In the Court of Criminal
Appeals of Texas
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No. WR-93,662-01
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EX PARTE TERRY LEE YEARLING,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. W20-60819-V(A) in the 292nd District Court
Dallas County
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YEARY, J., filed a dissenting opinion, in which KELLER, P.J.,
joined.
Today the Court concludes that Applicant’s guilty plea was
entered involuntarily, and it grants him a new trial. I disagree with that
disposition and think that we should remand the cause for additional
fact development relating to Applicant’s claim that his guilty-plea
counsel rendered ineffective assistance in counseling him to accept the
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plea though a basis existed to suppress crucial state’s evidence in the
case. But because I would not grant Applicant a new trial at this point,
without a complete record on Applicant’s ineffective assistance of
counsel claim, I respectfully dissent.
BACKGROUND
Called to a motel at which gunshots had been reported in a
hallway, police officers found shell casings in front of Applicant’s motel
room door and knocked. Applicant opened the door, but he immediately
closed it again. Officers heard what sounded like a “handgun
chambering a round” inside and began to issue verbal commands
through the door. When Applicant again opened the door, the police
immediately rushed in and subdued him. Conducting a protective
sweep, the officers found a gun holster, but no gun. Applicant eventually
told them the gun was under the mattress.
He was arrested and pled guilty within a few weeks, in a plea
bargain in which he obtained a three-year penitentiary sentence on a
charge of possession of a firearm by a felon, enhanced to a second-degree
felony. As part of the guilty plea, the State agreed to drop a
misdemeanor charge against him for firing the gun off in the hallway.
In addition, his court-appointed trial attorney hoped to persuade federal
prosecutors not to seek federal gun-possession charges since he would
already be serving state penitentiary time.
Not long after Applicant’s guilty plea, the State revealed to the
defense for the first time that police body cam recordings existed which
showed facts about which Applicant’s counsel had been unaware when
advising Applicant whether to accept the State’s plea offer. The body
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cam recordings revealed that, after Applicant was subdued and
handcuffed, he at first refused to reveal the whereabouts of the gun.
Officers then took him out into the hallway, and the door to the motel
room closed and automatically locked, so that officers could not gain re-
admission. While out in the hallway, Applicant finally told police that
the gun was under the mattress. They obtained a room key from the
motel clerk and re-entered the room to retrieve the gun—without first
obtaining a search warrant.
Habeas counsel was appointed, and Applicant now makes three
claims in his Article 11.07 post-conviction application for writ of habeas
corpus. TEX. CODE CRIM. PROC. art. 11.07. He claims that the State’s
failure to disclose the body cam video prior to his guilty plea violated
Brady v. Maryland, 373 U.S. 83 (1963). Relatedly, he claims that the
deprivation of this information prior to his guilty plea rendered the plea
involuntary. And finally, he claims that, in any event, his trial counsel
performed in an unconstitutionally ineffective manner when he
recommended that Applicant accept the State’s plea bargain before he
had adequately investigated the facts of the case.
With respect to the ineffective assistance of counsel claim, the
record shows that defense counsel was provided in pre-trial discovery
with an offense report that failed to mention the fact that the officers
had been required to re-enter the locked motel room to retrieve the gun,
and that they did so without a search warrant. The offense report also
contained a notation, however, that “BWC AVAILABLE” from seven
named police officers who responded to the scene at the motel. (We are
given to believe that “BWC” is shorthand for “body-worn camera.”) In a
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supplemental affidavit ordered by the convicting court, defense counsel
contends that he missed this notation in reviewing the offense report,
having focused his attention on “the narrative” portion of the report. He
also contends that, had he been aware of the existence and content of
the body cam video prior to the plea, he would not have recommended
that Applicant accept the State’s plea offer. For his part, Applicant has
submitted an inmate declaration in which he avers that trial counsel
never talked to him about the facts of the case, only about the plea offer,
and that “[h]ad [he] known the search was illegal, [he] would have
fought the case because [he] did not want to go to prison.”
The Conviction Integrity Unit of the Dallas County District
Attorney’s Office has conceded that Applicant is entitled to relief on his
first two claims, while withholding judgment with respect to his claim
of ineffective assistance of counsel. The convicting court has,
accordingly, entered recommended findings of fact and conclusions of
law in which it urges this Court to grant relief on Applicant’s Brady
claim and his claim that his plea was involuntary. The convicting court
has made no recommendation, however, regarding Applicant’s
ineffective assistance claim. Today, the Court grants relief exclusively
on Applicant’s claim that his plea was rendered involuntary by the
State’s tardy disclosure of the body cam video. Because I believe that
granting relief on that basis is inappropriate, I respectfully dissent. I
will discuss Applicant’s first two claims together, and then separately
address his ineffective assistance of counsel claim.
BRADY / INVOLUNTARY PLEA
This Court has yet to definitively say, in a published opinion,
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whether or not Brady applies to a guilty-plea scenario. See Ex parte
Palmberg, 491 S.W.3d 804, 814 n.18 (Tex. Crim. App. 2016) (“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[.]”). But even if we had, Brady would
not apply to render Applicant’s guilty plea involuntary based on a
missed opportunity to exclude inculpatory evidence via a motion to
suppress on Fourth Amendment grounds. The State has not withheld
exculpatory evidence; there is no suggestion that Applicant did not
actually commit the offense to which he pled guilty. I therefore dissent
to granting relief, particularly in an abbreviated per curiam opinion, on
the basis of Applicant’s claim that his plea was rendered involuntary.
The United States Supreme Court has made it clear that not
every failure on the State’s part to impart relevant information to an
accused ahead of a guilty plea proceeding will render his choice to accept
a guilty plea involuntary for due process purposes. In United States v.
Ruiz, 536 U.S. 622 (2002), it held that the failure to disclose evidence
that would have served to impeach a state’s witness, had the case gone
to trial, did not render the guilty plea so uninformed as to affect the
voluntariness of the plea. “To the contrary, this Court has found that the
Constitution, in respect to a defendant’s awareness of relevant
circumstances, does not require complete knowledge of the relevant
circumstances, but permits a court to accept a guilty plea, with is
accompanying waiver of various constitutional rights, despite various
forms of misapprehension under which a defendant might labor.” Id. at
630; see also Palmberg, 491 S.W.3d at 807(“[S]ufficient awareness does
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not require complete knowledge of the prosecution’s case.”).
Among the examples the Supreme Court gave of circumstances
about which a defendant who pleads guilty need not be aware is that the
admissibility of his out-of-court confession could have been challenged
in court. Ruiz, 536 U.S. at 630 (citing McMann v. Richardson, 397 U.S.
759, 770 (1970)). Here, while Applicant may have been unaware of the
existence of the body cam video when he entered his guilty plea, he was
present when the police officers re-entered his motel room without a
warrant, and so he was aware of the circumstance that might have
rendered admission of the gun at a subsequent trial challengeable. That
Applicant’s lawyer may not have discovered enough about the case to
recognize the Fourth Amendment significance of that circumstance
before advising him to plead guilty seems to me to be a matter of the
potential ineffectiveness of his counsel, not the voluntariness of his plea.
To me, this case sounds an awful lot like Richardson.
What is more, Ruiz also held that due process does not even
require the Government to disclose evidence of which it is aware at the
time of a guilty plea that would establish that the accused may have an
affirmative defense to prosecution or that a witness may be impeached.
536 U.S. at 633. That being so, it is hard to imagine how an accused’s
ignorance of a potential Fourth Amendment basis to challenge the
admissibility of evidence in court could prove fatal to the voluntariness
of his guilty plea. The Court does not explain why it should in its per
curiam opinion today.
INEFFECTIVE ASSISTANCE OF COUNSEL
Applicant’s ineffective assistance of counsel claim, however,
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presents another matter. Perhaps his trial counsel should have known
enough from the “BWC AVAILABLE” reference in the offense report to
pursue that evidence before ultimately advising Applicant to accept the
State’s plea offer. It is possible that, had he discovered the body cam
evidence, he might have filed a motion to suppress the State’s most
critical evidence in the case, rather than to advise his client to accept
what seems otherwise to have been a favorable plea deal. It seems
possible, as well, that such a motion to suppress might have succeeded
in excluding the gun from evidence. There is little evidence to cause us
to doubt either trial counsel’s assertion that he would have advised such
a course, or Applicant’s assertion that he would have “fought” the case
rather than to plead, had he been informed of the existence, and legal
significance, of the body cam video.
But we lack a recommendation from the convicting court with
respect to this claim. Nor has Applicant’s trial counsel responded at this
juncture to Applicant’s claim that he never talked to Applicant about the
facts of the case, by which he might have learned, even without the
benefit of the body cam video, that the police had obtained the gun under
circumstances that would have made its admission into evidence at a
full-blown trial more than a little dicey. Rather than grant relief with a
record in this condition, I would remand the cause for further fact
development, and formal recommended findings and conclusions from
the convicting court, germane to Applicant’s ineffective assistance of
counsel claim. Because the Court does not, I dissent on that basis too.
CONCLUSION
Rather than to grant Applicant relief on his claim that his guilty
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plea was involuntary, I would remand the cause for further fact
development of his ineffective assistance of guilty-plea counsel, and for
recommended findings of fact and conclusions of law with respect to that
issue from the convicting court. I respectfully dissent.
FILED: May 25, 2022
PUBLISH