Cape, John Gabriel

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-50,358-02
EX PARTE JOHN GABRIEL CAPE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2017CR12157-W1 IN THE 226TH DISTRICT COURT
BEXAR COUNTY
YEARY, J., filed a dissenting opinion.
DISSENTING OPINION
Today, the Court grants Applicant relief on the theory that his plea of nolo
contendere was entered involuntarily. Majority Opinion at 3. I am convinced that his plea
was voluntary. So, I dissent for essentially the same reasons I dissented in Ex parte
Thompson, 584 S.W.3d 874 (Tex. Crim. App. 2019) (Yeary, J., dissenting).
While Applicant may have suspected when he entered his nolo plea that some of the
contraband he was charged with possessing had been planted by a confidential informant,
he apparently could not prove that to be the case. And the prosecutor was certainly
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unaware, at that time, that some quantity of the contraband discovered might have been
planted. Applicant nevertheless entered a plea of nolo contendere to a lesser offense than
he was charged with—mere possession rather than possession with intent to deliver—even
knowing that, at some later point, it might become possible to establish where the alleged
extra contraband came from.
In Thompson, I observed:
“A defendant may have a sufficient factual awareness” of the State’s
case against him to render his guilty plea adequately informed to satisfy the
constitutional requirement of voluntariness “despite laboring under
misapprehensions.” Ex parte Broussard, 517 S.W.3d 814, 817 (Tex. Crim.
App. 2017). “[T]he voluntariness of a defendant’s guilty plea is not
contingent upon his awareness of the full dimension of the prosecution’s
case.” Ex parte Palmberg, 491 S.W.3d 804, 809 (Tex. Crim. App. 2016).
“[A]s long as he has sufficient awareness of his circumstances—including an
awareness that some facts simply remain unknown to him or are
undetermined as of the time of the plea—his potentially unwise plea is still a
voluntary one.” Id. “[I]f a known unknown is discovered to be different than
the defendant estimated, it does not necessarily entitle him to relief from his
agreement with the State because his estimation turned out to be wrong.”
Broussard, 517 S.W.3d at 818.
584 S.W.3d at 874 (Yeary, J., dissenting). In the instant case, Applicant may have believed
that the chances that he could prove that someone planted some of the discovered
contraband were not good. He may also have been motivated to plead to a charge of mere
possession rather than to a charge of possession with intent to deliver. Consequently, we
should not invalidate his plea on the grounds that his plea was involuntary. 1
1
Applicant also claims he is “actually innocent” under Ex parte Elizondo, 947 S.W.2d 202,
209 (Tex. Crim. App. 1996). The Court denies relief on that basis because he has not demonstrated
that he was innocent of possessing a lesser quantity of contraband. Majority Opinion at 2–3. For
that proposition, the Court relies on State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010).
Applicant might have attempted to prove in the trial court that he was “actually not guilty”
of the greater offense with which he was charged. See Ex parte Saucedo, 576 S.W.3d 712, 720
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Even at this stage, there is no concrete evidence that the confidential informant
planted contraband in this case—only that he did so in another case. Majority Opinion at
2. So, before granting Applicant relief under these circumstances, the Court should require
application of the kind of rubric that the Court devised in Ex parte Coty, 418 S.W.3d 597(Tex. Crim. App. 2014).
In Coty, the applicant relied on the fact that a forensic chemist working for the State
had demonstrably falsified lab-test results in other cases, not the applicant’s. On this basis,
he argued that the State had obtained his own guilty plea based on false evidence. Id. at
598. We held that an applicant’s proof of such demonstrable “dry labbing” in other cases
could create a presumption of false evidence in the applicant’s own case, which the State
could then rebut. The Court declared that it would consider an inference that the evidence
in question was false if the applicant could demonstrate that: “(1) the technician in question
[was] a state actor, (2) the technician . . . committed multiple instances of intentional
misconduct in another case or cases, (3) the technician [was] the same technician that
worked on the applicant's case, (4) the misconduct [was] 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.” Id. at 605. The Court explained that “[o]nce the applicant satisfies
(Tex. Crim. App. 2019) (Keasler, J., concurring) (“[A]lthough a Wilson claim is functionally
similar to a claim of actual innocence, I would not deem an applicant who met the Wilson criteria
to be ‘actually innocent.’ I would prefer to call a person in that situation ‘actually not guilty’ of
the charged offense, rather than ‘actually innocent’ of any offense.”). But Applicant did not plead
nolo contendere to, nor was he convicted of, possession of a lesser amount of contraband. And the
evidence that the confidential informant planted contraband in another case does not necessarily
establish that he did so in Applicant’s case. He is not entitled, therefore, to obtain relief, even under
Judge Keasler’s Saucedo rationale that he was “actually not guilty” of the greater offense.
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this initial burden by establishing the identified factors,” he has proven that the technician
“engaged in a pattern of misconduct sufficiently egregious in other cases that the errors
could have resulted in false evidence being used in the applicant’s case.” Id. It is up to the
applicant, the Court said, “to establish the extent of the pattern of misconduct the technician
is accused of[,]” but if an “[a]pplicant can establish the necessary predicate facts, then the
burden shifts to the State to offer evidence demonstrating that the laboratory technician
committed no such intentional misconduct in the applicant's case.” Id.
The Court also held in Coty that the burden of establishing the materiality of the
false evidence rested exclusively on the applicant. Id. at 605. The Court later explained that
an applicant who has pled guilty establishes materiality by showing he would not have
made the decision to plead guilty but for the falsified forensic evidence against him. See
Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App. 2015) (“[T]he materiality of false
evidence is measured by what impact that false evidence had on the defendant’s decision
to plead guilty.”). And any relief in such cases ought to be predicated on a false-evidence
rationale, not a naked involuntary plea rationale. See Coty, 418 S.W.3d at 604
(“Applicant’s claim is most analogous to asserting that the State used false evidence to
convict him.”).
We have subsequently filed and set another post-conviction application for writ of
habeas corpus explicitly to decide whether the presumption we applied to the work product
of a crooked forensic analyst in Coty should also pertain to false evidence generated by
another type of state actor, a police officer. Ex parte Mathews, No. WR-91,731-01, 2020
WL 6588495 (Tex. Crim. App. Nov. 11, 2020) (not designated for publication). That case
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is currently pending before us. It seems to me that the Court ought to consider similarly
filing and setting this writ application for the purpose of deciding whether a confidential
informant should also potentially count as a state actor for purposes of applying the Coty
rubric. But the Court does not pursue that route. Instead, it grants Applicant relief
predicated on a false rationale that his plea of nolo contendere was entered involuntarily.
I respectfully dissent.
FILED: June 30, 2021
PUBLISH