Palm berg as “false” evidence only for ease of discussion of the relevant legal concepts. W e did not determ ine the evidence at issue in Palm berg to be false, and that is why we never considered the m ateriality of that evidence. 491 S.W .3d at 811 (“Applicant has presented no evidence suggesting that the facts of this case were not exactly what all the parties involved in the case believed them to be at the tim e he entered his plea.”). Pena Concurring – 9
impeachment evidence ends and exculpatory evidence begins is a difficult
task, but as the United States Supreme Court seems to recognize this
distinction, I see no problem with this Court recognizing it as well.3
And I do agree with the Court that Article 38.23 would not require
the suppression of the evidence. As the Court rightly explains, to show
that Carrion tampered with or fabricated the drugs seized from the car,
Applicant needs to show that Carrion knew an investigation or official
proceeding was pending or in progress and that he made, presented, or
used the seized cocaine with knowledge of its falsity and with intent to
affect the course of the outcome of the investigation or official
proceeding. T EX. P ENAL C ODE § 37.09(a)(2); Wilson v. State, 311 S.W.3d
452, 464 (Tex. Crim. App. 2010). Under the unique facts of this case, I
think the evidence shows that Carrion knew an investigation was pending
because his entire plan depended upon it.
“Pending” in the tampering statute means “impending, or about to
take place,” a definition consistent with the Model Penal Code. See
Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App. Houston [1st Dist.]
3 Of course, this Court’s opinion in Ex parte Broussard m ay have rendered the distinction between exculpatory evidence and im peaching evidence a distinction without a difference. 517 S.W .3d 814, 825 (Tex. Crim . App. 2017)(Newell, J., concurring in denial of rehearing) (suggesting that Broussard’s expansion of Palm berg has im plicitly overruled Ex parte Mable, 443 S.W.3d 129 (Tex. Crim . App. 2014)). Pena Concurring – 10
2004, pet. ref’d.); see also Thurston v. State, 465 S.W.3d 255, 256 (Tex.
Crim. App. 2015) (Keller, P.J., concurring). We can take it as a certainty
that there was an investigation pending at the time Carrion engaged in
misconduct in this case because Carrion controlled when the investigation
would commence. Moreover, Carrion needed the investigation to take
place, and quickly, so that he could use the criminal justice system to
essentially launder the cocaine he stole from his employer (again, the
drug traffickers not the police). However, it is debatable that Carrion
actually acted “with intent to affect the course or outcome of the
investigation” as his plan to cover his tracks also required an intent that
the investigation proceed exactly as it would have if he had not altered
the package of cocaine in question.
Yet, even if we assume that Carrion manufactured evidence in
violation of the tampering statute, the Court correctly notes that we have
previously interpreted the word “obtained” in Article 38.23 to require a
showing that illegality follow the crime under investigation rather than
precede it. Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App.
2002). A situation where a dirty cop plants evidence upon a defendant
after an arrest would fall under this understanding of Article 38.23. But
while Carrion undisputedly manufactured evidence (and at least arguably Pena Concurring – 11
did so in violation of the tampering statute), Applicant still took
possession of the package with the intent that he possess the exact
quantity of cocaine he was charged with possessing. His argument is not
that he never possessed drugs, it’s that the drugs he intended to possess
had been severely “stepped on” by the cops. So I agree with the Court
that Applicant would not have had a legal basis for the suppression of his
evidence.
For similar reasons, I agree that Applicant would not have been
entitled to a lesser-included-offense instruction for possession of a lesser
amount of cocaine. A defendant is not entitled to a jury instruction on a
lesser-included offense unless there is some scintilla of evidence from
which a rational jury could acquit the defendant of the greater offense
while convicting him of the lesser-included offense. Sweed v. State, 351
S.W.3d 63, 68 (Tex. Crim. App. 2011). In Cawthon v. State, we held that
to include an adulterant or dilutant in the aggregate weight of a controlled
substance, the State must prove four elements: (1) the identity of the
named illegal substance, (2) that the added remainder (adulterants or
dilutants) has not affected the chemical activity of the named illegal
substance, (3) that the remainder (adulterants or dilutants) was added
to the named illegal substance with the intent to increase the bulk or Pena Concurring – 12
quantity of the final product, and (4) the weight of the illegal substance,
including any adulterants or dilutants. 849 S.W.2d 346, 349 (Tex. Crim.
App. 1992).
But after we issued Cawthon, the legislature amended the
Controlled Substances Act to provide a specific, and very broad definition
of “adulterants and dilutants.” Seals v. State, 187 S.W.3d 417, 420 (Tex.
Crim. App. 2005). As we observed in Seals, the legislature specifically
intended to abolish any limits on what substances are to be considered
adulterants or dilutants. Id. Under this new definition, the State no
longer has to prove the amount of controlled substance and the amount
of adulterants and dilutants that makes up a mixture of a controlled
substance. Id. The State need only prove that the aggregate weight of
the controlled substance mixture equals the alleged minimum weight
under the statute. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim.
App. 2003).
Under this definition, we have held that the defendant’s blood found
in a vial of methamphetamine was an “adulterant or dilutant” even
though it was not used in the manufacture or transportation of the drug
in question. Seals, 187 S.W.3d at 422. We have even held that pouring
liquid methamphetamine into a bottle of bleach in an attempt to destroy Pena Concurring – 13
the drugs resulted in the bleach becoming an “adulterant or dilutant.”
Jones v. State, 235 S.W.3d 783, 786 (Tex. Crim. App. 2007). As we
noted in Jones, the bleach was an adulterant or dilutant “[r]egardless of
when, how, or why it was added[.]” Id. If bleach or blood is an
adulterant or dilutant, then so is sheet rock regardless of when, how, or
why it was added.
Proof that the cocaine in this case was not nearly as pure as
Applicant originally thought when he took possession of it would not have
provided a valid, rational alternative to possession of at least 400 grams
of cocaine with intent to deliver. The Court is right that a jury finding
that Applicant possessed less than the aggregate weight of the mixture
could only be arrived at if the jury intentionally disregarded the law
applicable to the case. Consequently, I agree with the Court that the
evidence of Carrion’s misconduct was not “exculpatory” and that it would
not have entitled Applicant to a jury instruction on a lesser-included
offense for possession of a lesser amount of cocaine.
Part III: The Part of My Opinion Where I Throw Up My Hands
So there appears to be a pox on both houses. On the one hand
there is a palpable sense of injustice from allowing a conviction to stand Pena Concurring – 14
when it is infected by such misconduct from a member of law
enforcement. But the legal value of the false evidence in this case lay in
its ability to undercut the credibility of an officer who did not testify rather
than negate any element of the offense. On the other hand, the
applicable legal standards do not seem to account for the very real-world
impact that finding out about systemic, invasive misconduct on the part
of a member of the prosecution team might have upon a defendant’s
decision to plead guilty. Yet, relying upon simple resort to “fairness” risks
substituting speculative anecdotalism and emotional outrage for clearly
defined legal standards that can be applied by courts in the future.
We tried a nebulous “this isn’t right” due process standard when we
first started dealing with the systemic misconduct of lab technician
Jonathan Salvador. See Owens, 515 S.W.3d at 896 (“These ‘Salvador
cases’ all shared a common finding by this Court that there had been a
presumptive due-process violation in each case in which Salvador was the
laboratory technician.”). But we abandoned that approach rather quickly
in Ex parte Coty because the “this isn’t right” standard failed to
adequately address the issue of falsity and materiality. Id. Neither
approach seems wholly satisfying, but at least the approach in Coty
provides a workable standard and seems likely to be applied to Carrion’s Pena Concurring – 15
“drug swapping” scheme in the future. 418 S.W.3d 597, 605 (Tex. Crim.
App. 2014) (announcing five-factor test for a presumption of falsity in
cases involving systemic, intentional misconduct, and requiring the
applicant to prove materiality). Still, the Coty standard was designed to
address the fallout from Jonathan Salvador’s misconduct not the cases
involving his intentional misconduct. This case is ground zero; it’s not
about the fallout.
I see how under the Barnaby standard the intentional misconduct
in this case could have affected Applicant’s decision to plea. In that
sense, there seems to be room for a finding that Carrion’s misconduct
was “material” under Barnaby. But I also recognize that the United
States Supreme Court has held that, in the context of an involuntary plea
based upon a Brady claim, due process does not require disclosure of
material impeachment evidence prior to a defendant pleading guilty of a
crime. United States v. Ruiz, 536 U.S. 622, 630 (2002). It makes no
sense that the failure to disclose impeachment evidence would require
relief under a false-evidence claim but not under a Brady claim when both
claims allege a violation of due process and both involve the same
evidence and the same allegations of intentional misconduct.
Of course, Ruiz dealt with a blanket waiver of the right to notice Pena Concurring – 16
regarding potential impeachment evidence. To the extent that the
Supreme Court considered the impact of undisclosed impeachment
evidence it did so on a theoretical basis. It remains to be seen whether
this standard would hold up in the face of concrete (and particularly
compelling) impeachment evidence. Perhaps the egregious nature of the
misconduct in this case will prompt the Supreme Court to re-evaluate
Ruiz, particularly in light of the Court’s recent acknowledgment that
“criminal justice today is for the most part a system of pleas, not a
system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Or
perhaps not. Nevertheless, Ruiz is the law today and I see no indication
that it will cease to be the law tomorrow. I cannot fault the Court for
applying it.
In the end, I join the result in light of Ruiz. We have tried holding
that intentional misconduct obviates the need for a determination of
materiality, but we abandoned that approach in Coty. Under Ruiz, a
defendant is not constitutionally entitled to pre-plea notice of even
material impeachment evidence, so it is hard to see how the subsequent
discovery of such evidence would render a plea involuntary.4 In the end,
4 Under Article 39.14(h) of the Code of Crim inal Procedure the State has a statutory duty to disclose any im peachm ent evidence. However, this case does not involve a claim that the State violated Article 39.14(h) because that statutory subsection becam e effective Pena Concurring – 17
Ruiz seems to make a showing of materiality immaterial so long as the
evidence at issue can be characterized as impeachment evidence. So, if
the United States Supreme Court is okay with allowing a defendant to
plead guilty before he is apprised of all material impeachment evidence,
this Court must be okay with it too.
With these thoughts I concur.
Filed: November 15, 2017
Do Not Publish
after Applicant pleaded guilty.