Opinion
NO. WR-95,426-01
03-06-2024
EX PARTE Richard Lee HOOPER, Applicant
Maggie Sara Kiely, for Applicant.
ON APPLICATION FOR A WRIT OF HABEAS CORPUS, CAUSE NO. 1487418-A IN THE 184TH DISTRICT COURT FROM HARRIS COUNTY
Maggie Sara Kiely, for Applicant. DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, JJ., joined.
Applicant claims his guilty plea was involuntary because he was unaware of a lab report that showed he possessed less of the controlled substance than he was charged with. So, instead of being guilty of a second-degree felony carrying a 2-20 year range of punishment, he was guilty of a third-degree felony with a 2-10 year range of punishment. Nevertheless, Applicant wants his entire plea undone, so that he can attack other convictions affected by this prior conviction. But Applicant waited nearly 8 years to raise his claim and has long since discharged his 3 year sentence. Undoing his plea now would give him an undeserved windfall, and that remedy should be barred by laches. We should simply reform his judgment to reflect a conviction for a third-degree felony.
I. BACKGROUND
In exchange for a sentence of three years, Applicant pled guilty to possession of between 4 and 200 grams of methamphetamine. Unbeknownst to the parties, the day before the plea, a report on the testing of the substance had been issued that indicated that the substance weighed around 2 grams. The trial judge accepted the plea agreement and sentenced Applicant on January 28, 2016. Applicant did not appeal the conviction. On July 1, 2022, the district attorney’s office discovered the report and sent notice to Applicant. On November 15, 2023, Applicant filed this habeas application. In an unsworn declaration in support of his application, Applicant says, "In subsequent charges, cause numbers 1750465 and 1780248, this conviction was listed in the indictment as an enhancement and was a contributing factor to my decision to plea[d] guilty in those cases."
II. ANALYSIS
"To determine whether [habeas] equitable relief should be granted then, it behooves a court to determine whether an applicant has slept on his rights and, if he has, whether it is fair and just to grant him the relief he seeks." And because the common-law approach to laches is "flexible," there should be occasions when sleeping on one’s rights affects the type of relief available, even if there are weighty reasons for granting some sort of relief. This case is just such an occasion.
Ex parte Smith, 444 S.W.3d 661, 666 (Tex. Crim. App. 2014).
In Thompson, the applicant had pled guilty to a third-degree-felony level of possession of cocaine when the laboratory had already determined that he possessed only a state-jail-felony amount. 584 S.W.3d at 874 (Yeary, J., dissenting). But neither Thompson nor the prosecutor was aware of the laboratory results at the time of his plea. Id. There, as here, the Court granted the applicant relief on his claim of involuntary plea under Mable. Id.
Ex parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013).
For the same reasons I expressed in Warfield, I would also not hold that Applicant's sentence was illegal: Applicant received a sentence of three years, which is within the punishment range of a third-degree felony. See Tex. Penal Code § 12.34(a) (third-degree is punishable "by imprisonment … for any term of not more than 10 years or less than 2 years"); Warfield, 618 S.W.3d at 73 (Yeary, J., concurring).
Applicant offers no explanation for why he didn’t seek and obtain the report earlier. He knew the police had possession of his drugs. Any time after his judgment, he could have inquired about whether the drugs were tested and whether there was a report, and if he had done so, the report would likely have been found then. Depending on how quickly he made his inquiries, he could have filed a habeas application well before his sentence was complete. It is unclear to me that he would prevail, since three years is on the low end of even the third-degree punishment range and it seems at least questionable that he could have shown he would not have accepted such a sentence. But if he had raised this claim and made the requisite showing before his sentence had expired, then obtaining a new trial would have (1) at least given him a chance at a lesser sentence and (2) resulted in a conviction that could be used in connection with the two crimes he later committed.
In his unsworn declaration, Applicant claims he would not have pled guilty but would have gone to trial because the State would not be able to prove he possessed the second-degree felony amount. But if the parties had had the report, the State’s offer would have been for the third-degree offense, and three years was still on the lower end of the punishment range. Even if the case went to trial, it seems clear that when the State learned of the test results, it would have requested and received submission of the third-degree offense as a lesser included offense. See Grey v. State, 298 S.W.3d 644, (Tex. Crim. App. 2009) (State has an absolute right to obtain submission of a lesser-included offense.). It would not have been irrational for a habeas court to conclude that Applicant would not risk a 10 year sentence. Of course, it is possible that a habeas court would conclude that Applicant would risk it anyway or that it would conclude that the State would offer something less—such as a 2 year sentence. The habeas court here concluded that, "Had Applicant known about the lab report and its legal implications, he would not have pleaded guilty to possession of 4 to 200 grams of methamphetamine and instead would have insisted on going to trial." But these findings do not discuss the full implications of such a plea—that the State is guaranteed to get the lesser-included third-degree felony and that Applicant would risk a 10 year punishment going to trial. If Applicant had brought this case much sooner, a remand might have been appropriate to ensure that the habeas court considered all relevant information.
Now, neither of those two options is possible if we overturn his plea. Applicant has served his sentence. Overturning his plea cannot result in him being incarcerated for less time on this offense. And overturning his plea would, presumably, make the convictions unavailable as enhancements on his later two offenses, though it is unclear on this record whether that would ultimately affect those later cases. But Applicant’s claim that those cases were affected suggests that, if he obtains the relief he seeks here, he will file further applications to attack those convictions. Calling his later two cases into question would be a windfall to which Applicant is not entitled, and it would prejudice the State in one of two ways: (1) if Applicant succeeds, by frustrating the State’s interest in having a usable prior felony conviction that Applicant committed and effectively pled guilty to, or (2) if Applicant’s claim is denied, by forcing the State to expend resources responding to his newly available claims. Because Applicant does not have a substantial interest that could be vindicated by a new trial and because the State is prejudiced if he obtains that form of relief, I would hold that laches bars Applicant from obtaining a new trial in this case.
It could, however, result in a greater period of incarceration. It is possible for his sentence to more than triple.
Applicant does have a right not to be convicted of an offense that the evidence shows he is not guilty of. That right can be vindicated by reforming the judgment to reflect conviction for a third-degree felony rather than a second-degree felony. That remedy creates no prejudice to the State and so is not barred by laches.
I would reform the judgment to reflect that Applicant was convicted of a third-degree felony instead of a second-degree felony. Because the Court grants Applicant a new trial when laches should bar that relief, I respectfully dissent.
Yeary, J., filed a dissenting opinion.
Applicant pled guilty to the offense of possession of a second-degree-felony amount of methamphetamine. See Tex. Health & Safety Code § 481.115(d) (establishing possession of between four and 200 grams of a penalty group one controlled substance as a second-degree felony). Unbeknownst to Applicant, or apparently the prosecutor, at the time of Applicant’s plea, the forensic laboratory had already determined that he had pos- sessed only a third-degree-felony amount of methamphetamine. See id. § 481.115(c) (establishing possession of between one and four grams of a penalty group one controlled substance as a third-degree felony). In light of the laboratory results, Applicant now raises two complaints in his habeas application: (1) that his conviction violates due process, given that he possessed a smaller amount of the controlled substance than he was convicted of possessing; and (2) that, because he was not made aware of the laboratory results prior to his plea, his plea was involuntary.
Today the Court grants Applicant relief, under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), on the basis that his plea of guilty was entered involuntarily because he was unaware of the laboratory results at the time of his plea. Majority Opinion at 153. I agree that Applicant is entitled to relief on grounds of due process, but not because his plea was involuntary. Given the factual similarity between this case and Ex parte Thompson, where I dissented from the Court’s judgment in granting relief, I write separately to explain how my opinion in Ex parte Warfield drives me to reach a different conclusion today. 584 S.W.3d 874 (Tex. Crim. App. 2019) (Yeary, J., dissenting); 618 S.W.3d 69 (Tex. Crim. App. 2021) (Yeary, J., concurring).1a
I. Voluntariness of Plea
I would not hold that Applicant’s plea was involuntary under Mable, for two reasons. First, as I have steadfastly argued, Mable was wrongly decided and should be overruled for the reasons articulated by Judge Keasler’s concurring opinion in Ex parte Saucedo, 576 S.W.3d 712, 712-22 (Tex. Crim. App. 2019) (Keasler, J., concurring), and in my concurring opinion in Warfield, 618 S.W.3d at 72-75 (Yeary, J., concurring). I reaffirm my belief today that this Court should overrule Mable because it stands for the erroneous proposition that subsequent factual developments, without any "suggestion that [the applicant] was fraudulently misled or coerced into pleading guilty or that [her] plea counsel was ineffective[,]" may retroactively render an applicant’s plea of guilty involuntary. Saucedo, 576 S.W.3d at 721, 719 (Keasler, J., concurring). In my view, "so long as an accused enters a guilty plea with an awareness of what he does not know, it cannot be said that he pled involuntarily." Warfield, 618 S.W.3d at 72 (Yeary, J., concurring) (quoting Saucedo, 576 S.W.3d at 719 (Keasler, J., concurring)).
Second, in Ex parte Broussard, this Court cabined Mable to the facts of that case. 517 S.W.3d 814, 820 (Tex. Crim. App. 2017) ("[T]he relief Mable affords [is confined to] those applicants whose cases fall within the specific circumstances presented in Mable itself."). As the Court explained in Broussard, "Mable’s guilty plea to possession of a controlled substance was involuntary because, in fact, he was not carrying any illicit substances. It was the complete lack of illicit substances that qualified as a ‘crucial’ fact in Mable's involuntary-plea calculus." Id. The Court then concluded that Broussard’s guilty plea was not rendered invalid simply because subsequent testing revealed that he had possessed a different controlled substance in the same penalty group than both he and the prosecution had believed he had possessed. Id. And the Court reached that conclusion because "[a] guilty plea is not necessarily involuntary when a defendant misapprehends a known unknown." Id. It is that principle which should govern the Court’s involuntary-plea analysis in this case.
At the time of Applicant’s plea, both he and the prosecution were content to proceed on the assumption that Applicant had possessed a second-degree-felony quantity of methamphetamine. There was a meeting of the minds on that point. And both parties were willing to take the calculated risk that testing might reveal Applicant had possessed a different amount of methamphetamine than he agreed to plead guilty to possessing. Consequently, the only way to conclude that Applicant’s plea was involuntary, in my view, is to impute the knowledge of the laboratory results to the prosecutor and find that the amount of methamphetamine Applicant had possessed was a fact known to the State. In that case, Applicant’s plea would be involuntary because the prosecutor affirmatively misled Applicant about the nature of the evidence against him. Id. at 817 ("[A] guilty plea induced by the State’s misrepresentation … is involuntary and may be withdrawn.").
Before the Court could grant Applicant relief on this prosecutorial-misconduct theory of involuntariness, however, it would first "be obliged to decide for certain whether ‘the constitutional mandate to disclose exculpatory evidence to defendants under Brady v. Maryland extends to the plea[-]bargaining stage of a prosecution’— a legal question the answer to which remains subject to conjecture." Thompson, 584 S.W.3d at 875 (Yeary, J., dissenting) (quoting Ex parte Palmberg, 491 S.W.3d 804, 814-15, 814 n.18 (Tex. Crim. App. 2016)). But, as in Thompson, the applicant here has not raised such a claim and the Court has not otherwise chosen to address that legal question. Id. at 875.2a
II. Absolute Actual Innocence
In Thompson, I noted that, even if Mable were overruled, the applicant would still potentially be entitled to relief under the "guilty only of a lesser-included offense" variation on an Elizondo claim that Judge Keasler recognized in Saucedo. Id.; see Saucedo, 576 S.W.3d at 721 (Keasler, J., concurring). On that theory, "[t]he applicant must show by clear and convincing evidence, that no reasonable juror would have convicted him of the greater offense, or made findings consistent with the heightened sentence, in light of the new evidence." Saucedo, 576 S.W.3d at 720 (citing Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996)). However, I acknowledged that in cases in which forensic analysis of the evidence occurs before the applicant’s plea—cases like Thompson and this one—"we would have to determine whether the evidence was ‘new’ in contemplation of this ‘guilty-only-of-a-lesser-offense’ standard[.]" Thompson, 584 S.W.3d at 875-76 (Yeary, J., dissenting).
Nevertheless, in Warfield, I articulated my view that "any applicant who can demonstrate that he is ‘actually innocent’ in the absolute sense should not be bound by Elizondo's requirement of new facts." 618 S.W.3d at 74 (Yeary, J., concurring). That is, when an applicant can produce "evi- dence that conclusively proves, not just that a reasonable jury, by clear and convincing evidence, would not have convicted him, but that the applicant manifestly did not commit the offense[,]" I would deem that applicant actually innocent in the absolute sense. Ex parte Cacy, 543 S.W.3d 802, 804 (Tex. Crim. App. 2016) (Yeary, J., concurring) (emphasis in original). That principle "should hold true even for the applicant who, like in …Saucedo, can show that, under the undisputed facts, he was ‘guilty only of the lesser offense under the penal provision" at issue. Warfield, 618 S.W.3d at 75 (Yeary, J., concurring).
Applying that principle to this case, I am convinced that Applicant is entitled to relief, but not because his plea was involuntary—under this Court’s current jurisprudence I would only reach that conclusion if the evidence showed the prosecutor, in fact, knew of the laboratory report at the time of Applicant’s plea. Rather, in my view, Applicant is entitled to relief on his first due process ground. There he contends that, "[g]iven that the evidence in this case weighed less than 4 grams, the evidence cannot support a conviction for possession of 4 to 200 grams of methamphetamine." I believe this argument fairly raises a "guilty only of a lesser-included offense" claim. The evidence in this case supports that claim because it demonstrates that Applicant was guilty only of possession of a third-degree-felony amount of methamphetamine. He is manifestly not guilty of possessing a second-degree-felony amount of that illegal drug. "Under these circumstances, due process simply will not tolerate the maintenance of a conviction for a greater offense than the facts could possibly support under the controlling penal statute." Id. I would reform Applicant’s judgment to reflect a conviction for the offense the evidence in this case supports—a third-degree felony.
With these thoughts, I respectfully dissent. I also agree with Presiding Judge Keller, and so I join her dissent as well.