## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S
NO. WR-95,426-01

EX P ARTE RICHARD LEE HOOP ER, Applicant

ON AP P LICATION F OR A WRIT OF HABEAS CORP US CAUSE NO. 1487418-A IN THE 184 T H DISTRICT COURT F ROM HARRIS COUNTY

K E L L E R , P .J., f

iled a dissenting opinion in w hich Y E A R Y , K E E L , a nd S L A U G

H T E R , JJ., j oined.
DISSENTING OP INION Applicant claims his guilty plea was involuntary because he was unaware of a lab report that showed he possessed less o f the controlled substance than he was charg e d w ith. So, instead of being
g uilty of a second-degree felony carry ing a 2-20 y ear rang e of punishment, he was guilty of a thirddeg ree felony with a 2 -10 y ear rang e of punishment. Nevertheless, Applicant wants his entire plea undone, so that he can attack other convictions a ffected b y this prior conviction. B ut Applicant waited nearly 8 y ears to r a ise his claim and has long since discharg e d his 3 y ear sentence. Undoing his p lea now would g ive him an undeserved windfall, and that remedy should be barred by laches.
W e should simply

reform his judg ment to reflect a conviction for a third-deg ree felony

.HOOP ER DISSENT — 2 I. BACK G ROUND
I n ex chang e for a sentence of three y ears, Applicant pled guilty to possession of between 4 and 200 g rams o f methamphetamine. Unbeknownst to the parties, the day before the p lea, a report on the testing of the substance had been issued that indicated that the substance weig h ed around 2
g rams. The trial judg e accepted the plea ag reement and sentenced Applicant on J anuary 28, 2016. Applicant did not appeal the conviction. On J uly 1, 2022, the district attorney ’ s office discovered the report and se n t n o t i ce to Applicant. On November 15, 2023, Applicant filed this habeas application. I n an unsworn declaration in support of his application, Applicant say s, “In subsequent charg es, cause nu m bers 1750465 and 1780248, this c onviction w a s listed in the indictment as an enhancement and was a contributing factor to my

decision to plea[ d] g uilty in those cases.”
II. ANALYSIS “To determine whether [ h abeas] equitable relief should be g ranted then, it behooves a court
to d etermine whether an applicant has slept on his rig hts and, if he has, w hether it is fair and just to
g rant him the relief he seeks.” 1 And because the common-law approach to laches is “flex ible,” 2 there should be o ccasions when sleeping on one’s rig hts affects the ty pe o f relief available, e ven if there are weig h ty reasons for g

ranting some sort of relief. This case is just such an occasion. Applicant offers no ex planation for wh y h e d i d n ’ t seek and obtain the report earlier. H e knew the police had possession of his drug s. A ny time after his judg ment, he could have inquired about whether the drug s were tested and whether there was a report, and if he had done so, the report would likely have been found then. D epending on h o w quickly he made his inquiries, he could have

1 Ex parte Smith , 444 S.W .3d 661, 666 (Tex . Crim. App. 2014).

2 Ex parte Perez , 398 S.W .3d 206, 215 (Tex

. Crim. App. 2013).HOOP ER DISSENT — 3

filed a habeas application well before his sentence was complete. I t is unclear to me that he would prevail, since three y ears is on the low end of even the third-deg ree punishment rang e and it seems
at least questionable that he could have shown he w ould n ot have a c c e p ted such a sentence. 3 B ut if he had rai s e d t h i s c l a im and made the requisite showing before his sentence had ex pired, then obtaining a new trial would h ave (1) at least g iven him a chance at a lesser sentence and (2) resulted in a conviction that could be used in connection with the two crimes he later committed. Now, neither o f those two options is p o ssible if we overturn his plea. Applicant has served his sentence. Overturning his plea cannot result in him bein g i n c ar c e r a t ed for less time on this offense. 4 And overturning his plea would, presumably , make the convict i o n s u n a v a ilable as enhancements on his later two offenses, thoug h it is unclear on t h i s r e c o rd whether that would ultimately a f

f ect those later cases. B ut Applicant’s claim that those cases were affected sug g ests

3 I n his unsworn d eclaration, Applicant c laims he w ould not h ave pled g uilty but would have g one to trial because the State would not be a ble to pr o v e he possessed the second-deg ree felony amount. B ut if the p arties had had the report, the State’s offer would have b een for the third-degree offense, and three y ears w as still on the lower end of the punishment rang e. Even if the case went to trial, it seems c lear that when the State learned of the test results, it w o u l d h ave requested and received submission o f the third-deg ree offense as a lesser included offense. See Grey v. State , 298 S.W

. 3d 644, (Tex

. Crim. App. 2009) (State has an absolute right to obtain submission of a lesserincluded offense.). I t would not have been irrational for a habeas c ourt to conclude that Applicant would not risk a 10 y ear sentence. Of course, it is possible that a habeas court would conclude that Applicant would risk i t an y w ay or that it would conclude that the State would offer something less—such as a 2 y ear sentence. The habeas court here concluded that, “ Had Applicant known about the lab report and its leg a l implications, he would not have pleaded guilty to possession of 4 to 200 g rams of methamphetamine and instead would have insisted on g oing to trial.” B ut these finding s do not discuss the full implications of such a plea—that the State is guaranteed to g et the lesserincluded third-degr ee felony and that Applicant w ould risk a 10 y ear punishment g oing to trial. I f Applicant had broug h t this case much sooner, a remand mig ht have been appropriate to ensure that the habeas court considered all relevant information.

4 I t could, however, result in a g reater period o f incarceration. I t is possible for his sentence to more than triple.HOOP ER DISSENT — 4

that, if h e obtains the r elief h e seeks here, he will file further applications to attack those c onvictions. Calling his later two cases into question would be a w indfall to which Applicant is not entitled, and it would prejudice the State in o ne of two w ay s: (1) if Applicant succeeds, b y frustrating the State’s interest in having a usable prior felony conviction that Applicant committed and effect i vely pled
g uilty to, o r (2) if Applicant’s claim is denied, by forcing the State to ex pend resources responding
to h is newly available claims. B ecause Applicant does not have a substantial interest that could be vindicated by a new trial a nd because the State is prejudiced if he obtains that form of relief, I would hold that laches bars Applicant from obtaining a new trial in this case. Applicant does have a rig h t not to be convicted of an offense that the e vidence shows he is
not g uilty o f

. T h a t r i ght can be v indicated by reforming the judg ment to reflect conviction for a third-deg ree f

elony rather than a second-deg ree f elony

. That remedy creates no p rejudice to the State and so is not barred by

laches.
I would reform the judg ment to reflect that Applicant was convicted o f a third-deg ree felony instead of a second-degr ee felony

. B ecause the Court g r ants Applican t a new trial when laches should bar that relief, I

respectfully

dissent.
F iled: March 6, 2024 Publish