Palmberg, Bryan Elliott

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,876-01

EX PARTE BRYAN ELLIOTT PALMBERG, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 1121345-A FROM THE
179TH DISTRICT COURT OF HARRIS COUNTY

Y EARY, J., delivered the opinion for the Court in which K ELLER, P.J., and
K EASLER, H ERVEY, R ICHARDSON, and N EWELL, JJ., joined. A LCALA, J., filed a
dissenting opinion in which M EYERS and J OHNSON, JJ., joined.

OPINION

Applicant pled guilty to one count of possession of a controlled substance, namely

cocaine, and the trial court sentenced him to ninety days’ confinement in county jail. He did

not appeal his conviction. Seven and a half years later, however, Applicant filed the instant

post-conviction application for writ of habeas corpus under Article 11.07 of the Texas Code
 PALMBERG — 2

of Criminal Procedure. T EX. C ODE C RIM. P RO. art. 11.07.1 He now claims his guilty plea was

involuntary because, at the time he entered it, he mistakenly believed that, if he proceeded

to trial, the State would be able to prove the substance he possessed was cocaine. When this

Court received the application, we remanded it to the trial court for supplemental findings

of fact.2 After remand, we ordered the application to be filed and set for submission to

determine whether a guilty plea is involuntary when the defendant mistakenly believes that

certain inculpating evidence would be available for use against him should he proceed to

trial. We also required that both parties brief the issue.

BACKGROUND

On June 17, 2007, Houston Police Officer J. C. Masaba saw Applicant trespassing at

a Burger King restaurant in Harris County. Masaba noticed that applicant seemed intoxicated

and arrested him for public intoxication. Searching Applicant incident to the arrest, Masaba

1
Applicant was convicted of a state jail felony. TEX . HEALTH AND SAFETY CODE § 481.115
(b). He was sentenced to ninety days’ confinement in county jail, however, which is less than the
time required under a state jail felony punishment. See TEX . PENAL CODE §12.35(a) (punishment for
a state jail felony is “any term of not more than two years or less than 180 days”). Under certain
conditions “a court may punish a defendant who is convicted of a state jail felony by imposing the
confinement permissible as punishment for a Class A misdemeanor[.]” TEX . PENAL CODE § 12.44
(a). In Ex parte Sparks, we held that a felony conviction is all that an applicant must show for a claim
to be cognizable in post-conviction habeas corpus proceedings, even if the actual offense was a
misdemeanor. 206 S.W.3d 680, 682 (Tex. Crim. App. 2006). Taken together, Section 12.44(a) of
the Penal Code and Sparks support the proposition that a state jail felony conviction that is punished
as if it were a Class A misdemeanor is still subject to collateral attack in an Article 11.07 post-
conviction application for writ of habeas corpus.
2
The purpose of the remand was to allow the trial court to make a determination whether the
substance found on Applicant’s person at the time of arrest had been analyzed by a forensic
laboratory.
 PALMBERG — 3

found a substance in Applicant’s left front pants pocket. Masaba conducted a field-test on

the substance and, based on the test results, tentatively determined that the substance was

cocaine. Two days later, Applicant waived his right to be charged by indictment and was

charged by information with the state jail felony offense of possession of a Penalty Group

1 controlled substance in an amount less than a gram. T EX. H EALTH & S AFETY C ODE §

481.115(b). On that same day, June 19, 2007, he entered a judicial confession and pled guilty

to that offense and was sentenced to confinement for ninety days in the county jail, which he

subsequently served.3 Applicant now alleges he has suffered, and continues to suffer,

collateral consequences stemming from his conviction. He claims he is susceptible to denial

of housing and denial of federal and state benefits, as well as use of the conviction for future

punishment enhancements and as a basis to deny parole or to increase or deny bail. He also

claims other economic, emotional, and physical disadvantages.

On September 14, 2009—roughly two years after the guilty plea—a laboratory analyst

for the Houston Police Department attempted to analyze the substance found on Applicant

at the time of his arrest. But, because Masaba had used up all of the substance found on

Applicant at the time of his arrest for presumptive testing, there was no remaining

unprocessed sample available for laboratory analysis. For this reason, it could not be

confirmed whether or not the substance actually was cocaine. The next day, September 15,

2009, the Houston Police Department Crime Laboratory sent a letter to the Harris County

3
In his judicial confession, Applicant asserted that he understood the allegations in the
indictment against him and confessed that “they are true[.]”
 PALMBERG — 4

District Attorney explaining that, when Masaba conducted the field-test, he used the entire

visible substance found on Applicant, and there was no unprocessed sample left over for the

laboratory to analyze.4 Applicant was unaware of this information at the time of his plea.

More than four years later, on May 27, 2014, the Harris County District Attorney’s Office

located the letter that was sent from the laboratory and forwarded it at that time to the Harris

County Public Defender’s Office.5 On January 27, 2015, Applicant filed this application for

writ of habeas corpus, contending that his plea was involuntary.

Applicant contends that his plea of guilty was involuntary because, had he known at

the time of the plea that none of the substance found on his person was left to be tested in a

laboratory, he would not have pled guilty. He claims that, without the laboratory analysis of

the substance, the State would have had no evidence at trial.6 The State agrees that the

4
The trial court’s original recommended findings of fact erroneously stated that the sample
was analyzed and that the analysis did not indicate the presence of any controlled substance. This
Court remanded to the trial court to clarify the contradiction between the trial court’s findings and
the letter sent from the Houston Police Department Crime Laboratory. It has now been determined
that the letter depicts the accurate version of events regarding the sample: The laboratory did not
analyze the substance because there was no unprocessed sample left to analyze.
5
It is unclear from the record why, after receiving the letter in 2009, the Harris County
District Attorney’s Office did not forward it immediately instead of almost five years later. The State
claims it located the letter during a “comprehensive review of controlled substance variance cases,”
but this does not explain why it was not disclosed to Applicant during the five years preceding the
comprehensive review. It is possible that the State simply did not think that such information,
discovered two years after the guilty plea, was significant in 2009—five years before our decision
in Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). Regardless, there seems to
have been no vindictiveness on the part of the State, a notion further substantiated by the fact that
the State turned the letter over immediately upon the discovery in 2014.
6
The trial court’s recommended conclusions of law include a conclusion that the results of
a presumptive chemical field test performed by an officer in the field is inadmissible at trial. For
 PALMBERG — 5

defendant is entitled to relief.7 The trial court agreed that the decision to plead guilty was not

a voluntary and intelligent choice and recommended that this Court allow Applicant to

withdraw his plea in accordance with Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim.

App. 2014).

THE LAW

An agreement to plead guilty entails a waiver of three significant constitutional rights:

The right against self incrimination; the right to confrontation; and the right to a trial by jury.

Boykin v. Alabama, 395 U.S. 238, 243 (1969). Because such significant constitutional rights

are at stake, due process requires that their relinquishment in the course of a guilty plea be

undertaken voluntarily, with sufficient awareness of the consequences. McCarthy v. United

States, 394 U.S. 459, 466 (1969). A defendant “must have sufficient awareness of the

relevant circumstances,” and must possess an understanding of the law in relation to the

facts. Id. To determine whether a defendant’s “awareness” was “sufficient” at the time of his

plea, a reviewing court looks to whether the plea was a voluntary and intelligent choice

among the alternative courses of action open to the defendant. State v. Guerrero, 400 S.W.3d

576, 588 (Tex. Crim. App. 2013).

But a defendant need not have a comprehensive awareness of the specific impact that

relinquishing his constitutional rights may have; sufficient awareness does not require

purposes of resolving Applicant’s claim, we will assume without deciding that this is correct.
7
This Court is not bound by such a confession of error. Garza v. State, 213 S.W.3d 338, 350
(Tex. Crim. App. 2007) (citing Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002)).
 PALMBERG — 6

complete knowledge of the prosecution’s case. In United States v. Ruiz,536 U.S. 622, 625-26

(2002), the United States Supreme Court upheld the constitutionality of a federal “fast track”

plea bargain process whereby the defendant agreed to waive his due process right to the

pretrial disclosure of impeachment information. The Supreme Court concluded that Ruiz’s

ignorance of potential impeachment information did not render his guilty plea involuntary

for due process purposes. Id. at 629. The Supreme Court observed that

the law ordinarily considers a waiver knowing, intelligent, and sufficiently
aware if the defendant fully understands the nature of the right and how it
would likely apply in general in the circumstances—even though the
defendant may not know the specific detailed consequences of invoking it. A
defendant, for example, may waive his right to remain silent, his right to a jury
trial, or his right to counsel even if the defendant does not know the specific
questions the authorities intend to ask, who will likely serve on the jury, or the
particular lawyer the State might otherwise provide.

Id. at 629-30. A guilty plea does not violate due process, the Supreme Court observed, even

when the defendant enters it while operating under various misapprehensions about the

nature or strength of the State’s case against him—for example, misestimating the likely

penalty, failing to anticipate a change in law respecting punishment, miscalculating the

admissibility of a confession, or misjudging the availability of a potential defense. Id. at 630-

31.

The cases Ruiz cites amply support this proposition. For example, in Brady v. United

States, 397 U.S. 742, 757 (1970), the defendant’s attorney gave reasonable advice, “in light

of the then applicable law[,]” that the jury would be able to sentence him to death under the

pertinent statute. This advice turned out to be incorrect based on a subsequent Supreme Court
 PALMBERG — 7

decision in United States v. Jackson, 390 U.S. 570 (1968). Brady v. United States, 397 U.S.

at 756. The defendant in Brady v. United States argued that, because his plea was given in

ignorance of the subsequent decision in Jackson, it was involuntary. 397 U.S. at 756. The

Supreme Court disagreed, finding there to be “no requirement in the Constitution that a

defendant must be permitted to disown his solemn admissions in open court that he

committed the act with which he is charged simply because it later develops that the State

would have had a weaker case than the defendant thought or that the maximum penalty then

assumed applicable has been held inapplicable in subsequent judicial decisions.”Id. at 757.

McMann v. Richardson is a case cited in Ruiz with facts even more analogous to

Applicant’s circumstances. There the Supreme Court addressed a defendant’s claim that “a

coerced confession induced his plea[.]” The Supreme Court regarded it, however, as “at most

a claim that the admissibility of his confession was mistakenly assessed and that . . . his plea

was [therefore] an unintelligent and voidable act.” 397 U.S. 759, 769 (1970). The Supreme

Court observed that “[t]he Constitution . . . does not render pleas of guilty so vulnerable.” Id.

The Court reasoned that when a “defendant waives his state court remedies and admits his

guilt, he does so under the law then existing; further, he assumes the risk [of] ordinary error

in either his or his attorney’s assessment of the law and facts.” Id. at 774 (emphasis added).8

8
That is not to say that, if a defendant’s counsel misinforms him with regard to some critical
fact, he may not raise a separate Sixth Amendment challenge to the adequacy of counsel’s
representation during the plea bargaining process. See, e.g., Lafler v. Cooper, 132 S.Ct. 1376, 1384
(2012) (“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-
bargaining process.”).
 PALMBERG — 8

It is in the light of these holdings that we must determine whether Applicant’s plea

of guilty was intelligently and voluntarily made. Is a plea involuntary because the defendant

pled guilty under the mistaken belief that specific evidence would be available for use against

him at trial? We believe such a plea is not necessarily involuntary.

APPLICATION OF LAW TO FACTS

Applicant claims “no rational defendant, positively knowing that the State cannot

prove every element in a criminal prosecution, would plead guilty to an offense.” Applicant’s

Brief at 9. He argues that his plea was involuntary because he would not have pled guilty to

the offense had he known that there was not enough substance left to test. But, even

accepting the veracity of Applicant’s assertion, this does not necessarily establish that his

plea was involuntary. See Brady v. United States, 397 U.S. at 749–50 (merely showing that

the defendant’s miscalculation of the penalty provision was a “but for” motivation for the

plea of guilty did not necessarily establish that the plea was an involuntary act).

As the Supreme Court’s cases described above make clear, the voluntariness of a

defendant’s guilty plea is not contingent upon his awareness of the full dimension of the

prosecution’s case. While any defendant who is deciding whether or not to plead guilty

would certainly prefer to be apprised of his exact odds of an acquittal at trial, the reality is

that every defendant who enters a guilty plea does so with a proverbial roll of the dice.

Naturally, the more information the defendant acquires beforehand about the prosecution’s

case, the better informed his decision to plead guilty will be, providing him the opportunity
 PALMBERG — 9

to make a “wise” plea. Ruiz, 536 U.S. at 629. But even if the defendant is less well-informed,

as long as he has a sufficient awareness of his circumstances—including an awareness that

some facts simply remain unknown to him or are undetermined as of the time of the

plea—his potentially unwise plea is still a voluntary one.

There could be any number of situations in which evidence the defendant initially

thought admissible is actually inadmissible, a witness thought to be available is actually

unavailable, or, as in this case, evidence thought to be subject to forensic testing is, in fact,

not testable. The correct question for due process purposes is not whether Applicant knew

every fact relevant to the prosecution of his case. Rather, the correct question is whether he

was aware of sufficient facts—including an awareness that there are or may be facts that he

does not yet know—to make an informed and voluntary plea.9

As the Supreme Court further observed in Ruiz, practical considerations also warrant

such an interpretation of “voluntariness” for guilty plea purposes. The issue of what process

is due in the plea bargain context, according to the Supreme Court, must also take into

account “the adverse impact of the [proposed] requirement upon the Government’s interests.”

Ruiz, 536 U.S. at 631 (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Therefore, we must

9
Imagine the following hypothetical: The prosecution is discussing a potential plea bargain
with a defendant. The prosecution has a star witness that will all but ensure a conviction for the
State. The prosecutor, truthfully, tells the defendant about this star witness in the hope of inducing
the defendant to plead guilty. Unbeknownst to either party, right before the defendant accepts the
plea bargain, the star witness dies in an automobile accident. The defendant then, not knowing the
prosecution’s case is significantly diminished, accepts the plea bargain. This plea should not be
considered “involuntary.” Every defendant that pleads guilty does so with the implicit understanding
that conviction at trial is never certain. The same understanding applies to Applicant in this case.
 PALMBERG — 10

consider whether the rule that Applicant would have us adopt might “seriously interfere with

the Government’s interest in securing those guilty pleas that are factually justified, desired

by defendants, and help to secure the efficient administration of justice” by requiring the

Government to “devote substantially more resources to trial preparation prior to plea

bargaining, thereby depriving the plea-bargaining process of its main resource-saving

advantages.” Id. at 631-32. Taking Applicant’s argument to its logical extreme would require

mandatory laboratory testing for all drug possession cases, whether those cases ultimately

proceeded to trial or not—quite possibly an even greater hardship than the disclosure of

impeachment information that was at issue in Ruiz. Simply put, a requirement that a

defendant be completely informed about every fact relevant to his prosecution at the time of

his plea (even facts that no one directly involved in the plea process—including the

prosecutor—could possibly yet know) would impose an untenable and undesirable burden

on the institution of plea bargaining.

For that matter, such a requirement would often work to the detriment of defendants

themselves, who frequently benefit from plea agreements that occur early in the plea

negotiation process. Were we to adopt Applicant’s proposed rule, the State would likely be

reluctant to tender any favorable “fast track” plea bargain agreements for fear that those

agreements would be vulnerable to “voluntariness” challenges on appeal or collateral attack.

Indeed, it could potentially deprive both parties of the benefits of so-called “fast-track” plea

bargains altogether. See Ruiz, 536 U.S. at 625. Due process considerations mandate neither
 PALMBERG — 11

a comprehensive development of the State’s case for trial nor a completion of the pre-trial

discovery process before either party can enjoy the benefits of a mutually beneficial plea

bargain agreement.10

All of this is not to say that we would never grant an uninformed Applicant relief. If

an applicant was affirmatively led to believe that the substance could definitively be tested

due to misrepresentations by the State,11 or perhaps because of ineffective assistance of

counsel,12 then his plea might be constitutionally challengeable. But neither the record nor

Applicant’s brief suggests any prosecutorial misrepresentation or ineffectiveness of defense

counsel. Perhaps Applicant knew that law enforcement possessed the substance found on his

10
Indeed, a defendant could receive a very favorable sentence because, before all the
evidence is available, he rolls the dice and accepts a favorable plea bargain that the State offers—the
very kind of “fast track” plea bargain that was involved in Ruiz. 536 U.S. at 625. If a drug sample
in a prosecution for drug possession tests positive for a controlled substance, it is entirely possible
that a defendant could be convicted at trial and receive a less favorable sentence than he would in
an expedited plea bargain. But if the State will be forced to test the sample as a prerequisite of that
plea bargain, it might not be so willing to cut a favorable deal, knowing that it will have been put to
the trouble of gathering all the evidence needed for a conviction. In the early stages of prosecution,
before all evidence has come to light, a defendant may be able to bargain for a better deal than would
be available after the accumulation of more evidence. Essentially, a defendant can benefit from these
situations in which the sufficiency of the evidence at trial is still speculative. He should not be able
to backtrack after his conviction simply because it later comes to light that, had he taken his case to
trial, the evidence might have been insufficient to convince a fact-finder that he was guilty beyond
a reasonable doubt.
11
See Brady v. United States, 397 U.S. at 755 (“[A] plea of guilty entered by one fully aware
of the direct consequences, including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless induced by threats . . . misrepresentation . . . or
perhaps by promises that are by their nature improper as having no proper relationship to the
prosecutor’s business.”) (citing Shelton v. United States, 246 F.2d 571, 572 n. 2 (C.A. 5th Cir. 1957))
(emphasis added).
12
See note 8, ante.
 PALMBERG — 12

person at the time of arrest, but he did not know whether or not it had been tested, or even

whether or not it could have been tested. So long as Applicant was aware that this was still

an unknown variable in his prosecution—so long as he knew what he did not know—then

he was sufficiently aware of the relevant circumstances surrounding his case. The fact that

his roll of the dice did not turn out as favorably as it might have had he proceeded to trial is

not a ground for invalidating his plea.13

Finally, this case is factually distinguishable from Mable, 443 S.W.3d 129 (Tex. Crim.

App. 2014), upon which Applicant principally relies. There, the Court explained:

it [a guilty plea] cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts. This means that the defendant
must have sufficient awareness of the relevant circumstances. The standard is
whether the plea is a voluntary and intelligent choice among the alternative
courses of action open to the defendant.

Id. at 131 (internal quotation marks, footnotes, and citations omitted). The appellant in Mable

pled guilty to possession of a controlled substance, but forensic testing conducted after the

guilty plea demonstrated that the substance “did not actually contain any illicit materials.”

13
Indeed, his roll of the dice could very well have turned out favorably! Applicant was
charged with a state jail felony, TEX . HEALTH AND SAFETY CODE § 481.115 (b), which carries a
sentence of confinement in state jail for not less than 180 days. TEX . PENAL CODE § 12.35(a). But
Applicant still received only 90 days’ confinement as a result of his plea. This reduction in
punishment is one of the significant features of the plea-bargain system. A defendant takes a lesser
sentence without putting the State to the burden of a trial, and the State saves resources and protects
its interest in an efficient and administratively feasible justice system. Allowing such a defendant
to undo his plea because the State’s evidence turned out to be insufficient would be similar to a
poker player wanting to undo his fold upon realizing that his opponent did not have a winning hand.
A defendant cannot claim involuntariness just because he wrongly guessed what was in the State’s
“hand” for trial.
 PALMBERG — 13

Id. at 130. “This fact is crucial to this case,” we explained, because “operating under such

a misunderstanding, the applicant cannot be said to have entered his plea knowingly and

intelligently.” Id. at 131.

Applicant has presented no evidence suggesting that the facts of his case were not

exactly what all the parties involved in the case believed them to be at the time he entered

his plea. He does not demonstrate that he was under any misapprehension about the true

nature of the substance he possessed or that he was insufficiently aware of any fact that was

“crucial to this case[.]” Id. at 131. He demonstrates only that he was unaware of the

unavailability of certain forensic evidence that might or might not have substantiated his

judicial confession. A defendant such as Mable, who has pled guilty because he believed he

had committed a specific offense, when objective and essentially irrefutable facts

demonstrate that he did not commit that offense, has not made an informed choice. Here, by

contrast, the record does not demonstrate that Applicant mistakenly believed he was guilty;

it shows no more than that he may have overestimated the State’s ability to ultimately prove

he was guilty in the absence of his judicial confession.14 Under these circumstances,

14
In Alford v. North Carolina, 400 U.S. 25 (1970), the defendant pled guilty to a lesser
included offense of the capital offense with which he had been charged even though he protested his
innocence during the plea colloquy. The Supreme Court regarded this as a sufficiently intelligent
plea because it was made with an awareness of the compelling evidence of guilt that the State had
amassed against him. The Supreme Court observed:

When [Alford’s] plea is viewed in light of the evidence against him, which
substantially negated his claim of innocence and which further provided a means by
which the judge could test whether the plea was being intelligently entered, its
validity cannot be seriously questioned.
 PALMBERG — 14

Applicant cannot be said to have demonstrated that his plea was not knowingly and

intelligently entered.

APPLICANT’S ANALOGIES

Applicant attempts to analogize his particular situation to other scenarios in which we

have held that a post-conviction habeas applicant is entitled to relief. Such scenarios include

when the State presents false evidence at trial, when the State fails to disclose exculpatory

evidence before trial, and when a defendant discovers previously unobtainable evidence

completely exonerating him of the charged crime. Although the common element among

these grounds for relief is due process, the due process concerns that undergird such grounds

Id. at 37-38 (citation omitted). Indeed, Texas law requires the introduction of “sufficient evidence
to support” a guilty plea. TEX . CODE CRIM . PROC. art. 1.15. In a case such as Mable’s, where later
evidence utterly undermines the pleader’s judicial confession, there is nothing substantial to support
the guilty plea, and it cannot be said that it was entered intelligently. Here, by contrast, there was no
evidence to undermine Applicant’s judicial confession, which was alone sufficient to support his
guilty plea. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). While the evidence against
him other than his judicial confession may not have been compelling, as in Alford, in light of the
State’s ultimate inability to verify the results of the field test, it cannot be said that Applicant’s
judicial confession was demonstrably false or that he made that confession in the absence of
definitive proof that it was inaccurate. It bears repeating that

[t]he rule that a plea must be intelligently made to be valid does not require that a
plea be vulnerable to later attack if the defendant did not correctly assess every
relevant factor entering into his decision. A defendant is not entitled to withdraw his
plea merely because he discovers long after the plea has been accepted that his
calculus misapprehended the quality of the State’s case[.] * * * We find no
requirement in the Constitution that a defendant must be permitted to disown his
solemn admissions in open court that he committed the act with which he is charged
simply because it later develops that the State would have had a weaker case than the
defendant had thought[.]

Brady v. United States, 397 U.S. at 757.
 PALMBERG — 15

for relief are different. It is therefore important to identify the due process concerns that we

consider when granting relief on these grounds before determining whether Applicant’s

analogies are apt. Finally, Applicant also analogizes his case to Sixth Amendment claims of

ineffective assistance of counsel during the plea-negotiation stage of a prosecution. After

reviewing Applicant’s arguments in turn, we conclude that his particular set of circumstances

does not fit any scenario in which this Court typically grants relief.

1. Use of False Evidence

First, Applicant relies on cases in which we have granted relief because the

prosecution secured a conviction through the deliberate or even inadvertent use of false

evidence. Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006); Ex parte Chabot,

300 S.W.3d 768 (2009). But these cases do not stand for the proposition that a defendant’s

plea is involuntary simply because he is unaware of a material fact. Rather, the rationale

behind these cases is that the use of perjured or false testimony will render a conviction

invalid because it drastically compromises the fairness of the trial. Because the trial is the

main event of our criminal judicial system, due process puts a premium on the fairness of the

proceeding by which a factfinder assesses guilt or innocence.

In the plea bargain context, due process focuses not on the fairness of trial but on the

integrity of the process by which the defendant is persuaded to forego trial. Has he knowingly

and voluntarily waived both his constitutional right to trial and the many attendant

constitutional rights that are themselves designed to maximize the fairness of trial?
 PALMBERG — 16

McCarthy, 394 U.S. at 466.15 Admittedly, whether the plea was voluntary and whether the

plea-bargain process was fair can involve overlapping considerations. Certainly, the State

going so far as to misrepresent information to induce a plea would be unfair and, under

Brady v. United States, it would also render the plea involuntary. 397 U.S. at 755. But we

have never held, up to this point in time, that a merely potentially unfair plea—perhaps, for

example, induced by the State inadvertently representing false information—should

automatically results in a reversal.16 Voluntariness and fairness are two distinct issues and

must be treated as such. Having already decided that Applicant’s plea was voluntary, we look

next to whether a lack of fairness at the pretrial stage of prosecution can warrant granting

relief on due process grounds, and whether Applicant was even treated unfairly to begin with.

It is unclear to what extent a defendant, at least so far as the United States Constitution

is concerned,17 is afforded protection on the basis of fairness in the pre-trial phase of a

15
Clearly, there is still some interest in fairness at the plea bargaining stage. For example, the
State cannot obtain a guilty plea through deliberate misrepresentation. See Brady v. United States,
397 U.S. at 755. The case law explaining how much protection is afforded a defendant at the plea-
bargaining stage under this notion of fairness, however, is not completely developed. See Ruiz, 536
U.S. at 629 (limiting analysis to whether impeachment material must be disclosed during plea-
bargaining negotiations, but not answering the question whether all exculpatory material must be
disclosed during plea-bargaining negotiations).
16
Even if we had held as much, Applicant makes no showing here that the State made any
representation to him at all concerning the availability of the substance he possessed to be tested or
used against him at his trial.
17
Obviously, states are free, through their own constitutions or statutes, to provide greater
protection for defendants in the pre-trial phase of prosecution. See Heitman v. State, 815 S.W.2d
681, 690 (Tex. Crim. App. 1991) (“The federal constitution sets the floor for individual rights; state
constitutions establish the ceiling.”) (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)).
 PALMBERG — 17

prosecution. But the Supreme Court in Ruiz suggested fairness is less of a concern in the pre-

trial context:

“We do not believe the Constitution here requires provision of [impeachment]
information to the defendant prior to plea bargaining—for most (though not
all) of the reasons previously stated. That is to say, in the context of [the]
agreement, the need for [impeachment] information is more closely related to
the fairness of a trial than to the voluntariness of the plea; the value in terms
of the defendant’s added awareness of relevant circumstances is ordinarily
limited.”

536 U.S. at 633. Indeed, other cases have similarly downplayed the importance of fairness-

based transparency during the plea bargain process. See Weatherford v. Bursey, 429 U.S.

545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case and

Brady did not create one; as the Court wrote recently, ‘the Due Process Clause has little to

say regarding the amount of discovery which the parties must be afforded[.]’”) (citing

Wardius v. Oregon, 412 U.S. 470, 474 (1973); see also Ruiz, 536 U.S. at 630 (finding that,

although “the more information the defendant has, the more aware he is of the likely

consequences of a plea, waiver, or decision and the wiser that decision will likely be[, the]

Constitution [still] does not require the prosecutor to share all useful information with the

defendant[,]” and also finding that “knowledge of the prosecution’s potential case [is] a

matter that the Constitution does not require prosecutors to disclose”).

But even assuming that the same kind of considerations that inform our notion of the

fairness that society demands at trial could also warrant more protection for defendants at the

plea-bargaining stage, the use of false or perjured testimony at trial is certainly quite different
 PALMBERG — 18

from what occurred in Applicant’s case. Applicant has not shown that the State used false

or misleading evidence to induce his plea, knowingly or otherwise. Knowing 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—Applicant was

sufficiently aware of the relevant circumstances to enter an intelligent and voluntary plea of

guilty. That the substance later proved to be untestable did not impugn the fairness or

integrity of the process by which he chose to forego his right to trial and embrace the evident

benefit of the State’s plea offer.

2. Brady Claims

Applicant also attempts to analogize his case to cases in which prosecutors fail to

disclose exculpatory information prior to a guilty plea, citing Brady v. Maryland, 373 U.S.

83, 87 (1963). Brady v. Maryland is yet another case in which the Supreme Court has held

that due process cannot tolerate an unfair proceeding—namely, a trial in which the

prosecution knows of and fails to disclose exculpatory information. Id. at 86-87. Whether the

right to Brady information extends to the pretrial stage of prosecution, however, is still an

open question.18

18
It is unclear whether or not Brady v. Maryland goes so far as to render guilty pleas
involuntary if the prosecution does not disclose exculpatory information at the time of the plea,
especially after the Supreme Court’s holding in United States v. Ruiz. While the language of Brady
v. Maryland might indicate that it does, a further analysis might lead to the conclusion that it does
not. See Brady v. Maryland 373 U.S. at 86-87 (“This ruling is an extension of Mooney v. Holohan,
294 U.S. 103, 112 [(1935)], where the Court ruled on what nondisclosure by a prosecutor violates
due process[.] * * * The principle of Mooney v. Holohan is not punishment of society for misdeeds
of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty
 PALMBERG — 19

But even assuming that the constitutional mandate to disclose exculpatory evidence

to defendants under Brady v. Maryland extends to the plea bargaining stage of a prosecution,

it certainly cannot apply where there is no exculpatory evidence to disclose. It is undisputed

that the State did not know that the substance found on Applicant could not be tested in an

accredited laboratory. Therefore, we find no occasion to reach the question whether Brady

material must be disclosed before a plea bargain is made. Applicant simply fails to show that

he should be granted relief under the same rationale that requires disclosure for purposes of

trial under Brady v. Maryland.

3. Actual Innocence

Applicant also attempts to draw an analogy between his claim and actual innocence

are convicted but when criminal trials are fair[.]”) (emphasis added). See also Robertson v. Lucas,
753 F.3d 606, 621 (6th Cir. 2014) (“We have not yet had occasion to determine whether Ruiz applies
to exculpatory Brady material, a question that has caused some disagreement among our sister
circuits. Compare United States v. Ohiri, 133 Fed.Appx. 555, 562 (10th Cir. 2005). (‘[T]he Supreme
Court did not imply that the government may avoid the consequence of a Brady violation if the
defendant accepts an eleventh-hour plea agreement while ignorant of withheld exculpatory evidence
in the government’s possession.’) and McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003)
(‘Ruiz indicates a significant distinction between impeachment information and exculpatory evidence
of actual innocence.’), with Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010) (‘[T]he Supreme
Court has consistently treated exculpatory and impeachment evidence in the same way for the
purpose of defining the obligation of a prosecutor to provide Brady material prior to trial, and the
reasoning underlying Ruiz could support a similar ruling for a prosecutor’s obligations prior to a
guilty plea.’) (internal citations omitted) and United States v. Conroy, 567 F.3d 174, 179 (5th Cir.
2009) (‘Ruiz never makes such a distinction nor can this proposition be implied from its
discussion.’).”). See also Ruiz, 536 U.S. at 633-634 (Thomas, J., concurring) (“The [Supreme] Court
. . . suggests that the constitutional analysis [of withholding evidence] turns in some part on the
‘degree of help’ such information would provide to the defendant at the plea stage . . . a distinction
that is neither necessary nor accurate . . . The principle supporting Brady was ‘avoidance of an unfair
trial to the accused.’”); id. at 631 (Majority Opinion) (“It is difficult to distinguish, in terms of
importance, (1) a defendant’s ignorance of grounds for impeachment of potential witnesses at a
possible future trial from (2) varying forms of ignorance at issue in these cases.”).
 PALMBERG — 20

claims, relying on Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002), and Ex parte

Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Unlike a Brady claim or a claim that the

State knowingly or inadvertently used false evidence to obtain a conviction, a claim of actual

innocence does not implicate the fairness of the trial proceeding. Rather, it is concerned with

the accuracy of the result.19 Of course, actual innocence claims can be used to challenge even

a conviction obtained by a guilty plea. Tuley, 109 S.W.3d at 392. What places the outcome

of such a prosecution in doubt, however, is the discovery of new exculpatory evidence in

light of which it may be said, by clear and convincing evidence, that no reasonable jury

would have convicted him. Elizondo, 947 S.W.2d at 209. Applicant has shown no such

discovery in this case. A comparison of those actual innocence cases with Applicant’s case

reveals that they do not control here.

In Elizondo, the appellant was convicted after a trial at which the State relied solely

upon the testimony of the defendant’s step-son Robert, an alleged victim in the case along

with his younger brother. 947 S.W.2d at 209. Thirteen years later, Robert and his brother

claimed that Robert falsely testified against his step-father because of threats and

manipulation by his natural father. Id. at 210. Similarly, in Tuley, the defendant pled guilty

and then learned later on that the complainant “had consistently recanted her allegations since

before his trial.” 109 S.W.3d at 395–96. “To support the recantation the applicant submitted

19
See Robbins, 360 S.W.3d at 463 (Price, J., concurring) (“[D]ue process will not tolerate
stigmatizing and punishing an individual who can definitively demonstrate that he did not commit
the crime for which he has been convicted. Thus, actual innocence is concerned with the accuracy
of the original proceeding.”).
 PALMBERG — 21

affidavits from the complainant, from the complainant’s best friend at the time the allegations

were made, A.S., and the complainant’s boyfriend at the time the allegations were made,

B.G.” Id.

In this situation, however, Applicant does not have any new evidence that shows that

he was innocent. Applicant can say only that, because the substance cannot be tested, the

evidence might be legally insufficient to prove it was a controlled substance. That does not

amount to new evidence that establishes Applicant’s innocence; nor does it necessarily put

the accuracy of Applicant’s judicial confession and subsequent conviction in question.20 The

probability that the substance he possessed was cocaine remains unchanged. Therefore, the

accuracy of the conviction is not impugned, and we cannot grant Applicant relief under an

actual innocence rationale.

4. State Knowledge/Ineffective Assistance of Counsel

Finally, Applicant claims that, “[i]f the State had possession of the laboratory report

[explaining that the substance could not be tested] at the time of Applicant’s plea or even if

the defense lawyer had simply failed to investigate an existing lab report, Applicant would

have a clear avenue for relief.” Applicant’s Brief at 15. If Applicant could show that, when

he entered his guilty plea, the State knew about and hid the fact that the substance could not

be tested, then the issue presented in this case would be different. But we know that was not

20
In the plea papers, Applicant acknowledged that he understood the allegations in the
information alleging that he possessed cocaine, and he “confess[ed] that they are true[.]” See TEX .
CODE CRIM . PROC. art. 1.15 (requiring the State to introduce evidence sufficient to support a guilty
plea).
 PALMBERG — 22

the case here because it is undisputed that the laboratory did not find out that the substance

could not be tested until 2009, two years after the plea. We have no occasion at this time to

address what should happen if an applicant were to demonstrate that the State knew about

and concealed the fact that contraband could not be tested prior to a guilty plea.

Turning to the ineffective counsel analogy, we could concede that Applicant might

be entitled to relief if he could demonstrate that his counsel failed to investigate the proof

that the State would actually have at trial. But before we could determine whether defense

counsel erred by encouraging a plea in Applicant’s situation, we would need to inquire into

the specific facts surrounding counsel’s representation of Applicant. Whether encouraging

the plea constituted ineffective assistance of counsel could turn, for example, on counsel’s

appraisal of the evidence at the time of the plea. If counsel urged Applicant to accept the

State’s plea offer without adequately assessing the State’s case and without mentioning the

fact that laboratory testing was not yet complete, then Applicant might have a colorable Sixth

Amendment argument that he was induced to plead by his counsel’s incompetence. If,

however, counsel warned Applicant about the fact that testing had not been completed, but

still encouraged Applicant to accept the benefits of the State’s plea offer even after apprising

Applicant of all relevant circumstances, we would be hard pressed to conclude that counsel’s

strategic advice fell below the standard of professional competency.21 In any event, Applicant

21
If a defendant were to readily admit to his counsel that the substance he had possessed was
contraband and that any future forensic testing of the substance would undoubtedly bear that out,
counsel might well choose not to wait for the results of forensic testing before advising his client to
embrace the benefits of a favorable “fast track” plea offer from the State. “[S]trategic choices made
 PALMBERG — 23

does not bring an ineffective assistance of counsel claim in this writ application, nor has he

explicitly alleged any incompetence on the part of trial counsel. For that reason, we limit our

analysis and holding today to the voluntariness argument in his application. Nothing about

trial counsel’s advice in this case has been shown to render Applicant’s guilty plea

involuntary.

CONCLUSION

For all the reasons discussed above, we deny relief.

DELIVERED: February 24, 2016
PUBLISH

after less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitation on investigation. In other words, counsel has a duty
to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 690-91 (1984).