              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                                       NO. WR-81,358-01


                                 Ex parte KENDRICK MABLE


              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              FROM 388TH DISTRICT COURT OF HARRIS COUNTY



       Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price,
       Johnson, Hervey, Cochran, and Alcala JJ. joined. Keasler, J. concurred.


       The applicant pleaded guilty to possession of a controlled substance and was sentenced to

two years’ imprisonment pursuant to a plea bargain. He did not appeal his conviction. Shortly

thereafter, the Houston Forensic Science Center finished testing the seized substances and

discovered that they did not actually contain any illicit materials. In response to this revelation,

he filed an application for a writ of habeas corpus. The State and the trial court both agree that he

is entitled to relief on the basis of “actual innocence.” While we grant relief, we do so on the

basis of an unknowing and thus involuntary plea.
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       At least in Texas cases, the term “actual innocence” applies only in circumstances where

the accused did not actually commit the charged offense or any possible lesser included

offenses.1 In this case, the applicant pleaded guilty to possession of a controlled substance.

Therefore, it is possible that he intended to possess a controlled substance (which is not alone an

offense) or that he attempted to possess a controlled substance (which is a lesser included

offenses of possession).

       However, we still believe that the applicant is entitled to relief. It is well established that

a guilty plea must be entered knowingly and voluntarily.2 “Moreover, because a guilty plea is an

admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the

defendant possesses an understanding of the law in relation to the facts.”3 This means that the

defendant must have “sufficient awareness of the relevant circumstances.”4 The standard is

whether the plea is a voluntary and intelligent choice among the alternative courses of action

open to the defendant.5 In this case, all parties involved, including the applicant, incorrectly

believed the applicant had been in possession of drugs. This fact is crucial to this case, and while

operating under such a misunderstanding, the applicant cannot be said to have entered his plea

knowingly and intelligently.

       Accordingly, we hold that the applicant should be allowed to withdraw his plea. The



       1
           State v. Wilson, 324 S.W .3d 595, 598 (Tex. Cr. App. 2010).

       2
           See T EX . C OD E C RIM . P RO C . art. 26.13(b); McCarthy v. United States, 394 U.S. 459, 466 (1969).

       3
           McCarthy, 394 U.S. at 466.

       4
           See Brady v. United States, 397 U.S. 742, 748 (1970); United States v. Ruiz, 536 U.S. 622, 629 (2002).

       5
           Parke v. Raley, 506 U.S. 20, 29 (1992).
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judgment in Cause No. 1421276 in the 338th Judicial District Court of Harris County is set aside,

and the applicant is remanded to the Harris County Sheriff to answer the charge against him. The

trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court

issues.



Delivered September 17, 2014.

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