Summary
finding that the court has previously construed the statutory phrase “item of ... identifying information,” in § 32.51
Summary of this case from Donaldson v. LumpkinOpinion
NO. WR-91,289-01
02-24-2021
EX PARTE Rollie Darnell WARFIELD, Applicant
Bruce Anton, Dallas, for Applicant.
Bruce Anton, Dallas, for Applicant.
Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.
This is a straightforward case. The State charged Applicant with a second-degree offense of possessing identifying information, but a self-initiated audit revealed Applicant had only committed a third-degree offense. So, Applicant filed an application for writ of habeas corpus based upon this Court's established precedent. Applicant alleges that he is entitled to relief because his guilty plea was involuntary under Ex parte Mable . He also argues that he is entitled to relief as a matter of due process under State v. Wilson .
Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014).
State v. Wilson , 324 S.W.3d 595 (Tex. Crim. App. 2010).
All the parties agree that Applicant is entitled to relief under both theories, and the habeas court recommends granting relief. The Court rightly grants relief based upon this Court's established precedent. I support the Court's decision to do so, as either theory results in the same degree of relief. Nevertheless, we are asked again to reconsider our decision in Ex parte Mable . There is also another suggestion, albeit an implicit one, that we raise the standard for determining actual innocence again, even though Applicant does not seek actual innocence relief in this case. I write separately to address our precedent in these areas, as well as the Texas Supreme Court's recent decision in In re Lester .
Mable , 443 S.W.3d 129.
In re Lester , 602 S.W.3d 469, 475 (Tex. 2020).
Mable and Wilson
This Court has already heard and rejected the criticisms of Ex parte Mable . We adhere to binding precedent because it promotes judicial efficiency and consistency, encourages reliance upon judicial decisions, and contributes to the integrity of the judicial process. Repeatedly reexamining this precedent on our own when no one has asked us to has the opposite effect. In the end, binding precedent is the law. Absent a reason to abandon the doctrine of stare decisis , the Court rightly follows it in this case.
See Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).
And again, I agree that this Court can grant relief as a matter of due process under State v. Wilson , as well as under an involuntary-plea theory. But it is confusing to lump State v. Wilson in with our "actual innocence" jurisprudence. Wilson does discuss some cases using the term "actual innocence," but those cases dealt with the applicability of an exception to procedural default on federal habeas claims. They did not recognize a right to actual innocence relief as a matter of due process.
Wilson , 324 S.W.3d at 597–98 (citing Sawyer v. Whitley , 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) ; Dretke v. Haley , 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) ; and Murray v. Carrier , 477 U.S. 478, 106 S.Ct. 2678, 91 L.Ed.2d 397 (1986) ).
Further, this Court did not hold that Wilson was "actually innocent." As Applicant himself noted in his application, the defendant in Wilson raised a claim that he was actually innocent, and this Court rejected it. Instead, the Court held in Wilson that a defendant was entitled to relief even though he was not "actually innocent" because it was still possible he had committed a lesser-included offense.
Id. at 598.
Significantly, Wilson was not concerned with the types of innocence claims raised in Ex parte Miles , Ex parte Cacy , Ex parte Mayhugh , or Ex parte Chaney . The claim in Wilson was that the defendant had not committed felony DWI because one of the elemental priors was not a final conviction. It was an entirely different theory of relief than what is typically thought of as an "actual innocence" case. The standard by which the Court resolved the claim in Wilson is not a substitute for claims for relief in cases where new evidence that the defendant did not commit the offense comes to light after a wrongful conviction. And advocating for relief under the standard set out in Wilson does not provide support for opposition to the standard set out in Elizondo . Actual innocence claims are properly governed by the standard this Court set out in Ex parte Elizondo . As with the arguments against continuing to follow Mable , this Court has considered and rejected arguments to raise the standard for determining actual innocence. This case is not a vehicle to reconsider them, especially considering that Applicant is not even arguing he is entitled to actual innocence relief.
Ex parte Miles , 359 S.W.3d 647 (Tex. Crim. App. 2012).
Ex parte Cacy , WR-85,420-01, 2016 WL 6525721 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication).
Ex parte Mayhugh , 512 S.W.3d 285 (Tex. Crim. App. 2016) (plurality op.).
Ex parte Chaney , 563 S.W.3d 239 (Tex. Crim. App. 2018).
Wilson , 324 S.W.3d at 596.
Ex parte Elizondo , 947 S.W.2d 202 (Tex. Crim. App. 1996) (To be granted actual innocence relief based solely on newly discovered evidence, the applicant must show that the new evidence unquestionably establishes his innocence—i.e., he must prove by clear and convincing evidence that no reasonable juror would have convicted the applicant in light of the new evidence.).
In re Lester
Finally, it would be a mistake to read the Texas Supreme Court's decision in In re Lester as limiting actual innocence review to the types of claims raised in that case. Starting relatively recently, the Texas Supreme Court has been actively removing barriers to righting wrongful convictions. Our sister court has held that a wrongfully convicted defendant is entitled to compensation even under a Schlup -type procedural claim of actual innocence, which carries a lower standard for determining actual innocence that the standard set out in Ex parte Elizondo . And, more recently, the Court held that a finding of actual innocence entered by a court without jurisdiction is sufficient to trigger a magisterial duty on the part of the comptroller to pay compensation to someone who has been wrongfully convicted. Nothing in In re Lester suggests that the Texas Supreme Court is on a different course. Indeed, Lester only dealt with the rare circumstance in which a defendant was prosecuted under a statute that had already been declared facially unconstitutional at the time the defendant was prosecuted. In that context, our sister court recognized an additional theory for innocence relief beyond the two types of innocence claims already recognized by this Court. As the Court recognized, "Just because existing actual innocence jurisprudence does not contemplate something as outrageous as Lester's case does not mean that Lester who committed no crime is anything but actually innocent."
In re Allen , 366 S.W.3d 696 (Tex. 2012).
In re Brown , 614 S.W.3d 712, 2020 WL 7413728 (Tex. 2020).
Lester , 602 S.W.3d at 471.
Id. at 472–73.
Id. at 473.
If anything, Lester suggests the Supreme Court disagrees with our precedent dealing with the impact of Ex parte Lo . When Lester's case was before this Court, we did not grant "actual innocence" relief; we relied upon our previous decision in Ex parte Chance to vacate Lester's conviction as a void judgment and dismiss the indictment without declaring him innocent. In Chance , we had the opportunity to hold that someone who had been convicted under a facially unconstitutional statute was actually innocent because such a statute is void ab initio. But we didn't do that. Then, in Ex parte Fournier , we rejected that theory, holding that a defendant who had been convicted under a statute that was later determined to be facially unconstitutional was entitled to relief, just not actual innocence relief.
Ex parte Lester , WR–88,227–01, 2018 WL 1736686 (Tex. Crim. App. Apr. 11, 2018) (not designated for publication). The Court rejected the argument that Lester was only entitled to relief under a theory of ineffective assistance of counsel. Id. ; see also id. at *2 (Yeary, J., concurring) (agreeing with the Court's decision to grant Applicant relief but stating he would grant relief only on Applicant's ineffective assistance of counsel claim).
Ex parte Chance , 439 S.W.3d 918, 922 (Tex. Crim. App. 2014) (Cochran, J., concurring) ("Anyone who has been convicted under the now void provisions of Section 32.021(b) is ‘innocent’ and may obtain an acquittal, whether it is in the trial court, or direct appeal, or in a habeas proceeding.").
Ex parte Fournier , 473 S.W.2d 789, 796 (Tex. Crim. App. 2015) ; see also id. at 800 (Yeary, J., dissenting) (agreeing to the denial of actual innocence relief but dissenting to the grant of relief).
The Supreme Court's decision seems to suggest that we did not go far enough in Chance and Fournier . So, if we are going to apply Lester , that case seems to require this Court—in cases in which a later legal determination has rendered a conviction void—to not only grant habeas corpus relief as a matter of due process, but also declare innocence. Doing so, however, would necessarily expand the available relief to defendants who have been prosecuted under the statute declared unconstitutional in Ex parte Lo . But if we aren't going to apply it, then this discussion about "actual innocence" is unnecessary for the resolution of an otherwise straightforward case.
Cf. Ex parte Fournier, 473 S.W.3d 789, 800 (Tex. Crim. App. 2015) (Yeary, J., dissenting) (arguing for a complete denial of habeas corpus relief to applicants who have been prosecuted under a facially unconstitutional statute); Ex parte Miller , 2016 WL 158648, *1 (Tex. Crim. App. Jan. 13, 2016) (per curiam, not designated for publication) (Yeary, J., dissenting)(same); Ex parte Anthony , 2016 WL 368324, *1 (Tex. Crim. App. Jan. 27, 2016) (per curiam, not designated for publication) (Yeary, J., dissenting)(same); Ex parte Ardie , 2016 WL 1477710, *1 (Tex. Crim. App. Apr. 13, 2016) (per curiam, not designated for publication) (Yeary, J., dissenting)(same); Ex parte Stewart , 2018 WL 4344339, *1 (Tex. Crim. App. Sept. 12, 2018) (per curiam, not designated for publication) (Yeary, J., dissenting)(same).
With these thoughts, I join the court's opinion granting relief.
CONCURRING OPINION
Yeary, J., filed a concurring opinion.
In an unpublished, per curiam opinion, the Court grants Applicant relief, in part based on his claim that his guilty plea was involuntary. For reasons extensively developed in Judge Keasler's concurring opinion in Ex parte Saucedo , 576 S.W.3d 712 (Tex. Crim. App. 2019) (Keasler, J., concurring), I disagree that Applicant's guilty plea was involuntary, and I continue to believe that the Court should overrule Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014). I nevertheless agree that Applicant is entitled to post-conviction relief on the ground that he pled guilty to a greater offense than the law will tolerate, given the undisputed facts. Because my reason for voting to grant Applicant relief in this case was not fully explained in Judge Keasler's concurring opinion in Saucedo , I write further today to spell out my thoughts about this matter.
BACKGROUND
In 2013, Applicant pled guilty to the offense of fraudulent possession of identifying information, under Section 32.51(b) of the Texas Penal Code. TEX. PENAL CODE § 32.51(b). He pled guilty to possession of more than ten "items ... possessed," making the degree of offense a second-degree felony. TEX. PENAL CODE § 32.51(c)(3). His punishment was assessed, accordingly, at nine years in the penitentiary.
In 2015, this Court for the first time construed the statutory phrase "item of ... identifying information," in Section 32.51(b), essentially declaring what the allowable unit of prosecution is for purposes of determining what level of offense has been committed. Ex parte Cortez , 469 S.W.3d 593 (Tex. Crim. App. 2015). The parties now agree that the number of items possessed, as properly calculated under Cortez , was six, not ten, which made Applicant guilty of no greater than a third-degree felony. TEX. PENAL CODE § 32.51(c)(2). With the consent of the State, the trial court now recommends that we grant Applicant a new trial.
VOLUNTARINESS OF THE PLEA?
In its order today, the Court grants relief based upon Applicant's contention that "his due process [right] was violated and [his] plea was involuntary because he possessed less than ten pieces of identification, making him guilty only of a lesser offense." Majority Opinion at 1. While I agree that "his due process [right] was violated[,]" I disagree that it is because his "plea was involuntary[.]" That his guilty plea might be involuntary is a notion that seems to stem from the fact that, at the time he pled, Applicant was unaware that this Court would later construe the statute in such a way as to render him guilty only of the lesser offense. See Cortez , 469 S.W.3d at 603 (explaining how to correctly determine what constitutes an "item of identifying information"). He thus pled, by this reasoning, in ignorance of a crucial piece of information that, had he known about, he would surely not have entered the plea that he did. Although the Court does not say so in its per curiam opinion today, it takes this notion from Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014).
But Mable should be overruled. As Judge Keasler aptly explained in his concurring opinion in Saucedo , 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. Saucedo , 576 S.W.3d at 719 (Keasler, J., concurring) (an applicant's "ignorance of facts he ‘knew ... he did not know’ should not invalidate his otherwise voluntary decision to plead guilty") (quoting Ex parte Palmberg , 491 S.W.3d 804, 810 (Tex. Crim. App. 2016) ). Because Mable held otherwise, it should be abandoned—not propagated, as the Court tacitly continues to do in its holding today.
DUE PROCESS: GUILTY ONLY OF THE LESSER OFFENSE?
Judge Keasler still believed the Court correctly granted Saucedo relief, however, based on Saucedo's alternative due process claim that, as he put it, he was "actually innocent" of the greater offense for which he had been convicted. Judge Keasler conceded that this Court had eschewed the nomenclature of "actual innocence" for such a claim (since, after all, the applicant was still guilty of the lesser-included offense), in State v. Wilson , 324 S.W.3d 595, 598 (Tex. Crim. App. 2010). But we had nevertheless granted relief in Wilson on the theory that new facts could establish a due process claim that an appellant was "guilty only of" a lesser offense, such that he was "factually ineligible" to be punished for the greater offense. Saucedo , 576 S.W.3d at 720 (Keasler, J., concurring). "These are the basic premises," Judge Keasler observed, "behind a post-conviction claim of ‘illegal sentence.’ " Id.
NEW FACTS?
Of course, our cases require that a bona fide claim of so-called "actual innocence"—innocence of any crime at all—must include the discovery and presentation of new facts. Ex parte Brown , 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). And in making his analogous claim that, if he was not "actually innocent," then he was at least "guilty only of" a lesser offense (and was therefore ineligible to be punished for the greater offense), Saucedo was able to present new facts that showed the validity of his claim.
This case differs from Saucedo in that there are no new facts here. It is just that, after Cortez , the facts—as we have known them to be from the start—turn out to make Applicant susceptible to prosecution only for a third-degree felony, not for a second-degree felony. Should we deny Applicant relief because his claim is based upon a later-made judicial clarification of the relevant statutory law rather than the discovery of previously unknown historical facts?
ILLEGAL SENTENCE?
Another way in which this case differs from Saucedo is that Appellant received a sentence of nine years in the penitentiary, which is within the range of punishment for a third-degree felony. See TEX. PENAL CODE § 12.34(a) (third-degree felony is punishable "by imprisonment ... for any term of not more than 10 years or less than 2 years"). Thus, the way I see it, and speaking strictly, his sentence is not "illegal" in the sense that would support a collateral attack upon his conviction. See Ex parte Pue , 552 S.W.3d 226, 239 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("I have no quarrel with the notion that an ‘illegal sentence’—that is to say, a sentence that on its face falls outside the range of punishment authorized by law—should be regarded as cognizable even if complained of for the first time in post-conviction habeas proceedings."); Ex parte Rodriguez , 578 S.W.3d 92, 94 (Tex. Crim. App. 2019) (Yeary, J., dissenting) (same). Though nominally convicted of a second-degree felony, Applicant received a sentence that was at the high end of the statutory range for a third-degree felony sentence. WHY IS THIS APPLICANT ENTITLED TO RELIEF?
To sum up: Applicant has not shown that his plea was involuntary ; he has not presented new facts to show he is guilty only of the lesser offense; and his sentence has not been shown to be illegal , in the sense that it falls outside the lawful range for a third-degree felony. Why, then, do I still agree with the Court's bottom line that he should receive relief on due process grounds in a post-conviction collateral proceeding? The answer lies in what I have often explained to be my understanding of "actual innocence."
The Court declares a habeas applicant to be "actually innocent" of the offense for which he was convicted so long as he can meet the standard for obtaining post-conviction relief set out in Ex parte Elizondo , 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). That is to say, he may obtain a new trial if he can show, by clear and convincing evidence, that no reasonable fact-finder—had it been presented with his new exculpatory evidence in addition to the evidence that it heard at trial—would have convicted him. Id . I would also grant relief to any post-conviction applicant who can satisfy the Elizondo standard. But I would not necessarily call that applicant "actually innocent" in doing so. See Ex parte Cacy , 543 S.W.3d 802, 804 (Tex. Crim. App. 2016) (Yeary, J., concurring) ("I would avoid the label of actual innocence—at least in the absence of evidence 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. "); Ex parte Chaney , 563 S.W.3d 239 (Tex. Crim. App. 2018) (Yeary, J., concurring) ("The Elizondo standard does not literally require an applicant to establish that he did not commit the offense for which he was convicted by any standard whatsoever. Yet, we persist in declaring all applicants who satisfy only the Elizondo standard ‘actually innocent.’ ").
On the other hand, in my view, 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. 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. Cf. In re Lester , 602 S.W.3d 469, 475 (Tex. 2020) ("Lester is actually innocent because his wrongful conviction is based on conduct that was not a crime."). Granting an applicant relief under these circumstances would not require a retroactive application of new law: "A first time interpretation" of a statute, we have said, "even if unanticipated by the parties in the case, cannot be considered a new rule because, presumably," it meant what the Court found it to mean at the time when it was enacted. See Taylor v. State , 10 S.W.3d 673, 681 (Tex. Crim. App. 2000).
The Texas Supreme Court determined that Lester's conduct was not a crime because, even before Lester was convicted, this Court had declared the penal provision under which he was prosecuted to be invalid because it conflicted with the United States Supreme Court's First Amendment overbreadth doctrine, in Ex parte Lo , 424 S.W.3d 10 (Tex. Crim. App. 2013). See Lester , 602 S.W.3d at 475 ("The Court of Criminal Appeals, in granting Lester habeas relief, determined that Lester's conviction was ‘not valid’ because the Court had declared the online-solicitation statute unconstitutional before Lester's conviction."). I have often expressed my dissatisfaction with Lo and its progeny, most recently in Whillhite v. State , 601 S.W.3d 363, 364 (Tex. Crim. App. 2020) (Yeary, J., concurring). And my position regarding that opinion has not changed. But I generally agree with the sentiment the Texas Supreme Court appears to have expressed in Lester that a person should be eligible to be declared "actually innocent," even if he fails to produce new facts, so long as he can show that, based on the already known, undisputed facts, he could not legally have been found guilty of the crime for which he was convicted at the time he was convicted.
The same principle should hold true even for the applicant who, like in Wilson and Saucedo , can show that, under the undisputed facts, he was "guilty only of" the lesser offense under the penal provision as subsequently construed. 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. For this reason, I agree that Applicant is entitled to a new trial in this case, though his guilty plea was not involuntary when made and he has no new facts to support his claim. As our later construction of the controlling penal statute in Cortez demonstrates, he simply never should have been convicted of the greater offense in the first place.