Prophet, Byron Jermaine

In the Court of Criminal
Appeals of Texas
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No. WR-95,386-02
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EX PARTE BYRON JERMAINE PROPHET,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1155797-A in the 337th District Court
Harris County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., and
SLAUGHTER, J., joined.

In a brief per curiam opinion, the Court today grants Applicant
relief on the grounds that former Houston Police Department narcotics
officer Gerald Goines made false statements in a warrant affidavit that
was used to obtain evidence of Applicant’s guilt and gave false testimony
at Applicant’s trial. I would not rule out that Applicant may ultimately
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be entitled to relief from his conviction for possession with intent to
deliver cocaine in this case. But I believe the Court reaches that
conclusion without adequate consideration of important predicate
questions of law and on an underdeveloped record.
I. BACKGROUND
On February 25, 2008, Gerald Goines, then a Houston Police
Department narcotics officer, purportedly provided cash to a
confidential informant who purchased cocaine at a residence in
southeast Houston. Based on an affidavit from Goines that included
these allegations, the next day, February 26th, a magistrate issued a
warrant to search the home for cocaine. The following day, Goines and
a team of other officers executed the warrant.
Applicant was one of four people apprehended outside the home
during the execution of the warrant. Inside the home, officers
discovered, among other things, over 100 grams of cocaine. Applicant
was arrested at the scene and was later charged with possession with
intent to deliver between four and 200 grams of cocaine, a first-degree
felony. 1 He pled not guilty and was tried before a jury in October of 2008.
At trial, Goines’s testimony helped to establish Applicant’s
possession of the cocaine that law enforcement found inside the home.
Of particular relevance, Goines testified that: (1) prior to ordering the
execution of the warrant, he had observed four people outside the home
but had seen only Applicant enter the house, using a key to unlock a set

1 TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D) (designating cocaine as

a Penalty Group 1 controlled substance), 481.112(d) (establishing possession
with intent to deliver between four and 200 grams of a Penalty Group 1
controlled substance as a first-degree felony).
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of burglar bars on a door to the home; (2) Applicant had a key to the
burglar bars in his pocket, which Goines retrieved; (3) Applicant’s photo
ID was found on the kitchen counter inside the home near the drugs;
and (4) Applicant requested that Goines leave the house and a car
outside in a relative’s custody after he was arrested. This testimony
circumstantially tied Applicant to the home and to the cocaine found
therein.
Applicant testified in his own defense. He did not deny that the
ID found in the house was his, but he testified that he was unaware of
how it came to be there. Applicant specifically denied the remainder of
Goines’s assertions and testified that Goines was lying. The jury
ultimately found Applicant guilty and sentenced him to sixteen years’
imprisonment. The First Court of Appeals affirmed his conviction.
Prophet v. State, No. 01-08-00863-CR, 2010 WL 143472 (Tex. App.—
Houston [1st Dist.] Jan. 14, 2010) (mem. op., not designated for
publication).
In March of 2019, nine years after Applicant’s conviction became
final, the Harris County District Attorney sent Applicant a letter
notifying him that Goines had been removed from duty and was under
criminal investigation. With the assistance of the Harris County Public
Defender’s Office, Applicant filed an initial application for a writ of
habeas corpus in January of 2024. He has since filed a supplemental and
a pro se supplemental application.
Applicant pleads two grounds for relief. First, he asserts that his
“due process rights were violated when false information was used to
secure the search warrant, which allowed officers to enter the house
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where drugs were found.” Second, he argues that his “due process rights
were violated when the State used material false evidence at his trial.”
Specifically, Applicant argues that Goines’s statements in his search
warrant affidavit and his testimony at Applicant’s trial should be
presumed false under the standard articulated by this Court in Ex parte
Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), as extended in Ex parte
Mathews, 638 S.W.3d 685 (Tex. Crim. App. 2022). The convicting court
has signed the parties’ agreed findings of fact and conclusions of law and
recommends that this Court grant Applicant relief on both grounds.
Today, the Court accepts the convicting court’s recommendation
and grants Applicant relief on both grounds alleged in his application,
citing only Coty and Mathews as authority. Majority Opinion at 2. While
I do not rule out that Applicant may ultimately be entitled to relief, for
the reasons I explain below, I cannot join the Court in its judgment.
II. THE SEARCH WARRANT AFFIDAVIT
To begin with, I believe that it is incumbent on the Court to
explain why and how the Coty/Mathews framework extends to
allegations made in a search warrant affidavit. Coty established that
when an applicant in a drug case can satisfy a five-part test focused on
misconduct by a forensic analyst, the Court will presume that the
testimony and/or evidence presented against the applicant by the
analyst is false. 2 In Mathews, the Court extended the Coty presumption

2 The relevant questions under Coty, 418 S.W.3d at 605, are whether:

(1) the technician in question is a state actor, (2) the technician
has committed multiple instances of intentional misconduct in
another case or cases, (3) the technician is the same technician
that worked on the applicant’s case, (4) the misconduct is the
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to “cases involving police officers who display a pattern of mendacity in
obtaining drug arrests and convictions[.]” 638 S.W.3d at 690. Thus,
when an applicant demonstrates that (1) a police officer who (2) “has
committed multiple instances of intentional misconduct in another case
or cases” (3) is the same state actor as in the current case, (4) has
previously committed “the type of misconduct that would have affected
the evidence in the applicant’s case[,]” and (5) acted in the applicant’s
case “within roughly the same period of time as the other misconduct[,]”
a reviewing court will infer that evidence derived from that officer is
false. Id. at 690–91. When the State fails to rebut that inference, the
reviewing court will go on to inquire whether the use of that
presumptively false evidence was material. Id. at 689; Coty, 418 S.W.3d
at 605. The applicant, of course, continues to shoulder the exclusive
burden of showing the materiality of the false evidence. Mathews, 638
S.W.3d at 691.
Coty and Mathews, however, considered only cases in which the
applicant alleged that evidence of his guilt was false. And, at least in his
first ground, Applicant does not raise that kind of claim. Rather, in his
first ground Applicant alleges that the statements made by Goines in
his affidavit to obtain a warrant—which was, in turn, used to obtain the
evidence of his guilt—was false. Does the Coty/Mathews framework
apply to this kind of claim? Indeed, does our false evidence jurisprudence
even apply to statements made in search warrant affidavits—i.e.,

type of misconduct that would have affected the evidence in the
applicant’s case, and (5) the technician handled and processed
the evidence in the applicant’s case within roughly the same
period of time as the other misconduct.
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statements which are not themselves evidence of guilt at all? Nothing in
our leading cases on false evidence suggests to me that the Court has
already answered that question. See Ex parte Weinstein, 421 S.W.3d 656
(Tex. Crim. App. 2014) (concerning false trial testimony); Ex parte
Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) (same); Ex parte Chabot,
300 S.W.3d 768 (Tex. Crim. App. 2009) (same).
Thus, if by granting relief the Court means to answer both of
these important predicate questions affirmatively, then the Court
should say so explicitly, with an explanation of its rationale, in a
published opinion. Likewise, it should articulate the standard for
showing materiality in these circumstances and explain how Applicant
has carried his burden of materiality. Until the Court explains what the
correct standard by which to evaluate Applicant’s claim is, I cannot
agree that Applicant has met those standards.
III. MATERIALITY OF THE TRIAL TESTIMONY
With respect to Applicant’s second ground for relief, I am not
persuaded that Applicant has carried his burden. I do not doubt that
Applicant can satisfy the requirements of Coty and Mathews so as to
invoke the Court’s presumption of falsity regarding Goines’s trial
testimony. But Applicant also bears the burden to prove that the
testimony he seeks to have this Court disregard was material. Mathews,
638 S.W.3d at 691.
Under Weinstein, “[o]nly the use of material false testimony
amounts to a due-process violation.” 421 S.W.3d at 665. And, to show
materiality, Applicant must demonstrate by a preponderance of the
evidence that “the error contributed to his conviction or punishment”
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Chabot, 300 S.W.3d at 771. Count me as skeptical.
Goines was not the only law enforcement officer to testify at
Applicant’s trial. It is uncontested that Applicant was present at the
home when several law enforcement officers arrived there to execute the
warrant. According to Officer Richard Salter, who described himself as
the “point man” for the execution of this warrant, when officers arrived,
“the defendant [i.e., Applicant] started to run into the house, but didn’t
get very far.” And, when asked what stood out to him as he entered the
house, the third officer who testified at trial, Sergeant John Yencha,
testified that “what caught my attention right away was a little tray
with some crack rocks on it. In the kitchen, there was a scale there and
the money and there was also an ID on the counter.” He then identified
State’s Exhibit 8, Applicant’s ID, as the ID he saw on the kitchen
counter. 3 Given this evidence tying Applicant to the home in which the
drugs were found, I am unconvinced that Applicant has shown by a
preponderance of the evidence that the admission of Goines’s
presumptively false testimony was material.
IV. POTENTIAL FOR PRESUMPTION REBUTTAL
Moreover, the record in this case also suggests that still other
evidence, at least potentially, might have been available to corroborate
Goines’s version of events. If other credible evidence could have
independently shown Applicant’s guilt, even without Goines’s

3 Although it is not entirely clear from the record, Yencha testified that

he was one of the first officers who entered the house alongside Salter, while
Goines testified that he (Goines) was among the last of the team to enter the
house. This tends to suggest that the ID belonging to Applicant, which Yencha
identified at trial, was already on the kitchen counter when Goines entered the
home.
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testimony, then the credibility of Applicant’s claim that no other
evidence links Applicant to the drugs found inside the house is suspect,
and once again renders me skeptical of Applicant’s claims for that
reason as well. It at least suggests the possibility that a diligent
prosecutor might still be able to rebut the Coty/Mathews presumption
of falsity in this case should such a prosecutor care to make the effort.
See Mathews, 638 S.W.3d at 689−690 (“[I]f an ‘[a]pplicant can establish
the necessary predicate facts, then the burden shifts to the State of offer
evidence demonstrating that the [state actor in applicant’s case]
committed no such intentional misconduct in the applicant’s case.’”)
(quoting from Coty, 418 S.W.3d at 605).
First, Goines testified that during his surveillance of the home,
he observed Applicant enter the house by using a key to unlock the
burglar bars on a side door. He also testified that the surveillance was
conducted by him “and another officer.” If that other officer also
observed Applicant entering the home where the drugs were later
discovered in the way Goines described, then the State could have
proven that link to the drugs even without Goines’s testimony.
Second, Goines testified that he retrieved a key from Applicant
that fit the lock of the burglar bars on the door to the house. While
neither of the other two officers who testified at Applicant’s trial
corroborated this testimony, the record indicates that there were five
other officers who did not testify at all. As the ultimate factfinder in
these circumstances, 4 I would remand this writ application with

4 See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (“For

over forty years, our writ jurisprudence has consistently recognized that this
Court is the ultimate factfinder in habeas corpus proceedings.”).
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instructions to the trial court to determine whether any of the other
officers present could have corroborated Goines’s testimony about this
key at trial.
Finally, Goines testified that, at the conclusion of the search,
Applicant asked Goines to leave the car that was parked in the driveway
and the house itself in the custody of his relative, Darrell Prophet, who
was one of the people present at the scene during the search but was not
arrested. This indication that Applicant had some possessory interest in
the property would, again, suggest that Applicant possessed the drugs
that were found inside the house. I would therefore, again, remand the
writ application to the convicting court with instructions to develop the
record with respect to this claim. In particular, I would instruct the
convicting court to obtain testimony from Darrell Prophet to determine
whether he was, in fact, left in custody of the vehicle and home at issue
at the conclusion of the search and if that action was undertaken at
Applicant’s direction.
V. CONCLUSION
The Court today grants Applicant relief on the basis that Gerald
Goines included presumptively false information in a search warrant
affidavit and gave false testimony at Applicant’s trial. But without first
developing the record in the ways I have described here, I do not think
the Court can accurately assess whether any of Goines’s presumptively
false trial testimony should, in fact, be considered in this case to be true,
or whether any such presumed falsity has been shown by Applicant to
be material. I believe the Court should not declare that Goines’s
testimony was material when the record indicates that there was other
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evidence showing Applicant’s possession of the drugs at issue. I also
believe the Court acts to quickly here to grant relief to Applicant where
there may have been even more evidence available to prove his
possession of those drugs that the State might have resorted to, had
everyone known—both the defense and the State—that Goines’s
testimony was subject to impeachment based on his established general
lack of credibility. I would remand the case for those purposes.
I believe that, although Applicant might ultimately be entitled to
relief, the Court has prematurely granted relief without considering
important questions of law with respect to the applicability of the
Coty/Mathews framework to these circumstances, and on an
inadequately developed factual record. Therefore, I must respectfully
dissent.

FILED: August 21, 2024
PUBLISH