Sharon Slopis, Houston, for Applicant.

OPINION

McClure, J., delivered the opinion of the court in which Hervey, Richardson, Newell, Walker, and Slaughter, JJ., joined. Applicant Ray Anthony Hicks pled guilty to attempted forgery of a government instrument in 2013 and was sentenced, under a plea agreement, to 180 days of confinement in a state jail facility. Through habeas counsel, Applicant filed this application for a writ of habeas corpus. He contends that he is actually innocent because subsequent analysis showed the $100 bill he possessed was genuine. This Court does not find that Applicant is actually innocent but instead grants relief on the ground of an involuntary plea.

Applicant was charged with forgery but ultimately pled guilty to attempted forgery. More than five years later, the United States Secret Service notified the Webster Police Department by letter that Applicant's $100 bill was genuine. The habeas court now finds that Applicant is actually innocent of the charged offense and any possible lesser included offenses based on newly discovered evidence neither introduced nor available to the defense at trial. Specifically, the habeas court finds that the State could not have proven beyond a reasonable doubt that the Applicant had intent to defraud because the bill was not actually forged.

This case presents an unusual nexus of the law on innocence, attempt, fraud, and the defense of factual impossibility. To prevail in a claim of actual innocence when no constitutional violation is alleged, the applicant "must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo , 947 S.W.2d 202, 208, 209 (Tex. Crim. App. 1996). A person commits criminal attempt when the person has the specific intent to commit an offense and performs an act amounting to more than mere preparation but then fails to commit the target offense. Tex. Penal Code § 15.01. When a defendant has an objective that is forbidden in criminal law but cannot achieve that objective due a circumstance that is unknown to him, then factual impossibility exists. Chen v. State , 42 S.W.3d 926, 929 (Tex. Crim. App. 2001). For example, factual impossibility includes attempting to pick an empty pocket and attempting to kill with a poison that was not lethal. Lawhorn v. State , 898 S.W.2d 886, 891 (Tex. Crim. App. 1995). Factual impossibility is not a defense, even in the context of attempt. Chen , 42 S.W.3d at 927, 929–30 (citing Lawhorn , 898 S.W.2d at 891 ).

Applicant has not demonstrated actual innocence. The Secret Service letter does not help to exculpate him from criminal attempt. According to the arresting officer's report, Applicant admitted to an illegal intent: he said he knew the bill was fake and had attempted to use it at a bonding company. With this evidence, a reasonable juror could have concluded that Applicant had a "conscious objective"—an intent—to engage in passing a forged document. See Tex. Penal Code §§ 6.03(a), 32.21. The fact that the bill was genuine was merely a circumstance impeding his ability to complete the offense; it did not negate his intent. Furthermore, the fact that he now disavows that statement is not newly discovered evidence; if he did not know the bill was fake or did not intend to pass it, he could have said that to the police officer or the trial court before entering his plea. Applicant does not prove by clear and convincing evidence that no reasonable juror would have convicted him of attempt to commit forgery.

Yet the record shows that Applicant's plea was unknowing and thus involuntary. This case is not unlike Ex parte Mable , and its reasoning and holding are applicable here. See Ex parte Mable , 443 S.W.3d 129, 130–31 (Tex. Crim. App. 2014). In Mable , we cited Texas Code of Criminal Procedure article 26.13(b) and McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), for the rule that a plea must be entered knowingly and voluntarily. 443 S.W.3d at 130–31. Because a guilty plea includes a waiver of constitutional rights, the defendant must have "sufficient awareness of the relevant circumstances." Brady v. United States , 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Ex parte Mable , the defendant and all parties involved believed the defendant had been in possession of drugs. 443 S.W.3d at 131. Accordingly, the defendant pled guilty to possession of a controlled substance. Id. at 130. Not long afterward, forensic testing revealed that the substance he possessed was not in fact illicit. Id. We held that, while the defendant may have been guilty of a lesser included offense—such as attempt to possess a controlled substance—he was entitled to relief because his plea could not have been entered knowingly and voluntarily. Id. at 131.

Similarly here, all parties believed at the time of the plea that the $100 bill Applicant possessed was fake. The Secret Service letter shows that Applicant was not aware of all the circumstances at the time of the plea because, contrary to his professed belief, the bill was genuine. Like Mable, Applicant was under a "misapprehension about the true nature of the substance he possessed" and was "insufficiently aware of [a] fact that was crucial to [his] case." See Ex parte Palmberg , 491 S.W.3d 804, 811 (Tex. Crim. App. 2016). Therefore, Applicant did not make an informed choice when he pled guilty.

We distinguish this case from two other recent cases in which we declined to grant relief under Ex parte Mable . See Ex parte Palmberg , 491 S.W.3d at 811–12 ; Ex parte Broussard , 517 S.W.3d 814, 820 (Tex. Crim. App. 2017). Our opinion in both of those cases followed the precedent of Brady v. United States , in which the Supreme Court held, "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case." 397 U.S. at 757, 90 S.Ct. 1463.

In Ex parte Palmberg , the State used up all the suspected cocaine found in Palmberg's possession when it conducted field tests and did not have any of the substance remaining for laboratory tests. 491 S.W.3d at 806. Palmberg argued that his plea was involuntary because he would not have pled guilty if he had known the State had no more of the substance to test. Id. at 806–07. We held that a plea is not necessarily involuntary just because "the defendant pled guilty under the mistaken belief that specific evidence would be available for use against him at trial." Id. at 808.

In Ex parte Broussard , a field test indicated that a substance found in the Broussard's possession was cocaine, and he pled guilty to delivery of cocaine. 517 S.W.3d at 816. Later, a laboratory test identified the substance as methamphetamine, which is also a penalty group one substance. Id. Broussard alleged that he would not have pled guilty if he had known the results of the lab test. Id. at 818. In finding that Broussard's plea was voluntary and intelligent, we reasoned, "A guilty plea is not necessarily involuntary when a defendant misapprehends a known unknown," such as an unidentified substance. Id. at 816, 820. Also, the complete lack of illicit substances distinguished Broussard's case from Mable . Id. at 820.

Here, there were no "known unknowns." There were no forged documents. The record shows that all parties mistakenly believed the bill was fake; apparently, no one questioned that fact at the time of the plea.

Relief is granted; Applicant is permitted to withdraw his plea. The judgment in cause number 139374301010 in the 176th District Court of Harris County is set aside, and Applicant is remanded to the Harris County Sheriff to answer the charge as set out in the indictment. The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.

Keel, J., concurred in the result.

Yeary, J., filed a dissenting opinion in which Keller, P.J., joined as to Part II.

DISSENTING OPINION

Yeary, J., filed a dissenting opinion in which Keller, P.J., joined as to Part II.

I. MABLE IS INAPPLICABLE

The only issue Applicant has raised in his writ application is whether he is "actually innocent" of the lesser-included attempted forgery offense to which he pled guilty. The Court holds that he has not satisfied his burden to obtain relief under that claim. Majority Opinion at 233–34. That should be the end of it.

Applicant, who at this point is represented by counsel, did not originally claim that his guilty plea was involuntary. Indeed, even as amended by counsel, Applicant's writ application still contains no claim that his guilty plea was involuntary. He also does not cite to Mable . See Ex parte Mable , 443 S.W.3d 129, 131 (Tex. Crim. App. 2014) (holding that applicant's guilty plea to possession of a controlled substance was involuntary when it was later revealed that the substance he had possessed was not a controlled substance after all).

This Court has made it clear in the past that, even with respect to post-conviction applications for writ of habeas corpus that are prepared pro se , "as a court of law we may not create claims that the Court sua sponte believes meritorious when they are not arguably present in an applicant's pleadings." Ex parte Carter , 521 S.W.3d 344, 350 (Tex. Crim. App. 2017). Especially because Applicant is now represented by counsel, this Court should not sua sponte "create" Applicant's claim for him even if it thinks that claim has merit.

What is more, even if I believed that this Court's opinion in Mable should be retained—which I do not—I would not grant relief on that basis here. I have elsewhere made my position clear that I believe Mable to have been wrongly decided, and I would not continue to propagate it. See Ex parte Warfield , 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021) (Yeary, J., concurring) (citing Ex parte Saucedo , 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, concurring)). So, I would also dissent on that basis even if I thought it acceptable for the Court to invoke Mable , sua sponte , on Applicant's behalf.

II. MABLE IS DISTINGUISHABLE

To make matters worse, this case is clearly distinguishable from Mable . The Court today applies Mable as if it were on all fours with Applicant's case. It is not.

Mable was convicted on his plea of guilty to the offense of possession of a controlled substance. 443 S.W.3d at 130. When later forensic testing revealed that the substance he possessed was not controlled after all, the Court declared his plea to have been involuntary. Id. at 131. But the issue there was not whether he voluntarily pled guilty only to attempted possession of a controlled substance—after all, there was evidence that he at least thought he had been in possession of a controlled substance. See id. at 130–31 ("[I]t is possible ... that he attempted to possess a controlled substance (which is a lesser included offenses [sic] of possession).").

Here, by contrast, Applicant pled guilty in the first instance only to the attempted offense. That offense—attempted forgery—is what the judgment in this case documents his guilt for, not an actual completed forgery. The record indeed apparently contains evidence that he admitted to an officer that he thought he had passed a forged $100 bill. No one has even argued that the evidence should be found insufficient to show that Applicant at least committed an attempted forgery offense. So, the Court today rightly concludes that it has not been shown that he did not commit that offense, even if the $100 bill was genuine.

I recognize that there is a great deal of irony in the fact that Applicant seems to have believed he possessed a forged $100 bill, and he used it as consideration in a commercial transaction believing it to have actually been forged. Thus, Applicant not only lost his good $100 bill, but he also committed the crime of attempted forgery. But all irony aside, for the following reason, I do not think that makes his guilty plea involuntary.

Applicant was originally charged with a third-degree felony offense of forgery, subject to a two- to ten-year stint in the penitentiary. In pleading guilty to the lesser-included state-jail attempt offense, he obtained a six-month sentence in a state jail. It is not at all clear to me that, even had he known that the $100 bill was genuine, Applicant would not have pled guilty anyway, to assure himself of the lesser punishment, even if he had thought he might prevail on appeal if he were to challenge a jury-trial conviction for the lesser offense. See Ex parte Barnaby , 475 S.W.3d 316, 326 (Tex. Crim. App. 2015) ("[A]pplicant's assertion that he would not have plead guilty had he known of the falsity of the laboratory report is unpersuasive in light of the benefit he received from the plea bargain.").

Applicant does not allege that he would have insisted on going to trial—and indeed, he has not even pled that his guilty plea was involuntary in the first place. For all we know, Applicant did not allege involuntariness because he cannot honestly claim that he would not have pled guilty anyway, in order to obtain the benefit of the six-month state jail sentence rather than, at least potentially, penitentiary time. Moreover, even if Applicant had contended in this proceeding that his plea was involuntary, and the convicting court had recommended granting relief on that basis, as the "ultimate" factfinder in post-conviction habeas corpus proceedings, I would not have been convinced that he would have insisted on going to trial. See Ex parte Navarijo , 433 S.W.3d 558, 567 (Tex. Crim. App. 2014) (observing that this Court is the "ultimate" factfinder in post-conviction habeas corpus proceedings, and that we do not have to accept the recommended findings of fact from the convicting court).

III. CONCLUSION

Applicant is not entitled to relief, the Court acknowledges, based on the only claim he has raised in his post-conviction writ application. And yet, the Court grants relief anyway, on the basis of an issue it inappropriately raises for him sua sponte , and upon which Applicant should also be denied relief, in any event, even if he had raised it. For all these reasons, I respectfully dissent.