EX PARTE QUINCY DEVON JOHNSON v. << (2026)

DISSENTING OPINION

Mable held that a defendant's plea to possession of a controlled substance was involuntary when subsequent testing showed that the substance at issue was not in fact a controlled substance.¹ But the present case is not a “no illicit substance case.” It is an “amount” case—when the substance is a controlled substance but the subsequent testing shows that the amount was less than what was thought. No published opinion has extended Mable to “amount” cases. To be sure, relief has been granted in “amount” cases on the basis of Mable in unpublished opinions. But “[u]npublished opinions have no precedential value and must not be cited as authority by counsel or by a court.”²

And granting Mable relief in an “amount” case actually conflicts with precedent—Broussard.³ Although Broussard was a “different illicit substance” case, rather than an “amount” case, its reasoning distinguishing Mable applies equally to “amount” cases:

We held that 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. Here, because the laboratory tests confirmed that Broussard was carrying an illicit substance listed in penalty group 1, Broussard is not entitled to the relief Mable affords those applicants whose cases fall within the specific circumstances presented in Mable itself.4

In an “amount” case like Applicant's, there is not a “complete lack of illicit substances,” so under Broussard’s reasoning, Mable does not apply. And especially when dealing with amounts as low as one gram, the amount of substance being below the statutory threshold is an eminently foreseeable event—really, just a risk of doing business.

If it is shown that the actual amount of substance possessed produces a lesser punishment range than the amount alleged, due process might require a reformation to a lesser-included offense and a new punishment hearing. But as Judges Yeary and Finley both point out, when—as in Applicant's case—the alleged amount is small and the measured amount unexplainedly falls significantly with every test, it has not been shown that the possessed amount was below the statutory threshold. And that causes Applicant's case to fall squarely within Palmberg, a “the allegations might be true but subsequent testing shows the State could not have proven them” case.⁵ In such a case, the habeas applicant has not shown that his pre-testing plea was involuntary.⁶

Moreover, as Judge Finley also points out, Applicant's supposed collateral consequences are not unique to this conviction. He has other felony convictions that give rise to those consequences. Under those circumstances, I agree that we could simply dismiss the application.

There are so many reasons not to grant relief in Applicant's case that one has to wonder why the Court insists on doing so—and flouting precedent in Broussard and Palmberg in the process.

I respectfully dissent.

FOOTNOTES

1.   Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).

2.   Tex. R. App. P. 77.3 (brackets inserted).

3.   Ex parte Broussard, 517 S.W.3d 814 (Tex. Crim. App. 2017).

4.   Id. at 820.

5.   See Ex parte Palmberg, 491 S.W.3d 804 (Tex. Crim. App. 2016).

6.   Id. at 814 (“Knowing exactly as much as the State did—that there was a substance found during the search incident to arrest that may or may not be subject to later testing in a forensic laboratory—Applicant was sufficiently aware of the relevant circumstances to enter an intelligent and voluntary plea of guilty. That the substance later proved to be untestable did not impugn the fairness or integrity of the process by which he chose to forego his right to trial and embrace the evident benefit of the State's plea offer.”).

Parker, J., filed a dissenting opinion.