EX PARTE BOBBY HILL MOSLEY APPLICANT v. << (2026)

I dissent for essentially all the same reasons I dissented a year ago in Ex parte Mosquera, 721 S.W.3d 324 (Tex. Crim. App. 2025) (Yeary, J., dissenting). There, as here, the Court granted relief on the premise that the defendant had entered an involuntary guilty plea. The Court decided that Mosquera's plea was involuntary when it was entered because his trial counsel, later, failed to file a motion for so-called “shock” probation. After all, Mosquera's right to be considered for “shock” probation was explicitly contemplated in the plea bargain he had negotiated with the State. Id. at 325. On that basis, the Court granted Mosquera a whole new trial. Id.

I dissented in Mosquera because, even though his trial counsel seemed to have been ineffective, and counsel's deficient performance likely entitled Mosquera to some form of post-conviction relief, the right to relief shown was not truly grounded on any proper notion that Mosquera's guilty plea was involuntary. Id. at 326−28 (Yeary, J., dissenting). Moreover, and in any event, the Court's chosen remedy there—invalidating the entire plea proceeding—constituted gross overkill, and it was inconsistent with the way the Court had sometimes remedied such ineffectiveness in the past. Id. at 328−29. In my view, the Court should have simply granted the applicant an out-of-time motion for “shock” probation, much as it often grants out-of-time appeals or out-of-time petitions for discretionary review when the deficiencies of counsel deprive applicants of those kinds of proceedings. Id. at 330 (Yeary, J., dissenting).

I have the same complaint here. Indeed, the Court today declares in this case that Applicant's guilty plea was involuntary even though his sole ground for relief is that his counsel was ineffective, and Applicant himself does not claim that his counsel's ineffectiveness rendered his guilty plea involuntary. The Court also cites Brady v. United States, 397 U.S. 742 (1970), as the legal basis for declaring Applicant's plea to be involuntary. But as I explained in a footnote in Mosquera, reliance on Brady for this proposition conflicts with the United States Supreme Court's pronouncements in Puckett v. United States, 556 U.S. 129, 137−38 (2009) (concluding that “a breach” on the Government's part of its obligation under a guilty plea “does not cause the guilty plea, when entered, to have been unknowing or involuntary.”) (emphasis added). Mosquera, 721 S.W.3d at 326−27 & n.1 (Yeary, J., dissenting).

I therefore, once again, respectfully dissent.