EX PARTE ANDREW MICHEAL HOLMANS v. << (2026)

ORDER

Applicant pleaded guilty to Sexual Performance by a Child (-01) and Child Grooming (-02) and was sentenced to 10 years’ imprisonment on each conviction. Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.

In both applications, Applicant contends that there was no evidence to support his convictions and that his plea was involuntary because trial counsel failed to challenge the validity of the indictment.

With regard to Applicant's claim that there was no evidence to support his convictions, Applicant entered pleas of guilty and signed stipulations of evidence agreeing to the facts alleged in the indictment. His judicial confession and stipulation of evidence constituted evidence of guilt. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979); Ferguson v. State, 571 S.W.2d 908 (Tex. Crim. App. 1978); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978).

With regard to Applicant's claim that his plea was involuntary due to the ineffective assistance of counsel, the trial court has determined that trial counsel's performance was not deficient. Ex parte Niswanger, 335 S.W.3d 611, 618–19 (Tex. Crim. App. 2011). Further, Applicant did not show that he would have insisted on a trial but for counsel's deficient performance.

Relief is denied. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).

DISSENTING OPINION

This case is back from remand.¹ Applicant pleaded guilty to the completed offense of inducement of sexual performance by a child. See Tex. Penal Code § 43.25. But the indictment alleged that the victim was an undercover police officer. Sexual performance by a child is “impossible” to “complete” when the child “complainant ․ did not physically exist.” See Chen v. State, 42 S.W.3d 926, 930 (Tex. Crim. App. 2001). The habeas court—again—recommends that we grant relief on Applicant's “no evidence” claim. The State agrees with this recommendation. Yet, the Court denies relief. When this Court originally remanded these habeas applications for further fact-finding on Applicant's ineffective-assistance-of-counsel claims, I dissented. See Ex parte Holmans, — S.W.3d —, No. WR-97,556-01, 2026 WL 1338130, at *1 (Tex. Crim. App. May 14, 2026) (Finley, J., dissenting). For the same reasons set out in that dissenting opinion, I dissent again.

In rejecting Applicant's “no evidence” claim, the Court holds:

With regard to Applicant's claim that there was no evidence to support his convictions, Applicant entered pleas of guilty and signed stipulations of evidence agreeing to the facts alleged in the indictment. His judicial confession and stipulation of evidence constituted evidence of guilt. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979); Ferguson v. State, 571 S.W.2d 908 (Tex. Crim. App. 1978); Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978).

Ante at 2 (Court's Op.). To be clear, Applicant “entered [a] plea[ ] of guilty and signed stipulation[ ] of evidence agreeing to the facts alleged in the indictment” purportedly to the completed offense of inducement of sexual performance by a child. See Tex. Penal Code § 43.25. Applicant's indictment alleged that Applicant:

[d]id then and there Authorize and Entice a child who the defendant believed was was [sic] younger than 18 years of age, namely Undercover Officer #1 to engage in Sexual Performance namely instructing Undercover Officer #1 to send nude photographs and to masturbate, and the defendant knew the character and content of the sexual conduct or sexual performance.

And Applicant's stipulation of evidence provided:

My name is ANDREW MICHEAL HOLMANS, and I am the Defendant in the above entitled and numbered cause appearing in person and with my attorney present. I hereby consent in writing and in open court to the stipulation of the evidence in this case and in so doing expressly waive the appearance, confrontation, and cross-examination of witnesses. I further consent to the introduction of hearsay testimony by affidavit, written statements of witnesses and other documentary evidence, accordingly, having waived my Federal and State constitutional and statutory rights against self-incrimination, I agree to stipulate that the following facts are true and correct and constitute the evidence in this case; that in the County of Smith, State of Texas, on or about the August 8, 2024 and in a continuing course of conduct anterior to the presentment of this Indictment, in the County of Smith and State of Texas,

ANDREW MICHEAL HOLMANS

with intent that an offense involving sexual activity, namely the offense of Sexual Assault of a Child, be committed, the occurrence of which offense would subject the defendant to criminal liability under Chapter 22 of the Texas Penal Code, knowingly persuade and induce and entice AND attempt to persuade AND attempt to induce and attempt to entice, UNDERCOVER OFFICER #1, a person the defendant believed to be younger than 18 years of age, to engage in specific conduct that, under circumstances surrounding the defendant's conduct as the defendant believed them to be, would constitute the offense of Sexual Assault of a Child, and Trafficking of Persons, the offense involving sexual activity, the occurrence of which would subject the defendant to criminal liability under Chapter 22 and 20A of the Texas Penal Code.

Nowhere in Applicant's indictment, plea of guilty, or stipulation of evidence is a critical element of the offense: A minor victim. Section 43.25 of the Penal Code provides: “A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” Tex. Penal Code § 43.25(b).

In Chen, the appellant was convicted of attempted sexual performance by a child. 42 S.W.3d at 927. On appeal, he argued that the evidence was insufficient because the complainant did not exist—the complainant was an undercover police officer. See id. at 928. This Court rejected the appellant's arguments, reasoning:

In applying these concepts to the instant case, we initially note that if Julie Cirello had been an actual thirteen year old, then what appellant intended to accomplish (sexual performance by a child) constituted an actual crime. Appellant's goal was to commit the offense of sexual performance by a child. Because that goal is a crime by law, the doctrine of legal impossibility is not at issue in this case. Rather, this case presents a factual impossibility scenario. Due to a factual condition unknown to appellant (that Julie Cirello did not actually exist), the offense of sexual performance by a child could not be completed. It is true that, as appellant claims, the actual offense of sexual performance by a child would have been impossible for appellant to complete; the complainant, Julie Cirello, did not physically exist. But completion of the crime was apparently possible to appellant. He had specific intent to commit the offense of sexual performance by a child, and he committed an act amounting to more than mere preparation that tended but failed to effect the commission of the offense. The State presented evidence for each of the necessary elements of attempted sexual performance by a child.

Id. at 930.

The Court is correct that an applicant's plea of guilty and signed stipulations of evidence can constitute sufficient evidence to defeat a “no evidence” claim on habeas. Dinnery, 592 S.W.2d at 353; Ferguson, 571 S.W.2d at 910; Potts, 571 S.W.2d at 182. But a judicial confession that omits an element of the offense is insufficient to support a guilty plea. See York v. State, 566 S.W.2d 936, 939 (Tex. Crim. App. 1978). For example, in Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007), the applicant pleaded guilty to and was convicted of delivery of a controlled substance “by actual transfer to her unborn child, a person who is 18 years of age or younger.” Id. at 418. The applicant sought habeas relief, arguing that “no evidence or insufficient evidence to support a finding of actual delivery of a controlled substance to her unborn child.” Id. at 418–19. We agreed, holding that “an allegation of delivery of a controlled substance by actual transfer to an unborn child cannot constitute delivery.” Id. at 420. That the applicant pleaded guilty and stipulated to the facts of the offense was of no matter, and this Court granted habeas relief on the applicant's “no evidence” claim.

The same reasoning is applicable here. Applicant was convicted of a non-offense: the completed offense of inducement of sexual performance by an undercover law enforcement officer. Under Chen, that is not an offense under Penal Code Section 43.25. Neither Applicant's indictment nor the stipulation of evidence ever alleged an essential element of an offense under Section 43.25 of the Penal Code: A minor victim. Consequently, there was “no evidence” of an essential element of Applicant's conviction.

The appropriate remedy is to allow Applicant to withdraw his guilty plea and reset the parties to their respective positions prior to Applicant's plea. Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006) (“[T]he proper remedy is to allow [an a]pplicant to withdraw his plea and remand the case to the trial court, putting both parties back in their original positions before they entered into the plea bargain.”). Applicant pleaded guilty to something that was not an offense under the laws of this State. He seeks to have that plea undone. The State agrees that Applicant is entitled to the relief he seeks. The habeas court recommends we grant Applicant relief. I would take that course of action and reset the parties to their pre-plea positions. Because the Court does not, and instead denies relief by misapplying its precedents, I respectfully dissent.

FOOTNOTES

1.   Applicant's -02 writ concerns Applicant's contemporaneous conviction for child grooming. See Tex. Penal Code § 15.032(b). In that case, the habeas court recommends this Court deny relief. I agree with that recommendation.

Per curiam.

Finley, J. filed a dissenting opinion.