Opinion
NO. WR-93,824-01
06-26-2024
EX PARTE Shanea Lynn REEDER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 5427A IN THE 31ST JUDICIAL DISTRICT COURT, WHEELER COUNTY
OPINION
Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Walker, Slaughter, and McClure JJ., joined.
Shanea Lynn Reeder, Applicant, was convicted for the offense of Unlawful Possession of Firearm pursuant to a plea bargain and was sentenced to 5 years’ imprisonment. Applicant, in a pro se capacity, contends his conviction is improper because he had not been convicted of a felony at the time of his arrest but was serving deferred-adjudication community supervision. We filed and set this application to decide whether serving deferred-adjudication community supervision constitutes being convicted of a felony for the purpose of Unlawful Possession of Firearm. Because we conclude that it is not, we agree that Applicant was not convicted of a felony at the time of his arrest for Unlawful Possession of Firearm. We also hold Applicant’s plea was involuntary due to a fundamental misunderstanding by all parties of the law in relation to the facts at the time the plea was made. Applicant shall be allowed to withdraw his plea and the judgment of conviction for that offense should be set aside.
See Tex. Penal Code § 46.04.
443 S.W.3d 129 (Tex. Crim. App. 2016).
I. B ackground
In April of 2017, applicant was placed on deferred-adjudication community supervision for a period of six years for the felony offense of distributing a controlled substance. In February of 2021, while still serving deferred-adjudication community supervision, Applicant was arrested for Unlawful Possession of Firearm. One month later, the State filed a Motion to Proceed with Adjudication of Guilt for the Applicant’s original, controlled-substance offense.
296 S.W.3d 78 (Tex. Crim. App. 2009).
The Wheeler County Sheriff’s Office Incident Report stated that investigators responded to a call for a grey sports-utility-vehicle parked in the road. Investigators asked for consent to search the vehicle. Applicant gave consent. Investigators located a handgun in the center console. Due to the investigators' knowledge that Applicant was arrested for the felony charge of distributing a controlled substance and was now on probation (as the report states it), Applicant was arrested for Unlawful Possession of a Firearm.
Ex parte Carter, 521 S.W.3d 344, 350 (Tex. Crim. App. 2017).
Two hearings were scheduled on the same day in August of 2021. The first hearing was held relating to the trial court’s consideration of a plea bargain agreement for the offense of Unlawful Possession of Firearm. The second hearing related to the State’s Motion to Proceed with Adjudication of Guilt for the offense of distributing a controlled substance.
During the first hearing, Applicant pled guilty to the offense. The trial court found Applicant guilty and sentenced him to a term of 5 years’ imprisonment pursuant to a plea bargain. During the second hearing, the State alleged Applicant violated conditions 2, 11, 12, 13, and 20 of the order of deferred-adjudication community supervision. Applicant pled true to the violations. The trial court found Applicant violated the said conditions and entered a judgment of guilt against defendant for the controlled-substance offense. Applicant was sentenced to a term of 5 years’ imprisonment pursuant to a plea bargain agreement on the drug offense. The sentences for both offenses were to be served concurrently.
The violated conditions of Applicant’s deferred-adjudication community supervision included:
2. Defendant shall commit no offense against the laws of this or any State ...
11. Defendant shall pay their fine …
12. Defendant shall pay a $60.00 per month community supervision fee ...
13. Defendant shall perform 320 hours of Community Service Restitution ...
20. Defendant shall not buy, sell[,J or possess a firearm during the term of community supervision …
Applicant waived indictment.
It should be noted that 181 days passed between Applicant’s arrest for Unlawful Possession of Firearm and the judgment adjudicating his guilt for the predicate offense of distributing a controlled substance.
See Ex parte Rodgers, 598 S.W.3d 262, 264 (Tex. Crim. App. 2020) (Invalidity of one of the jurisdictional prior convictions in a felony DWI indictment was harmless if there existed another usable prior conviction.).
In January of 2023, Applicant filed his initial post-conviction application for a writ of habeas corpus arguing that his conviction was improper because he was not a convicted felon at the time he was arrested for Unlawful Possession of Firearm. We filed and set the application for submission and remanded the case to determine whether Applicant had another felony conviction that would have supported his guilty plea. He did not.
II. A nalysis of the S tatute
[1] We must first address the threshold question of whether serving deferred-adjudication community supervision for a felony offense constitutes having been convicted of a felony pursuant to Texas Penal Code § 46.04. We hold that it does not.
A. Law of Statutory Interpretation
[2–4] Statutory construction is a question of law that we review de novo. Delarosa v. State, 677 S.W.3d 668, 674 (Tex. Crim. App. 2023) (citing Liverman v. State, 470 S.W. 3d 831, 836 (Tex. Crim. App. 2015)). This Court has adopted a text-first approach when interpreting statutes. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). It is presumed that the legislature intended a purpose for each word. Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). It is also presumed that an enacted statute intends (1) compliance with state and federal constitutions, (2) that the entire statute is effective, (3) a just and reasonable result, (4) a result feasible of execution, and (5) that public interest is favored over private interest. Tex. Gov’t Code § 311.021; Dunham v. State, 666 S.W.3d 477, 484 (Tex. Crim. App. 2023).
[5–10] We must give effect to the plain meaning of the statute’s language if possible. Delarosa, 677 S.W.3d at 674 (citing Liverman, 470 S.W. 3d at 836). The plain meaning is determined by reading the statute in context, reasonably giving effect to each word, phrase, clause, and sentence, and constructing them according to applicable rules of grammar and common usage, to include technical definitions. Id. at 674 (citing Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020)). "When determining the fair, objective meaning of an undefined statutory term, our Court may consult standard dictionaries." Dunham, 666 S.W.3d at 484 (citing Boykin, 818 S.W.2d at 785-86). It is only when the text is ambiguous, or if the plain meaning of the words leads to absurd results, that extratextual factors are considered. Boykin, 818 S.W.2d at 785-86. In construing an ambiguous statute, a court may consider, among other matters, the (1) object sought to be attained, (2) circumstances under which the statute was enacted, (3) legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) consequences of a particular construction, (6) administrative construction of the statute, and (6) title (caption), preamble, and emergency provision. Tex. Gov’t Code § 311.023; Watkins v. State, 619 S.W.3d 265, 273 (Tex. Crim. App. 2021). Another matter that may be considered, which has been endorsed by this Court in another case interpreting the same statute, is the Rule of Lenity. Cuellar v. State, 70 S.W.3d 815, 819 n. 6 (Tex. Crim. App. 2002) ("The [R]ule of [L]enity is, in essence, another extratextual factor for a court to consider if, and only if, a statute is ambiguous.").
B. Texas Penal Code § 46.04 & Relevant Definitions
The statute reads, in relevant part:
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later....
Tex. Penal Code § 46.04 (emphasis added). The definition of community supervision is found in the Texas Code of Criminal Procedure art. 42A.001. The definition reads:
(1) "Community supervision" means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:
(A) criminal proceedings are deferred without an adjudication of guilt; or
(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.
Tex. Code Crim. Proc. art. 42A.001 (emphasis added). The definition of deferred-adjudication community supervision can be found in the Texas Code of Criminal Procedure, art. 42A.101. The definition reads:
(a) ... if in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt and place the defendant on deferred adjudication community supervision.
Id. (emphasis added).
C. Interpreting Texas Penal Code § 46.04 - Unlawful Possession of Firearm
This Court has confronted the issue of an applicant having been arrested for Unlawful Possession of Firearm while serving deferred-adjudication community supervision without settling the question as to the scope of the statute relative to whether it constituted a conviction. In Ex parte Smith, this Court explained the answer was not clear but declined to resolve it because it was unnecessary in deciding the case. Ex parte Smith, 296 S.W.3d 78, 80-81 (Tex. Crim. App. 2009) (having only addressed the ineffective assistance of counsel claim and finding no ineffective assistance). Our limited analysis compared Unlawful Possession of Firearm to another statute - the handgun licensing scheme. The licensing statutes expressly defined conviction to include an order of deferred-adjudication community supervision. Tex. Gov’t Code §§ 411.171, 411.1711. Smith, 296 S.W.3d at 80-81. [11] The Unlawful Possession of Firearm statute is not ambiguous. The statute’s text demonstrates an attendantcircumstance element of having been convicted of a felony. "Conviction" is not defined in the Texas Penal Code or the Texas Code of Criminal Procedure. We must look to the plain and ordinary meaning of the word, precedent, and the most suitable canons of statutory construction to advise us. For the plain and ordinary meaning of conviction, we turn to dictionaries.
Even if we were to assume the Unlawful Possession of Firearm statute is ambiguous, this Court would have applied the Rule of Lenity because the interpretation with the less harsh result is a reasonable one. The people must have fair notice of what is, and is not, prohibited. Str Tex, Const. art. I, § 19; U.S. Const. amend. XIV; Cuellar v. State, 70 S.W. 3d 815. 821 22 (Tex. Crim. App. 2002) (Cochran J., Concurring); Wooden v. United States, 595 U.S. 360. 389. 142 S.Ct. 1063, 212 L.Ed.2d 187 (2022) (Gorsuch, J. concurring).
Emphasis added.
Dictionaries support the proposition that a judgment of guilt is a prerequisite to being convicted. The Unlawful Possession of Firearm statute expressly states one must be convicted of a felony. Tex. Penal Code § 46.04. The definition of community supervision, subsection (A), expressly states that criminal proceedings are deferred without an adjudication of guilt. Tex. Code Crim. Proc. art. 42A.001. The definition of deferred adjudication community supervision expressly states proceedings will be deferred without entering an adjudication of guilt. Id. Therefore, it is clear from the plain and ordinary meaning of conviction, and deferred-adjudication community supervision, that being placed on deferred-adjudication community supervision does not constitute a felony conviction.
Black’s Law Dictionary defines conviction as "1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a crime." Conviction, Black’s Law Dictionary (11th ed. 2019). The New Oxford American Dictionary defines conviction as "1 a formal declaration that someone is guilty of a criminal offense, made by the verdict of a jury or the decision of a judge in a court of law." Conviction, New Oxford American Dictionary (3d ed. 2010). Indeed, this concept that a conviction requires judgment of guilt is not a new concept. Webster’s New International Dictionary from 1947 defines conviction as "1. Act of convicting; act of proving, finding, or adjudging, guilty of an offense ..." Conviction, Webster's New International Dictionary (2d ed. 1947).
Dots in original. Bracketed material and emphasis added.
[12, 13] Our precedent, as well, supports the concept that being placed on deferred-adjudication community supervision does not constitute a felony conviction. "[C]onviction, regardless of the context in which it is used, always involves an adjudication of guilt." McNew v. State, 608 S.W.2d 166, 172 (Tex. Crim. App. 1978) (op. on reh’g) (emphasis added) (holding inter alia probation may be granted before a conviction without violating the Texas Constitution), "A defendant on deferred adjudication has not been found guilty [which] ... is one of the signal benefits of deferred adjudication as opposed to, for instance regular community supervision [because] ... there is no ‘finding or verdict of guilt.’ " Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002) (citing Watson, 924 S.W.2d at 715).
The Unlawful Possession of Firearm statute’s silence on deferred-adjudication community supervision is arguably one of the best reasons for determining it does not constitute a conviction. When previously presented with this issue, in Smith, we assessed how the firearm-licensing statutes expressly stated that deferred-adjudication community supervision was to be considered a conviction. Tex. Gov’t Code §§ 411.171, 411.1711; Smith, 296 S.W.3d at 80-81. Deferred-adjudication community supervision can also be found in the definition of conviction in law's related to habitual offenders. Tex. Penal Code § 12.42(g) (expressly stating deferred-adjudication community supervision constitutes a conviction for violations under subsection (c)(2)(b) involving commission of crime with intent to commit a felony or to abuse a victim sexually). If the Texas Penal Code expressly states deferred adjudication is a conviction in one area of the law, but is silent elsewhere in the law, this supports an interpretation that deferred-adjudication community supervision for a felony offense is not equated to having been convicted of a felony.
III. A nalysis of R elief
[14] Based on our conclusion that deferred-adjudication community supervision does not constitute a conviction of a felony pursuant to Texas Penal Code § 46.04, we now address Applicant’s relief. The Applicant’s case is in accordance with Ex parte Mable and its progeny. The record here reflects that the State, the trial court, and the Applicant were laboring under a misapprehension of a crucial fact during the plea bargain. That fact was whether Applicant was convicted of a felony while in possession of a firearm at the time of his arrest. How could the Applicant have understood the facts in relation to the law if no one understood during the hearing? We find Applicant’s plea bargain was an uninformed choice far short of knowing or voluntary.
Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014); see, e.g., Ex parte Hicks, 640 S.W.3d 232 (Tex. Crim. App. 2022) (holding that a plea bargain was involuntary when all parties at plea bargain believed a $100 bill attempted to be used by applicant was counterfeit when, in fact, it was a genuine bill); Ex parte Saucedo, 576 S.W.3d 712 (Tex. Crim. App. 2019) (per curiam, not designated for publication) (holding that a plea bargain was involuntary when subsequent events showed the controlled substance Saucedo possessed was a different controlled substance); but see Ex parte Broussard, 517 S.W.3d 814 (Tex, Crim. App. 2017) (holding the plea was voluntary when Broussard pled guilty to delivery of cocaine, when in fact, substance was later tested to be methamphetamine).
It was also an information.
A. Law Relating to Plea Bargain
[15–17] In pleading guilty, "a defendant waives his federal constitutional rights against self-incrimination, the right to a speedy and public trial by jury, and the right to confrontation." Ex parte Barnaby, 475 S.W.3d 316, 322 (Tex. Crim. App. 2015) (citing Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). A defendant’s waiver of those rights must be "not only voluntary but also a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Id. (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Dansby v. State, 448 S.W.3d 441, 451 (Tex. Crim. App. 2014)). "[I]f a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." McCarthy v. United. States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
[18] In Mable, this Court stated, "[the plea bargain] cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). This Court cited McCarthy and the Texas Code of Criminal Procedure article 26.13(b) for this proposition. Mable pled guilty to possessing a controlled substance. Id. at 130. All parties to the plea bargain believed Mable had been in possession of a controlled substance. Id. at 131. Later it was revealed the substance was not illegal. Id. This Court held that even though Mable could have been guilty of an attempt to possess a controlled substance, he was entitled to relief because his plea was not knowing and voluntary. Id. This Court’s citation to McCarthy underscores the very consequence which due process, in general, seeks to avoid. The "[trial court’s examination with defendant] of the relationship between the law and the acts the defendant admits having committed is designed to ‘protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’ " McCarthy, 394 U.S. at 466, 89 S.Ct. 1166.
B. Applicant’s Plea Bargain
[19] Under the Mable line of cases, the Applicant must show there is a misapprehension of a crucial fact which made the plea involuntary. Whether a prior conviction exists is a factual issue. See State Prosecuting Attorney’s Amicus Statement at 2, Ex parte White, No. WR-84,934-07, 2022 WL 14716948 (Tex. Crim. App. Oct. 26, 2022) (per curiam, not designated for publication) (citing Martin v. State, 200 S.W.3d 635, 638-41 (Tex. Crim. App. 2006)). The crucial fact under which all parties labored was that the Applicant had been convicted of a felony.
The novelty of the present case over other decisions in line with Mable is that the misapprehension of the crucial fact appears to hinge on unsettled law. Smith, 296 S.W.3d at 80 (stating it is not clear whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision). Initially, findings were made that Applicant was convicted of a felony when arrested for Unlawful Possession of Firearm. Upon remand from this Court to determine if any other felony convictions existed, second findings were made that the Applicant was not convicted of a felony when arrested for Unlawful Possession of Firearm.
Also, the attorney for the State provided a written statement in which he stated, "[a]fter examining the criminal history for Shanea Lynn Reeder ... [he] was not a convicted felon at the time of his plea ..." The trial court made the following specific finding of fact, "[Applicant] was not found guilty of the offense of [distribution of controlled substance] ... until 181 days after his arrest for Unlawful Possession of Firearm by Felon."
The misunderstanding is that Applicant was convicted of a felony. The law, as the parties initially understood it, was that Applicant was not convicted of a felony. We know this because upon remand the State and trial court took the correct action and accepted responsibility by clarifying the error. The Applicant and defense counsel would rely on the representations made by the State and trial court during the plea bargain. Applicant would not have pled guilty if he had known he was not a convicted felon under the statute. Therefore, his plea is involuntary.
IV. C onclusion
We conclude that Applicant is entitled to relief. The judgment in cause number 5427A-A in the 31st District Court of Wheeler County is set aside, and Applicant is remanded to the custody of the Sheriff of Wheeler 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. The judgment on the motion to adjudicate the underlying offense is undisturbed with Applicant serving 5 years’ imprisonment for violation of Tex. Health and Safety Code § 481.112(d).
Keller, P.J., filed a concurring opinion. Yeary, J., filed a dissenting opinion.
Keel, J., concurred.
Keller, P.J., filed a concurring opinion.
I agree with granting relief, but I have three concerns about what the Court says in this case. First, the Court grants relief on a claim—involuntary plea—that Applicant did not raise. The claim Applicant did raise, and which does have merit, was that his conviction and punishment are not authorized by law. Second, the Court suggests that the rule of lenity would apply if the statutes at issue were ambiguous, but there is some reason to think the rule of lenity does not apply to the Penal Code and the Code of Criminal Procedure, and we should just stand on the statutes being unambiguous. Finally, the Court extends Ex parte Mable 1a to facts that differ significantly from Mable and for which that decision seems ill-suited. And to find a plea involuntary due to Applicant’s lack of awareness about the law, we would need information about what Applicant knew or was told, and there is no such information in this record.
If I were to address an involuntary plea claim, and if it were shown that counsel did not explain to Applicant that the State’s charge against him was or might be improper, I would hold that our prior decision in Ex parte Smith 2a was wrong to hold that the law was unsettled and resulted in a distortion in our jurisprudence that prevented Applicant from raising what should have been a valid ineffective assistance claim. That would qualify as a "breakdown in the system," which we would be authorized to fix. But a remand would be required for that. I see no reason to do that when Applicant is not raising an involuntary-plea claim, and the claim he is raising is meritorious.
1. The Claim Before Us
Applicant did not raise an involuntary-plea claim. His only ground for relief states: "Reeder’s five (5) year prison sentence pursuant to the plea bargain agreement on the unlawful possession of a firearm by a felon charge is illegal." On the form, Applicant says that the alleged prior conviction was in fact a deferred adjudication that had not been revoked at the time he possessed the firearm. In his supporting memorandum, Applicant says he "was not a felon" because his deferred adjudication had not been revoked, and therefore the five year sentence was "not authorized by law."
Pro se habeas applications are to be construed liberally, but this Court "may not create claims that the Court sua sponte believes meritorious when they are not arguably present in an applicant’s pleadings."3a An involuntary-plea claim is not even arguably present in Applicant’s claim that the sentence is illegal. But Applicant’s illegal-sentence claim can be liberally construed to challenge both the conviction and sentence as being unauthorized by law because the reason given for the illegality is that Applicant was not a felon, and so an element of the offense is lacking.
The State’s information4a alleges the conviction used to make Applicant a felon as cause number 5504 in the 31st District Court of Wheeler County, for the offense of manufacture or delivery of a controlled substance on April 13, 2017. Court records indisputably establish that this cause number resulted in a deferred adjudication that was not revoked at the time Applicant possessed the firearm. As the Court explains, an unrevoked deferred adjudication does not count as a conviction for purposes of the offense with which Applicant was charged. Although the information appears on its face to allege an offense—because it says that Applicant was convicted of a felony in cause number 5504—if we read the information in light of the court records in cause number 5504 (which, incidentally, is in the same court), then the information does not allege a valid offense.
If Applicant had a felony conviction at the time he possessed the firearm—i.e., a conviction other than the deferred-adjudication case cited in the information—then we would hold the information’s failure to cite the proper conviction to be harmless on habeas review.5a In his dissenting opinion, Judge Yeary expresses concern that the record might not substantiate the claim that Applicant had no prior felony convictions. But I am satisfied from this record that Applicant did not have a felony conviction at the time he possessed the firearm.
In its findings, the habeas court said:
Defendant was not a convicted felon on the date of his arrest for Unlawful Possession of Firearm by Felon as charged and convicted in Cause Number 5427, styled The State of Texas v. Shanea Lynn Reeder.6a
While the finding might be inartfully phrased, it does say that Applicant was not a convicted felon. And the record supports the finding. In an affidavit, the prosecutor said:
After examining the criminal history for Shanea Lynn Reeder, what appears to be a conviction in Cause Number 5054 was in truth and in-fact a probation "sentence modification ... ["] Therefore. Shanea Lynn Reeder was not a convicted felon at the time of his plea in cause number 54275.7a
Also, the charging instrument for the controlled-substance offense8a did not allege any prior convictions for enhancement purposes, and Applicant discussed with the trial judge during his plea to that offense a prior probation for misdemeanor DWI five years earlier that had been revoked. And Applicant was on deferred adjudication for the controlled substance offense until he was adjudicated on the same day he was convicted of the firearm offense. So the record sufficiently establishes the absence of any felony convictions.
The problem in this case is what constitutional theory to grant relief on. It does not seem to neatly fit recognized theories, but it seems evident that Applicant ought to get relief, which might be why the Court raises a novel involuntary-plea claim. But I agree with Judge Yeary that an "absolute innocence’’ claim would suffice, where we would dispense with the requirement of newly discovered or newly available evidence.
This sort of claim differs from an "actual innocence" claim qualitatively and not merely as a matter of degree. In an "actual innocence" scenario, the conduct the State charges the defendant with is an offense, but the defendant later claims that newly discovered or newly available evidence shows that he did not engage in that con- duct. New evidence can show that a defendant did not engage in the conduct either because someone else did or because the conduct did not occur at all. For example, if the State alleges that the defendant committed sexual assault, that would be an offense. New DNA evidence could prove that a different person was the one who committed the offense (and the defendant was misidentified), or a new credible recantation from the alleged victim could show that no sexual assault took place. A key point in the "actual innocence" situation is that it is not necessary for the State to have made any sort of mistake. New evidence could fatally undermine what the State had every reason to think was a valid prosecution at the time. And that is at least part of the reason why there has to be "new" evidence to support an "actual innocence" claim.
See Tux, Phnai, Cook 122.011 (a)(1)(A).
See Ex parte Kussmaul, 548 S.W.3d 606, 609 (Tex. Crim, App. 2018).
See Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005).
Ex parte. Harleston, 431 S.W.3d 67, 70 (Tex. Crim. App. 2014) ("[A]n applicant alleging a Herrera [actual Innocence] claim is directly attacking the propriety of his conviction, although the applicant does not dispute that he received an error-free trial.").
But in an "absolute innocence" scenario, the conduct the State charges the defendant with is not an offense. This happens when the State misconstrues a statute to extend to conduct or other facts that the statute does not cover or makes a factual mistake about what a court record shows (e.g., about whether an entry or document shows an actual prior conviction). When the conduct the State charges is not an offense, the State has necessarily made a mistake. The State bears responsibility for that mistake, even if it was reasonable at the time (e.g., relying on a court decision misconstruing the statute). Because an "absolute innocence" claim necessarily involves a mistake in charging the offense itself, the convicted person need not show something "new" to assert a valid claim for relief. But if the claim is based on an invalid allegation of a prior conviction, the convicted person would have to show that another suitable prior conviction (one that would satisfy the statutory requirement if it had been pled) does not exist. Other- wise, he would not have truly shown that he was not guilty of the offense.
See e.g,, State v. Hunter, 624 S.W.3d 589, 589 (Tex. Crim. App. 2021) (Keller, P.J,, concurring, joined by five other judges) ("The State's indictment does not charge a crime under the laws of the State of Texas ... A mother choosing to abort her unborn child is not a crime under Texas law, so the defendant cannot be guilty of the offense of solicitation for soliciting such a crime."); Liverman v. State, 470 S.W.3d 831, 833 (Tex. Crim. App. 2015) ("We must determine whether a person commits the crime of securing the execution of documents by deception when he files a false mechanic's lien affidavit with the county clerk. We conclude that such a person does not commit that crime because he does not cause 'another' to 'execute' a document affecting property or pecuniary interests.").
See Ex parte Rodgers, 598 S.W.3d 262, 265 (Tex. Crim. App. 2020) ("[T]he State made a mistake in Its allegation of the second jurisdictional prior DWI. It essentially alleged the same prior DWI conviction cause number twice."). But any error was harmless in Rodgers because there was another suitable prior conviction that could have been used. Id. at 264.
Both "actual innocence" and "absolute innocence" are distinguishable from the concept of "legal innocence" that we rejected as an Innocence claim but which does afford a non-innocence basis for relief. In a so-called "legal innocence" claim, the conduct the State intended to charge is an offense under a statute, but the statute is unconstitutional. See Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015).
See supra at nn.5, 14.
2. Rule of Lenity
Although the Court concludes that the statutes at issue here are unambiguous, it suggests in a footnote that, if the statutes were ambiguous, it could use the rule of lenity to resolve the ambiguity in Applicant’s favor. But several statutory provisions, along with caselaw discussing them, suggest that the rule of lenity does not apply to the Penal Code and the Code of Criminal Procedure. The Court’s analysis of what the statutory language unambiguously says is convincing; there is no need to hedge here.
Tex. Penal Code § 1.05(a); Tex, Code Crim. Proc. art. 1.26; Tex. Gov’t Code § 311.035(b), (c); Diruzzo v. State, 581 S.W.3d 788, 802 n.22 (Tex. Crim. App. 2019); Delay v. State, 465 S.W.3d 232, 251 & n.69 (Tex. Crim. App. 2014); State v. Rhine, 297 S.W.3d 301, 309 (Tex. Crim. App. 2009); Ex parte Forward, 258 S.W.3d 151, 154 n. 19 (Tex. Crim. App. 2008); State v. Johnson, 219 S.W.3d 386, 388 & n.9 (Tex. Crim. App. 2007). It has also been suggested that the rule of lenity is a last resort, when statutory ambiguity remains insoluble after applying other tools of construction. Diruzzo, 581 S.W.3d at 802 n.202; Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 1075, 212 L.Ed.2d 187 (2022) (Kavanaugh, J., concurring).
3. Mable / Involuntary Plea
In Mable, we granted relief to a defendant who pled guilty to possession of a controlled substance when later testing showed that the substance was not a controlled substance. We explained:
In this case, all parties involved, including the applicant, incorrectly believed the applicant had been in possession of drugs. This fact is crucial to this case, and while operating under such a misunderstanding, the applicant cannot be said to have entered his plea knowingly and intelligently.
Id. at 131.
So Mable involved the parties incorrectly believing certain crucial facts that later testing disproved.
The Court’s attempt to draw an analogy to Mable does not account for the different setting of a case that involves the question of whether the defendant understood the law. In Mable, no one knew that the substance was not a controlled substance until the testing revealed that fact. But here, the relevant statutes were available to all the parties involved in the plea. And as the Court explains, the statutes were unambiguous. So the trial court, the prosecutor, and the defense attorney should have all understood what the statutes meant.
Applicant, as a person untrained in the law, would not necessarily have been expected to understand the law. That is what he had an attorney for. But in this case, we do not know what conversation Applicant had with his attorney. His trial attorney has not been asked to reveal what he told Applicant. We would have to remand for an affidavit or testimony from the attorney to get that information. Applicant has not even supplied an affidavit about what he claims his attorney told him. That makes sense, since Applicant is not raising an involuntary-plea claim.
The Court says that we know that all the participants misunderstood the law because the State and the trial court took the correct action and accepted responsibility by clarifying the error. But neither the trial court’s findings nor the State’s response makes the claim that Applicant was ignorant of the law or that his plea was involuntary. Instead, they just say that the prior conviction alleged was not a convic- tion and that Applicant has no prior conviction. That says nothing about what Applicant and defense counsel knew at the time of the plea.
And we cannot simply assume that there is no way Applicant would have pled guilty if he and his attorney had discussed the possibility that the firearm statute did not cover Applicant’s conduct. Although his current case and the controlled-substance case do not appear to be part of a package deal, it is true that Applicant waived indictment in the current (firearm) case, proceeded on an information, pled guilty pursuant to a plea agreement, and received a five-year sentence that would run concurrently with the five-year sentence in the controlled-substance case. It is also true that Applicant pled true to multiple violations of his deferred-adjudication probation in the controlled-substance case, so the record would support a conclusion that, regardless of whether he violated the firearm statute, he was going to be adjudicated and sentenced in the controlled-substance case. And Applicant’s sentence of five years in the controlled-substance case was the minimum period of incarceration he could have received for that first-degree felony. So the possibility remains that the favorable plea deals could have caused Applicant to refrain from raising an issue about the applicability of the firearm statute.
In fact, in the initial plea proceedings for the controlled-substance offense, the trial judge warned Applicant that, if he later found a violation of the deferred-adjudication probation, he would not place him back on deferred adjudication or even place him on regular probation.
See Tex. Penal Code § 12.32 (punishment range for first-degree felony of 5 to 99 years or life). The information for the controlled-substance offense charged the possession of methamphetamine of four grams or more but less than 200 grams, which was a first-degree felony. See Tex. Health & Safety Code §§481.102(6), 481.112(d).
It appears that part of the reason the Court relies on Mable is our prior decision in Smith. Addressing the same intersection of the firearm and deferred adjudication statutes as in this case, we said in Smith that "the proper construction of the [firearm] statute was unresolved and remains unclear." Smith was correct that the proper construction was unresolved, in that we had not resolved it, but it was simply wrong when it said that the proper construction was unclear. As the Court explains today, the statutes at issue unambiguously provide that deferred adjudication is not a conviction (unless another statute says otherwise) and that a person commits the offense of felon-in-possession-of-a-firearm only if he had a prior felony conviction (with the firearm statute not defining deferred adjudication as a conviction). Smith was wrong to rely on a different firearm statute, with no connection to the offense at issue, to suggest a lack of clarity. In fact, Ex parte Welch had previously held, in the context of eligibility for probation, that it was clear from a plain reading of the deferred-adjudication statute that deferred adjudication did not count as a conviction.
296 S.W.3dat81.
See id. (discussing Tex. Gov’t Code §411.1711).
981 S.W.2d 183, 184-85 (Tex. Crim. App, 1998).
Moreover, under Welch, the lack of ambiguity in the statutes means counsel should have understood the correct interpretation and would have been ineffective for failing (if he did) to advise Applicant that deferred adjudication was not a con- viction. But Smith complicates matters, because it held that the law was "unsettled" by being unclear. The law was not unsettled because the statutes were unambiguous, but this Court made the law unsettled by saying it was unsettled. And making the law unsettled creates a large, and possibly insurmountable, roadblock to an ineffective-assistance claim.
See 981 S.W.2d at 185 ("Because this is the first case to consider the probation eligibility of a defendant discharged from deferred adjudication probation, we would usually be hesitant to find counsel’s failure to anticipate a future decision sufficiently egregious to consider his performance at the time of trial ineffective. However, to be reasonably likely to render effective assistance to his client, a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand. In this instance, the idea that the order deferring adjudication and placing applicant on probation was not a conviction was not novel at the time of applicant’s trial. Rather, it should have been evident from a plain reading of the deferred adjudication statute itself that applicant was not barred from receiving a probated sentence from a jury.’’).
See 296 S.W.3d at 81,
See Ex parte Lane, 670 S.W.3d 662, 671 (Tex. Crim. App. 2023).
But the Court was wrong to do that. Under Boykin v. State, "the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted." This Court should not have said that the text of a statute was ambiguous when it was not. Having done so, the Court bears the responsibility for any distorting effects of its decision, if a defendant can show harm. When the attorney is not at fault, but some other aspect of the system is responsible for depriving the defendant of a right, than relief can be granted on a "breakdown of the system" theory. In an appropriate case, bad precedent that contravenes express statutory language could create a distortion in the system that prejudices a defendant and requires the granting of relief. Ultimately, I do not think we need to consider that issue here, because we can grant relief on the theory of absolute innocence discussed earlier. But if the Court wants to grant relief on the basis of an involuntary plea, it would be better to recognize the mistake in Smith and fix it than to expand Mable to a situation very different from its facts.
818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
The Court could have simply avoided commenting on the meaning of the text and held that the attorney did not need to examine it thoroughly because of the concurrent sentencing plea deal. See Smith, 296 S.W.3d at 81 (relying in part on the fact that the plea was part of an agreement for concurrent sentencing with other cases).
Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006).
I concur in the Court’s judgment.
Yeary, J., filed a dissenting opinion.
The Court decides in this case that Applicant could not have been lawfully convicted of possession of a firearm by a felon because he was only placed on deferred adjudication community supervision in the underlying case that was alleged to be the predicate felony conviction. Majority Opinion at Part II (Analysis of the Statute), 4-9. I agree with that much of its analysis. Applicant cannot lawfully have been convicted for being a convicted felon in possession of a weapon based upon the merely-deferred-adjudication-imposed case for which he was incorrectly alleged in the information to have been previously "convicted." See Tex. Penal Code § 46.04(a) ("A person who has been convicted of a felony commits an offense if he possesses a fire- arm ... "). I disagree, however, that his conviction must be set aside on the ground that his guilty plea was involuntary. And while I might ultimately agree that Applicant is entitled to relief, I cannot come to that conclusion without remanding the case to the convicting court for a second time.
I. I nvoluntary P lea
Applicant is pursuing this post-conviction application for writ of habeas corpus pro se. Nowhere, in either the application he has filed, or in his memorandum in support, do the words "involuntary plea" appear. Nor does his legal argument embrace "involuntary plea" as a rationale justifying relief. "[T]his Court should not sua, sponte ‘create’ Applicant’s claim for him even if it thinks that claim has merit." Ex parte Hicks, 640 S.W.3d 232, 236 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (citing Ex parte Carter, 521 S.W.3d 344, 350 (Tex. Crim. App. 2017)). In any event, the Court relies upon Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), for the proposition that Applicant’s guilty plea was involuntary. Majority Opinion at Part III (Analysis of Relief), 9–13. For reasons most recently explained in my dissenting opinion in Ex parte Hooper, 685 S.W.3d 152, 155-56 (Tex. Crim. App. 2024), I reject the Mable involuntary-plea rationale for granting relief in cases like this one.
II. A bsolute I nnocence
On the other hand, I believe Applicant has stated facts that could possibly support granting him relief on a claim that I have called "absolute innocence." See Ex parte Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021) (Yeary, J., concurring) ("If the penal provision under which an applicant is convicted is later construed for the first time in such a way that it manifestly could not support a conviction based upon the undisputed facts of the case, we should be able to declare the applicant ‘actually innocent’ of that offense—even for the first time in post-conviction proceedings."). Applicant has stated facts which might entitle him to relief under this due process theory. See Ex parte Lane, 670 S.W.3d 662, 685 (Tex. Crim. App. 2023) ("We should ... grant relief to Applicant in this case today, whatever label we choose to append to his due process claim.").
The problem for Applicant, and the reason I cannot yet agree that relief is appropriate in this case, is that if there was some other felony conviction on Applicant’s record that could have supported his conviction for possession of a firearm by a felon, then he may not be entitled to relief under this due process theory either. Cf. Ex parte Rodgers, 598 S.W.3d 262 (Tex. Crim. App. 2020) (even a defective enhancement that has jurisdictional implications may be harmless if an alternative prior conviction exists that would have supported enhancement). For this reason, when the Court remanded this case to the convicting court in November of 2022, it instructed the convicting court to "make findings of fact and conclusions of law as to whether Applicant had a different felony conviction which could have been used as the predicate offense for this felony conviction." Ex parte Reeder, No. WR-93,824-01, 2022 WL 16627573, at *1 (Tex. Crim. App. Nov. 2, 2022) (ord., not designated for publication). It is not clear to me, however, that the convicting court has complied with the Court’s order.
After the Court’s remand order, the District Attorney of the 31st Judicial District, which includes Wheeler County, executed an affidavit in which he proclaimed:
After examining the criminal history for Shanea Lynn Reeder, what appears to be a conviction in Cause Number 5054
[the alleged underlying felony in this case] was in truth and in-fact a probation "sentence modification["]… Therefore[,] Shan[e]a Lynn Reeder was not a convicted felon at the time of his plea in cause number 5427 [the unlawful possession of a firearm by a felon case].
Accordingly, in its only conclusion of law following our remand order, the convicting court concluded that Applicant "was not a convicted felon on the date of his arrest for Unlawful Possession of Firearm by Felon as charged and convicted in Cause Number 5427, until 181 days after his arrest for Unlawful Possession of Firearm by Felon[,]" when the convicting court adjudicated him guilty of the underlying offense. (Emphasis Added.)
Neither the District Attorney’s affidavit, nor the convicting court’s findings of fact in support of the above-quoted conclusion of law, unequivocally constitutes a finding of fact that Applicant had suffered no other felony conviction that might have supported his conviction for possession of a firearm by a felon. In context, the affidavit and findings seem to be nothing more than assertions that Applicant’s deferred adjudication status rendered the alleged underlying felony insufficient to satisfy the penal statute. But that is not the information the Court’s remand order sought.
Acknowledging that the Court had "remanded the case to determine whether Applicant had another felony conviction that would have supported his guilty plea[,]" the Court concludes that "[h]e did not." Majority Opinion at 632. In my view, however, the record of this case still does not firmly establish that no other felony conviction exists.
III. C onclusion
I would not grant Applicant post-conviction relief without first remanding the case a second time for the convicting court to clarify whether Applicant has any other felony conviction that might have supported conviction in this case. I respectfully dissent.