## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S NO. WR-93,824-01

EX PARTE SHANEA LYNN REEDER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN C AUSE NO. 5427A IN THE 31ST JUDICIAL DISTRICT COURT

WHEELER COUNTY K E L L E R 

### , P.J., filed a concurring opinion.

I ag ree with g ranting relief, but I have three concerns about what the Court say s in this case. F irst, the Court g rants r elief o n a claim—involuntary plea—that Applicant did not raise. The claim Applicant did r aise, a

nd which d oes have merit, wa s that his conviction and punishment are not authoriz ed by law. Second, the Court sug g ests that the rule of lenity would apply

if the statutes at issue were ambig uous, but there is some reason to think the rule of lenity does not apply to the Penal Code and the C o d e o f C r i minal Procedure, and we should just stand o n the statutes being unambig uous. F inally , the Court ex tends Ex p arte Mable 1 to facts that differ sig nificantly from

1 443 S.W .3d 129 (Tex . Crim. App. 2016).REEDER CONCURRENCE — 2

Mable and for which that decision seems ill-suited. And to find a plea i n v o l u n t a r y due to Applicant’s lack of awareness a bout the law, w e would need information a bout what Applicant knew or was told, and there is no such information in this record. I f I were to address an involuntary plea claim, a nd if it were shown that counsel did not

ex p lain to Applicant that the State’s charg e ag ainst him was or mig ht be improper, I would hold that our prior decision in Ex parte Smith 2 was wrong to hold that the law was unsettled and resulted in

a distortion in our jurisprudence that prevented Applicant f rom raising w hat should have been a valid ineffective assistance claim. That would q u alify as a “breakdown in the sy stem,” which we would be authoriz ed to fix

. B u t a remand would be required for that. I see no reason to do that when Applicant is not raising an involuntary -plea claim, and the claim he is raising is meritorious. 1. The Claim Bef

ore Us Applicant d id not raise an involuntary -plea claim. His only g round f o r r e lief states: “Reeder’s five (5) y e a r p r i s o n sentence pursuant to the p lea barg a in ag r eement on the unlawful possession of a firearm by a felon charg e is illeg al.” On the form, Applicant say s that the alleg ed prior conviction was in fact a d eferred adjudication that h ad not been rev o k e d a t t h e time he possessed the firearm. I n his supporting memorandum, Applicant say s he “was not a felon” because his deferred adjudication had not been revoked, and therefore the f ive y ear sente n ce was “not authoriz ed by

law.” Pro se habeas applications are to be c onstrued liberally , but this Court “may not create claims that the Court sua sponte b e lieves meritorious when they are n ot arg uably present in an applicant' s

2 296 S.W .3d 78 (Tex . Crim. App. 2009).REEDER CONCURRENCE — 3

pleading s.” 3 An involuntary -plea claim is not even arg uably present in Applicant’s claim that the
sentence is illeg al. B ut Applicant’s illeg al-sen t e n c e c l a i m can be liberally construed to challeng e both the co n v iction and sentence as being unauthoriz ed by law b ecause the reason g iven for the illeg ality is that Applicant was not a felon, and so an element of the offense is lacking

. The State’s informati o n 4 a l l ege s the conviction u sed to make Applicant a felon as cause number 5504 in the 31st District Court of W heeler Coun t y , f o r t h e offense of manufacture or delivery of a controlled substance on April 13, 2017. Court r ecords indisputably establish that this

cause number resulted in a deferred adjudication that was not revoked at the time Applicant possessed the firearm. As the Court ex pl a i n s , a n unrevoked deferred adjudication does not count

as a conviction for purposes of the offense with which Applicant was charg ed. Althoug h t h e information a

ppears on its face to a lleg e an offense—because it says that Applicant was convicted of a felony in cause number 5 504—if we read the information in lig ht of the court records in cause number 5504 (which, incidentally , is in the same court), then the information does not a lleg e a valid offense. I f Applicant had a felony conviction at the time he possessed the f irearm—i.e., a conviction other than the d e f

erred-adjudication case cited in the information—th e n we would hold the information’s failure to cite the proper conviction to b e harmless on h abeas revi e w . 5 I n his dissenting opinion, J udg e Yeary ex presses concern that the r e cord mig ht not substantiate the claim

3 Ex parte Carter , 521 S.W

. 3d 344, 350 (Tex . Crim. App. 2017).

4 Applicant waived indictment.

5 See Ex parte R odgers , 598 S.W .3d 262, 2 64 (Tex

. Crim. App. 2020) ( I nvalidity of one of the jurisdictional prior convictions in a felony D W I indictment was harmless if there ex isted another usable prior conviction.).REEDER CONCURRENCE — 4

that A pplicant had no prior felony convictions. B ut I am satisfied from this record that Applicant did not have a felony c onviction at the time he possessed the firearm. I n its finding s, the habeas court said: Defendant was n ot a convicted felon on the date o f his arrest for Unlawful Possession of F irearm by F elon a s c h a r g ed and convicted in Cause Number 5427, sty led The State of Tex as v. Shanea L y nn Reeder. 6 W h ile the f

inding mig ht be inartfully phrased, it does say that Applicant was not a convicted felon. And the record supports the finding . I n an affidavit, the prosecutor said: After ex amining the criminal history for Shanea L y n n Reeder, what appears to be a conviction in Cause N umber 5054 was in truth and in-fact a probation “sen t e n c e modification ...[ ”] Therefore. Shanca L y nn Reeder was not a convicted felon at the time of his plea in cause number 5427. 7 Also, the charg ing instrument for the controlled-substance o ffense 8 did not a l l ege a ny prior convictions for enhancement p u rposes, and Applicant discussed with the trial judg e d uring his plea
to that offense a prior probation for misdemeanor DW I five y ears earlier that had been revoked. And Applicant was on deferred adjudication for the controlled substance offense until he was adjudicated

on the same d ay he was convicted o f the firearm offense. So the record sufficiently establishes the absence of any

felony convictions. The problem in this case is what constitutional theory to g rant relief on. I t does not seem to neatly fit recog niz ed theories, but it seems evident that Applicant oug h t to g et relief, which mig ht be why the Court r aises a novel involuntary -plea claim. B ut I a gr e e w i t h J u dg e Yeary that an

6 Emphasis added.

7 Dots in orig inal. B racketed material and emphasis added.

8 I t was also an information.REEDER CONCURRENCE — 5

“absolute innocence” claim would suffice, where we would d ispense with the requirement of newly discovered or newly

available evidence. This sort o f claim differs from an “actual innocence” claim qualitatively and n ot merely as

a matter of deg ree. I n a

n “actual innocence” scenario, the conduct the State charg e s the defendant with is an offense, but the d efendant later claims that n ewly discovered or newly a vailable evidence

s h o ws that he did n ot eng a g e in that conduct. N ew evidence c an show that a defendant did n o t eng ag e in the conduct either because someone else did or b ecause the conduct d id not occur at all. F or ex ample, if the State alle ge s t h a t the defendant committed sex ual assault, that would be an offense. 9 New DNA evidence could prove that a different person was the one who committed the offense (and the defendant was misidentified), 1 0 or a new c redible r e c a n t a t i o n f r om the alleg ed victim could show that no sex u al assault took place. 1 1 A key point in the “actual innocence” situation is that i t is n ot n ecessary for the State to have made any sort of mistake. 1 2 New evidence could f a t a l l y undermine what the State had every reason to think was a valid prosecution at the time. And that is at least part of the reason why there has to be “new” evidence to supp o r t a n “actual innocence” claim. B u t in an “absolute innocence” scenario, the c onduct the State c harg e s t h e d e fendant with is not an offense. This happens when the State misconstrues a statute to ex tend to conduct or other

9 See T E X
. P E

N A L C O D E § 22.011(a)(1)(A).

1 0 See Ex parte Kussmaul , 548 S.W .3d 606, 609 (Tex . Crim. App. 2018).

1 1 See Ex parte Thompson , 153 S.W .3d 416 (Tex . Crim. App. 2005).

1 2 Ex parte Harleston , 4 31 S.W .3d 67, 70 (Tex

. Crim. App. 2014) (“[ A] n applicant alleg ing a Herrera [ actual innocence] claim is directly a ttacking the propriety o f his conviction, althoug h the applicant does not dispute that he received an error-free trial.”).REEDER CONCURRENCE — 6

facts that the statute does not cover 1 3 or makes a factual mistake about what a court record shows (e.g , a bout whether an e ntry o r document shows an actual prior conviction). 1 4 W hen the conduct the State c harg es is not an offense, the State has necessarily made a mistake. T h e S t a t e b ears responsibility for that mistake, even if it was reasonable at the time (e.g

. , rely ing on a court decision misconstruing the statute). B ecause an “absolute innocence” claim necessarily involves a mistake in charg ing the offense itself, the convicted person need n ot show something “new” to assert a valid claim for relief. 1 5 B ut if the claim is based on an invalid a lleg ation of a prior conv i c tion, the convicted person would have to show that another suitable prior c onviction (one that would satisfy the statutory requirement if it had been pled) does not ex ist. 1 6 Otherwise, he would not have truly shown that he was not g uilty of the offense.

1 3 See e.g., Sta t e v . H

u n t er , 624 S.W .3d 589, 5 8 9 (Tex

. Crim. App. 2021) (Keller, P.J ., concurring , joined by five other judg es) (“The State’s indictment does not charg e a crime under the laws of the State of Tex a s . . . A mother choosing to abort her unborn child is not a crime under Tex as law, so the defendant c annot be g uilty o f t h e o f f e n se of solicitation for soliciting such a crime.”); Liverman v. State , 470 S.W .3d 831, 833 (Tex

. Crim. App. 2015) (“W e m u s t d e t e r mine whether a person commits the crime of securing the ex ecution of documents by deception when he files a false mechanic’s lien affidavit with the county clerk. W e conclude that such a person does not commit that crime because he does not cause ‘another’ to ‘ ex e c u t e ’ a d o cument affecting property or pecuniary

interests.”).

1 4 See Ex p arte Rodgers , 598 S.W .3d 262, 265 (Tex

. Crim. App. 2020) ([ T] he State made a mistake in its alleg ation of the second jurisdictional prior DW I

. I t essentially alleg ed the same prior DW I conviction c ause number twice.”). B ut any e rror was harmless in Rodgers because there was another suitable prior conviction that could have been used. Id. at 264.

1 5 B oth “actual innocence” and “absolute innocence” are disting uishable from the concept of “leg a l innocence” that we rejected as an innocence claim but which d oes afford a non-innocence basis for relief. I n a so-called “leg al innocence” claim, the conduct the State intended to charg e is an o ffense under a statute, but the statute is unconstitutional. See Ex parte Fournier , 473 S.W .3d 789 (Tex . Crim. App. 2015).

1 6 See supra at nn.5, 14.REEDER CONCURRENCE — 7 2. Rule of Lenity Althoug h the Court concludes that the statutes at issue here are unambig uous, it sug g ests in

a footnote that, if the statutes were a mbig uous, it could use the r ule of lenity to resolve the ambig uity in Applicant’s favor. B ut several statutory provisions, along with c aselaw discussing them, sug g est that the r ule of lenity does not apply to the Penal Code and the Code of Criminal Procedure. 1 7 The Court’s analy sis of what the statutory lang uag e unambig uously say s is convincing ; there is no need to hedg e here. 3. Mable / Involuntary P lea I n M a ble , we g ranted r elief to a defendant who pled g uilt y t o p o ssession of a controlled substance when later testing showed that the subs t a n c e w a s n ot a controlled substance. 1 8 We

ex p lained: I n this case, all parties involved, including the a pplicant, incorrectly b e l i e v ed the applicant had been in possession of drug s. This fact is crucial to this case, and while operating under such a mi s u n d e r s t a nding , the a

pplicant cannot be said to have entered his plea knowing ly and intellig ently

. 1 9 So Mable involved the parties incorrectly believing certain crucial facts that later testing disproved. The Court’s attempt to draw an analog y to Mable does not account for the different setting

1 7 T E X
. P E

N A L C O D E § 1.05(a); T E X
. C O D E C R I M
. P R O C
. a rt
. 1

. 2 6 ; T E X
. G O V ’ T C O D E § 311.035(b), (c); Diruzzo v . State , 581 S.W

. 3d 788, 8 02 n.22 ( Tex

. Crim. App. 2019); D elay v. State , 465 S.W .3d 2 32, 251 & n .69 ( Tex

. C r i m . A pp. 2 014); State v. Rhine , 297 S.W .3d 301, 309 ( Tex

. Crim. App. 2009); Ex parte Forward , 258 S.W .3d 151, 154 n .19 (Tex

. Crim. App. 2008); State v. Johnson , 219 S.W

. 3d 386, 388 & n.9 (Tex . Crim. App. 2007). I t has also been sug g ested that the rule of lenity is a last resort, w hen statutory ambig u ity remains insoluble after apply ing other tools of construction. D iruzzo , 581 S.W .3d at 802 n.202; W ooden v. United States , 142 S. Ct. 1 063, 1075 (2022) (Kavanaug

h , J ., concurring ).

1 8 443 S.W .3d at 130-31.

1 9 Id. at 131.REEDER CONCURRENCE — 8

of a case that involves the question of whether the defendant u nderstood the law. I n Mable , no one knew that the substance w as n ot a controlled substance until the testing revealed that f act. B ut here, the r elevant statutes were available to all the parties involved in the plea. And as the Court ex plains, the statutes were unambiguous . So the trial court, the prosecutor, and the defense attorney should have all understood what the statutes meant. Applicant, as a person untrained in the law, would no t n ec e s s arily have been e x pected to understand the law. That is what he had an attor n e y f o r . Bu t i n t his c ase, we do not k now what conversation Applicant h ad with his attorney . His trial attorney has not been asked to reveal what he told A pplicant. W e would have to remand for a n affidavit or testimony

from the attorney

to g et that information. Applicant h as not even supplied an affidavit a bout what h e claims his attorney told him. That makes sense, since Applicant is not raising an involuntary -plea claim. The Court say s that we know that all the participants misunderstood the law because the State

an d the trial court took the correct action and accepted responsibility by clarify ing the error. B ut neither the trial c o urt’s f

inding s nor the State’s r esponse makes the claim that Applicant was ig norant of the law or that his plea was involuntary

. I n stead, they just say that the prior conviction alleg ed

was not a conviction a

nd that Applicant has no prior conviction. That s a y s nothing a bout what Applicant and defense counsel knew at the time of the plea. And we c annot simply assume that there is no way A pplicant would have pled g uilty if he and his attorney had d iscussed the pos s i b i l ity that the firearm statute d id not c over Applicant’s conduct. Althoug h his current case and the controlled-substance case do not appear to b e part of a packag e d e al, it is true that Applicant waived indictment in the current (firearm) c ase, proceeded on

an information, p led g uilty pursuant to a plea ag reement, and r eceived a five-y ear sentence thatREEDER CONCURRENCE — 9

would run concurrently with the five-y ear sentence in the controlled-substance case. I t is also true that Applicant p led true to multiple violations of his deferred-adjudicatio n p r obation in the controlled-substance case, so the record would support a conclusion that, r eg a rdless of whether he violated the firearm statute, he was g oing to be a djudicated a nd sentenced in t

h e controlled-substance

case. 2 0 And Applicant’s sentence of five y ears in the controlled-substance case was the minimum period of incarceration he could have received f o r t h a t first-deg ree f

elony

. 2 1 So the possibility remains that the favorable plea deals could have caused Applicant to refrain f rom raising an issue about the applicability

of the firearm statute. I t a p p e a r s that part of the reason the Court relies on M able is our p r ior decision in Smi t h

. Addressing the same intersection of the firearm and d eferred adjudication statutes as in this case, w e said in Smith that “ the proper construction of the [ firearm] statute was u n re s o lved and remains unclear.” 2 2 S

mith was correct that the proper construction was unr e s o lved, in that w e had not resolved it, but it was simply wrong when it said that the proper construction was unclear. As the Court ex plains today , the statutes at issue unambig u ously provide that deferred adjudication is not

a c onviction ( unless another statute say s otherwise) and that a person commits the offense of felonin-posses s i o n - o f

- a - f irearm only if he had a prior f elony conviction ( with the f irearm statute not

2 0 I n fact, in the initial p lea proceeding s for the controlled-substance offense, the trial judg e warned Applicant that, if he later found a violation of the deferred-adjudication probation, he would not place him back on deferred adjudication or even place him on reg ular probation.

2 1 See T E X
. P E

N A L C O D E § 12.32 (punishment r ang e for first-deg ree felony of 5 to 99 y ears or life). The information for the controlled-substance offense charg ed t h e p o s s e ssion of methamphetamine of f

our g r ams or more but less than 200 g r ams, w h ich was a f irst-deg r ee felony

. See T E X
. H E A L T H & S A F E T Y C O D E §§ 481.102(6), 481.112(d).

2 2 296 S.W .3d at 81.REEDER CONCURRENCE — 10

defining deferred a djudication as a conviction). Smith was wrong to rely o n a d i fferent firearm

s t a t u t e, w i t h n o connection to the offense at issue, to sug g est a lack of c larity

. 2 3 I n fact, Ex par t e W elch had previously h eld, in the c ontex t of elig ibility for probation, that it was clear f rom a plain reading of the deferred-adjudication s t a t ute that deferred a djudication did n ot count as a conviction. 2 4 Moreover, under W

elch , the lack o f a mbig u ity in t h e s tatutes means c ounsel should have understood the correct interpretation and would have b een ineffective for failing (if he did) to advise Applicant that d eferred adjudication was not a conviction. 2 5 B u t Smith complicates matters, because it held that the law w as “unse t t l e d ” b y b e i n g unclear. 2 6 The law was not unsettled because the
statutes were unambig uous, b ut this Court made the law unsettled by say ing it was unsettled. And making the law unsettled creates a larg e, and possibly insurmountable, roadblock to an ineffectiveassistance claim. 2 7 Bu t t he Court was wrong to do that. Under Boykin v. S tate , “the L eg islature is constitutionally entitled to ex p e c t that the J udiciary will faithfully f o llow the specific tex t that was

2 3 See id. (discussing T E X
. G O V ’ T C O D E § 411.1711).

2 4 981 S.W .2d 183, 184-85 (Tex . Crim. App. 1998).

2 5 See 981 S.W .2d a t 185 ( “B ecause this is the first case to consider the probation elig ibility of a defendant discharg ed f rom deferred adjudication probation, we would usually be hesitant to find counsel’s failure to anticipate a future decision sufficiently eg r eg ious to consider h is performance at the time of trial ineffective. However, to b e reasonably likely to render effective assistance to his client, a lawy er must be sufficiently abreast of developments in c riminal law aspects implicated in the case at hand. I n this instance, the idea that the order d eferring adjudication and placing applicant on pr o bation was not a conviction w as not novel at the time of applicant’s trial. Rather, it should have been e vident from a plain reading of the deferred adjudication statute itself that applicant was not barred from receiving a probated sentence from a jury

. ”).

2 6 See 296 S.W .3d at 81.

2 7 See Ex parte Lane , 670 S.W .3d 662, 671 (Tex . Crim. App. 2023).REEDER CONCURRENCE — 11

adopted.” 2 8 This Court should not have said that the tex t of a statute wa s a m b i gu o u s w h en it was not. 2 9 Having d o n e so, the Court b ears the responsibility f or any distorting effects of its decision, if a defendant can show harm. W hen the attorney is not at f a ult, but some other aspect o f the sy stem is responsible for depriving the defendant of a rig ht, than relief c an be g ranted on a “breakdown of the sy stem” theory

. 3 0 I n a n appropriate case, bad precedent that contravenes ex pr e s s s t a t u t o ry lang uag e could create a distortion in the sy stem that p rejudices a d efendant and requires the g ranting of relief. Ultimately , I do not think w e need to consider that issue here, because w e can g rant relief

on the theory of absolute innocence discussed earlier. B ut if the Court wants to g r ant relief on the basis of an involuntary plea, it would be better to recog niz e the mistake in Smith and fix it than to

ex p and Mable to a situation very different from its facts. I concur in the Court’s judg ment. F iled: J u ne 26, 2024 Publish

2 8 818 S.W .2d 782, 785 (Tex . Crim. App. 1991).

2 9 The Court could have simply avoided commenting on the meaning of the tex t and held that the attorney

did not need to ex amine it thoroug hly because of the concurrent sentencing plea deal. See Smith , 296 S.W .3d at 8 1 (rely ing in part o n the fact that the p lea was part of an ag r eement for concurrent sentencing with other cases).

3 0 Ex parte Riley , 193 S.W .3d 900, 902 (Tex . Crim. App. 2006).