EX PARTE JOHNSON v. << (2026)

OPINION

Applicant pleaded guilty, was convicted of possession of a controlled substance, and sentenced to five years’ imprisonment in this cause. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that his plea was involuntary because he was not aware of a lab report showing that he possessed less than the required amount of controlled substance to sustain the charge.

Relief is granted. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The judgment in cause number 1111229 in the 180th District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charge as set out in the indictment. The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles.

CONCURRING OPINION

Quincy Devon Johnson was convicted of possessing more than one but less than four grams of MDMA (known as ecstasy). Field testing showed the contraband weighed 1.1 grams. Johnson pled guilty before laboratory testing on the substance had been completed. When the testing was completed, the Houston Police Crime Laboratory issued a report stating that the contraband weighed less than one gram, which is a state-jail felony instead of a third-degree felony. See Tex. Health & Safety Code § 481.116(b), (c). Further testing twelve years later showed that the substance weighed even less.

He now argues that his plea was involuntary because he would not have pled guilty had he known that the laboratory testing would show that he possessed less MDMA than he was convicted of possessing. The Court grants Johnson relief based on this Court's opinion in Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). I write separately to voice my agreement with Judge Keasler in Ex parte Saucedo and to address whether applicants in this posture are actually innocent. Ex parte Saucedo, 576 S.W.3d 712 (Tex. Crim. App. 2019) (Keasler, J., concurring joined by Hervey & Yeary, JJ.); see also Ex parte Warfield, 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021) (Yeary, J., concurring).

In his concurring opinion, Judge Keasler explained that the better analytical framework for cases like these is to analyze them not as involuntary plea claims but as claims that an applicant is “ ‘guilty of only a lesser-included offense or that he was factually ‘ineligible for’ the punishment he received.’ ” Saucedo, 576 S.W.3d at 716. Judge Keasler noted that both theories would have been meritorious in Saucedo, where later testing showed Saucedo possessed a different type of contraband than he pled guilty to and was convicted of possessing. Id.

The upshot is that a defendant's guilty plea is not rendered “involuntary” because it turns out he had less contraband than he thought or a different type than he thought. He knew what he knew and what he didn't know and chose to plead guilty. I think this is the proper analytical framework.

Where I part with Judge Keasler and Judge Yeary is the statement in State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010), that a defendant who is guilty of a lesser-included offense or different offense is not “actually innocent.”¹ While these types of cases differ from other Elizondo claims, it doesn't matter if an applicant is guilty of only a lesser-included offense, and I believe that trying to distinguish between “people who are guilty of only a lesser-included offense” and “people who are not guilty of any offense” is an absurd, hyper-technical distinction. The question for purposes of habeas corpus is whether the conviction for the offense by which the applicant is confined is unlawful. Regardless of whether a defendant is (or would be) guilty of a lesser-included crime (or has failed to show entitlement to habeas relief from it), what matters is that he has shown entitlement to relief from the conviction resulting in his actual confinement.

Johnson is entitled to a new trial because it is now clear in the judgment of the convicting court that he possessed less than one gram of MDMA despite having pled guilty to and being convicted of possessing more than one gram but less than four grams. I see no basis for departing from that finding. While the field weight was 1.1 grams, the formal testing showed that the amount was less than one gram. Further testing was conducted but that testing is irrelevant. The controlling question is whether Johnson possessed less than one gram or more than one gram. In my view, Johnson has also shown that he is “actually innocent” of the offense within the meaning of our jurisprudence, and consequently, his conviction cannot stand.

With these comments, I concur with the Court's judgment.

The Court today rejects the convicting court's findings, as well as its recommendations that relief be either denied or dismissed, and it instead grants relief to Applicant in this post-conviction habeas proceeding under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). But the facts in Mable were very different, suggesting a different result should at least be considered here. And moreover, Mable was wrongly decided in the first place. In my view, then, the Court errs to grant relief in this case. Consequently, I respectfully dissent.

I. Background

According to the convicting court, Applicant was arrested on April 5, 2007, and was charged with the possession of between 1 and 4 grams of 3,4−methylenedioxy methamphetamine (also known as “ecstasy” and hereinafter referred to as “narcotics”), a third-degree felony under Section 481.116(c) of the Texas Health and Safety Code. Tex. Health & Safety Code § 481.116(c). According to a police report related to the arrest, the narcotics weighed 1.1 grams. On April 9, 2007, only four days after his arrest, and while he was represented by counsel, Applicant waived indictment and pled guilty to the charge, and to a weapons charge as well, stemming from the same incident. He was sentenced to five years in prison.

Here is where Applicant's case gets weird. In a report from the Houston Police Department Crime Laboratory, dated February 6, 2009, which was nearly two years after his arrest and plea, a notation suggests that narcotics related to Applicant's case weighed only 0.6 grams, which was below the threshold of the more than one gram required by law to support his conviction. Then, in another report dated August 13, 2020, prepared by the Houston Forensic Science Center, narcotics related to Applicant's case were recorded as weighing only 0.38 grams. Once again, this amount is less than the threshold of the more than one gram required by law to support Applicant's conviction, and it is also less than the weight of the narcotics recorded on February 6, 2009. Applicant was informed of these tests via letter in August of 2021, and this habeas application was filed on September 30, 2024.

No one seems to know how to explain the continuously diminishing quantity of narcotics related to Applicant's case.

II. Involuntary Plea

Applicant contends that his plea was made involuntarily because, had he known about the lab report from 2009 at the time of his plea, he “would not have pleaded guilty” and would have “insisted on going to trial.” For a guilty plea to be considered voluntary, it must be “a voluntary and intelligent choice among the alternative courses of action.” State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013). Likewise, the defendant “must possess an understanding of the law in relation to the facts.” Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex Crim. App. 2016). It is not necessary that a defendant have complete knowledge of the prosecutor's case. Id.

In Palmberg, the applicant pled guilty to possession of cocaine and later claimed his plea was involuntary as he had been unaware that all of the substance he possessed was used in a field test conducted by the arresting officer. This left no remaining amount for later testing in a laboratory. There, this Court explained that “as long as [Palmberg] ha[d] a sufficient awareness of his circumstances—including an awareness that some facts simply remain[ed] unknown to him or [we]re undetermined as of the time of the plea—his potentially unwise plea [wa]s still a voluntary one.” Id. at 809.

Here, the convicting court concluded that Applicant failed to show that his plea was not made knowingly. Another way of saying this is that Applicant knew what he did not know—he knew that the narcotics he possessed could have been weighed independently, but he did not fight for or even ask for such weighing to occur before his plea. Applicant has not alleged that he was coerced to plead guilty by anyone. He has not alleged that his counsel was ineffective. All he claims is that he would not have pled guilty had he known about the results reflected in a report produced almost two years after his arrest and plea.

Several other findings by the convicting court also suggest that Applicant's plea was, in fact, made knowingly. For example, the convicting court found that Applicant agreed to a plea deal that saw other, more serious charges, dismissed. Applicant also admitted to police that he was in possession of the narcotics and that he intended to sell them. Nothing he has alleged demonstrates that his plea was, in any way, made with insufficient understanding of the facts and law, or that his plea was involuntary.

III. Due Process

Applicant also alleges, in light of the subsequent weights reflected in reports made about the narcotics he possessed, that his guilty plea violated due process. In Mable, the defendant had pled guilty to possession of a controlled substance and did not appeal, but after subsequent testing revealed that the substance he possessed actually contained no illicit materials at all, this Court declared his plea to have been involuntary and granted him relief on habeas. I think the Court was wrong to call Mable's plea involuntary. But even I have suggested before that, in my view, due process may be implicated “when undisputed new facts that were inaccessible to both parties at the time of the trial or plea irrefutably demonstrate that an Applicant is not guilty of the offense for which a judgment of conviction has been entered.” Ex parte Ohlemacher, 666 S.W.3d 528, 528 (Tex Crim. App. 2023) (Yeary, J., concurring).

Here, unlike in Mable, where the applicant demonstrated that the substance he possessed contained no detectible narcotics at all, Applicant has failed to produce any evidence that would demonstrate that he was not in possession of between one and four grams of narcotics at the time of his arrest.¹ Applicant instead only presents evidence that narcotics related to his case were reported to weigh 0.6 grams in February of 2009, and then 0.38 grams in August of 2020, nearly two and then thirteen years post-arrest, respectively. It is worth observing again that no facts have been provided to this Court to explain or to account for these variances.

IV. Confinement

Applicant has also failed to show, as he must, that he is truly confined due to this offense. Under Article 11.07, Section 3(c), an applicant must show that he is confined, which is defined as “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Tex. Code Crim. Proc. art. 11.07, § 3(c) (emphasis added). If Applicant remains “confined” at all, it is not due to the conviction he challenges here.

Applicant has already discharged his sentence. So, Applicant must allege in this proceeding that he is confined due to collateral consequences he is suffering because of his conviction. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). He alleges, among other things, loss of job opportunities, inability to find housing, and difficulty obtaining both federal and state benefits. He also claims that his conviction has been used for enhancement purposes in subsequent criminal cases. But Applicant has failed to show that these disadvantages are truly a result of his conviction in this case. See, e.g., Ex parte Thompson, 726 S.W.3d 462, 465−66 (Tex Crim. App. 2025) (Finley, J., concurring) (“There is no evidence in the record, other than Applicant's unsworn declaration, to support his claim that the collateral consequences ‘result[ ] from the conviction that is the basis of the instant habeas corpus.’ Tex. Code Crim. Proc. art. 11.07, § 3(c).”).

According to the convicting court's findings, before Applicant's arrest and plea in this case, he had already been convicted of five previous felonies, including three separate third-degree felonies. These facts, if true, would directly contradict Applicant's unsworn statement, in which he claims that the present case was his first felony conviction. Applicant also appears to have received two subsequent felony convictions.

If Applicant had presented definitive evidence that he possessed only 0.6 or 0.38 grams of narcotics at the time of his arrest, which he has not, then I could potentially agree that his judgement of conviction should be reformed on due process grounds. But he has not made such a showing. Even if he had, in that circumstance, he would only have demonstrated that he possessed narcotics of some amount under one gram, which would still have subjected him to conviction for a state jail felony. See Tex. Health & Safety Code § 481.116(b). And even if Applicant had been convicted only of a state jail felony, he would have still been subject to many of the same kinds of collateral consequences which he argues the current conviction unjustly imposes on him. Given this fact, it is hard to imagine how the equities might favor granting relief to Applicant in this case.

V. Conclusion

Today, the Court rejects the convicting court's findings, as well as its recommendations that relief be either denied or dismissed, and grants relief requested by Applicant on the grounds that his plea was made involuntarily under our decision in Mable. But the Court fails to account for and explain why Mable, which was based on facts very different from those presented by Applicant, should afford him the relief the Court grants. And even if Mable did seem to necessarily and properly control the outcome in this case, for reasons I have explained before,² Mable was wrongly decided, and it should be overruled. Applicant has failed to show either that his plea was involuntary or that his due process rights have been violated. And he has similarly failed to demonstrate that his writ application should result in the granting of relief in order to rescue him from collateral consequences growing out of his plea in this case.

For all these reasons, I respectfully dissent.

DISSENTING OPINION

Applicant was charged with possession of a controlled substance, namely methamphetamine, with weight greater than one gram but less than four grams. Four days after his arrest and before lab testing was completed, Applicant waived indictment and pleaded guilty to the charged offense with the benefit of a plea bargain agreement. The trial court accepted the plea bargain agreement, convicted Applicant of the charged offense, and sentenced Applicant to five years’ confinement.

After his plea, the Houston Police Crime Laboratory issued two testing reports that indicated the weight of the substance was under one gram. After the State disclosed the reports, Applicant filed this application for a writ of habeas corpus. Applicant claims that his plea was involuntary and that his conviction violates due process. The Court today grants Applicant involuntary plea relief, citing Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).

But this Court is wrong to do so for several reasons. First, Applicant fails to show confinement. Consequently, this habeas application should be dismissed.¹ Alternatively, because Applicant has not shown that his plea was involuntary and has not “irrefutably demonstrate[d]” a due process violation, habeas relief should be denied. I respectfully dissent.

I. Factual Background

Applicant was arrested on April 5, 2007, and was charged with possession of a controlled substance, namely methamphetamine, with weight greater than one gram but less than four grams (trial court cause number 1111229), and with unlawful possession of a firearm by a felon (trial court cause number 1111228). Four days later, on April 9, 2007, Applicant waived indictment and entered into a plea bargain agreement with the State before lab testing was completed. Applicant pleaded guilty to both offenses, and the State recommended punishment be set at five years’ confinement on each case, with sentences to run concurrently. The trial court accepted the plea bargain agreement and sentenced Applicant according to the plea bargain agreement.

The Houston Police Crime Laboratory completed testing on Applicant's case nearly a year-and-a-half later on February 6, 2009. The crime lab's report revealed that the weight of the methamphetamine was actually 0.6 grams. Eleven years later, on August 13, 2020, the Crime Laboratory conducted a confirmation analysis and issued a report stating that the weight of the substance was 0.38 grams. On August 26, 2021, the Harris County District Attorney's Office mailed Applicant a letter notifying him of the variance along with a copy of the lab report. Three years after the State disclosed the report, Applicant filed the instant application for a writ of habeas corpus on September 30, 2024. Applicant alleges that his conviction “violates due process” and that his “plea was involuntary.”

In his unsworn declaration, Applicant asserted that “[h]ad I known that the evidence I was arrested with weighed only 0.38 grams, I would not have pleaded guilty to possession of one to four grams of MDMA. Instead, I would have insisted on going to trial knowing that the State could not prove its case.” To prove confinement, Applicant averred:

As a result of this conviction, which was my first felony conviction, my life has been affected negatively in many ways. Additionally, I have had a really hard time finding jobs and places to live because this conviction always shows up on background checks.

In a subsequent charge, number 1285784, this conviction, number 1111229, was listed in the indictment as an enhancement. One of the reasons I pleaded guilty in number 1285784 was because I was afraid that this case, number 1111229, could be used to impeach me if I testified or to enhance my punishment if I was found guilty.

I also know that if I should I [sic] be charged with another offense, this case could be used against me in a number of ways including in the negotiation of plea agreements, as a punishment enhancement, as an aggravating factor during the punishment phase of trial, as a basis to deny parole, and as a basis to deny bail.

The habeas court made findings of fact and conclusions of law and recommends we deny relief.

II. Collateral Consequences

Article 11.07 provides that “it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant's confinement.” Tex. Code Crim. Proc. art. 11.07, § 3(c) (emphasis added). “Confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Id.; see also Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). “Thus, a showing of a collateral consequence, without more, is now sufficient to establish ‘confinement’ so as to trigger application of [Article] 11.07.” Harrington, 310 S.W.3d at 457.

Applicant's unsworn declaration avers that Applicant suffers from collateral consequences for three principal reasons: (1) this case was Applicant's first felony conviction and Applicant's “life has been affected negatively in many ways”; (2) Applicant has had a “really hard time finding jobs and places to live because this conviction always shows up on background checks”; and (3) the conviction could be used in future cases.

But Applicant's unsworn declaration contains material misstatements of fact. For example, Applicant claims that the instant conviction “was my first felony conviction.” The record belies that assertion. In fact, at the time of his plea, Applicant was a multiple-time convicted felon.

(1) On July 1, 1992, Applicant was convicted of theft over $750, a third-degree felony, in cause number 923228, in the 147th Judicial District Court of Travis County, Texas, and was sentenced to five (5) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

(2) On July 1, 1992, Applicant's probation was revoked and Applicant was convicted of possession of a controlled substance, namely cocaine, a second-degree felony, in cause number 0914695, in the 147th Judicial District Court of Travis County, Texas, and was sentenced to five (5) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

(3) On July 1, 1992, Applicant's probation was revoked and Applicant was convicted of theft over $750, a third-degree felony, in cause number 0914179, in the 147th Judicial District Court of Travis County, Texas, and was sentenced to five (5) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

(4) On May 2, 1994, Applicant was convicted of unauthorized use of a motor vehicle, a third-degree felony, in cause number 0941936, in the 331st Judicial District Court of Travis County, Texas, and was sentenced to six (6) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

(5) On January 8, 1997, Applicant was convicted of possession of a controlled substance, namely cocaine, with weight less than one gram, a state-jail felony, in cause number 0964858, in the 299th Judicial District Court of Travis County, Texas, and was sentenced to two (2) years’ confinement in the State Jail Facility of the Texas Department of Criminal Justice.

(6) On March 31, 2000, Applicant was convicted of unauthorized use of a motor vehicle, a state-jail felony, in cause number 99-4291, in the 390th Judicial District Court of Travis County, Texas, and was sentenced to eleven (11) months’ confinement in the State Jail Facility of the Texas Department of Criminal Justice.

But that is not the end of Applicant's criminal history. After the instant offense (and Applicant's contemporaneous conviction for unlawful possession of a firearm by a felon), Applicant was convicted of the following felony offenses:

(1) On January 1, 2011, Applicant was convicted of possession of a controlled substance, penalty group 1, with weight less than one gram, a third-degree felony reduced to a state-jail felony, in cause number 1285784, in the 230th Judicial District Court of Harris County, Texas, and was sentenced to seven (7) months’ confinement in the State Jail Facility of the Texas Department of Criminal Justice.

(2) On April 18, 2013, Applicant was convicted of attempted forgery of a commercial document, a third-degree felony reduced to a Class A misdemeanor, in cause number 137889301010, in the 338th Judicial District Court of Harris County, Texas, and was sentenced to 120 days’ confinement in the Harris County Jail.

(3) On August 24, 2017, Applicant was convicted of tampering with a government record, a third-degree felony, in cause number 147806101010, in the 177th Judicial District Court of Harris County, Texas, and was sentenced to eight (8) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

Bluntly put, Applicant fails to show why his collateral consequences can be traced to the instant conviction as opposed to Applicant's other felony drug convictions or numerous other convictions for crimes of moral turpitude. There is no evidence in the record, other than Applicant's unsworn declaration, to support his claim that the collateral consequences “result[ ] from the conviction that is the basis of the instant habeas corpus.” Tex. Code Crim. Proc. art. 11.07, § 3(c). This Court should find that Applicant has not established confinement and simply dismiss Applicant's habeas application without reaching its merits. See Ex parte Cooke, 471 S.W.3d 827, 832 (Tex. Crim. App. 2015); see also Thompson, 726 S.W.3d at 466 (Finley, J., concurring).

III. Involuntary Plea

If this Court were to address the merits of Applicant's claims, as I have discussed previously, Applicant's involuntary plea claim is foreclosed by this Court's jurisprudence. Ex parte Salas, 713 S.W.3d 777, 778 (Tex. Crim. App. 2025) (Finley, J., dissenting); Ex parte Warren, 721 S.W.3d 247, 247 (Tex. Crim. App. 2025) (Finley, J., dissenting). Applicant pleaded guilty without knowing certain facts—namely, the weight of the methamphetamine. As we explained in Ex parte Broussard, “a defendant who pleads guilty knowing that a certain fact is unknown cannot invalidate his plea because he misapprehended that fact.” 517 S.W.3d 814, 819 (Tex. Crim. App. 2017) (citing Ex parte Palmberg, 491 S.W.3d 804, 809 (Tex. Crim. App. 2016)). In other words, a defendant's “potentially unwise plea” remains voluntary “even if the defendant is less-well informed, as long as he has sufficient awareness of his circumstances—including an awareness that some facts simply remain unknown to him or are undetermined as of the time of his plea.” Palmberg, 491 S.W.3d at 809. That Applicant's “roll of the dice did not turn out as favorably as it might have had he proceeded to trial is not a ground for invaliding his plea.” Broussard, 491 S.W.3d at 810; see also id. at n.13 (“Allowing such a defendant to undo his plea because the State's evidence turned out to be insufficient would be similar to a poker player wanting to undo his fold upon realizing that his opponent did not have a winning hand. A defendant cannot claim involuntariness just because he wrongly guessed what was in the State's ‘hand’ for trial.”).

Moreover, Applicant received considerable benefits in exchange for pleading guilty. First, by waiving indictment, Applicant avoided the possibility that the State would use Applicant's prior convictions to enhance Applicant's instant offenses, thereby opening Applicant up to punishment under the first-degree felony range. Second, by pleading guilty, Applicant avoided a federal firearms investigation (and potential prosecution) for possessing the firearm in this case.

The Court's erroneous citation to Mable does not change the result either. Ante at –––– (citing Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014)). In Mable, we held that a defendant who pleads guilty to possessing a controlled substance and is later found out not to have actually possessed an illegal substance is entitled to involuntary plea relief. Id. at 131. But that is not the case here. Applicant is still guilty of possessing a controlled substance—albeit, of a lower weight.

In sum, Applicant's plea was not involuntary. The Court errs to grant relief on that basis.

IV. Due Process

Applicant's alternate ground alleges a due process violation. “[D]ue process simply will not tolerate the maintenance of a conviction for a greater offense than the facts could possibly support under the controlling penal statute.” Ex parte Warfield, 618 S.W.3d 69, 75 (Tex. Crim. App. 2021) (Yeary, J., concurring); see also Ex parte Ohlemacher, 666 S.W.3d 528, 528 (Tex. Crim. App. 2023) (Yeary, J., concurring) (“When undisputed new facts that were inaccessible to both parties at the time of a trial or plea irrefutably demonstrate that an Applicant is not guilty of the offense for which a judgment of conviction has been entered, the rights to due process and due course of law are implicated.”). But Applicant fails to establish a due process violation because the variance between the field tested weight of 1.1 grams and the lab tested weight under 1 gram can be attributed to the fact that the substance was tested twice before the final lab report. Warren, 721 S.W.3d at 247 (Finley, J., dissenting); Ex parte Love, No. WR-95,475-01, 2024 WL 1434608, at *1–2 (Tex. Crim. App. Apr. 3, 2024) (Yeary, J., dissenting) (mem. op., not designated for publication).

V. Conclusion

Applicant fails to show confinement because the “collateral consequences” that he alleges cannot be traced to the instant conviction as opposed to the myriad of other felony convictions in Applicant's criminal history. At the time of his plea, Applicant was a multiple-time convicted felon. After this conviction, Applicant was convicted of several other crimes. Today, Applicant stands convicted of several felony drug offenses and even more felony crimes of moral turpitude. Applicant fails to show how any of his “collateral consequences” can be traced to the instant conviction. Consequently, Applicant's habeas application should be dismissed. Cooke, 471 S.W.3d at 832.

Alternatively, under this Court's well-established jurisprudence, Applicant's claims should be denied. Applicant fails to show that his plea was involuntary, and Applicant fails to “irrefutably demonstrate” that he was not guilty of possessing a controlled substance, namely methamphetamine, with weight greater than one gram but less than four grams. As such, both of Applicant's claims should be denied.

Because the Court neither dismisses Applicant's habeas application nor denies Applicant's claims, and instead blindly grants Applicant habeas relief, I respectfully dissent.

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.   As I have noted before, courts are not empowered to render verdicts on collateral review. The term “actual innocence” for these purposes should be understood to equate to a determination that the support for the original judgment (and concomitant finality barrier) has eroded to the point requiring relief under our Constitution.

1.   See Mable, 443 S.W.3d at 130 (the applicant pled guilty to possession of a controlled substance, though later testing showed that the substance “did not contain any illicit materials”) (emphasis added).

2.   See Ex parte Shelton, 693 S.W.3d 340, 341 n. 2 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“Mable was wrongly decided and should be overruled.”); Ex parte Warfield, 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021) (Yeary, J., concurring) (“Mable should be overruled. As Judge Keasler aptly explained in his concurring opinion in Saucedo, 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.”) (citing Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, J., concurring)); Ex parte Hooper, 685 S.W.3d 152, 155 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“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”) (quoting Saucedo, 576 S.W.3d at 721 (Keasler, J., concurring)).

1.   This Court could also file and set this habeas application for a written opinion on the issue of confinement. The State argues that because Applicant has other convictions, Applicant fails to show that the collateral consequences he suffers are the result of this conviction as opposed to his convictions in the other cases. This Court has never addressed this argument in a published opinion. I have agreed with the State's position in similar cases previously. See, e.g., Ex parte Thompson, 726 S.W.3d 462, 464 (Tex. Crim. App. 2025) (Finley, J., joined by Parker, J., concurring).

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.”).

Per curiam.

Schenck, P.J. filed a concurring opinion. Yeary, J. filed a dissenting opinion. Finley, J. filed a dissenting opinion. Parker, J. filed a dissenting opinion. Keel, J. dissented.