Wenzel, Michael Justice

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-97,482-01

EX PARTE MICHAEL JUSTICE WENZEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 25-03-04548 IN THE 221st DISTRICT COURT
MONTGOMERY COUNTY

Finley, J., filed a concurring opinion in which Yeary,
J., joined.

CONCURRING OPINION

This is an involuntary plea case. On March 25, 2025, Applicant was charged

with possession with intent to distribute alprazolam, with weight more than 28

grams but less than 200 grams—a second-degree felony. Less than a month later,

on April 17, 2025, and before lab testing was completed, Applicant pleaded guilty

to the lesser-included offense of possession of a controlled substance, a state-jail
WENZEL CONCURRENCE — 2

felony. The State filed a motion under Section 12.44(a) of the Penal Code to

reduce the range of punishment of Applicant’s offense to that of a Class A

misdemeanor. See Tex. Penal Code § 12.44(a). The trial court followed the

plea bargain agreement, convicted Applicant of the lesser-included possession

offense, and sentenced Applicant to 120 days’ confinement in the county jail.

On June 5, 2025, the State notified Applicant that the crime laboratory had

analyzed the controlled substance and found it to be buspirone, not alprazolam.

Buspirone is not a controlled substance under Texas law. On January 30, 2026,

Applicant filed the instant application for a writ of habeas corpus, claiming his plea

was involuntary citing this Court’s decision in Ex parte Mable, 443 S.W.3d 129

(Tex. Crim. App. 2014). The Court today agrees with Applicant and grants

Applicant relief, citing Mable.

I have previously expressed doubts about this Court’s current involuntary

plea jurisprudence. See, e.g., Ex parte Warren, 721 S.W.3d 247 (Tex. Crim. App.

2025) (Finley, J., joined by Schenck, P.J., Yeary, and Parker, JJ.,

dissenting); Ex parte Salas, 713 S.W.3d 777 (Tex. Crim. App. 2025) (Finley, J.,

joined by Schenck, P.J., and Parker, J., dissenting). For the reasons I

expressed in those opinions, as well as the reasons expressed by other Judges of

this Court, I believe that this Court’s continued reliance on Mable should be
WENZEL CONCURRENCE — 3

abandoned and that Applicant’s plea was not involuntary. See, e.g., Ex parte

Saucedo, 576 S.W.3d 712, 714 (Tex. Crim. App. 2019) (Keasler, J., concurring);

id. at 722 (Hervey, J., joined by Keasler, J., concurring); Ex parte Warfield,

618 S.W.3d 69, 72 (Tex. Crim. App. 2021) (Yeary, J., concurring). “[S]o 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); Salas, 713 S.W.3d at 779 (Finley, J., dissenting) (“The fact that

his roll of the dice did not turn out as favorably as it might have had he proceeded

to trial is not a ground for invalidating his plea.”). Those principles warrant

denying relief on Applicant’s involuntary plea claim and counsel this Court

towards abandoning Mable.

With that said, Applicant is nevertheless entitled to habeas relief for the

reasons Judge Yeary explained in Warfield. 618 S.W.3d at 74–75 (Yeary, J.,

concurring) (“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.”). Applicant has established

entitlement to relief on that basis because the evidence conclusively shows that he

committed no crime at all—he did not possess a controlled substance.

Consequently, due process cannot tolerate his conviction.
WENZEL CONCURRENCE — 4

I agree that Applicant is entitled to habeas relief. I simply cannot join the

Court’s order granting relief on involuntary plea grounds. With these thoughts, I

concur with the Court’s order.

Filed: April 30, 2026
Publish

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-97,482-01

EX PARTE MICHAEL JUSTICE WENZEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 25-03-04548 IN THE 221ST DISTRICT COURT
MONTGOMERY COUNTY

Per curiam. FINLEY, J., filed a concurring opinion joined by YEARY, J.

OPINION

Applicant pleaded guilty, was convicted of possession of a controlled

substance, and sentenced to seven months’ imprisonment in this cause. 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
2

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 25-03-

04548 in the 221st District Court of Montgomery County is set aside, and

Applicant is remanded to the custody of the Sheriff of Montgomery County to

answer the charges as set out in the information. 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.

Delivered: April 30, 2026
Publish