Ex Parte Pena

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,073-01
EX PARTE MARTIN PENA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1379020-A IN THE 184TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
This is an application for a writ of habeas corpus. TEX . CODE CRIM . PROC . art. 11.07.
Applicant pleaded guilty to delivery of a controlled substance and was sentenced to fifteen years’
imprisonment. TEX . HEALTH & SAFETY CODE § 481.112(f). He did not appeal his conviction.
Applicant contends that his guilty plea was involuntary and the State failed to disclose
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). We filed and set his application
for submission and directed the parties to brief whether: “(1) the misconduct in Applicant’s case
should be imputed to the prosecution for purposes of Applicant’s Brady v. Maryland claim; (2) this
misconduct is exculpatory; and (3) Applicant’s plea was involuntary because of ‘impermissible
conduct by state agents.’ Brady v. United States, 397 U.S. 742, 757 (1970).” Ex parte Pena, No.
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WR-84,073-01 (Tex. Crim. App. Nov. 18, 2015) (not designated for publication). We have received
the parties’ briefs.
Attached to the State’s brief as Appendix A is a Houston Police Department incident report.
This report was not filed in the trial court first, yet it seems to be offered as additional evidence.
Applicant has now filed in this Court a motion to strike the State’s brief or, in the alternative, to
strike Appendix A and all references to it from the State’s brief. In his motion, Applicant contends
that Appendix A was not made part of the habeas record and is otherwise inadmissable hearsay, that
we do not hear evidence, and that the State’s attempt to supplement the record at this stage in the
proceedings is improper.
The State disagrees. It argues that Applicant’s motion is not supported by precedent or a rule
of procedure, that Appendix A was filed to assist this Court in determining whether Applicant’s
guilty plea was involuntary and evidence is material under Brady v. Maryland, that the Rules of
Appellate Procedure are silent as to how a party should supplement the habeas record, and that
Appendix A should not be rejected on hearsay grounds.
We will not strike the State’s brief, but we will conditionally grant Applicant’s motion to
strike Appendix A and references to it from the State’s brief.
An Article 11.07 application “must be filed with the clerk of the court in which the
conviction being challenged was obtained.” TEX . CODE CRIM . PROC. art. 11.07, § 3(b); cf. TEX . R.
APP . P. 73.4(a) (“The district clerk of the county of conviction shall accept and file all Code of
Criminal Procedure article 11.07 applications.”). There is no provision in Article 11.07 or the Rules
of Appellate Procedure that permits a party to file evidence directly in this Court. Nor is there a
provision explaining how a party should supplement the record after we have received an Article
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11.07 application or filed and set it for submission.1 But we have said that evidence should not
ordinarily be filed directly in this Court. In Ex parte Whisenant, the applicant filed in this Court a
motion to remand and included evidence that was not filed in the trial court. 443 S.W.3d 930,
931–32 (Tex. Crim. App. 2014). He explained that he made a strategic decision not to file evidence
in the trial court. Id. We declined to consider the evidence he filed in this Court but permitted him
to file his evidence in the trial court. “Evidentiary materials,” we wrote, “should not ordinarily be
submitted directly to this Court, either before or after the convicting court has transmitted the record
to us, for that prevents the convicting court from fulfilling its institutional function to develop the
facts and make its ‘Johnny-on-the-Spot’ recommendations to this Court as to how conflicts should
be resolved.” Id. at 932. We recognized, however, that in “compelling and extraordinary
circumstances,” we may consider evidence filed directly in this Court. Id. at 933 (quoting Ex parte
Simpson, 136 S.W.3d 660, 669 (Tex. Crim. App. 2004)).2
Today, we leave the broad principles in Whisenant undisturbed and explain the procedures
a party must follow if, after we have received an Article 11.07 application from the county of
conviction or filed and set it for submission, the party wishes this Court to consider evidence not
filed in the trial court.
If we have filed and set an application for submission, a party has two options. First, the
1
Article 11.07 and Rule of Appellate Procedure 76(d) use the word “docketed.” See T EX . C O D E C RIM .
P RO C . art. 11.07, § 5 (“The Court of Criminal Appeals . . . may direct that the cause be docketed and heard as though
originally presented to said court or as an appeal.”); T EX . R. A PP . P. 76(d) (The Court of Criminal Appeals will sit en
banc to consider “cases that were docketed under Code of Criminal Procedure articles 11.07 or 11.071.”). For the
purposes of Applicant’s case, “docketed” means “filed and set for submission.”
2
Simpson was a proceeding under Article 11.071 of the Code of Criminal Procedure. Like Whisenant, the
applicant in Simpson filed evidence directly in this Court. W e declined to consider her evidence and explained that
we “are not the convicting trial court, and we are not the original factfinders. It is generally fruitless, if not
counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial
court.” Simpson, 136 S.W .3d at 668–69.
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party may file evidence directly in this Court with a motion for this Court to consider the evidence.
In this motion, the party should describe the evidence for this Court to consider and explain its
evidentiary value and why “compelling and extraordinary circumstances” exist for us to consider it.
In an Article 11.07 proceeding, such circumstances must be truly exceptional before we will consider
evidence filed directly in this Court. Second, the party may file in this Court a motion to supplement
in the trial court. In this motion, the party should describe the evidence the party intends to file in
the trial court and explain its evidentiary value and why the evidence could not have been filed in
the trial court before we filed and set the application for submission. After we have filed and set an
Article 11.07 application for submission, we will not consider evidence that was not filed in the trial
court unless a party follows these procedures and we grant the appropriate motion.
These procedures are not required when an Article 11.07 application has been received and
is pending before this Court but has not been filed and set for submission. In these circumstances,
if a party wishes this Court to consider evidence not filed in the trial court, the party must file in this
Court a motion to stay the proceedings pending the filing of the evidence in the trial court. In this
motion, the party should describe the evidence the party intends to file in the trial court and explain
its evidentiary value. If we grant the motion, we will give a designated time frame for the party to
file the evidence in the trial court.
Finally, if an Article 11.07 application is pending in the trial court and has not been
forwarded to this Court, a party may file additional materials in the trial court without having to file
a motion in this Court or the trial court.
Applicant’s motion to strike Appendix A and references to it from the State’s brief is
conditionally granted. If the State wishes this Court to consider Appendix A as evidence, it shall
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comply with the procedures set out in this order within thirty days of the date of this order. If the
State fails to do so, Appendix A and references to it will be considered struck and will not be
considered for any purpose.
Filed: March 9, 2016
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