Powell, Calvin Truvaughn

In the Court of Criminal
Appeals of Texas
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No. WR-94,796-01
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EX PARTE CALVIN TRUVAUGHN POWELL,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1198204-A
In the 185th District Court
Harris County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

In January of 2009, Gerald Goines, then a Houston Police
Department narcotics officer, purportedly provided cash to a
confidential informant who purchased cocaine from Applicant at
Applicant’s apartment. Based on an affidavit from Goines including
these allegations, a magistrate issued a warrant to arrest Applicant and
POWELL – 2

search his apartment for illegal drugs. The warrant was executed at
Applicant’s apartment, and he was found by Goines and other narcotics
officers to be in possession of cocaine. 1
In November of 2009, Applicant pled guilty to the offense of
possession of a controlled substance, cocaine, with intent to deliver, and
he was sentenced to five years’ imprisonment. See TEX. HEALTH &
SAFETY CODE § 481.112(d) (establishing knowing possession of between
four and 200 grams of a penalty group one controlled substance with
intent to deliver as a first-degree felony). More than nine years after
Applicant’s plea, in March of 2019, the Harris County District Attorney
sent a letter to Applicant. This letter disclosed that Goines had been
relieved from duty and was under criminal investigation.
Applicant subsequently filed an initial application for a writ of
habeas corpus in November of 2022. In an amended application,
Applicant raises a single ground for relief: “The Applicant was denied
due process where false evidence was used by the State to induce his
guilty plea.” In an accompanying unsworn declaration, Applicant
asserts that, had he “been told that [he] could have proven that Goines
used false statements in obtaining the warrant, and that his false
statements might have resulted in the drugs being excluded through a
motion to suppress,” he would have sought to suppress the evidence
rather than plead guilty.
The convicting court recommends that we find Applicant’s

1 Applicant does not allege that Goines or any other officer planted the

cocaine that he pled guilty to possessing; nor does he otherwise challenge the
evidence of his guilt. He alleges only that the statements Goines made in his
warrant affidavit were false.
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declaration to be credible and that, under the test established by this
Court in Ex parte Coty and extended in Ex parte Mathews, Applicant has
raised an inference that the facts alleged in Goines’s warrant affidavit
are false. 418 S.W.3d 597 (Tex. Crim. App. 2014); 638 S.W.3d 685 (Tex.
Crim. App. 2022). Invoking Ex parte Barnaby, 475 S.W.3d 316 (Tex.
Crim. App. 2015), the convicting court also recommends that this Court
find that “Applicant has proven that his guilty plea was involuntary”
and that he is entitled to relief on that basis. This Court, apparently
endorsing the convicting court’s recommended findings of fact and
conclusions of law, today grants Applicant relief on the ground that his
plea of guilty was involuntary. Majority Opinion at 2.
As I explained in Ex parte Walker, it seems possible that
Applicant might ultimately be entitled to relief in this situation. See Ex
parte Walker, ___ S.W.3d ___, Nos. WR-95,387-01 & WR-95,387-02, 2024
WL 4610792, at *2 (Tex. Crim. App. Oct. 30, 2024) (Yeary, J.,
dissenting). But I remain convinced that the Court has not, with
sufficient diligence, explained why Coty, Mathews, and Barnaby apply.
In those cases, the applicants alleged that the evidence of their guilt was
false. But here, Applicant is not claiming that false evidence of his guilt
induced him to plead guilty; instead, he asserts that false statements
used to obtain a warrant induced him to forgo a motion to suppress
evidence. So, for the same reasons explained in Ex parte Walker, I would
not grant Applicant relief in this case. See id. (“Before granting
Applicant relief, the Court should consider whether the Coty/Mathews
inference of falsity and the Barnaby standard of materiality ought to
apply in circumstances such as these—and if so, how.”).
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I would file and set this writ to determine whether, and if so, to
explain how, Coty, Mathews, and Barnaby ought to apply. Because the
Court does not, I respectfully dissent.

FILED: December 11, 2024
DO NOT PUBLISH