             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. WR-89,601-01

              EX PARTE CHARLES EDWARD THOMPSON, Applicant

             ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 1380303-A IN THE 179TH DISTRICT COURT
                          FROM HARRIS COUNTY

       Y EARY, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       By the time Applicant pled guilty to a third-degree-felony level of possession of

cocaine, the forensic laboratory had already determined that, in reality, he had possessed only

a state-jail-felony amount. Apparently neither the prosecutor nor Applicant was aware of that

lab result at the time of the plea. Today, the Court grants Applicant relief on the theory that

his guilty plea was involuntary, under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App.

2014). In Mable, because the drugs had not been analyzed by the crime lab by the time of the

guilty plea, neither party was aware that such testing would later reveal that the applicant had

not in fact possessed “any illicit materials.” Id. In the instant case, the forensic lab was aware

that Applicant had not possessed a third-degree-felony-requisite amount of cocaine before
                                                                          THOMPSON — 2

Applicant ever pled guilty, even if Applicant and the prosecutor were not. But that does not

necessarily render Applicant’s guilty plea involuntary.

       “A defendant may have a sufficient factual awareness” of the State’s case against him

to render his guilty plea adequately informed to satisfy the constitutional requirement of

voluntariness “despite laboring under misapprehensions.” Ex parte Broussard, 517 S.W.3d

814, 817 (Tex. Crim. App. 2017). “[T]he voluntariness of a defendant’s guilty plea is not

contingent upon his awareness of the full dimension of the prosecution’s case.” Ex parte

Palmberg, 491 S.W.3d 804, 809 (Tex. Crim. App. 2016). “[A]s 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 the plea—his potentially unwise plea

is still a voluntary one.” Id. “[I]f a known unknown is discovered to be different than the

defendant estimated, it does not necessarily entitle him to relief from his agreement with the

State because his estimation turned out to be wrong.” Broussard, 517 S.W.3d at 818.

       Here, at the time that Applicant entered the plea, both parties were content to proceed

under the assumption that he had possessed a third-degree-felony amount of cocaine. Neither

the prosecutor nor Applicant was aware that the forensic lab testing had already refuted that

assumption. Thus, there was a meeting of the minds with respect to this known-

unknown—whether actual laboratory analysis would confirm a third-degree-felony quantity

of cocaine. Applicant does not contend that what he possessed “did not actually contain any

illicit materials[,]” as was the case in Mable. 443 S.W.3d at 130. “It was the complete lack
                                                                             THOMPSON — 3

of illicit substances that qualified as a ‘crucial’ fact in Mable’s involuntary-plea calculus.”

Broussard, 517 S.W.3d at 820 (distinguishing Mable, 443 S.W.3d at 131). That is not what

happened in this case. Yet the Court grants Applicant relief—without endeavoring to explain

why it should be Mable, not Broussard, that controls.

       It is true that, in Palmberg, we acknowledged that an applicant might nevertheless

prevail on an involuntary plea claim if he can show that the prosecutor affirmatively misled

him about the nature of the evidence against him. See 491 S.W.3d at 810 (“All of this is not

to say that we would never grant an uninformed [a]pplicant relief. If an applicant was led to

believe that the substance could definitively be tested due to misrepresentations by the State,

. . . then his plea might be constitutionally challengeable.”); Broussard, 517 S.W.3d at 817

(“[A] guilty plea induced by the State’s misrepresentation . . . is involuntary and may be

withdrawn.”). There is no indication here, however, that the prosecutor was aware of the

forensic lab result. Before we could grant Applicant relief on this prosecutorial-misconduct

theory of involuntariness, we would have to determine whether the forensic lab’s knowledge

of the test results is imputable to the State, as it might be under a claim predicated on Brady

v. Maryland, 373 U.S. 83 (1963). The Court today makes no such inquiry.

       As for Brady itself, Applicant has failed to raise any such claim in his writ application.

We therefore have no occasion potentially to impute the forensic lab’s knowledge to the

prosecutor under that specific due process theory. See Brady, 373 U.S. at 87 (“We now hold

that the suppression by the prosecution of evidence favorable to an accused upon request
                                                                            THOMPSON — 4

violates due process where the evidence is material either to guilty or to punishment,

irrespective of the good faith or bad faith of the prosecution.”); Kyles v. Whitley, 514 U.S.

419, 437 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence

known to the others acting on the government’s behalf in the case, including the police.”).

Moreover, even had Applicant raised a Brady claim, before granting relief under that theory,

the Court would be obliged to decide for certain whether “the constitutional mandate to

disclose exculpatory evidence to defendants under Brady v. Maryland extends to the plea

bargaining stage of a prosecution”—a legal question the answer to which remains subject to

conjecture. Palmberg, 491 S.W.3d at 814–15 & n.18.

       Finally, even if I thought that Mable rather than Broussard dictated the proper answer

to Applicant’s involuntary plea claim, I would, like Judge Keasler and Judge Hervey, opt at

this point to overrule Mable. See Ex parte Saucedo, 576 S.W.3d 712, 714–20 (Tex. Crim.

App. 2019) (Keasler, J., concurring, joined by Hervey and Yeary, JJ.) (arguing that

subsequent case law has demonstrated that Mable was mistaken to rely upon a theory of

involuntariness, and that its rationale has proven to cause anomalous results as applied to the

facts of subsequent cases).

       Overruling Mable would not necessarily mean that Applicant could not obtain relief.

Although the Court today does not acknowledge it, Applicant’s writ application makes

another due process claim that does not assert that his plea was involuntary. Instead, it relies

upon an alternative basis for relief that Judge Keasler acknowledged in Saucedo—a “guilty
                                                                            THOMPSON — 5

only of a lesser-included offense” variation on an Elizondo claim, by which “[t]he applicant

must show, by clear and convincing evidence, that no reasonable juror would have convicted

him of the greater offense, or made findings consistent with the heightened sentence, in light

of the new evidence.” 576 S.W.3d at 720 (citing Ex parte Elizondo, 947 S.W.2d 202, 209

(Tex. Crim. App. 1996)). Before the Court could grant Applicant relief on the basis of this

alternative due process theory, however, we would have to address at least one significant

hurdle. If nothing else, we would have to determine whether the evidence was “new” in

contemplation of this “guilty-only-of-a-lesser-offense” standard, given that the cocaine had

already been tested by the lab and found to be of a deficient quantity to support a third-degree

felony conviction well before Applicant entered his guilty plea.

       Because the Court grants relief in this case without confronting, much less

surmounting, any of these unavoidable obstacles, I respectfully dissent.




FILED:        October 2, 2019
PUBLISH
