EX PARTE HILL MOSLEY v. << (2026)

OPINION

Applicant was convicted of unlawful possession of a firearm by a felon and sentenced to 10 years’ imprisonment with 180 days “shock.” 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 plea was involuntary because counsel failed to timely file a motion for shock probation as promised as part of his plea. Based on the record, the trial court has determined that Applicant's plea was involuntary and counsel was ineffective.

Relief is granted. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The judgment in cause number D-1-DC-25-202415 in the 167th District Court of Travis County is set aside, and Applicant is remanded to the custody of the Sheriff of Travis County to answer the charges 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.

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, 90 S.Ct. 1463, 25 L.Ed.2d 747 (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, 129 S.Ct. 1423, 173 L.Ed.2d 266−38 (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.

Per curiam.

Yeary, J. filed a dissenting opinion, joined by Schenck, P.J, Finley and Parker, JJ.