NO.

1528672-A

EX PARTE § IN 'lEE 182ND

§ DISTRICT COURT OF
FREDERICK JEFFERY,
Applicant § HARlUS COUNTY, TEXAS

AGREED PROPOSED FINDINGS OF FACT,

CONCLUSIONS OF LAW, AND ORDER
The Court recommends habeas corpus relief be granted based on the
presentation of false evidence by former Houston Police Department ("HPD")
Officer Gerald Goines ("Goines"). The State now believes Goines engaged in
fictional drug buys and perjury to secure the applicant's conviction. The presentation
of false evidence concerns two pieces of evidence. First, Goines' search warrant
affidavit attesting to facts of a controlled buy at 2807 Nettleton Street where the
applicant was arrested. Evidence developed post-conviction establishes the
controlled buy was fictional and the warrant perjured. Second, Goines' trial
testimony regarding a statement the applicant purportedly made providing an
affirmative link to the narcotics-specifically, ownership of a cell phone found at the
scene. The State no longer believes this statement transpired.
In reaching this recommendation for relief, the Court has reviewed the
following: the original and supplemental applications for writ of habeas coq)US; the
State's writ exhibits; the reporter's record from the applicant's trial held April 11-12,
2018; and the clerk's official records.

The Court requests that the COUlt of Criminal Appeals review the findings and
conclusions on an expedited basis because the applicant is serving a twenty-five year
sentence due to Goines' fictional drug buy, perjured warrant affidavit, and false trial
testimony.

Because the Court recommends relief based on false testimony, it does not
reach the applicant's ineffective assistance of counsel claim as it is unnecessary to
resolve the instant matter. See Ex Parte Colone, No. WR-89,538-01, 2022 WL 613690,
at *1, n. 2 (Tex. Crim. App. Mar. 2, 2022). Should the Court of Criminal Appeals
desire findings on the ineffective assistance claim, this Court requests the matter be
remanded for further proceedings.
, ,

FINDINGS OF F ACf

1. The Court finds that the applicant, FREDERICK JEFFERY, is confined

pursuant to a judgment and sentence in cause number 1528672 out of the
182nd District Court of Harris County, Texas, where a jury convicted the
applicant of possession of 4-200 grams of a controlled substance in penalty
group one. Two prior prison sentences enhanced the applicant's punishment.
On April 12, 2018, the trial court sentenced the applicant to 25 years
confinement in the Texas Department of Criminal Justice-Institutional
Division. The applicant is currently incarcerated from this conviction.

2. The First Court of Appeals affirmed the applicant's conviction. Jrffery v. State,
No. 01-18-00320-CR, 2019 WL 758323 (Tex. App.-Houston list Dist.]
Feb. 21, 2019, pet. refd) (mem. op., not designated for publication). The
mandate of affirmance issued on May 17, 2019.

3. The following is a concise summaty of the trial evidence, based on the Court
of Appeals' opinion:

HPD Officer Goines' determined that narcotics were being stored in, or sold
from, a house located at 2807 Nettleton Street. On October 27, 2016, Goines,
along with a raid team, traveled togetller in a van to execute a warrant to
search the house. As the van approached the house, Goines, who was riding
in the front passenger seat, saw the applicant and another man standing on the
front porch. With his back turned to the street, the applicant was locking the
burglar bars covering the front door. The officers exited the van and ordered
the men to get down on the ground. Inside the house, tlle officers located on
a table bags of pills that appeared to be narcotics. In the front yard, Goines
saw a set of keys laying on the ground next to the applicant's hand. Goines
determined that the keys opened the front door and burglar bars of the house.
While under arrest, the applicant asked whether "he could have his phone with
him." When Goines asked where the phone was, the applicant replied that it
was on the table. Goines found the applicant's cell phone inside the house on
the table next to the narcotics. An analyst concluded the pills tested positive
for methamphetamine and weighed 4.7 grams.

1 The trial record and, therefore, the Court of Appeals opinion spell Goines "Goins,"

2
, I

See Jdlery, 2019 WL 758323, at *1-2.

Post-Conviction History

4. On March 8, 2019, ill the pnmary case, the State provided nonce to the
applicant and his trial counsel that Goines was under criminal investigation.
See State's Writ Ex. N. This notice was after the Court of Appeals issued its
opinion, but prior to its mandate.

5. On October 4,2019, the applicant filed his pro se application for writ of habeas
corpus, which was served on the State on October 14, 2019. In his
application, the applicant claims he received ineffective assistance of trial
counsel, and Goines falsified government records and provided false evidence
during the applicant's trial. See Writ App. at 8-20 (grounds 1 to 13).

6. On October 18, 2019, the State suggested that the applicant be appointed
habeas counsel.

7. On October 21, 2019, the Court designated two issues: whether the applicant
received ineffective assistance of trial counsel and whether the State presented
false evidence/testimony by Goines.

8. On October 24, 2019, the Court appointed Patrick McCann to represent the
applicant on habeas.

9. On April 8, 2021, the Harris County District Clerk's Office properly

forwarded the habeas record to the Court of Criminal Appeals.

10. On June 9, 2021, the Court of Criminal Appeals remanded the application to
this Court to complete its evidentiary investigation and make findings of fact
and conclusions of law.

11. On September 1,2021, tile Court ordered Goines to file a responsive affidavit.

12. On January 7, 2022, in an affidavit, Goines invoked the Fifth Amendment in

response to the questions contained in the Court's September 1, 2021 order
for affidavit. See Writ App. Supp. at 23-24.

3
 13. On March 10, 2022, the Court of Criminal Appeals sent a reminder letter
about its previous remand order.

14. The habeas action was transferred from Judge Danilo Lacayo to Associate
Judge Stacy Allen.

15. On April 26, 2022, the State filed disclosure notices regarding former officers
Goines and N adeem Ashraf.

16. On May 5, 2022, the Court signed the State's unopposed motion and order to
release a cell phone (State's Trial Exhibit 22) to the Harris County District
Attorney's Office for the purposes of a forensic examination.

17. On June 14, 2022, the applicant filed a supplemental application for writ of
habeas C011) us. See Writ App. Supp. at 8-10 (two supplemental grounds).

18. On June 28, 2022, the State filed disclosure notices regarding former officers
Hodgie Armstrong and Oscar Pardo.

The Applicant's Claims on Habeas

19. In his writ application, the applicant claims he received ineffective assistance of
trial counsel. See Writ App. at 8, 17; Writ App. Supp. at 8.

20. The applicant also claims Goines falsified government documents including
police reports and the "application" for search warrant. See Wrir App. at 12,
20.

21. The applicant claims Goines provided false testimony 111 trial, including
testimony about the applicant's ownership of a cell phone linking the applicant
to the drugs. See Writ App. at 12, 14, 17, 18,20; Writ App. Supp. at 10.

22. The applicant asserts he "did not own, possess, request, and/or claim the cell
phone as his property." See Writ App. at 14, 16,20.

23. The applicant asserts cellular records for the phone were not linked to the
applicant. See Writ App. at 14.

24. The applicant asserts he did not make any statements upon arrest. See Writ
App. at 16,20.

4
 25. The applicant asserts the raid team officers were equipped with body-worn
cameras and the officers altered, disposed of, and/or erased exculpatory
camera footage. See Writ-App. at 18.

26. The applicant asserts he did not own, possess, or control any alleged narcotics.
See Writ App. at 19.

The Applicant's Trial

27. Judge Jeannine Barr presided over the applicant's jU1Y trial, which was held
"\prill1-12,2018.

28. Attorney Steven Greenlee represented the applicant.

29. The State called three witnesses in the applicant's trial: 1) Sgt. Brent Batts;
2) Ofcr. Goines; and 3) Forensic Analyst .Angelica Noyola.

30. Goines testified on April 11,2018 (3 R.R. at 69-85) and April 12,2018 (4 RR
at 5-58).

31. Goines testified that he saw two males on the porch of 2807 Nettleton, one of
whom was the applicant (3 RR. at 78; 4 RR. at 35, 53). Goines saw the
applicant attempting to lock the burglar doors (3 RR at 78-80; 4 R.n... at 52).

32. Goines testified that, later, he saw keys on the ground and those keys came out
of the applicant's hand (4 R.R at 7, 9). Goines checked to confirm the keys
actually unlocked the burglar door and house door (4 RR at 10; -/.JUt at 39,
52). On direct, Goines testified the applicant was actually holding the keys
(4 R.R at 9-10). On cross, Goines testified he never saw the applicant throw
the keys and he only saw the keys on the ground by the applicant's hand
(4 R.R at 36, 53-54). Goines testified he saw the applicant touching the keys
only when the applicant was locking up (4 RR at 37-39).

33. Goines did not include in his report that the keys were on the ground next to
the applicant or that the applicant threw the keys (4 R.R at 41).

34. Batts testified that he saw two men on the porch, but did not see anyone
locking the burglar doors and did not see d1e keys (3 RR at 29, 45-46, 49, 67).

5
 35. Goines testified that the handcuffed applicant initiated a conversation with
Goines, asking if he could have his cell phone (4 R.R. at 15, 22). When
Goines asked him where the cell phone was, the applicant said it was on the
table (4 R.R. at 15, 19, 22). The conversation was not recorded and no other
officers heard it (4 R.R. at 20). The trial court did not suppress the applicant's
statement because the applicant was not being interrogated (4 R.R. at 21).

36. Goines testified that he saw a cell phone on the table amongst drugs and
tagged it into evidence (3 R.R. at 84-85; 4 R.R. at 11, 14,21-22,49-50). Goines
wrote in his report that "officers" recovered the cell phone, but he meant
himself (4 R.R. at 50). During trial, Goines pointed out the cell phone in
Exhibit 14 (3 R.R. at 84-85). Goines agreed that some photos do not clearly
show what is on the table, and it took a moment for Goines to testify about
what he felt was the cell phone in the photo (4 R.R. at 45).

37. Batts testified that he took photos of the evidence on the table inside the
house (3 R.R. at 36-38). Batts could not point out to the jury the cell phone in
the photos he took (3 R.R. at 56-57).

38. State's Trial Exhibits 13 and 14 are photos of the table containing the drugs
and, according to Goines, the cell phone (3 R.R. at 56-57, 84-85; 6 R.R. at 19-
20).

39. State's Trial Exhibit 18 is the search warrant (3 R.R. at 75; 6 R.R. at 24-25).

40. State's Trial Exhibit 20 is a key ring with two keys (4 R.R. at 6-9; 6 R.R. at 26).

41. State's Trial Exhibit 22 is the cell phone (3 R.R. at 85; 4 R.R. at 11-13, 21-22;
6 R.R. at 27-29).
6
The Applicant's Codefendant

42. On October 27, 2016, Orville Jackson was standing next to the applicant when
Goines' team executed the search warrant at 2807 Nettleton.

43. Jackson tossed a bagt,ryof crack cocaine onto the grass. See State's Writ Ex. D
at 15.

44. Jackson was charged with possession of less than a gram of cocaine in cause
number 1528678.

45. Jackson was not charged with possessing the drugs inside the house.

46. The State provided Jackson notice about Goines on March 8, 2019, the same
day notice was provided to the applicant. See State's Writ Ex. S.

47. Jackson's case was still pending at the time of the applicant's trial and at the
time he was provided notice about Goines.

48. On September 22, 2020, Jackson's case was dismissed. See State's Writ Ex. T.

Goines' Credibility is Material

49. The Court finds that Goines' credibility IS material to the applicant's
underlying conviction.

50. The Court finds that Goines' credibility is material to the applicant'S current
habeas litigation.

51. Goines is the affiant on the search warrant affidavit.

52. Without the search warrant, the police had no legal authority to enter the
house. See U.S. Const. amend. IV.

7
53. Goines is the only witness who can connect the applicant to the dlLlgs that
were found inside the house:
a. Only Goines saw the applicant locking the burglar bars.
b. Only Goines later saw the keys near the applicant's hand.
c. Only Goines fit the keys into the locks on the front door and burglar
bars.
d. Only Goines heard the applicant claim ownership of the phone.
c. Only Goines testified that the phone was on the table where the drugs
were located.

54. Both the applicant and Jackson were seen on the front porch of the house.
The difference between charging the applicant and not Jackson with
possession of the drugs inside the house is solely based on Goines' testimony.

55. In 2020 and 2021, the Court of Criminal Appeals accepted the district courts'
recommended conclusions that Goines lied in official govemment documents
in 2008 and during the trial, and it granted post-conviction relief to Otis and
Steven Mallet accordingly. See Ex Parte Otis Mallet, Nos. WR-90,980-01 & WR-
90,980-02, 2020 WL 3582438 (Tex. Crim. App. 2020) (not designated for
publication); Ex Parte Steven Mallet, 620 S.W.3d 797 (rex. Crim. .vpp. 2021).

56. Four judges on the Court of Criminal Appeals determined that Goines has a
propensity to be untruthful in his undercover drug assignments. I L\.· Parte OtiJ
Mallet, 602 S.W.3d 922, 923 (Tex. Crim. App. 2020) (Richardson, j.,
concurring) ("The investigations into Goines showed his propensity to be
untruthful in his undercover drug assignments."). They further determined
that Goines testified falsely in a drug possession trial in 2008. Id.

57. When ordered to file a responsive affidavit in the applicant's instant habeas
action, Goines invoked the Fifth Amendment and remained silent. See Writ
App. Supp. at 23-24 Oanuary 7,2022 affidavit of Goines); see also Ex Parte Otis
Mallet, 602 S.W.3d at 924 (Richardson, J., concurring) ("It is telling that
Goines-the State's sole fact witness at trial and the only witness who said he
saw a dlLlg deal on the date of Applicant's arrest-refused to testify by
asserting the Fifth Amendment at the hearing on Applicant's post-conviction
writ when asked to explain facts pertinent to the underlying offense.").

8
2807 Nettleton Street: The Fictional Drug Buy and Perjured Warrant

58. The applicant claims Goines falsified government documents including the
"application" for search warrant. See Writ App. at 12,20.

59. "CI." refers to a confidential informant.

60. HPD Narcotics Division C}, Activity Sheet / Receipt for Funds Form will be
referred to as "C1. Funds Receipt Form."

61. The search warrant of 2807 Nettleton was admitted in the applicant's trial as
State's Exhibit 18 without objection (3 RR. at 75; 6 RR at 24-25). See also
State's Writ Ex. Cat 1-2.

62. According to HPD Incident Report 135833716 and the corresponding C1.
Funds Receipt Form, Goines claimed that C1. #5696 purchased marijuana
from 2807 Nettleton on October 23, 2016. See State's Writ Ex. i\ at 4-5;
State's Writ Ex. B; see also State's Writ Ex. J at 1-2.

63. According to I--IPD Incident Report 135833716, Officer Hodgie Armstrong

was also present on October 23, 2016. See State's Writ Ex. 1\ at 4 ("officers
met up with a confidential informant").

64. In the corresponding affidavit for search warrant, Goines attested that a C].
purchased marijuana from a man inside 2807 Nettleton on October 23,2016.
See State's Writ Ex. Cat 4 (#5).

65. Goines attested that this C1. had provided assistance to officers on at least ten
prior occasions that led to narcotic arrests and seizures and had proved to be
"creditable [sic] and reliable." See State's Writ Ex. C at 4 (#5).

66. According to HPD Incident Report 135833316 and the corresponding C1.
Funds Receipt Form, Goines claimed the same C1. (C1. #5696) purchased
crack from 2811 Nettleton on October 24, 2016. See State's Writ J<:x.0 at 4-5;
State's W1;t Ex. V; see also State's W1;t Ex. J at 2.

67. 2811 Nettleton is next door to 2807 Nettleton. See State's Wlit Ex. C at 1
("The numbers '2807' are plainly visible on the residence. The residence next
door (south) has the numbers '2811' plainly displayed."); see also State's Trial

9
 Ex.4 (the white house IS 2807 Nettleton and the blue house IS 2811

68 . According to IIPD lncident Report 135833316, the same second officer

(Officer Armstrong) was also present on October 24, 2016. See State's Writ
Ex. U at 4 ("officers would meet up with a confidential informant"),

69. In the corresponding affidavit for search warrant, Goines attested that a C],

purchased cocaine from a man inside 2811 ettleton on October 24, 2016.
See State's Writ] ,:x.W at 4 (#5).

70. Goines attested that this c.I. had provided assistance to officers on at least ten
prior occasions that led to narcotic arrests and seizures and had proved to be
"creditable [sic] and reliable." See State's Writ Ex. W at 4-5 (#5).

71. On October 25, 2017 at 2:05pm, Judge Ronald Nicholas signed the search
warrant for 2807 Nettleton. See State's Writ Ex. C at 2; State's Writ] ,:x.D at 7;
3 RR at 73-75; 6 RR at 24-25 (State's Trial Ex. 18).
~ , 2-0\ b ,at ~o'clock -.£. M., to
Issued this the ~ day of OC\
which witness my hand this day.

HOU.to~~~~
Harris COUNTY, TEXAS

72. On October 25, 2017 at 2:05pm,Judge Ronald Nicholas also signed the search
warrant for 2811 Nettleton. See State's Writ Ex. W at 2; State's Writ Ex. X at 7.
Issued this the 26~ay of ~ \
~ at ~ o'clock..J. M., to
which witness my hand this day.

HOU.Z'n0C Y\~
Harris COUNTY, TEXAS

10
73 . According to HPD Incident Report 137104516, Goines' team executed the
search warrant at 2807 Nettleton on October 27, 2016 at 9:15 in the morning.
See State's Writ Ex. D at 1, 15; State's Writ Ex. 1.

74. According to Goines' testimony, Goines' team executed the search warrant at
2807 Nettleton "around 9:30" in the morning (4 R.R. at 58).

75. According to HPD Incident Report 137106316, Goines' team executed the
search warrant at 2811 Nettleton on October 27, 2016 at 9:30 in the morning.
See State's Writ Ex. X at 1, 8; State's Writ Ex. 1.

76. According to the C.I. Funds Receipt Form related to the 2807 Nettleton
search warrant execution, Goines paid C1. #5696 on October 27, 2016 at 9:30
in the morning. See State's Writ Ex. H; see also State's Writ Ex. J at 2.

77. .vccording to the C1. Funds Receipt Form related to the 2811 ettleton
search warrant execution, Goines paid CI. #5696 on October 27, 2016 at 5:00
in the evening. See State's Writ Ex. Y; see also State's Writ Ex. J at 2.

78. In a recorded interview with HPD on November 7, 2019, c.i. #5696 stated
the following:
a. She did not make a buy at 2811 Nettleton.
b. She and Officer Goines started doing things "the wrong way" about
three or four years prior to the interview. She would get paid for some
buys she did not actually make.
See State's Writ Ex. Z (portion of the CI.'s November 7,2019 interview).

79. According to the CI.'s 2019 interview, she and Goines started doing things
"the wrong way" in 2015 or 2016.

80. In the 2019 interview, the CI. was not questioned about 2807 Nettleton
specifically.

81. The trial prosecutor Ryan Carlyle Kent avers that, had he known at the time he
was prosecuting the applicant the information revealed in the C1.'s 2019
interview, he would have disclosed the information to opposing counsel and
urged his supervisor to dismiss the case against the applicant. See State's Writ
Ex. R. The Court finds Mr. Kent's affidavit and the statements therein

11
 credible.

82. In a recorded interview with the Harris County District Attorney's

Office on July 18, 2022, C.!. #5696 stated that she did not make a buy at
2807 Nettleton and has never made a buy on Nettleton Street. See State's
Writ Ex. D at 30.

83. The Court finds that the applicant's arrest would not have occurred but
for the perjured search warrant affidavit and resulting warrant.

84. The Court finds that Goines made a false, material statement in the
affidavit for search warrant of 2807 Nettleton when he claimed the C.!.
made a buy on October 23, 2016. See Ex Parte Steven Maffet, 620 S.W.3d at
798 (Tcx. Crim. App. 2021) (Richardson, ]., concurring) ("Thc State, trial
court, and habeas court now agree, based on Goines's expense rep01ts in this
case and recently discovered dishonesty in other cases, that there is compelling
evidence the drug transaction never occurred."); see also De La Paz 1). State, 279
S.W.3d 336,347 (rex. Crim. App. 2009) (the doctrine of chances).

85. Based on Goines' false, sworn statement regarding the fictional drug buy,
Judge Nicholas signed the search warrant for 2807 Nettleton.

86. The Court finds that Goines made a false, material statement in the
affidavit for search warrant of 2811 Nettleton when he claimed the c.!.
made a buy on October 24, 2016.

87. Based on Goines' false, sworn statement regarding the fictional drug buy,
Judge Nicholas signed the search warrant for 2811 Nettleton.

88. The Court finds that Goines' statement in C.!. Funds Receipt Form that
Goines paid the C.!. at 9:30am on October 27, 2016 is not credible.

89. The Court finds that the search warrant of 2807 Nettleton was material
to the applicant's arrest, trial, and conviction.

12
The Perjured Testimony about the Phone Recovered from 2807 Nettleton

90. The applicant asserts Goines testified falsely that the applicant claimed
ownership of the phone recovered from 2807 ettleton. See Writ App. at 12,
14, 16-18,20.

91. HPD Incident Report 137104516 documents the October 27, 2016 search
warrant execution at 2807 Nettleton and the applicant's and codefendant's
arrests. See State's Writ I~x.D.

92. HPD Incident Report 137104516 shows that one phone was recovered from
2807 ettleton on October 27, 2016: "S.AMSUN [sic] CELL PHONE /
C;OLD CASE," serial number R38F80K1'66V. See State's Writ Ex. D at 2, 6;
see also 3 R.R. at 85; 4 R.R. at 11, 22.

93. No other phone was mentioned in the report.

94. In the applicant's trial, the cell phone was admitted as State's Trial Exhibit 22
(3 R.R. at 85; 4 R.R. at 11-13, 21-22; 6 R.R. at 27-29). See also State's Writ
Ex. D at 23.

95. In HPD Incident Report 137104516, Goines wrote "OFFICERS DID

RECOVERED [sic] A CELL PHONE ON THE ABOVE TABLE, WHICH
LATER WAS CLAIMED BY SUSPECT JEFFERY." See State's Writ Ex. D
at 8.

96. In the report, there are no details about a conversation between Goines and
the applicant.

97. Goines testified about the conversation 18 months later in the applicant's trial.

13
 98. Goines testified that the applicant was handcuffed and under arrest during the
conversation (4 R.R. at 16-18).

99. Goines testified, "Mr. Jeffcry had requested to speak to the person in charge. I
went out, spoke with him, informed him that he was going to jail for the
narcotics that was found inside the house.... He then requested if he could
have his phone with him. I asked him where was the phone. He said it was
on the table.... I walked away and the phone was tagged into evidence."
4 R.R. at 22 (in the jury's presence); see also 4 R.R. at 14-15 (outside the jUlY'S
presence).

100. Goines testified there is no body-worn camera footage of the conversation,

and there were no other officers present (4 R.R. at 20).

101. According to the report, officers did not activate their body-worn cameras
until transporting the suspects to the jail. See State's Writ Ex. D at 15.

102. Officers Amador and Penrod transported the applicant and Jackson. See
State's Writ Ex. D at 15.

103. According to the Harris County District 1\tt0111CY'SOffice records, the State
released the three body earn videos to Mr. Greenlee on November 23, 2017.
DATE
RELEASED lTE.."\-1 DESCRIPTION
11/23fl017 TXHPDOOOO 13il04516 BWC RudyAAmlldor 201610271003 VHC200n07 16551901
(DocwnenlID: 1112798)
11/23/2017 TXIIPDOOOO137104516 Ewe ErandonPenrod 20161021095-1 Vllc'!OOR.~25 1776Ho2
(DocumentID: 182809)
ll/nrl017 TXHPDOOOO 13il04516 B\VC Brandoul'enrod 201610270959 \llIC1OO8525 1i761463
[Documentlf): 186490)

104. The applicant appears in all three body-worn camera videos:

TXl-IPDOOOO 137104516 BWe RudyAAmador 201610271003 VHC2007807
26552902 ("Amador BWe Video 26552902");
TXHPDOOOO 137104516 BWC BrandonPenrod 201610270954 VHC2008525
17761462 ("Penrod BWC Video 17761462"); and
TXHPDOOOO 137104516 BWC BrandonPenrod 201610270959 VHC2008525
17761463 ("Penrod BWC Video 17761463").

14
105. Penrod BWC Video 17761462 is 4 minutes and 42 seconds in length. The
video shows the applicant in a red shirt, sitting in the back of a patrol car. At
~4:30, as seen in the reflection, an officer approaches the patrol car. A voice
states "1 got my camera pointing back that way. Do you want me to turn it off
so you can talk?" \n apparently-different voice responds "yeah, if you don't
mind." See State's Writ Ex. E.

106. Penrod BWC Video 17761463 is 20 minutes and 27 seconds in lengtll. At

~0:29, an officer states "interview is over." The video shows the applicant in a
red shirt, sitting in the back of a patrol car. As seen in the reflection, an officer
approaches the patrol car and says "you claimed that's your phone right?"
The applicant does not respond. An apparently-different officer says "this is
your phone up here?" The applicant does not respond. Both officers say
"okay." The applicant's codefendant Jackson is sitting next to the applicant.
Jackson says "what's up with the phone, man?" At ~0:50, Jackson says "that's
my phone right there on the dashboard right there." At ~0:56, the applicant
says "1 ain't got no motherfucking phone." The applicant explains the phone
number he gave the police (936-419-9510) belongs to his grandmotllcr. Then,
another officer gets into the vehicle, and the remaining video footage shows
the two suspects being transported by the two officers. See State's \'\Itit Lx. F

107. Amador BWC Video 26552902 is 18 minutes and 19 seconds in length. This
video is from the second officer who transported the suspects; therefore,
much of the audio is identical. However, the video is recorded from a
different viewpoint. Also, the video began after Penrod BWe Video
17761463 began and concluded after Penrod BWC Video 17761463
concluded. See State's Writ Ex. G.

108. Between May 6, 2022 and May 16, 2022, Harris County District Attorney's
Office Investigator N. Gates conducted a forensic analysis of the cell phone
recovered from 2807 Nettleton (State's Trial Exhibit 22) pursuant to this
Court's order. See State's Writ Ex. D at 28; State's Writ Ex. O.

15
109. Gates determined that the cell phone number was 832-988-3406. He was
unable to gain access to the device's data. See State's Writ Ex. 0 at 2.

110. Unrelated I IPD Incident Reports show that a woman named Btidgette Black
claimed her phone number was 832-988-3406 on May 13, 2016 (months
before the applicant's arrest) and on November 7, 2016 (less than two weeks
after the applicant's arrest). See State's Writ Ex. P at 2; State's Wtit 1~x.Q at 2.
There is no mention of the applicant or a connection between Ms. Black and
d1e applicant.

111. None of the body-worn camera videos from 2807 cttlcton show the
applicant claiming ownership of a phone.

112. The applicant did not state his phone number was 832-988-3406.

113. Penrod BWe Video 17761463 shows the applicant stating he docs not have a
phone. See State's Writ Ex. F at ~0:56-1 :05.

114. Penrod BWe Video 17761463 shows Jackson claiming ownership of a phone.
See State's Writ Ex. F at ~0:30-0:58.

115. One phone was recovered from 2807 Nettleton on October 27, 2016, and that
same phone was admitted as State's Trial Exhibit 22 in the applicant's trial. See
State's Writ Ex. D at 2,6,23; see also 3 R.R. at 85; 4 R.R. at 11-13, 21-22; 6 R.R.
at 27-29).

116. There is no indication in the report or trial testimony that a second phone was
recovered at the scene or tagged into evidence.

16
117. The Court finds that Goines testified falsely that the applicant claimed
ownership of the phone that was recovered from 2807 Nettleton and
entered into evidence as State's Trial Exhibit 22. See Ex Parte Chavev 371
S.W.3d 200, 208 (Tex. Crim. App. 2012) (when determining whether the
testimony was false, "[tjhe question is whether the testimony, taken as a whole,
gives the jury a false impression").

118. Based on Goines' false testimony, the trial court denied the applicant's motion
to suppress and admitted evidence about the phone to the jury. See 4 R.R. at
21; seealso State's Writ Ex. Kat 1.

119. Based on Goines' false testimony, the State presented evidence to the jury that
the applicant claimed ownership of a phone that was located on a table with
illegal drugs. See 3 H..It at 84-85; 4 R.R. at 11, 14,21-22,45,49-50.

120. Based on Coines' false testimony, the State argued to the jury that the
applican t should be convicted of possessing illegal drugs because he owned
the cell phone located near the drugs. See 4 R.R. at 99 ("lllf this were a case
where I were prosecuting the other man, the man who did not have the keys
in his hand, the man who didn't claim with Ius own words ownership of the
cell phone that's found -- yes, it's not the clearest picture in the world, I'll
admit that full well.. .. And you'll have all the time in the world back there, if
you care to take it, to convince yourselves that the phone Mr. Jeffery claimed
was his was, in fact, the phone that is in as close a proximity to those drugs as
it could possibly be.").

121. The record shows there is a reasonable likelihood that Goines' false testimony
affected the judgment of the jU1)T.See Ex Parte Chavez, 371 S.W.3d 200, 208
(rex. Crim. App. 2012); seealso State's Writ Ex. L; State's Writ Ex. M.

122. The Court finds that Goines' false testimony was material to the
applicant's conviction. ' See Ex Parte Weimiein, 421 S.W.3d 656, 665 (Tex.
Crim. App. 2014); Ex Parte Chavez, 371 S.W.3d at 208 ("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").

17
 CONCLUSIONS OF LAw
1. "In the interests of justice and judicial economy," the Court declines to
develop the record further regarding the applicant's ineffective assistance of
counsel claim. Jee Bx Parte Colone, No. WR-89,538-01, 2022 WL 613690, at *1,
n.2 (rex. Crim. App. Mar. 2,2022).

2. The applicant is entitled to relief based on false testimony. Jee Ex Parte

LPeimiein, 421 S.W.3d 656, 665 (rex. Crim. App. 2014); Ex Parle Chavev 371
S.W.3d 200, 208 (Tex. Crim. App. 2012).

3. "[Tlhe use of material false evidence to procure a conviction violates a

defendant's due-process rights under the Fifth and Fourteenth amendments to
the United States Constitution." Ex parte De La Crt/v 466 S.W.3d 855, 866
(rex. CrimApp. 2015).

4. "The Due Process Cause of the Fourteenth Amendment can be violated when
the State uses false testimony to obtain a conviction, regardless of whether it
docs so knowingly or unknowingly." Ex Parte Chave:v 371 S.W.3d at 207-08
(citing Ex Parte Robbim, 360 S.W.3d 446, 459 (Tcx.Crim.App.Zlll lj}.

5. The applicant has proven, by a preponderance of the evidence, that Goines

swore to a perjured affidavit for search warrant with a material statement
about a fictional drug buy, and Goines testified falsely in the applicant's trial.
Jee Ex Parte IVeimtein, 421 S.W.3d at 665; Ex Parte Chavev 371 S.\XI.3dat 208
(when determining whether the testimony was false, "[tlhc question is whether
the testimony, taken as a whole, gives tlle jury a false impression"); see also JJx
Parte OtiJ Mallet, 602 S.W.3d at 925 (Richardson, j., concurring) ("Police
misconduct is at the heart of this case. Applicant has proven that the sole
witness to the crime is a police officer who willfully and knowingly perjured
himself in order to secure Applicant's conviction and then asserted tile fifth
Amendment right not to testify in the writ hearing.").

6. The applicant has proven that Goines' false testimony was material. Jee Ex
Parte ChaveiJ 371 S.W.3d at 208 ("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 jU1Y").

18
 The evidence developed post-conviction reveals a pattern of deceit involving
fictional drug buys, perjured search warrant affidavits, and false testimony to a
jury. Confidence in the criminal justice system cannot tolerate such behavior.
Accordingly, the Court recommends to the Texas Court of Criminal Appeals
that habeas corpus relief be granted.

ORDER

THE CLEH..K is ORDERED to prepare a habeas record of all papers in

cause number 1528672-1\ and transmit the record to the Court of Criminal Appeals
as provided by Tex. Code Crim. Proc. art. 11.07 § 3 and Tex. R. App. Proc. § 73.4.

The record shall include certified copies of the following documents:

1. the original and supplemental applications for writ of habeas corpus;

2. the State's writ exhibits;
3. the Court's orders;
4. the indictment, the jut) charge and verdict; the judgment and sentence, and
the docket sheets in cause number 1528672;
5. the court reporter's trial record in cause number 1528672;
6. the Agreed Proposed Findings of Fact and Conclusions of Law;
7. the Court's Findings of Fact and Conclusions of Law.
THE CLERK: is further ORDERED to send a copy of this Order to the
applicant's habeas counsel, Patrick F. McCann, 700 Louisiana, Ste. 3950, Houston,
Texas 77002, [email protected]; and to counsel for the State, Joshua i\.
Reiss, Assistant District Attorney, Harris County District Attorney's Office, 500
Jefferson, 6th Floor, Houston, Texas 77002, [email protected].

By the following signature, the Court adopts the Agreed Proposed

Findings of Fact, Conclusions of Law, and Order in cause number 1528672-A.