Thomas, Sharay Audrette

In the Court of Criminal
Appeals of Texas
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No. WR-95,674-01
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EX PARTE SHARAY AUDRETTE THOMAS,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1388776-A
In the 262nd District Court
Harris County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., joined.

In May of 2013, Applicant was arrested for delivering cocaine to
Gerald Goines, then a narcotics officer with the Houston Police
Department. Two days after her arrest, Applicant pled guilty to delivery
of less than one gram of a controlled substance, a state jail felony. TEX.
HEALTH & SAFETY CODE §§ 481.112 (establishing delivery of less than
THOMAS – 2

one gram of a penalty group one controlled substances as a state jail
felony), 481.102(3)(d) (designating cocaine as a penalty group one
controlled substance). She was convicted and was sentenced to 180 days’
confinement in the state jail. 1
Nearly six years after Applicant’s plea, in March of 2019, the
Harris County District Attorney sent a letter to Applicant disclosing
that Goines had been relieved from duty and was under criminal
investigation. According to Applicant’s unsworn declaration, she did not
receive this letter and was unaware of Goines’s record of misconduct
until she was contacted by her appointed counsel, the Harris County
Public Defender’s Officer. With the assistance of counsel, Applicant filed
the instant application for writ of habeas corpus in March of 2024.
Applicant pleads two grounds for relief in her application. First,
she alleges that the State violated her due process rights by using
materially false evidence to induce her plea of guilty. Specifically, under
the test established by this Court in Ex parte Coty, Applicant argues
that Goines’s claims against her must be presumed false and that the
State cannot rebut this presumption of falsity. 432 S.W.3d 341 (Tex.
Crim. App. 2014); Ex parte Mathews, 638 S.W.3d 685 (Tex. Crim. App.
2022). But for the use of this evidence against her, she argues, she would
not have pled guilty. Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App.
2015). Second, Applicant alleges that her guilty plea was involuntary.

1 Applicant long ago completed her sentence, but she has established

collateral consequences “sufficient to establish ‘confinement’ so as to trigger
application of art. 11.07.” Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim.
App. 2010).
THOMAS – 3

In particular, she argues that Goines was a member of the prosecution
team whose misconduct the State had a duty to disclose to her prior to
her plea, under Brady v. Maryland, 373 U.S. 83 (1963)—whether the
individual prosecutor was actually aware of that misconduct or not.
Consequently, she argues, she lacked sufficient awareness of the
relevant circumstances surrounding the entry of her plea to make it
knowing and voluntary. 2
The convicting court concludes that Applicant is entitled to relief
on both grounds alleged in her application. The Court agrees and today
grants Applicant relief by setting aside her judgment. Majority Opinion
at 2. For the reasons explained below, I believe granting Applicant on
either ground she alleges is, at least, premature. Therefore, I must
dissent from the Court’s opinion.
I. MATERIALITY
First, I do not believe that Applicant has yet carried her burden
to prove that the use of any false evidence against her was material to
her decision to plead guilty. 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

2 See Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016)

(quoting State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013)):

A defendant “must have sufficient awareness of the relevant
circumstances,” and must possess an understanding of the law
in relation to the facts. . . . To determine whether a defendant’s
“awareness” was “sufficient” at the time of h[er] plea, a
reviewing court looks to whether the plea was a voluntary and
intelligent choice among the alternative courses of action open
to the defendant.
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evidence presented against the applicant by the analyst is false. 3 In
Mathews, the Court extended the Coty presumption 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[,]” the Court will infer
that evidence derived from that officer is false. Id. at 690–91. When the
State fails to rebut that inference, the Court will go on to inquire
whether the use of the presumptively false evidence was material. Id. at
689; Coty, 418 S.W.3d at 605.
The applicant, of course, continues to shoulder the additional and
exclusive burden of showing the materiality of the false evidence.
Mathews, 638 S.W.3d at 691. Accordingly, in Barnaby, the Court decided
that when an applicant claims she has entered an involuntary plea
based on the use of false evidence, the question is “whether there is a

3 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
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.
THOMAS – 5

reasonable likelihood that [the false evidence] affected the defendant’s
decision to plead guilty[.]” 475 S.W.3d 316, 325. In other words: “Would
the defendant, knowing of the falsity of the evidence, still have plead
guilty or would [s]he have insisted on going to trial? If [s]he would have
chosen trial, the false evidence was material.” Id. at 325–26.
I do not doubt that Applicant can satisfy the requirements of
Coty/Mathews so as to invoke the Court’s presumption of falsity with
regard to Goines’s own allegations against her. But the record in this
case also suggests that other evidence, at least potentially, might
corroborate Goines’s version of events. If other credible evidence could
have independently shown Applicant’s guilt, even without Goines’s
testimony, then the credibility of Applicant’s claim that she would have
insisted on going to trial but for Goines’s false allegations against her is
suspect.
Specifically, in his own incident report, Goines notes that three
other narcotics officers, Officers Armstrong, Jacobs, and Jones, were
working in the same area as Goines on the day of Applicant’s arrest.
Goines also reports that a Sergeant Haney was present at Applicant’s
arrest and recovered a rock of cocaine that Applicant spit out of her
mouth during her arrest. 4 Did any of these other officers witness
Applicant deliver drugs to Goines? Could the testimony of these other
officers have demonstrated Applicant’s guilt without depending on

4 While Goines’s personal accusation against Applicant may be rightly

presumed false, I am not aware that his record of misconduct includes falsely
listing other officers as having been involved in an arrest who were not.
Moreover, while the record includes a disclosure notice of misconduct by Officer
Armstrong, there is no similar notice for Officers Jacobs or Jones or Sergeant
Haney.
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testimony from Goines? I would remand this case with instructions to
the convicting court to obtain testimony from Jacobs, Jones, and Haney
in answer to these questions. Until then, I cannot join the Court in its
conclusion that Applicant has satisfied her burden of proving
materiality.
II. BRADY V. MARYLAND
Second, Applicant’s involuntary plea claim is predicated on her
argument that the disclosures required by Brady v. Maryland, 373 U.S.
83 (1963), apply to guilty plea cases—a legal question this Court has not
yet squarely decided. In Brady, the Supreme Court of the United States
held that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith
of the prosecution.” Id. at 87. The Supreme Court has since held that the
duty to disclose impeachment and exculpatory evidence applies even
without a request by the accused. Strickler v. Greene, 527 U.S. 263, 280
(1999). And “the individual prosecutor has a duty to learn of any
favorable evidence known only to the others acting on the government’s
behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419,
437 (1995).
Nevertheless, in United States v. Ruiz the Supreme Court
concluded that “the Constitution does not require the Government to
disclose material impeachment evidence prior to entering a plea
agreement with a criminal defendant.” 536 U.S. 622, 633 (2002)
(emphasis added). The question arises, then, whether the information
about Goines’s past misconduct, that was only more recently disclosed
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to the Applicant by the State, is mere impeachment evidence that was
not required to be disclosed, or whether it might indeed be more properly
characterized as exculpatory. And even then, and perhaps more
importantly, to this day, neither the Supreme Court of the United States
nor this Court has answered whether “the constitutional mandate to
disclose exculpatory evidence to defendants under Brady v. Maryland
extends to the plea-bargaining stage of a prosecution[.]” Ex parte
Palmberg, 491 S.W.3d 804, 814–15 & n.18 (Tex. Crim. App. 2016)
(emphasis added). That remains an open question. Id.
Before deciding whether the State violated its disclosure
obligations under Brady when it failed to disclose Goines’s history of
misconduct prior to Applicant’s plea, the Court should at least file and
set this case to decide whether Brady even required her to be notified.
To reach the conclusion that the State violated its disclosure obligations
under Brady, the Court would have to decide (1) that Brady requires the
State to disclose exculpatory evidence prior to a negotiated plea, and (2)
that Goines’s record of misconduct in other cases constituted exculpatory
evidence in this case. 5
But the Court declines to undertake that inquiry. Instead, the
Court merely observes that “[t]he habeas court recommends granting

5 Interestingly, this Court has previously determined that a claim that

the State violated its obligation, under Brady, to disclose to the defense helpful
information about which it is aware is cognizable on an application for the writ
of habeas corpus. See Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993).
So, if the Court were to determine that a Brady violation has been established
in this case, Applicant would be entitled to relief on that ground alone, without
regard to any additional argument that her plea was involuntary on account of
that violation. It would essentially render her involuntary plea claim
superfluous.
THOMAS – 8

relief on false evidence and involuntary plea grounds. We agree.”
Majority Opinion at 2. It then grants relief, citing only Ex parte Chabot,
300 S.W.3d 768, 772 (Tex. Crim. App. 2009), presumably for the
proposition that the Court “generally defers to and accepts the
convicting court’s findings of fact and conclusion of law when they are
supported by the record.” See id.
The convicting court itself, however, made no findings with
respect to Applicant’s Brady argument. It simply concluded that
“Applicant successfully demonstrates by a preponderance of the
evidence that her plea was involuntary” with a “Cf.” cite to Barnaby, 475
S.W.3d at 325–26. What does the Court mean by endorsing the
convicting court’s ambiguous findings? Does the Court mean to reject
Applicant’s Brady argument but agree that her plea was involuntary
nonetheless—perhaps because materially false evidence was relied upon
to secure her plea? If so, then the Court should explicitly say so and
explain why it grants relief on two distinct grounds but on the same legal
theory (i.e., false evidence). If, instead, the Court intends to agree with
Applicant’s Brady argument and find that her plea was involuntary for
that reason, then it should do so explicitly and not only tacitly in an
unpublished opinion. Whatever the case may be, the Court should
explain its reasoning more clearly than it does.
III. CONCLUSION
Applicant pleads that she is entitled to postconviction habeas
relief on two distinct grounds: false evidence and involuntary plea. I
would not grant Applicant relief on her false evidence claim without first
remanding to the convicting court, consistent with our precedents, with
THOMAS – 9

instructions to develop the record concerning the materiality of any false
evidence that may have led to her decision to plead guilty. If the record
should then still demonstrate that no evidence corroborates Goines’s
version of events, then I would likely agree that Applicant is entitled to
relief, at least on her first ground. I would also not grant relief at this
point on Applicant’s second ground—involuntary plea. Before reaching
the merits of that claim I believe the Court should first file and set this
writ to determine whether the prosecution’s duty to disclose exculpatory
evidence under Brady extends to the guilty-plea context and whether
the State’s recent disclosures about Goines can be proper characterized
as exculpatory, as opposed to impeachment evidence.
I cannot agree that Applicant has yet shown that she is entitled
to relief under either claim. See Ex parte Maldonado, 688 S.W.2d 114,
116 (Tex. Crim. App. 1985) (“In a postconviction collateral attack, the
burden is on the applicant to allege and prove facts which, if true, entitle
[her] to relief.”). But the Court grants Applicant relief on both grounds
alleged by Applicant anyway—on an inadequate record and without an
adequate explanation of its reasoning.
I must respectfully dissent.

FILED: June 19, 2024
PUBLISH