IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-90,442-01 & WR-90,442-02
EX PARTE DEREK LEE CASEY, JR., Applicant
ON APPLICANT’S APPLICATIONS FOR A WRIT OF HABEAS CORPUS
IN CAUSE NOS. 12110-D & 12111-D FROM THE 350TH DISTRICT COURT
TAYLOR COUNTY
YEARY, J., filed a dissenting opinion in which KELLER, P.J., and SLAUGHTER
and MCCLURE, JJ., joined.
DISSENTING OPINION
In this post-conviction application for writ of habeas corpus, Applicant challenges
his guilty pleas for two instances of aggravated assault on a public servant—here, two
police officers—under Section 22.02(b)(2)(B) of the penal code. TEX. PENAL CODE §
22.02(b)(2)(B). Under that provision, an actor must “know” that his victim is a public
servant. Id. Applicant alleges that, prior to his guilty plea, the State concealed the fact that
at least one of the two police officers he shot at could testify (indeed, did testify at the
punishment hearing that followed his guilty plea) that the officers had not announced their
CASEY ― 2
status as police officers to Applicant before he fired. Today, the Court grants Applicant
relief. I disagree, and I therefore dissent.
The Court’s per curiam opinion seems to decide that Applicant’s plea was
involuntary because of a violation of the State’s duty to turn over material exculpatory
evidence as required by the United States Supreme Court opinion in Brady v. Maryland,
373 U.S. 83 (1963). To support its ruling, the Court relies on Brady v. United States, 397
U.S. 742 (1970), a case about the voluntariness of a guilty plea. I disagree that applicant
has shown himself entitled to relief under either a theory that a Brady violation occurred
or that his plea was involuntary.
Brady v. Maryland: To the extent the Court seems to rely on Brady v. Maryland,
that reliance is troubling. “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[.]” Ex parte Palmberg, 491 S.W.3d 804, 814 n.18 (Tex. Crim. App.
2016). If the Court purports to grant relief based upon Brady v. Maryland, it does so without
either clarifying that this Brady does indeed apply to guilty pleas, and explaining why, or
else describing how we have resolved the question of its applicability since Palmberg.
Brady v. United States: We also observed in Palmberg that a guilty plea is not
rendered involuntary simply because an accused does not appreciate the full dimensions of
the State’s case against him at the time of his plea. Quoting from Brady v. United States,
we reiterated that there is “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[.]” 491 S.W.3d at 808 (quoting Brady v. United States,
CASEY ― 3
397 U.S. at 757). That principle would seem to apply here. The fact that the uniformed
police officers whom Applicant shot at did not expressly announce themselves to him
beforehand might be consistent with a theory that he did not realize they were police, but
it by no means definitively proves that he did not know they were policemen. Other
circumstances of the case amply established Applicant’s knowledge and specific intent.
And Applicant’s failure to realize that the State’s case was not quite as strong as he might
have thought when he pled does not alone serve to demonstrate that his plea was not
voluntary.
It turns out that Applicant actually was fully cognizant that he was firing at police
officers. In fact, it seems entirely clear now that he was attempting to engage in what has
become known as “suicide by cop.” At the post-plea punishment hearing, he readily
admitted his awareness:
Q. Okay. You saw they were police officers?
A. Yes.
Q. You could see the guns in their hands so you could also see that they
were police?
A. Yes.
* * *
Q. No question it was police, right?
A. Right.
He explained: “I saw my life free from depression, free from pain, free from drug addiction,
in the form of those two officers with guns in their hands. * * * I fired high, trying just to
provoke them to kill me.”
CASEY ― 4
I do not mean to suggest that this after-the-plea testimony stands as irrefutable proof
that Applicant would still have pled guilty had he been aware before he pled that one of
the police officers could testify that the officers did not announce themselves. But it is at
least consistent with the theory that Applicant would not have insisted on going to trial,
and that he would have instead persisted in his guilty plea. The circumstantial evidence
would have readily supported an inference of knowledge regardless of whether the officers
had explicitly informed Applicant that they were police officers before he shot at them.
That being the case, I cannot conclude that this undisclosed information was “material” in
the sense that it was so dramatically exculpatory as to have likely changed Applicant’s plea
from guilty to not guilty. Cf. Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Court is mistaken
to conclude otherwise.
I respectfully dissent.
FILED: January 27, 2021
DO NOT PUBLISH