            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-87,881-01

                EX PARTE GREGORY ALLEN SKINNER, Applicant

            ON APPLICATION FOR WRIT OF HABEAS CORPUS
         CAUSE NO. W11-62085-M(A) IN THE 194TH DISTRICT COURT
                        FROM DALLAS COUNTY

       Y EARY, J., filed a dissenting opinion in which K EASLER, J., joined.

                                 DISSENTING OPINION

       Applicant was convicted of the offense of possession of a firearm by a felon. He now

contends that he cannot be guilty of that offense because he was on deferred adjudication

community supervision, which he claims is not a felony conviction, at the time he was found

to be in possession of the firearm. In his original application for post-conviction habeas

corpus relief, he has argued that the evidence was legally insufficient to support his

conviction. We rejected an identical claim in Ex parte Smith, 296 S.W.3d 78, 79 (Tex. Crim.

App. 2009). While noting that a claim of legal insufficiency is not permitted to be made in

a post-conviction collateral attack, we also observed “that the appellant judicially confessed

to committing the offense, which was sufficient evidence to support a plea of guilty.” Id.
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Applicant’s claim should be similarly rejected today.

       The Court nevertheless grants Applicant habeas corpus relief, but without articulating

a legal basis for doing so. Majority Opinion at 1–2. Applicant, whose application for writ of

habeas corpus was prepared by legal counsel, claimed only that the evidence was legally

insufficient to sustain his conviction. Such a claim, the Court has long maintained, is not

cognizable in a post-conviction application for writ of habeas corpus. Id.; Ex parte Perales,

215 S.W.3d 418, 419 (Tex. Crim. App. 2007). And while a claim that there is no evidence

to support a conviction is cognizable in a post-conviction application for writ of habeas

corpus, Perales, 215 S.W.3d at 418–19, Applicant has not made such a claim here.

Moreover, even if it would be acceptable to sua sponte convert Applicant’s asserted legal

basis from a legally-insufficient-evidence claim to a no-evidence claim in order to grant him

relief, in my view, it does not work.

       The problem is that the record, such as it is, does not support a no-evidence claim.

Applicant pled guilty and judicially confessed to possessing a firearm as a felon. His judicial

confession includes an explicit acknowledgment that he was previously convicted of the

felony offense for which the Court today finds there was no evidence. A judicial confession,

so long as it embraces every element of the offense, will suffice to support a guilty plea.

Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Surely it must count as some

evidence of a prior felony conviction for purposes of a prosecution for possession of a
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firearm by a felon.1 Applicant has not shown entitlement to relief on this legal theory.

        In any event, we have still never definitively held that deferred adjudication

community supervision does not constitute a felony conviction for purposes of the possession

of a firearm by a felon statute. We declined to resolve that question in Smith. 296 S.W.3d at

81. And we were apparently unwilling in Smith to sua sponte convert the applicant’s legal

sufficiency claim into a no-evidence claim, so as to address the issue of whether a person on

deferred adjudication probation has been convicted of a felony for purposes of the possession

of a firearm by a felon statute. I fail to see a basis for granting Applicant relief in this case

under either a legally-insufficient-evidence claim or a no-evidence claim.

        Perhaps Applicant could have claimed (although he did not) that he is actually

innocent of possessing a firearm as a felon. See Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim.

App. 2002) (holding that a guilty plea does not preclude a post-conviction claim of actual

innocence under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)). But such a

claim must include an allegation of newly minted law or newly discovered or available facts.

T EX. C ODE C RIM. P ROC. art. 11.07, § 4(a)(1); Ex parte Brown, 205 S.W.3d 538, 545 (Tex.

Crim. App. 2006). Applicant knew at the time he entered his guilty plea to possession of a




       1
          We made no mention in Perales of just what evidence the State may have offered in
satisfaction of Article 1.15 in support of the guilty plea, much less whether the applicant in that case
entered a judicial confession. TEX . CODE CRIM . PROC. art. 1.15. Nothing in Perales refutes the
proposition that a judicial confession may provide at least some evidence in support of a conviction
for purposes of determining whether collateral relief is appropriate for a no-evidence claim. And we
certainly treated the applicant’s judicial confession as sufficient evidence of guilt in Ex parte
Smith—a case we decided after Perales. 296 S.W.3d at 79.
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firearm by a felon that he was still on deferred adjudication probation at the time he

possessed the firearm. His claim is predicated on a legal argument that has not yet been

ratified by this Court, and he presents no new facts. Moreover, for all this record reveals,

Applicant may have other prior felony convictions—that might even have been part of his

motivation to plead guilty in this case. From a factual standpoint, therefore, we cannot even

say definitively that he is actually innocent, even if the facts would not have to be new.

       Perhaps Applicant could have claimed (although he did not) that his trial counsel was

constitutionally ineffective for allowing him to judicially confess, and plead guilty, to a crime

he did not commit. But such a claim would also have to be predicated on newly minted law

in order to sustain Applicant’s no-evidence claim—that a case in which deferred adjudication

has been granted, and that has never proceeded to adjudication, cannot support a possession

of a firearm by a felon conviction. At the time of Applicant’s plea, that issue was still

unsettled. And “we have repeatedly declined to find counsel ineffective for failing to take a

specific action on an unsettled issue.” State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim.

App. 2013). That is exactly the reason we declined to grant relief in Ex parte Smith based

upon a claim of ineffective assistance of counsel. 296 S.W.3d at 81.

       Applicant did make another claim besides his claim of legally insufficient evidence.

While his writ application was pending, he filed a supplement in which he argued, in addition

to legal insufficiency, that his plea was involuntary. It was, in fact, on this view of the case

that the convicting court ultimately recommended that relief be granted, as a function of Ex
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parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). But such a claim is not legally viable

either.

          Mable involved a mutual misunderstanding of the facts of the case with respect to a

“crucial” aspect of the State’s evidence—whether the substance the applicant was convicted

of having possessed even constituted an illicit drug. Id. at 130. There is no such factual

misunderstanding in this case. There was (as in Smith) only unsettled law. In the absence of

a more explicit claim of involuntariness due to ineffective counsel—that counsel failed to

advise him about the unsettled nature of the law, and that, but for that failure, Applicant

would have insisted on going to trial—we have no cause to presume his guilty plea was

involuntary or unknowing.2 Applicant’s lawyer may have miscalculated how this Court will

ultimately resolve the still-unsettled issue of whether deferred adjudication probation will

count as a prior felony for purposes of a subsequent prosecution for possession of a firearm

by a felon. A lawyer’s miscalculation of how an unsettled issue of law may ultimately be

resolved does not, absent constitutional deficiency, suffice to render a guilty plea involuntary

or unintelligent. See Brady v. United States, 397 U.S. 742, 757 (1970) (holding that legal




          2
         In his supplement to his habeas corpus application, “Applicant claims that he was not made
aware of a possible defense to his plea . . . and that his plea was not voluntary.” In an inmate
declaration attached to the supplement, he asserts that, “[a]t the time I entered my plea of guilty to
possession of a firearm by a felon, I was not aware that I did not have a felony conviction and would
not have entered my plea of guilty had I known or had been properly advised of the law.” He does
not explicitly claim that his lawyer failed to advise him of the unsettled nature of the law, although
that may be implicit in his indirect assertion that he was not “properly advised of the law.” Even if
his claim were more explicit, we would not ordinarily grant summary relief on the basis of such an
assertion, but would, at most, remand the cause for a response from trial counsel.
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advice that proved incorrect in light of subsequent case law did not serve to render a guilty

plea involuntary); Ex parte Palmberg, 491 S.W.3d 804, 808 (Tex. Crim. App. 2016)

(observing same).

       Applicant is not entitled (or, at least, not yet entitled) to relief on this record, either

under the particular theories of law he has pled—or any other legal theory that is presently

supported by the record. I respectfully dissent.




FILED:         November 7, 2018
DO NOT PUBLISH
