Johnson, Stanley Lee

In the Court of Criminal
Appeals of Texas
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No. WR-95,630-01
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EX PARTE STANLEY LEE JOHNSON,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1087344-A in the 230th District Court
Harris County
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YEARY, J., filed a dissenting opinion.

In October of 2006, Applicant pled guilty to possession of between
four and 200 grams of a penalty group one controlled substance—
phencyclidine (PCP)—and was sentenced to two years’ imprisonment. 1

1 Applicant long ago completed his sentence, but he has established
collateral consequences “sufficient to establish ‘confinement’ so as to trigger
application of art. 11.07.” Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim.
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See TEX. HEALTH & SAFETY CODE §§ 481.115(d) (establishing possession
of “four grams or more but less than 200 grams” of a penalty group one
controlled substance as a second-degree felony), 481.102(8) (classifying
phencyclidine and its salts as a penalty group one controlled substance).
The record suggests that the substance found in Applicant’s possession
was not tested until fifteen years after his plea. The test was conducted
by the Harris County Institute for Forensic Sciences. According to its
July 2021 Drug Chemistry Report, the lab test identified the presence
of PCP but in an amount of “2.518 ± 0.026 grams[.]”
In January of 2024, Applicant, through his plea counsel, filed an
application for a writ of habeas corpus in the county of conviction. TEX.
CODE CRIM. PROC. art. 11.07. Based on the previously unavailable
laboratory analysis, Applicant alleges: (1) that his conviction violates
due process; and (2) that his plea of guilty was involuntary. Today, the
Court grants Applicant relief on the basis of his second claim,
involuntary plea, citing Ex parte Mable, 443 S.W.3d 129 (Tex. Crim.
App. 2014). Majority Opinion at 1. For the reasons below, I cannot join
the Court in its judgment.
I. INVOLUNTARY PLEA
First, I would not grant any applicant relief under Mable because,
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 Ex parte

App. 2010). Specifically, the record shows that Applicant’s conviction in this
cause has been used to enhance his sentence in others.
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Warfield, 618 S.W.3d 69, 72–75 (Tex. Crim. App. 2021) (Yeary, J.,
concurring). I reaffirm my belief today that this Court should overrule
Mable. Subsequent factual developments, without any “suggestion that
[the applicant] was fraudulently misled or coerced into pleading guilty
or that his plea counsel was ineffective[,]” do not retroactively render an
applicant’s plea of guilty involuntary. Saucedo, 576 S.W.3d at 721, 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)). In this case, Applicant has pled no facts
demonstrating that his plea of guilty was involuntary at the time he
made it. Consequently, I disagree that Applicant is entitled to relief on
the ground that his plea was involuntary.
II. DUE PROCESS AND DUE COURSE OF LAW
My quarrel with Mable aside, I have sometimes agreed that
applicants in similar cases may be entitled to post-conviction relief on
grounds of due process and due course of law. As I wrote in Ex parte
Ohlemacher:
When undisputed new facts that were inaccessible to both
parties at the time of a trial or plea irrefutably demonstrate
that an Applicant is not guilty of the offense for which a
judgment of conviction has been entered, the right to due
process and due course of law are implicated. But for the
inaccessibility of those newly discovered facts, a rational
jury or judge would not have entered either a finding or a
judgment of guilt.

666 S.W.3d 528, 528 (Tex. Crim. App. 2023) (Yeary, J., concurring).
Thus, when subsequent analysis of the evidence in a controlled
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substance case proves that the applicant possessed less of the substance
than he pled guilty to possessing, such that the applicant should have
been convicted only of a lesser offense, due process demands that the
applicant’s false judgment be corrected.
In this case, I would not rule out that Applicant may ultimately
be entitled to this form of relief. But the current state of the record in
this case gives me pause. I would remand this application to the habeas
court with instructions to make supplemental findings and conclusions
with respect to the following questions:
• How, and by whom, was the evidence in this case initially
determined to weigh at least four grams?

• Why was Applicant initially charged with possessing, with
the intent to deliver, “more than 28 grams and less than 200
grams” of PCP? And why did the State move to amend the
charge to a possession-only offense and in an amount between
four and 200 grams?

• Was the evidence in this case ever tested and/or weighed prior
to the forensic analysis recorded in the July 2021 drug
chemistry report? If so, what were the results, and why
should they, or why should they not, be credited?

• What assurance is there that the weight of the substance
Applicant possessed at the time of the offense has not
changed in the interim between Applicant’s arrest in October
of 2006 and the testing of the evidence in July of 2021?

If the habeas court’s development of the record should “irrefutably
demonstrate that . . . Applicant is not guilty of the offense for which a
judgment of conviction has been entered,” Ohlemacher, 666 S.W.3d at
528 (Yeary, J., concurring), then I would agree that Applicant is at least
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entitled to reformation of his judgment to reflect a conviction for the
offense he actually committed. Because the record as it stands does not
support that conclusion, I cannot yet agree that Applicant is entitled to
relief.
III. CONCLUSION
I would remand this application to the habeas court to develop
the record with respect to Applicant’s due process claim. Because the
Court instead grants Applicant relief under Mable, I must respectfully
dissent.

FILED: June 19, 2024
DO NOT PUBLISH