Hunt, Eric Dewayne

In the Court of Criminal
Appeals of Texas
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Nos. WR-93,525-01, -02, -03, -04
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EX PARTE ERIC DEWAYNE HUNT,
Applicant

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On Applications for Writs of Habeas Corpus
In Cause Nos. C-432-W012070-1633905-A,
C-432-W012071 1633909-A, C-432-W012072-1633913-A,
C-432-W012073-1633916-A in the 432nd District Court
Tarrant County
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YEARY, J., filed a dissenting opinion.

Today the Court grants Applicant relief on these four forgery
convictions on the theory that his guilty pleas were involuntarily
obtained. The Court concludes that they were involuntary because of a
subsequent judicial construction of the relevant penal provisions. The
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convicting court did not recommend that we conclude that guilty-plea
counsel was constitutionally ineffective, given the uncertainty in the law
at the time of the plea. 1 But it did recommend that we conclude that the
plea was involuntary because it was based on the parties’ mutual
misunderstanding of the law. Although both Applicant and the State are
content that we follow this recommendation, I am not.
I. BACKGROUND
Applicant was charged by separate indictments with four
instances of forgery by check with intent to pass. TEX. PENAL CODE §
32.21(d) (establishing, subject to Subsection (e-1), forgery by check as a
state-jail felony offense). 2 Pursuant to plea agreements, in August of
2020, Applicant pled guilty to each offense and true to two prior felony
convictions, which enhanced his range of punishment for each offense to
that of a second-degree felony. Id. § 12.425(b) (enhancing penalties for
repeat and habitual felony-offenders on trial for state-jail felony

1 The Court has often declared that trial counsel cannot be
constitutionally faulted for failing to accurately anticipate how unsettled law
will ultimately be resolved. E.g., Ex parte Chandler, 182 S.W.3d 350, 359 (Tex.
Crim. App. 2005); Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996).

2 Each indictment charges that, in August of 2019, Applicant:

DID INTENTIONALLY, WITH INTENT TO DEFRAUD OR
HARM ANOTHER, POSSESS WITH INTENT TO PASS, A
FORGED WRITING KNOWING SUCH WRITING TO BE
FORGED, AND SUCH WRITING HAD BEEN SO MADE THAT
IT PURPORTED TO BE THE ACT OF ROBIN FLORES, A
REPRESENTATIVE OF NETSPEND CORPORATION WHO
DID NOT AUTHORIZE THE ACT, AND SAID WRITING WAS
A CHECK OF THE TENOR FOLLOWING[.]

Each indictment then included a picture of the relevant, allegedly
forged instrument.
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offenses). In accordance with the plea agreements, the trial court
sentenced Applicant to four concurrent sentences of three years’
imprisonment. He did not appeal.
In December of 2021, Applicant filed applications for writs of
habeas corpus in the county of conviction. TEX. CODE CRIM. PROC. art.
11.07. In his applications, he alleges four grounds for relief: involuntary
plea, trial court error, ineffective assistance of trial counsel, and
prosecutorial error.
The convicting court has recommended that this Court grant
Applicant relief. It bases that recommendation on a pair of decisions
from the Sixth Court of Appeals, both of which were decided after
Applicant’s pleas, in November of 2020. In the convicting court’s view,
these two decisions called into question whether Applicant’s offenses
were properly classified as state-jail felonies. See Lennox v. State, 613
S.W.3d 571 (Tex. App.—Texarkana 2020), vacated and remanded sub
nom. Green v. State, 682 S.W.3d 253 (Tex. Crim. App. 2024); State v.
Green, 613 S.W.3d 597 (Tex. App.—Texarkana 2020), vacated and
remanded, 682 S.W.3d 253 (Tex. Crim. App. 2024). 3 Without waiting for
this Court to issue its opinions on discretionary review in those cases,
the convicting court found that “Applicant’s pleas were not truly
voluntary because he did not possess a complete understanding of the
law in relation to the facts[,]” citing Ex parte Mable, 443 S.W.3d 129, 131
(Tex. Crim. App. 2014). These cases were then forwarded to this Court.

3 This Court consolidated Green and Lennox and granted review on
February 24, 2021. On January 19, 2022, the convicting court entered its
findings and order. This Court issued its opinion on discretionary review on
January 17, 2024. See Green v. State, 682 S.W.3d 253 (Tex. Crim. App. 2024).
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Before ruling on the merits, however, this Court remanded the cases to
the convicting court for additional fact-finding proceedings. Ex parte
Hunt, Nos. WR-93,525-01 thru WR-93,525-04, 2024 WL 1433522 (Tex.
Crim. App. Apr. 3, 2024) (ord., not designated for publication). The cases
are now back before the Court after remand.
The Court today grants Applicant relief on the basis that his
guilty pleas were involuntary, citing Mable. For two reasons, I cannot
join the Court.
II. APPLICANT’S PLEAS WERE NOT INVOLUNTARY
The notion that Applicant’s pleas were entered involuntarily
apparently stems from the fact that, at the time he pled, both Applicant
and the State were unaware that the statute under which he was
convicted would later be construed in such a way that might render him
guilty only of a lesser offense. See Green, 682 S.W.3d at 278–79 (Tex.
Crim. App. 2024) (explaining how to determine whether a forgery should
be charged as a felony or misdemeanor). According to this rationale,
Applicant pled guilty in ignorance of a crucial piece of information that,
had he known, he would surely not have entered the plea that he did.
The Court explicitly relies upon Mable for this proposition. Majority
Opinion at 2.
But 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 69, 72–75 (Tex. Crim. App. 2021) (Yeary, J.,
concurring). I reaffirm my belief today, again, that this Court should
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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 his plea counsel was ineffective[,]” may retroactively render an
applicant’s plea of guilty involuntary. Saucedo, 576 S.W.3d at 721
(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)). Consequently, though an applicant may be entitled to
relief for other reasons, I would not grant any applicant relief under
Mable—to do so would propagate an opinion that ought to be abandoned.
III. APPLICANT HAS NOT SHOWN HE IS GUILTY ONLY OF A LESSER
OFFENSE
Has Applicant otherwise shown that, because of our subsequent
construction of the relevant penal provisions, it has become clear that
he pled guilty to a greater offense than he committed, in violation of due
process? If so, I might agree that he would be entitled to relief on the
basis that he is “absolutely innocent” of the greater offense, and only
guilty of a lesser-included offense. Warfield, 618 S.W.3d at 74−5 (Yeary,
J., concurring). But I do not believe Applicant has made the necessary
showing to obtain relief on this theory of due process either.
Applicant was charged under Section 32.21(d) of the Penal Code,
which provides: “Subject to Subsection (e-1), an offense under this
section is a state jail felony if the writing is or purports to be a . . .
check[.]” TEX. PENAL CODE § 32.21(d). Subsection (e-1) provides that:
If it is shown on the trial of an offense under this section
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that the actor engaged in the conduct to obtain or attempt
to obtain a property or service, an offense under this section
is: . . . (2) a Class B misdemeanor if the value of the
property or service is $100 or more but less than $750.

Id. § 32.21(e-1). The Court was recently called upon to determine under
which subsection of Section 32.21 an accused should be charged when
the facts of the offense fall under both the “value ladder” provision of
Subsection (e-1) and the “type-of-writing provisions” of Subsections (d)
and (e). Green, 682 S.W.3d at 256–57. The Court construed the statute
to mean that “whenever the triggering terms in subsection (e-1) are
satisfied (i.e., the defendant engaged in the forgery ‘to obtain or attempt
to obtain a property or service’), the offense classifications in subsection
(e-1) must control over those in subsections (d) and (e) in the event of a
conflict.” Id. at 278.
Moreover, in Green, the Court held that “subsection (e-1) sets
forth an element of a distinct forgery-to-obtain-property-or-services
offense.” Id. at 264. In other words, to obtain a conviction under
Subsection (e-1), the State must prove the defendant’s intent was “to
obtain or attempt to obtain a property or service” as an element of the
offense. See TEX. PENAL CODE § 32.21(e-1). However, the Court also said
that when the State seeks a conviction under (d) or (e), the language of
those subsections “does not require the State to negate the applicability
of subsection (e-1).” Id. at 279. Rather, at least the burden of production,
if not also the burden of persuasion, apparently falls on the defendant
to prove his entitlement to prosecution under (e-1), as evidenced by our
statement in Green that, “if the defendant believes that he is being
prosecuted under the wrong subsection and is instead entitled to be
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prosecuted under the value ladder, he may raise such a claim in the trial
court and/or on appeal[.]” Id.
In this case, there is no dispute that Applicant forged four
writings which purported to be checks—apparently checks made
payable to himself which “purported to be the act of Robin Flores, a
representative of NetSpend Corporation[.]” See note 2, ante; TEX. PENAL
CODE § 32.21(d) (making the offense a state-jail felony when the writing
is a “check”—“Subject to Subsection (e-1)”). There is also no dispute that
each forged check was for an amount between $100 and $750. See id. §
(e-1)(2). The only question, then, is whether it has been “shown on the
trial of [the] offense . . . that [Applicant] engaged in the conduct to obtain
or attempt to obtain a property or service[.]” Id. § (e-1).
I am not convinced that, even if this case were on direct appeal,
the current record would justify relief—much less on post-conviction
applications for writs of habeas corpus in which Applicant bears the
burdens of both production and persuasion. See Ex parte Maldonado,
688 S.W.2d 114, 116 (Tex. Crim. App. 1985) (“In a postconviction
collateral attack, the burden is on the applicant to allege and prove facts
which, if true, entitle him to relief.”). That is, I am not persuaded that
forging checks made out to himself constituted an attempt by Applicant
to obtain property or services within the meaning of Section 32.21(e-1). 4

4 I am aware of the fact that the Legislature has recently amended
Section 32.21 to include Section (f-1), which provides that, “For purposes of
Subsection (e-1), it is presumed that a person in possession of money that is
forged within the meaning of Subsection (a)(1)(A) intended to obtain a property
or service of a value equal to the total purported value of the forged money.”
TEX. PENAL CODE § 32.21(f-1); see Act of May 9, 2023, 88th Leg., R.S., ch. 132,
§ 1. But this subsection had not been enacted at the time of Applicant’s offense.
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On remand, it was shown for the first time that Applicant did, in
fact, use the forged checks in this case to obtain money. An arrest
warrant affidavit was admitted into the record on remand showing that
after Applicant deposited the checks into various accounts, he then
withdrew most of the funds in cash. But these facts do not appear among
the plea papers in the habeas corpus record. They come too late to satisfy
Applicant’s burden to raise an issue at the trial court level with respect
to whether he should properly have been prosecuted under subsection
(e-1) of the statute. According to the Court’s construction in Green, the
State was entitled to proceed under subsection (d) absent such a showing
on the appellate record. Green, 682 S.W.3d at 279. Consequently, I do
not believe Applicant has demonstrated that his convictions under
Subsection (d) have “been held inapplicable” by our decision in Green.
To grant Applicant relief, therefore, conflicts with the Court’s
construction of Section 32.21 in Green. 5
IV. CONCLUSION
Applicant’s decision to plead guilty was not involuntary simply
because he was unaware that the Court would later construe Section
32.21 of the Penal Code to mean that he might be entitled to relief.
Furthermore, the appellate record in this case does not support granting
Applicant relief under the Court’s decision in Green. Yet the Court still

And in any event, the “writings” that were alleged to have been forged in these
cases were checks, not forged money.

5 Does the Court mean to abrogate the burden-assigning language from

Green, or perhaps overrule Green entirely? It does not say. But its action today
certainly calls into question the Green opinion.
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grants Applicant relief, even without really explaining why Applicant is
entitled to it.
For these reasons, I respectfully dissent.

FILED: September 4, 2024
PUBLISH