Ex Parte Lewis , 1979 Tex. Crim. App. LEXIS 1499 ( 1979 )

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission we held that applicant was denied due process and due course of law by the State’s failure to disclose to his trial counsel a letter from a psychiatrist that contained “strong indications that the applicant could have raised a defense of insanity,” and that indicated “the issue of competence to stand trial should have been explored.” It was further held that information about incompetence, just as exculpatory information, must be disclosed even without a specific request by the defense, and that this rule applies to defendants who plead guilty with the same force as to those who plead not guilty.

On rehearing the State argues that an intelligent and voluntary guilty plea waives all non-jurisdictional defects, including violations of due process and that applicant has not contended that the plea was involuntary or unintelligent. The State contends that applicant may be accorded relief only if he alleges and proves that he was in fact incompetent at the time of his guilty plea, or that the plea was otherwise made unintelligently or involuntarily, and urges that the cause be remanded to allow applicant to attempt to sustain his burden on that issue.

A careful examination of the original application for habeas corpus relief reveals that applicant has alleged that his plea was not knowingly and intelligently made. A denial of due process by the failure to disclose the psychiatrist’s letter was alleged as the underlying factual basis for applicant’s request for relief, and was the issue focused on by the district court. The concluding paragraph of the habeas corpus application, however, draws together that allegation with the attack on the plea and asserts:

“The conclusion that can be drawn from the above cited authority as applied to the facts [are] as follows: (1) that the prosecutor did not reveal to Mr. Murphy the existence of evidence which tended to prove that Petitioner was incompetent to stand trial and which was known to him; (2) that said evidence was so material, that it placed the State under a duty to disclose absent any request; (3) and that said failure to disclose was not only material as to competency, but also material as to whether Petitioner’s guilty plea was knowingly and intelligently made.”

Our opinion on original submission resolved the first two points of this three step argument in favor of the applicant. We further held that the rule requiring disclosure of favorable evidence applies with equal force in a guilty plea case as in one where the plea is not guilty. Although we did not explicitly state that the guilty plea was not voluntarily and intelligently made, such a conclusion is implicit in the conjunction of our holding that due process was violated by the failure to disclose the favorable information with our holding that such failure violates due process even in guilty plea cases.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, the issue was “whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.” The Court held that as a matter of law such a plea could not be voluntary in the constitutional sense because the defendant had not received real notice of the charge against him, a fundamental requirement of due process.

Such a denial of due process before entry of a guilty plea cannot be waived by that plea, but to the contrary, as a matter of law renders the plea involuntary. Just as a defendant must have real notice of the charges against him before his plea may be voluntary, a defendant and his attorney cannot make an intelligent decision on whether to plead guilty when they have not received favorable information that is in the State’s file to which they are entitled. We therefore hold that a showing of the State’s failure to disclose favorable information before entry of a guilty plea leads as a matter of law to the conclusion that the plea was not knowingly and intelligently made. Appellant having made such a showing, we hold that as a matter of law his guilty plea was not knowingly and intelligently made.

The State’s motion for rehearing is overruled.