Lead Opinion
OPINION
delivered the opinion for the Court
Applicant pled guilty to one count of possession of a controlled substance, namely cocaine, and the trial court sen-fenced 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 of Criminal Procedure. Tex. Code Ceim. PRO. art. 11.07.
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 found a substance in Applicant’s left front pants pocket. Masa-
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 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.
Applicant contends that his plea of guilty was involuntary because, ha.d 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
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,
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 complete knowledge of the prosecution’s case. In United States v. Ruiz,
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,
The eases Ruiz cites amply support this proposition. For example, in Brady v. United States,
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.”
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 plеad 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,
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 to make a “wise” plea. Ruiz,
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.
As the Supreme Court further observed in Ruiz, practical considerations also warrant such an interpretation of “vol-untariness” 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,
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,
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,
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 Moble 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.” 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.
APPLICANT’S ANALOGIES
Applicant attempts to analogize his particular situation to оther 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 under-gird such grounds 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,
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? McCarthy,
It is unclear to what extent a defendant, at least so far as the United States Constitution is concerned,
“We do not believe the Cоnstitution 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.”
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 de
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,
But even assuming that the constitutional mandate to disclose exculpatory evidence to defendants under Brady v. Mary
3. Actual Innocence
Applicant also attempts to draw an analogy between his claim and actual innocence claims, relying on Ex parte Tuley,
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.
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 substancе. 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.
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 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 аccept 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.
CONCLUSION
For all the reasons discussed above, we deny relief.
Notes
. 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 misdemean- or[.]” 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-convictión habeas corpus proceedings, even if the actual offense was a misdemeanor.
. 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.
. In his judicial confession, Applicant asserted that he understood the allegations in the indictment against him and confessed that “they are true[.]“-
. 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,
.It is unclear from the record why, аfter 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,
. 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 purposes of resolving Applicant’s claim, we will assume without deciding that this is correct,
. This' Court is not bound by such a confession of error. Garza v. State,
. That is not to say that, if a defendant’s counsel misinforms him with regard to somе 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, - U.S. -,
. 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,
.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.
. See Brady v. United States,
. See note 8, ante.
. 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
. In North Carolina v. Alford,
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 mеans by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously questioned.
Id. at 37-38,
[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[J * * * 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,
. 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,
. 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.
. Obviously, states are free, through their own constitutions or statutes, to provide greater protection for defendants in the pretrial, phase of prosecution. See Heitman v. State,
. , 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,
. See Robbins,
. 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),
. 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 choosе 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 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,
Dissenting Opinion
DISSENTING OPINION
filed a dissenting opinion in which Meyers and Johnson, JJ., joined.
In this application for a post-conviction writ of habeas corpus, Bryan Elliott Palm-
The facts of the offense at this juncture are undisputed. In 2007, a police officer arrested applicant for public intoxication and recovered what the officer believed to be a crack-cocaine rock from applicant’s pocket. The officer field-tested the substance and received a positive result, indicating the presence of cocaine. Applicant was charged with possession of cocaine. Pursuant to a plea agreement with the State, applicant waived indictment and was sentenced to ninety days’ confinement in the county jail.
Two years later, the Houston Police Department Crime'Laboratory drafted a letter to the Harris County District Attorney’s Office indicating that the evidence had been examined, that the entire visible sample had been consumed in the field test, and that no unprocessed sample was available for analysis. Five years after that, the State discovered this letter and forwarded it to the Harris County Public Defender’s Office, pursuant to the State’s continuing obligation to disclose exculpatory evidence under Brady v. Maryland,
The State agrees that applicant is entitled to habeas relief. In its brief to this Court, the State observes that a conviction for possession of a controllеd substanee may not be sustained based solely on an officer’s field test. See Curtis v. State,
Ex parte Mable is similar to this case and, I conclude, its reasoning and holding are applicable here. See Mable,
This case is unlike Ex parte Barnaby, a case in which this Court denied habeas relief to Barnaby because only one of his four convictions was affected by the complained-of evidence. See Ex parte Barnaby,
Although it is factually distinguishable in that it involved a package deal plea bargain and in that it involvеd an allegation of false evidence, Ex parte Barnaby is instructive with respect to how a habeas court should decide .whether a particular fact is material to a defendant’s decision to plead guilty. See id. at 318. The Barnaby Court explained, “In determining the voluntariness of a plea of guilty, the more logical question is whether there is a reasonable likelihood that [false evidence or undisclosed information] affected the defendant’s decision, to plead guilty[.]” Id. at 325. To determine whether a defendant reasonably would have chosen to pursue a trial over a guilty plea, the Court examined “whether the value of the undisclosed information ... was outweighed by the benefit of accepting the plea offer.” Id. at 326.