Hooper, Richard

In the Court of Criminal
Appeals of Texas
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No. WR-95,426-01
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EX PARTE RICHARD LEE HOOPER,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1487418-A
In the 184th District Court
Harris County
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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
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time of Applicant’s plea, the forensic laboratory had already determined
that he had possessed 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 1. 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). 1

1 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.
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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
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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
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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. 2
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).

2 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).
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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 “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[,]” 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
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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.

FILED: March 6, 2024
PUBLISH