Mills, Denise Elaine

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-96,385-01

EX PARTE DENISE ELAINE MILLS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1420310-A
IN THE 177TH DISTRICT COURT FROM HARRIS COUNTY

FINLEY, J., filed a dissenting opinion, in which SCHENCK,
P.J., and PARKER, J., joined.

DISSENTING OPINION

In this instant writ of habeas corpus, Applicant raises two claims for

post-conviction relief: (1) she “was denied due process when the State used

material[,] false evidence to induce her guilty plea”; and (2) her “guilty plea

was involuntary.” Today, the Court agrees and grants Applicant post-

conviction habeas relief. I would file and set this application to determine

whether Applicant is entitled to post-conviction relief.
Mills Dissent – 2

Applicant’s involuntary plea claim for which the Court grants relief is

premised on her being unaware of a police officer’s pattern of mendacity or as

the majority puts it, “bad acts.” Maj. Op. at 1. But a pattern of mendacity does

not render a plea involuntary. Rather, false evidence (whether proved or

inferred) does, but only if such evidence was material in a defendant’s decision

to plead guilty. It appears that the Court mistakenly conflates a pattern of

mendacity with an unrebutted inference of falsity, as discussed below.

Given this analytic gap, I believe the Court should file and set this writ

application. The Court does not. Therefore, I respectfully dissent.

I. Background

a. The Facts from Officer Gerald Goines’s Police Report1

On March 6, 2014, Officer Gerald Goines was undercover in an

unmarked vehicle in a high-traffic drug area in Houston, Texas. Officer Goines

spoke with Applicant to purchase crack cocaine, specifically “2-$10 rocks of

crack cocaine.” Applicant entered the unmarked vehicle and directed Officer

Goines to a residence. When they arrived, Officer Goines gave Applicant $20.

Applicant entered the residence alone and then returned with “one rock like

substance.” Even though Officer Goines sought to purchase two $10 rocks of

1 The official police report’s text is fully capitalized. The capitalization has been
converted to lower case for ease of reading.
Mills Dissent – 3

crack cocaine, Applicant informed him that the singular rock she gave him

“was a ‘twenty,’” which is a “street term for $20 of rock cocaine.”

After receiving the crack cocaine, Officer Goines drove off, dropped

Applicant off at a street’s intersection, and gave her an additional $5 bill for

assisting with the buy. As Applicant walked away, Officer Goines informed

arresting officers to make an arrest. An arresting officer found “one rock like

substance . . . in her right hand along with the $5 bill which was given by

[Officer Goines].” Officer Goines verified that the $5 bill was the same one he

gave Applicant when dropping her off. Officer Goines field tested the rock

Applicant purchased for him and the one found in her hand. Both tested

positive for crack cocaine, at which point Officer Goines submitted them to a

narcotics lock box for evidence.

b. The Plea

On June 25, 2014, a grand jury indicted Applicant on the felony charge

of delivery of a controlled substance, specifically cocaine “weighing by

aggregate weight, including any adulterants and dilutants, less than one

gram.” Two prior state jail felony convictions were included in the indictment

as enhancements: (1) prostitution, and (2) delivery of a controlled substance.
Mills Dissent – 4

With these prior convictions and upon conviction for this instant felony charge,

Applicant was facing two to ten years’ imprisonment.2

Less than one week later, Applicant, represented by counsel, and the

State entered into a plea deal in which Applicant pleaded guilty to delivery of

cocaine of less than one gram. In exchange for Applicant’s plea, the State

recommended 180 days confinement on the state-jail felony offense and agreed

to abandon both enhancement paragraphs. The trial court granted the State’s

motion to abandon the enhancements and sentenced Applicant to 180 days

confinement, in accordance with the plea.3

c. Post-Conviction Proceedings

In March of 2019, the Harris County District Attorney’s Office sent a

letter to Applicant, disclosing that Officer Goines had been relieved of duty and

was under criminal investigation. More than five years after receiving the

letter, Applicant filed this instant application for writ of habeas corpus.

Applicant’s alleges two grounds for post-conviction habeas relief: (1) she

“was denied due process when the State used material[,] false evidence to

induce her guilty plea”; and (2) her guilty plea was involuntary. For the first,

Applicant alleges that Officer Goines’s version of events, as provided in his

2 TEX. PENAL CODE § 12.425(a) (West 2012); id. § 12.34(a).
3 TEX. HEALTH & SAFETY CODE § 481.112 (West 2012); TEX. PENAL CODE § 12.35 (West

2012).
Mills Dissent – 5

offense report, see supra Section I.a., are presumptively false, and were

material to her decision to plead guilty because Officer Goines’s allegations

were the only evidence against her. For the second, Applicant alleges that

Officer Goines’s undisclosed pattern of falsifying evidence in official police

reports and court documents rendered her plea involuntary because had she

known of such conduct, she would have insisted on going to trial. Applicant’s

unsworn declaration asserts that she did not “commit this offense,” “possess

any drugs on March 6, 2014,” and “give any drugs to Gerald Goines or anyone

else.”

On January 16, 2025, the habeas court adopted the State’s and

Applicant’s agreed proposed findings of fact and conclusions of law. The habeas

court recommends that this Court grant relief. The following excerpts from the

adopted document are pertinent to my discussion below:

14. In contrast to Coty, the Court finds the State has not presented
evidence which effectively rebuts the presumptively false evidence.
Cf. Coty, S.W.3d at 344.

15. Applicant’s unsworn declaration contains the following
regarding Goines’ pattern of false evidence: “If l had known that
Goines was making up charges against other people during the
same time he was lying about me, I would not have pleaded guilty.
If I could somehow have shown that he was doing this to other
people too, I would have insisted on a trial.” (Ex. C., Unsworn
Declaration).
Mills Dissent – 6

16. The Court finds this portion of Applicant’s unsworn statement
relevant and credible considering Goines’ multiple documented
instances of misconduct between 2008 and 2019.

17. The Court finds Applicant’s plea to be involuntary. Barnaby,
475 S.W.3d at 325–26.

***

19. The Court concludes Applicant successfully demonstrates by a
preponderance of the evidence that the presumptively false
evidence provided by Goines in the offense report is material, and
that the Applicant is entitled to habeas corpus relief. Cf. Coty, 432
S.W.3d at 344.

20. The Court also concludes Applicant successfully demonstrates
by a preponderance of the evidence that her plea was involuntary.
Cf. Barnaby, 475 S.W.3d at 325–26.

Today, the Court grants relief on Applicant’s involuntary plea claim

because she did not know of Officer Goines’s bad acts when pleading guilty. See

Maj. Op. at 1–2. In doing so, the Court relies on Ex parte Mathews, 638 S.W.3d

685 (Tex. Crim. App. 2022) (Mathews I), Ex parte Coty, 418 S.W.3d 597 (Tex.

Crim. App. 2014), and Brady v. United States, 397 U.S. 742 (1970). For the

reasons explained below, I do not believe Applicant is entitled to relief, at least

without further analysis and explanation.

II. Analysis

a. Mathews I incorrectly conflated a pattern of mendacity
with an inference of falsity.
Under most false-evidence habeas claims, an applicant must show that

the State used false evidence against her and that the false evidence was
Mills Dissent – 7

material to her conviction or punishment. See, e.g., Ex parte Weinstein, 421

S.W.3d 656, 665 (Tex. Crim. App. 2014). Each prong of this two-pronged

inquiry is distinct. Id. This Court will deny relief if either prong is not proven.

See id. at 669.

In 2014, this Court recognized that in unique circumstances an applicant

may establish falsity by a rebuttable inference rather than by direct evidence.

Coty, 418 S.W.3d at 604–05. Even though Coty implemented a shifting burden

for falsity, it held that for materiality—regardless of how falsity is proven—

“the applicant must prove that the false evidence was material to his or her

conviction.” Id. at 605. So while Coty provided an alternative route to establish

the falsity prong of false-evidence habeas claims, it did not change the

fundamental requirement that the false evidence itself must be material. Id.;

accord Ex parte Chavez, 371 S.W.3d 200, 208 (Tex. Crim. App. 2012) (“To

constitute a due-process violation, the record must show that the testimony

was material, namely, that there is ‘a reasonable likelihood’ that the false

testimony affected the judgment of the jury.” (citing Ex parte Ghahremani, 332

S.W.3d 470, 478 (Tex. Crim. App. 2011))).

One year later, this Court explicitly extended Coty to the plea-bargaining

context. Ex parte Barnaby, 475 S.W.3d 316, 322–27 (Tex. Crim. App. 2015) (per
Mills Dissent – 8

curiam).4 In doing so, Barnaby permitted plea-bargaining habeas applicants to

use Coty’s inference of falsity for claims involving a laboratory technician’s

malfeasance. Id. at 323–25. Barnaby further noted that because guilty pleas

are contextually different than false testimony or evidence produced at trial,

the materiality question must ask the following: “Would the defendant,

knowing of the falsity of the evidence, still have plead[ed] guilty or would he

have insisted on going to trial?” See id. at 325–26. “If he would have chosen

trial, the false evidence was material.” Id. at 326. But like Coty, Barnaby

reaffirmed the basic principle that “[a]fter an applicant makes the initial

showing of falsity, he must still prove that the false evidence (whether proved

or inferred) was material to the decision to plead guilty.” Id. at 323–24 (citing

Coty, 418 S.W.3d at 606).

Mathews I tampered with that basic principle. 638 S.W.3d at 692.

Mathews I extended the rebuttable inference of falsity to “cases involving police

officers who display a pattern of mendacity in obtaining drug arrests and

convictions.” Id. at 690–91.5 To obtain the rebuttable inference of falsity, an

applicant must prove: (1) the officer is a state actor; (2) the officer has

4 Even though Coty also involved a plea deal, the Court did not “did not discuss

materiality in the context of a guilty plea.” Barnaby, 475 S.W.3d at 324 n.11
5 Matthews I’s underlying facts are strikingly similar and indeed also involve Officer

Goines. See 638 S.W.3d at 687–89.
Mills Dissent – 9

“committed multiple instances of misconduct ‘in another case or cases’”; (3) the

officer is “the same state actor in the current case”; (4) the officer’s “previous

misconduct is of a kind ‘that would have affected the evidence in’ [a]pplicant’s

case”; and (5) the officer acted “‘within roughly the same period of time’ that he

committed his other acts of misconduct.” See id. at 691 (citing Coty, 418 S.W.3d

at 605). This, too, applies to pleas. Id. at 690–91.

While nothing previously discussed is surprising, Mathews I’s

materiality discussion is. It began by underscoring Barnaby, 475 S.W.3d at

326, and Ex parte Owens, 515 S.W.3d 891, 898 (Tex. Crim. App. 2017), as

examples of situations in which the challenged plea was held voluntary, even

in light of false evidence, because the applicant failed to prove materiality.

Mathews I, 638 S.W.3d at 691; see also Barnaby, 475 S.W.3d at 326; Owens,

515 S.W.3d at 898. This is no surprise because a successful false-evidence

involuntary plea claim must satisfy two prongs: (1) false evidence, and (2)

materiality. But then Mathews I stumbled. It considered the officer’s “history

of falsification” in determining whether materiality was satisfied—rather than

considering the unrebutted, inferentially false evidence at issue that was

analyzed previously in the opinion’s section entitled “Applying the Coty

Factors.” Mathews, 638 S.W.3d at 691–92 (noting that applicant “insist[ed]

that he would not have taken th[e] deal had he known of Goines’s history of
Mills Dissent – 10

falsification beforehand”). Mathews I did not consider whether unrebutted,

inferentially false evidence induced the applicant’s guilty plea as required by

Barnaby. Mathews I, 638 S.W.3d at 692. Instead, Mathews I allowed the

applicant to, on remand, establish the inference of falsity and then swap it out

for the officer’s “pattern of mendacity” to establish materiality. Id. at 691.

But the “pattern of mendacity” in Mathews I is simply the police officer

version of “the extent of the pattern of misconduct the technician is accused of”

in Coty. Compare id. at 690 (stating that Coty’s five-factor test applies “to cases

involving police officers who display a pattern of mendacity in obtaining drug

arrests and convictions”), with Barnaby, 475 S.W.3d at 323 (stating that Coty’s

five-factor test was needed for situations in which “a laboratory technician has

demonstrated a pattern of misconduct” (citing Coty, 418 S.W.3d at 606)).

Mathews I failed to differentiate the two. It mistakenly conflated the false

evidence inference and a pattern of mendacity when articulating the

materiality prong of false-evidence involuntary plea claims. Thus, Mathews I

allowed something that is not false evidence to potentially invalidate a plea.

The Court should file and set this writ application to correct this

mistake.
Mills Dissent – 11

b. Is a pattern of mendacity a distinct, functional equivalent
of false evidence?
If a pattern of mendacity is a distinct but functional equivalent of false

evidence, thereby becoming a meritorious ground for a false-evidence

involuntary-plea claim, then the Court should explain why.6

At the outset, I am reluctant to believe that a pattern of mendacity

should be treated like false evidence because mendacity’s scope is used to limit

the inference of falsity. Coty, 418 S.W.3d at 605 & n.11. While mendacity is

certainly probative of the degree to which we believe that false evidence

infected an applicant’s conviction or plea, it is nevertheless a separate concept.

See id.

As mendacity relates to materiality, I do not think that had Applicant

known of Officer Goines’s pattern of mendacity, she would have proceeded to

trial. See Barnaby, 475 S.W.3d at 325–26; id. at 323 (“The voluntariness of a

plea ‘can be determined only by considering all of the relevant circumstances

surrounding it.’” (quoting Brady, 397 U.S. at 749)). The grand jury indictment

alleged that Applicant delivered cocaine to Officer Goines on March 6, 2014. So

too did Applicant’s stipulation and judicial confession. Officer Goines’s

“unknown” or “undisclosed” pattern of mendacity is unrelated to Applicant’s

6 As an aside, I am unsure whether the State even had a duty to disclose a pattern of

mendacity. See United States v. Ruiz, 536 U.S. 622, 629 (2002).
Mills Dissent – 12

decision to plead guilty because at the time of her plea only one of two mutually

exclusive situations could be true: (1) Applicant did not deliver cocaine to

Officer Goines, so Applicant knew that Officer Goines was lying; or (2)

Applicant did deliver cocaine to Officer Goines, so Officer Goines was truthful.

Officer Goines’s pattern of mendacity is not implicated in the latter. For the

former, Officer Goines’s pattern of mendacity—specifically, fabricating

charges, and falsifying official police records and court documents—was known

by Applicant at the time she pleaded guilty because Officer Goines’s falsehoods

were before her, in writing. And yet, Applicant pleaded anyways.

Moreover, while Officer Goines was the only witness, other than

Applicant, to the purported drug transaction, an arresting officer found crack

cocaine in Applicant’s hand and the $5 bill that Officer Goines allegedly gave

to Applicant. These two facts would tend to weigh against materiality because

they serve as additional, circumstantial evidence that Officer Goines’s police

report was not the only evidence against Applicant. The other crack rock may

also rebut the inference of falsity because it substantiates the truthfulness of

Officer Goines’s report. Namely, Officer Goines provided Applicant with $20 to

purchase two crack rocks. After the drug buy, Applicant gave Officer Goines

one rock under the guise that it was individually worth $20. And yet, when

Applicant was arrested, the officer found a crack rock in her hand. It does not
Mills Dissent – 13

take a sleuth to conclude that Applicant could have, in fact, purchased two

rocks according to her initial deal with Officer Goines and then decided to keep

one for herself. The arresting officer who found the rock, to the Court’s

knowledge, has not engaged in misconduct, and Applicant did not contend that

anyone planted that rock on her person. Applicant’s application is curiously

silent as to this mysterious second rock.

Alternatively, maybe the Court means to say false evidence whenever it

uses the term pattern of mendacity. If this is the case, then the Court should

clarify as such because our jurisprudence indicates otherwise.

But again, I am uncertain whether Applicant would be entitled to relief

even if such clarification is warranted. If the Court means to say false evidence

when it uses the term pattern of mendacity, then Officer Goines’s pattern of

mendacity would actually mean his underlying police report (i.e., the allegedly

false evidence). Yet an officer’s report is not admissible evidence. TEX. R. EVID.

803(8). Before Mathews I, false evidence claims seemed to be restricted to false

admissible evidence. See, e.g., Barnaby, 475 S.W.3d at 319–20 (lab report);

Coty, 418 S.W.3d at 598–602 (lab report); Ghahremani, 332 S.W.3d at 476–77

(trial testimony). Assuming that a police report falls under the umbrella of

false evidence claims, at the time of her plea, Applicant knew whether or not

Officer Goines was lying.
Mills Dissent – 14

Applicant alleges that Officer Goines’s version of facts in the offense

report was the only evidence to support her conviction. Taken at face value,

this indicates that Applicant would have known about the misrepresentation

and pleaded anyways, thereby knowingly and voluntarily entering the plea.

The habeas court did not inquire into why Applicant accepted the plea under

these circumstances, so it is unknown. But “the question of whether the value

of the undisclosed information . . . was outweighed by the benefit of accepting

the plea offer” is one of the relevant facts and circumstances that should be

considered during the materiality analysis. Barnaby, 475 S.W.3d at 325–27;

see also id. at 326 n.19 (“Applicant had a clear incentive to plead guilty in this

case, despite his professed belief in his innocence.” (citing North Carolina v.

Alford, 400 U.S. 25, 38 (1970))). For Applicant, the value of the undisclosed

information is zero; either Officer Goines’s statements were true, or Applicant

knew they were false before she accepted the plea. This inquiry is relevant and

may result in Applicant failing to establish materiality, yet it received no

consideration.

c. When the only instances of proven misconduct are
separated by ten years, does it make sense to infer falsity
for every Goines-related case that falls within this ten-year
window?

Of the five factors required to infer falsity, factors two and five have a

temporal aspect. Coty, 418 S.W.3d at 605; Mathews I, 638 S.W.3d at 691. While
Mills Dissent – 15

the second factor requires proof of other instances of intentional misconduct,

the fifth factor requires proof that the currently alleged instance of misconduct

occurred “within roughly the same time” as the previously proven, not inferred,

instances of misconduct. See Mathews I, 638 S.W.3d at 691. In essence, these

factors create a permissible “window in time,” and if the currently alleged

instance of misconduct falls within that window, the Court will presumptively

infer that the evidence in question is false. See id.; see also Ex parte Mathews,

666 S.W.3d 475, 476 (Tex. Crim. App. 2023) (Mathews II). But in doing so, the

Court opened the floodgates for any post-conviction writs that mention Officer

Goines.

In Mathews II, there were two instances of proven misconduct—one in

2008 and another in 2018. 666 S.W.3d at 476. The alleged instance of

misconduct occurred in 2013. Id. Even though it happened five years before

and after the only instances of proven misconduct, the Court concluded that it

“occurred within roughly the same period of time as the other misconduct.” Id.

Thus, the Court effectively created a ten-year window in which any evidence

handled by Officer Goines is inferred as false. See id.

This ten-year window is too liberal of an application of Coty, which was

fashioned only because the Court realized that is inappropriate “to presume

error and materiality in every case” involving bad actors, such as Officer
Mills Dissent – 16

Goines. 418 S.W.3d at 606. Now the Court effectively presumes error in any

case involving Officer Goines that falls within 2008 and 2018.

Applicants are now able to engage in inference stacking. Instead of

proving actual instances of intentional misconduct, besides what this Court

has previously recognized regarding the separate instances in 2008 and 2018,

applicants can rely on instances in which this Court has inferred false

evidence. In the habeas court’s findings of fact and conclusions of law, for

example, the court concluded that “Goines has been found to have provided

false evidence in the following cases, on the dates indicated, all of which have

resulted in the Court of Criminal Appeals Granting relief[.]” The habeas court

cited an astonishingly high number of cases: twenty-nine. For reference, the

following were cited:

• Ex parte Otis Mallet Jr., Nos. WR-90,980-01 & WR-90,980-02, 2020 WL
3582438 (Tex. Crim. App. July 1, 2020);
• Ex parte Steven Mallet, 620 S.W.3d 797 (Tex. Crim. App. 2021);
• Ex parte Derek Hams, No. WR-94,870-01 (Tex. Crim. App. April 24,
2024);
• Ex parte Byron Prophet, No. WR-95,386-02 (Tex. Crim. App. August 21,
2024);
• Ex parte Jeffrey Vance, No. WR-32316-02 (Tex. Crim. App, June 19.
2024);
• Ex parte Lisa Brown, No. WR-93,640-01 (Tex. Crim. App. May 3, 2023);
• Ex parte Andre Rashad Dillard, No. WR-94,879-01 (Tex. Crim. App.
August 23, 2023);
• Ex parte Doris Martin, No. WR-95,686-01/02 (Tex. Crim. App. August 21,
2024);
• Ex parte Chris Dewayne Flowers, No. WR-94,786-01 (Tex. Crim. App.
June 7, 2023);
Mills Dissent – 17

• Ex parte Corey Johnson, No. WR-95,268-01 (Tex. Crim. App. December
20, 2023);
• Ex parte Roderick Bell, No. WR-95,159 01 (Tex. Crim. App. December 6,
2023);
• Ex parte Terrance Spriggs, No. WR-94,947-01 (Tex. Crim. App.
September 13, 2023);
• Ex parte Melvin Mitchell, No. WR-95,393-01 (Tex. Crim. App. April 17,
2024);
• Ex parte Cedric Woods, No. WR-94,858-01 (Tex. Crim. App. August 23,
2023);
• Ex parte Sharay Thomas, No. WR-95,674-01 (Tex. Crim. App. June 19,
2024);
• Ex parte Joyce Coby, No. WR-95,132-01 (Tex. Crim. App. November 15,
2023);
• Ex parte Aaron Mathews, No. WR-91,731-01, 2023WL 151296 (Tex.
Crim. App. January 11, 2023);
• Ex parte Bobby Lee Garnous, No. WR-94,841-01 (Tex. Crim. App.
December 6, 2023);
• Ex parte Damian McGinnis, No. WR-95,123-01 (Tex. Crim. App. October
5, 2023);
• Ex parte James Ybarra, No. WR-95,148-01 (Tex. Crim. App. January 10,
2024);
• Ex parte Michael Gastille, No. WR-95,535-01, 2024 WL1295816 (Tex.
Crim. App. March 27, 2024);
• Ex parte Macarthur Ross, No. WR-95,087-01 (Tex. Crim. App. September
27, 2023);
• Ex parte Harry Gradney, No. WR-95,160-01 (Tex. Crim. App. October 18,
2023);
• Ex parte Dequentun Mitchell, No. WR-95,208-01 (Tex. Crim. App.
December 13, 2023);
• Ex parte Shanta Renchie, No. WR-94,940-01 (Tex. Crim. App. August 23,
2023);
• Ex parte Tony Vaughn, No. WR-92,339-01, 2023 WL 152256 (Tex. Crim.
App. January 11, 2023);
• Ex parte Kattina Barley, No. WR-95,818-02, 2024 WL 4033579 (Tex.
Crim. App. September 4, 2024);
• Ex parte Frederick Jeffrey, No. WR-92,544-01, 2022 WL 4088689 (Tex.
Crim. App. September 7, 2022); and
• Ex parte Tyrik Guy, No. WR-95,476-01 (Tex. Crim. App. February 28,
2024).
Mills Dissent – 18

Yet this Court has actually concluded that Officer Goines provided false

evidence in only three of those cases, not all twenty-nine: Otis Mallet Jr.,

Steven Mallet, and Jeffrey. Thus, in almost 90% of the cases relied upon by the

habeas court and in which this Court has granted relief, this Court inferred

false evidence without actually finding that Officer Goines engaged in

misconduct. By repeatedly permitting applicants to obtain post-conviction

relief under these circumstances, the Court has diluted Coty. Applicants now

have free-standing false evidence relief without ever having to prove that the

alleged misconduct in question occurred in close proximity to a previously

proven instance of misconduct.

Inference stacking allows applicants to artificially close the temporal gap

by falsely equating previous presumptive inferences of false evidence with

previous, proven instances of actual misconduct. Permitting inference stacking

also alleviates an applicant’s need to prove multiple instances of similar

misconduct. This disregards how “it is incumbent upon the applicant to

establish the extent of the pattern of misconduct the [state actor] is accused

of.” Coty, 418 S.W.3d at 605. Rather than making this showing, inference

stacking permits and encourages applicants to “establish” a pattern of what is

supposed to be actual misconduct by relying upon inferred, unproven instances

of misconduct. But unproven instances of misconduct establish nothing. They
Mills Dissent – 19

establish that this Court inferred false evidence in previous situations. That

inference is unrelated to whether the state actor in question actually

committed multiple instances of misconduct. In fact, judicial notice of prior

inferences establishes the exact opposite—previously inferred false evidence

claims establish that there was insufficient evidence of misconduct in that

prior writ. How could insufficient evidence of misconduct in one writ serve as

competent, sufficient evidence of misconduct in another? It cannot. Inferred,

unproven instances of misconduct cannot satisfy any of the Coty factors. And

yet, that is precisely what inference stacking does—unproven misconduct

magically becomes proven, thereby creating innumerable instances of

misconduct when there are none.

The Court should file and set this writ application to determine whether

inference stacking is permissible, and the requisite temporal proximity

between previously proven instances of misconduct and the alleged misconduct

at issue. See Mathews I, 638 S.W.3d at 691 (noting that five years alone is likely

too much).

d. Should someone who commits perjury during the heart of
the plea process be rewarded with post-conviction habeas
relief because they allege that there is a possibility of false
evidence?

Applicant presents this Court with two contradictory statements: her

2014 plea, and her unsworn declaration. To circumvent their mutual
Mills Dissent – 20

exclusivity, Applicant asks the Court to disregard her prior, sworn admission

and to believe her unsworn declaration that conveniently provides her with

post-conviction relief. The Court does. Why?

The Court has yet to squarely address the issue of why someone who may

have lied when pleading guilty should be allowed to collaterally attack their

plea under the guise that it was involuntarily entered into due to the State’s

use of false evidence. But we have come close. In Ex parte Tuley, this Court

filed and set a writ application to determine whether an actual innocence claim

under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), is cognizable

on habeas review when an applicant pleads guilty. 109 S.W.3d 388, 390 (Tex.

Crim. App. 2002). The Court held that it is. Id.

To reach its conclusion, Tuley had to determine whether or not granting

such relief would reward and encourage perjury. Id. at 391, 393. Tuley

dismissed these concerns because they “ignore[d] the realities of pursuing a

bare innocence claim” and “[a] defendant would have to assume that new

evidence that affirmatively shows his innocence will appear from nowhere.” Id.

Thus, the crux of the Court’s reasoning appears to rest upon Elizondo’s

“Herculean” burden, Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App.

2006), that requires an applicant to establish “by clear and convincing evidence

that no reasonable juror would have convicted him in light of the new
Mills Dissent – 21

evidence,” Elizondo, 947 S.W.2d at 209 (original emphasis). Those

considerations are unlike Applicant’s.

In a scenario like Tuley, the perjury concerns are outweighed by the

simple fact that a Tuley applicant is relying on Elizondo for relief. See Tuley,

109 S.W.3d at 389–90, 393 & n.2. An innocent applicant under Elizondo

“unquestionably shows that he did not commit the offense for which he is

incarcerated.” Id. at 392. This undermines the entire purpose of the underlying

criminal proceeding because unless the perjury is disregarded, an individual

who has demonstrated their actual innocence would remain incarcerated. See

id. at 392 (“The purpose of criminal proceedings is to separate the guilty from

the innocent.” (citing Herrera v. Collins, 506 U.S. 390, 398 (1993))). But those

concerns are absent here, as Applicant neither claims nor demonstrates that

she is entitled to relief under Elizondo. See id. at 392 (“There is nothing

equitable about permitting an innocent person to remain in prison when he

produces new evidence that unquestionably shows that he did not commit the

offense for which he is incarcerated.”). It is unclear why Elizondo’s

considerations should be imported here and prohibit the Court from

considering the relevance of perjury. Simply put, the Tuley–Elizondo logic does

not easily extend.
Mills Dissent – 22

By pleading guilty, Applicant received the benefit of her bargain because

she was only sentenced to 180 days in the state jail, and the State abandoned

two enhancement paragraphs.7 Yet now, Applicant attempts to renege. In

doing so and at some point, Applicant affirmatively lied to the State, the trial

court, and presumably defense counsel. Applicant effectively created the

underlying basis of her writ application because at the time she pleaded guilty,

she knew whether Officer Goines lied in his report. It seems inappropriate to

allow someone like Applicant to collaterally attack their plea when they both

intentionally lied and failed to demonstrate relief under Elizondo.

Again, I would file and set this writ application to discuss these concerns.

III. Conclusion

I am unsure whether Applicant is entitled to relief under our false-

evidence involuntary-plea habeas jurisprudence. Moreover, I am skeptical of

continually permitting writ applicants to use inference stacking to satisfy

Coty’s five-factor test as applied in Mathews I. I believe the Court should file

7 It is unclear from the habeas record, but after Applicant’s arrest and according to

Officer Goines’s offense report, she was charged with both delivery and possession of
a controlled substance, “bond was set at $15,000[] for each case,” and each case had
distinct cause numbers. The possession charge does not appear in Applicant’s
criminal history report. The State very well may have dropped that charge and only
pursued the delivery offense with an understanding that Applicant would plead to
the delivery offense.
Mills Dissent – 23

and set this application to clarify Mathews I and explain why Applicant is

entitled to relief. Because the Court does not, I respectfully dissent.

Filed: March 26, 2025
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