Ex Parte Hooper

685 S.W.3d 152

EX PARTE Richard Lee HOOPER, Applicant

NO. WR-95,426-01

Court of Criminal Appeals of Texas.

Filed: March 6, 2024

ON APPLICATION FOR A WRIT OF HABEAS CORPUS, CAUSE NO. 1487418-A IN THE 184^TH DISTRICT COURT FROM HARRIS COUNTY

Maggie Sara Kiely, for Applicant.

DISSENTING OPINION

Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, JJ., joined.

Applicant claims his guilty plea was involuntary because he was unaware of a lab report that showed he possessed less of the controlled substance than he was charged with. So, instead of being guilty of a second-degree felony carrying a 2-20 year range of punishment, he was guilty of a third-degree felony with a 2-10 year range of punishment. Nevertheless, Applicant wants his entire plea undone, so that he can attack other convictions affected by this prior conviction. But Applicant waited nearly 8 years to raise his claim and has long since discharged his 3 year sentence. Undoing his plea now would give him an undeserved windfall, and that remedy should be barred by laches. We should simply reform his judgment to reflect a conviction for a third-degree felony.

I. BACKGROUND

In exchange for a sentence of three years, Applicant pled guilty to possession of between 4 and 200 grams of methamphetamine. Unbeknownst to the parties, the day before the plea, a report on the testing of the substance had been issued that indicated that the substance weighed around 2 grams. The trial judge accepted the plea agreement and sentenced Applicant on January 28, 2016. Applicant did not appeal the conviction. On July 1, 2022, the district attorney’s office discovered the report and sent notice to Applicant. On November 15, 2023, Applicant filed this habeas application. In an unsworn declaration in support of his application, Applicant says, "In subsequent charges, cause numbers 1750465 and 1780248, this conviction was listed in the indictment as an enhancement and was a contributing factor to my decision to plea[d] guilty in those cases."

II. ANALYSIS

"To determine whether [habeas] equitable relief should be granted then, it behooves a court to determine whether an applicant has slept on his rights and, if he has, whether it is fair and just to grant him the relief he seeks."¹ And because the common-law approach to laches is "flexible,"² there should be occasions when sleeping on one’s rights affects the type of relief available, even if there are weighty reasons for granting some sort of relief. This case is just such an occasion.

Applicant offers no explanation for why he didn’t seek and obtain the report earlier. He knew the police had possession of his drugs. Any time after his judgment, he could have inquired about whether the drugs were tested and whether there was a report, and if he had done so, the report would likely have been found then. Depending on how quickly he made his inquiries, he could have filed a habeas application well before his sentence was complete. It is unclear to me that he would prevail, since three years is on the low end of even the third-degree punishment range and it seems at least questionable that he could have shown he would not have accepted such a sentence.³ But if he had raised this claim and made the requisite showing before his sentence had expired, then obtaining a new trial would have (1) at least given him a chance at a lesser sentence and (2) resulted in a conviction that could be used in connection with the two crimes he later committed.

Now, neither of those two options is possible if we overturn his plea. Applicant has served his sentence. Overturning his plea cannot result in him being incarcerated for less time on this offense.⁴ And overturning his plea would, presumably, make the convictions unavailable as enhancements on his later two offenses, though it is unclear on this record whether that would ultimately affect those later cases. But Applicant’s claim that those cases were affected suggests that, if he obtains the relief he seeks here, he will file further applications to attack those convictions. Calling his later two cases into question would be a windfall to which Applicant is not entitled, and it would prejudice the State in one of two ways: (1) if Applicant succeeds, by frustrating the State’s interest in having a usable prior felony conviction that Applicant committed and effectively pled guilty to, or (2) if Applicant’s claim is denied, by forcing the State to expend resources responding to his newly available claims. Because Applicant does not have a substantial interest that could be vindicated by a new trial and because the State is prejudiced if he obtains that form of relief, I would hold that laches bars Applicant from obtaining a new trial in this case.

Applicant does have a right not to be convicted of an offense that the evidence shows he is not guilty of. That right can be vindicated by reforming the judgment to reflect conviction for a third-degree felony rather than a second-degree felony. That remedy creates no prejudice to the State and so is not barred by laches.

I would reform the judgment to reflect that Applicant was convicted of a third-degree felony instead of a second-degree felony. Because the Court grants Applicant a new trial when laches should bar that relief, I respectfully dissent.

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 time of Applicant’s plea, the forensic laboratory had already determined that he had pos- sessed 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 153. 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).^1a

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 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...