Opinion
WR-94,425-01
02-15-2023
EX PARTE JAMES HENRY NOLAN, III, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 22CR2706-83-1 IN THE 122ND DISTRICT COURT FROM GALVESTON COUNTY
OPINION
PER CURIAM.
Applicant was convicted of possession of a controlled substance and sentenced to one year imprisonment. The Applicant did not file a direct appeal. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that his plea was involuntary because at the time of his plea, he was not aware that the substance he possessed contained no controlled substances. The State agrees. Based on the record, the trial court has determined that Applicant's plea was involuntary.
Relief is granted. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), Brady v. United States, 397 U.S. 742 (1970). The judgment in cause number 22CR2706 in the 122nd District Court of Galveston County is set aside, and Applicant is remanded to the custody of the Sheriff of Galveston County to answer the charges 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.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Yeary, J., filed a concurring opinion.
Applicant pled guilty to possession of a controlled substance and was sentenced to one year imprisonment. After his plea, the Texas Department of Public Safety crime lab analyzed the substance possessed by Applicant. The lab issued a report showing that the substance did not actually contain any controlled substances. In this application for writ of habeas corpus, Applicant contends that his guilty plea was involuntary, because at the time he pled guilty, all parties involved incorrectly believed that Applicant possessed a controlled substance. The Court agrees and grants relief under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).
For reasons I have previously stated in opinions such as my concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 72-75 (Tex. Crim. App. 2021), and my concurring opinion in Ex parte Ohlemacher, No. WR-93,821-01, 2023 WL 1424751, at *1-2 (Tex. Crim. App. Feb. 1, 2023), I disagree that Applicant's guilty plea was involuntary but nevertheless agree that Applicant is entitled to relief. Additionally, I continue to believe that this Court should overrule Mable.
With these comments, I concur in the result.