IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-90,986-01

EX PARTE STEVEN CRAIG MALLET, Applicant

ON APPLICANT’S APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 1230338-A FROM THE 

178TH DISTRICT COURT OF HARRIS COUNTY

RICHARDSON, J., filed a concurring opinion, in which HERVEY, NEWELL, and 

WALKER, JJ., joined. 

CONCURRING OPINION

I concur with this Court’s order granting relief to Applicant and write separately to

highlight the ways in which Applicant has met the standard for actual innocence. 

Applicant was charged with delivery of a controlled substance in Penalty Group 1,

less than 1 gram based on an alleged transaction on April 29, 2008. Applicant pled guilty

and was sentenced to ten months in state jail. But the charge and conviction in his case,

like those in the case of his brother, Otis Mallet, were based on perjured testimony of

former Detective Gerald Goines of the Houston Police Department that he had a “pre-
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arranged” drug buy with Applicant and paid Applicant $200 in exchange for a “quarter.”

The State, trial court, and habeas court now agree, based on Goines’s expense reports in

this case and recently discovered dishonesty in other cases, that there is compelling

evidence the drug transaction never occurred, and that Applicant, like his brother, is

actually innocent.

The facts of Applicant’s case are inextricably intertwined with those in Otis’s case,

and the court in Applicant’s case specifically found “the Findings of Fact and Conclusions

of Law in Otis’s writs to be credible and compelling and they are considered evidence in

the instant matter.” Moreover, the court explained that “[t]he Court reviewing Otis’s claims

concluded that the ‘entire alleged narcotics transaction was a fraud.’ This same fraud

infects Steven’s case and conviction.” We reiterate those facts here. Former Detective

Goines testified that he paid $200 to Applicant, who gave the money to Otis, who retrieved 

crack cocaine from a blue can that Applicant then delivered back to Goines. Goines 

testified that as officers moved in to make their arrest, Otis removed the blue can from his 

truck and put it in his neighbor’s backyard. Goines also testified that he used “police 

money” for which no accounting was necessary. Otis’s new attorneys discovered a sworn 

expense report filed by Goines that shows Goines did not use $200 in April 2008 to 

purchase narcotics, and another report from May 2008 that shows he allegedly paid a police 

informant $200 for information which led to Otis’s arrest. These facts, which were not in 

the police report and were not testified to at trial, contradict Goines’s testimony. Moreover, 

the offense report indicates that the drug-sniffing dogs did not alert on Otis’s truck, from 

which the drugs were allegedly removed. 
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All of the other witnesses testified to the exact opposite—that they did not find or 

see any drugs on Applicant or on Otis. When asked if he saw Otis with any drugs at all, 

Officer Raleigh Jordan answered, “No,” and when asked if he saw Applicant that night, he 

answered, “No.” In fact, when asked if he saw any transaction at all, Officer Jordan also 

responded, “No.” Likewise, when Officer Kendric Stringfellow was questioned about 

whether he found “any contraband on [Otis], any drugs, anything of that nature,” he stated, 

“No.” Sharmi Patel, an employee in the crime lab of the Houston Police Department also 

testified that she tested the drugs but did not know who the drugs belonged to. Moreover, 

witness Donna Jean Massey, who was living at the location of and present during Otis’s 

arrest, testified that she had been outside for about 15 or 20 minutes before the arrest and 

never even saw Otis with a can, never saw any drugs or drug transaction, never saw 

Applicant hand drugs to an officer, and never saw Otis hand any drugs to Applicant; the 

only thing she saw in Otis’s hand was a phone. Witness Lester Eugene Locking, Otis’s 

neighbor who witnessed Otis’s arrest, testified that he had been outside talking with witness 

Massey for 15 minutes before the officers showed up and that he was sure he did not see 

Otis walk from his truck into the backyard carrying a cookie can or a can with drugs in it 

and that he never saw Otis selling drugs to anybody. Otis testified that he did not have any 

drugs on him or in his truck, that he did not know anything about a blue container, and that 

he was at the house because he ran his scrap metal business from there and had a receipt 

for all of the cash in his pocket. He maintained his innocence throughout, and at sentencing, 

Otis’s attorney reiterated Otis’s innocence. Applicant testified that when officers pulled 

him over and searched him, all they found was 35 cents in his pocket. He denied having 
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met or spoken with Goines, having received $200 from Goines to give to Otis, having 

approached Otis to buy cocaine for undercover officer Goines, and having seen Otis with 

a blue can. Applicant also refused to take an earlier plea offer that would incriminate his 

brother. 

At the hearing on Otis’s post-conviction writ, the trial prosecutor in his case testified 

by affidavit that Goines was the State’s primary witness at trial, and “[s]imply put, there 

was no case without him.” She also testified that she was unaware of the expense reports 

for April 2008 and May 2008, and “[had she] known about them prior to trial, [she] would 

have disclosed them to defense counsel” and “would have asked a supervisor to dismiss 

the cases.” In fact, during the first writ hearing, the State requested a continuance to have 

the canister inspected for Otis’s fingerprints, since Goines claimed Otis had his fingers all 

over the canister. That inspection concluded Otis’s prints were not on the canister. 

Following that inspection, in the final writ hearing, the representative for the state 

reemphasized that Officer Goines was the only witness who claimed to see Otis in the 

neighbor’s backyard where the blue can was found. Finally, the State also represented, “we 

agree that Otis Mallet is actually innocent. And this is a rarity to date in our system. . . . I 

want to emphasize to the Texas Court of Criminal Appeals my interest at our overriding 

prosecutorial and the people’s interest in seeking justice, not just convictions. And the 

injustice that was done in this case deserves relief.”

It is telling that Goines—the State’s sole fact witness at trial and the only witness 

who said he saw a drug deal on the date of Otis’s arrest—refused to testify by asserting the 

Fifth Amendment at the hearing on Otis’s post-conviction writ when asked to explain facts 
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pertinent to the underlying offense. In referring to the state and federal indictments in a 

nationally-publicized, botched no-knock drug raid in which officers were executing a 

search warrant based on a false affidavit signed by Goines, the habeas judge noted, “It is 

so sad that two people had to lose lives – and I’m referencing the other cases – in order to 

shed light to many injustices associated with Goines.” She also stated the Court’s 

conclusion that “Goines falsely provided testimony regarding the use of police money and 

questionably affected the judgment of the jury. And lastly, that this Court will – will 

suggest to the Texas Court of Criminal Appeals that [Otis is] actually innocent. The Court 

concludes that Mr. Mallet meets the Herculean burden to demonstrate that he is actually 

innocent.”

The habeas court in Otis’s case found that “the only witness who testified that Otis 

Mallet or his brother were involved in a drug transaction was Officer Goines.” The court 

highlighted that the prosecution’s closing focused on Goines’ credibility and reputation, 

and the prosecution—not knowing that Goines was lying—argued that “the case came 

down to who was telling the truth: the police and Officer Goines, or Mr. Mallet and the 

defense witnesses.” The court emphasized that “based on the new facts discussed below, 

the Court finds that Officer Goines [sic] testimony was false,” and “Officer Goines [sic] 

refusal to testify in support of his previous testimony advances that he testified falsely in 

Mr. Mallet’s case.” Finally, the court pointed out “that there is no credible evidence linking 

Mr. Mallet to the blue can, the possession of crack cocaine, or the transfer of crack cocaine. 

Without Officer Goines’ testimony, and considering the new evidence currently before the 
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Court, no reasonable juror could have convicted Mr. Mallet of either possession or of the 

delivery of crack cocaine.” 

In Ex parte Elizondo, we explained that to be declared actually innocent, “an 

applicant must prove by clear and convincing evidence that no reasonable juror would have 

convicted him based on the newly discovered evidence.” 947 S.W.2d 202, 205 (Tex. Crim. 

App. 1996). So it is here. The testimony and evidence that suggested Applicant was 

involved in a drug transaction have been proven false. Indeed, the court in Applicant’s case 

concluded that Applicant would not have known of the existence of the false evidence even 

with the exercise of due diligence, the entire alleged narcotics transaction was a fraud, and 

Applicant is actually innocent.

While Applicant did enter a guilty plea, this Court has explained that “[t]he decision 

to plead guilty ... may be influenced by factors that have nothing to do with the defendant’s 

guilt. The inability to disprove the State’s case, the inability to afford counsel, the inability 

to afford bail, family obligations, the need to return to work, and other considerations may 

influence a defendant’s choice to plead guilty or go to trial.” Ex parte Tuley, 109 S.W.3d 

388, 393 (Tex. Crim. App. 2002). Moreover, “[a]n innocent person may want to take 

advantage of a discounted sentence in a plea bargain, rather than gamble on a far greater 

sentence if a mistaken verdict is returned.” Id. at 393, n.2. Such factors played a significant 

role here, as evidenced by two sources: (1) Applicant’s oral testimony during Otis’s trial, 

and (2) Applicant’s sworn affidavit. During Otis’s trial, Applicant testified that he accepted

a plea because he was told he would be able to get out of jail sooner. Applicant also testified

by affidavit that he pled guilty “because they offered me a deal so that with the jail credit 
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I had, I would get out in a few days. My other choice was to schedule a trial, but that would 

have required me to stay in jail much longer, with no guarantee that a jury could be 

persuaded that Goines was lying.” He further testified, “if I had known about the sworn 

expense accounts, I could have proven that Goines’ account of the entire thing was false. 

In that case, I would have pleaded not guilty, and insisted on a trial, because the case would 

no longer have been decided solely upon Goines’s word against mine. I would have had 

the proof that what he was saying about a drug transaction was completely false.” The State 

agreed and stated “...in spite of that plea, because of the failure of the police officer to tell 

our prosecutor the truth about what really happened in this, whether there was a transaction 

or not, what type of money was used, whether there was an informant, that that failure 

caused our office to be used as a tool to wrongfully convict Steven Mallet as well as Otis 

Mallet.”

A police officer’s deceit, perjury, and continued wrongdoing lie at the heart of this 

case. This Court’s precedent and the complete lack of evidence here demand actual 

innocence relief. Anything less will subject Applicant to further unfair treatment, including 

but not limited to potential enhancements on other charges and difficulties obtaining 

employment. As the final arbiter of criminal cases in Texas, this Court cannot stay silent 

in the face of such unmistakable injustice.

With these thoughts, I concur in the Court’s order.

FILED: April 14, 2021

PUBLISH