Ex parte Warfield

618 S.W.3d 69 (Mem)

EX PARTE Rollie Darnell WARFIELD, Applicant

NO. WR-91,289-01

Court of Criminal Appeals of Texas.

Filed: February 24, 2021

Bruce Anton, Dallas, for Applicant.

Newell, J., filed a concurring opinion in which Hervey and Richardson, JJ., joined.

This is a straightforward case. The State charged Applicant with a second-degree offense of possessing identifying information, but a self-initiated audit revealed Applicant had only committed a third-degree offense. So, Applicant filed an application for writ of habeas corpus based upon this Court's established precedent. Applicant alleges that he is entitled to relief because his guilty plea was involuntary under Ex parte Mable .¹ He also argues that he is entitled to relief as a matter of due process under State v. Wilson .²

All the parties agree that Applicant is entitled to relief under both theories, and the habeas court recommends granting relief. The Court rightly grants relief based upon this Court's established precedent. I support the Court's decision to do so, as either theory results in the same degree of relief. Nevertheless, we are asked again to reconsider our decision in Ex parte Mable .³ There is also another suggestion, albeit an implicit one, that we raise the standard for determining actual innocence again, even though Applicant does not seek actual innocence relief in this case. I write separately to address our precedent in these areas, as well as the Texas Supreme Court's recent decision in In re Lester .⁴

Mable and Wilson

This Court has already heard and rejected the criticisms of Ex parte Mable . We adhere to binding precedent because it promotes judicial efficiency and consistency, encourages reliance upon judicial decisions, and contributes to the integrity of the judicial process.⁵ Repeatedly reexamining this precedent on our own when no one has asked us to has the opposite effect. In the end, binding precedent is the law. Absent a reason to abandon the doctrine of stare decisis , the Court rightly follows it in this case.

And again, I agree that this Court can grant relief as a matter of due process under State v. Wilson , as well as under an involuntary-plea theory. But it is confusing to lump State v. Wilson in with our "actual innocence" jurisprudence. Wilson does discuss some cases using the term "actual innocence," but those cases dealt with the applicability of an exception to procedural default on federal habeas claims.⁶ They did not recognize a right to actual innocence relief as a matter of due process.

Further, this Court did not hold that Wilson was "actually innocent." As Applicant himself noted in his application, the defendant in Wilson raised a claim that he was actually innocent, and this Court rejected it. Instead, the Court held in Wilson that a defendant was entitled to relief even though he was not "actually innocent" because it was still possible he had committed a lesser-included offense.⁷

Significantly, Wilson was not concerned with the types of innocence claims raised in Ex parte Miles ,⁸ Ex parte Cacy ,⁹ Ex parte Mayhugh ,¹⁰ or Ex parte Chaney .¹¹ The claim in Wilson was that the defendant had not committed felony DWI because one of the elemental priors was not a final conviction.¹² It was an entirely different theory of relief than what is typically thought of as an "actual innocence" case. The standard by which the Court resolved the claim in Wilson is not a substitute for claims for relief in cases where new evidence that the defendant did not commit the offense comes to light after a wrongful conviction. And advocating for relief under the standard set out in Wilson does not provide support for opposition to the standard set out in Elizondo . Actual innocence claims are properly governed by the standard this Court set out in Ex parte Elizondo .¹³ As with the arguments against continuing to follow Mable , this Court has considered and rejected arguments to raise the standard for determining actual innocence. This case is not a vehicle to reconsider them, especially considering that Applicant is not even arguing he is entitled to actual innocence relief.

In re Lester

Finally, it would be a mistake to read the Texas Supreme Court's decision in In re Lester as limiting actual innocence review to the types of claims raised in that case. Starting relatively recently, the Texas Supreme Court has been actively removing barriers to righting wrongful convictions. Our sister court has held that a wrongfully convicted defendant is entitled to compensation even under a Schlup -type procedural claim of actual innocence, which carries a lower standard for determining actual innocence that the standard set out in Ex parte Elizondo .¹⁴ And, more recently, the Court held that a finding of actual innocence entered by a court without jurisdiction is sufficient to trigger a magisterial duty on the part of the comptroller to pay compensation to someone who has been wrongfully convicted.¹⁵ Nothing in In re Lester suggests that the Texas Supreme Court is on a different course.

Indeed, Lester only dealt with the rare circumstance in which a defendant was prosecuted under a statute that had already been declared facially unconstitutional at the time the defendant was prosecuted.¹⁶ In that context, our sister court recognized an additional theory for innocence relief beyond the two types of innocence claims already recognized by this Court.¹⁷ As the Court recognized, "Just because existing actual innocence jurisprudence does not contemplate something as outrageous as Lester's case does not mean that Lester who committed no crime is anything but actually innocent."¹⁸

If anything, Lester suggests the Supreme Court disagrees with our precedent dealing with the impact of Ex parte Lo . When Lester's case was before this Court, we did not grant "actual innocence" relief; we relied upon our previous decision in Ex parte Chance to vacate Lester's conviction as a void judgment and dismiss the indictment without declaring him innocent.¹⁹ In Chance , we had the opportunity to hold that someone who had been convicted under a facially unconstitutional statute was actually innocent because such a statute is void ab initio.²⁰ But we didn't do that. Then, in Ex parte Fournier , we rejected that theory, holding that a defendant who had been convicted under a statute that was later determined to be facially unconstitutional was entitled to relief, just not actual innocence relief.²¹

The Supreme Court's decision seems to suggest that we did not go far enough in Chance and Fournier . So, if we are going to apply Lester , that case seems to require this Court—in cases in which a later legal determination has rendered a conviction void—to not only grant habeas corpus relief as a matter of due process, but also declare innocence. Doing so, however, would necessarily expand the available relief to defendants who have been prosecuted under the statute declared unconstitutional in Ex parte Lo .²² But if we aren't going to apply it, then this discussion about "actual innocence" is unnecessary for the resolution of an otherwise straightforward case.

With these thoughts, I join the court's opinion granting relief.

CONCURRING OPINION

Yeary, J., filed a concurring opinion.

In an unpublished, per curiam opinion, the Court grants Applicant relief, in part based on his claim that his guilty plea was involuntary. For reasons extensively developed in Judge Keasler's concurring opinion in Ex parte Saucedo , 576 S.W.3d 712 (Tex. Crim. App. 2019) (Keasler, J., concurring), I disagree that Applicant's guilty plea was involuntary, and I continue to believe that the Court should overrule Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014). I nevertheless agree that Applicant is entitled to post-conviction relief on the ground that he pled guilty to a greater offense than the law will tolerate, given the undisputed facts. Because my reason for voting to grant Applicant relief in this case was not fully explained in Judge Keasler's concurring opinion in Saucedo , I write further today to spell out my thoughts about this matter.

BACKGROUND

In 2013, Applicant pled guilty to the offense of fraudulent possession of identifying information, under Section 32.51(b) of the Texas Penal Code. TEX. PENAL CODE § 32.51(b). He pled guilty to possession of more than ten "items ... possessed," making the degree of offense a second-degree felony. TEX. PENAL CODE § 32.51(c)(3). His punishment was assessed, accordingly, at nine years in the penitentiary.

In 2015, this Court for the first time construed the statutory phrase "item of ... identifying information," in Section 32.51(b), essentially declaring what the allowable unit of prosecution is for purposes of determining what level of offense has been committed. Ex parte Cortez , 469 S.W.3d 593 (Tex. Crim. App. 2015). The parties now agree that the number of items possessed, as properly calculated under Cortez , was six, not ten, which made Applicant guilty of no greater than a third-degree felony. TEX. PENAL CODE § 32.51(c)(2). With the consent of the State, the trial court now recommends that we grant Applicant a new trial.

VOLUNTARINESS OF THE PLEA?

In its order today, the Court grants relief based upon Applicant's contention that "his due process [right] was violated and [his] plea was involuntary because he possessed less than ten pieces of identification, making him guilty only of a lesser offense." Majority Opinion at 1. While I agree that "his due process [right] was violated[,]" I disagree that it is because his "plea was involuntary[.]" That his guilty plea might be involuntary is a notion that seems to stem from the fact that, at the time he pled, Applicant was unaware that this Court would later construe the statute in such a way as to render him guilty only of the lesser offense. See Cortez , 469 S.W.3d at 603 (explaining how to correctly determine what constitutes an "item of identifying information"). He thus pled, by...