In the Court of Criminal 

Appeals of Texas

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No. WR-95,760-01

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EX PARTE JEREMIAH RENE FLORES,

Applicant

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On Application for Writ of Habeas Corpus

In Cause No. 23-CR-3451-83-1 in the 56th District Court

Galveston County

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YEARY, J., filed a dissenting opinion in which KELLER, P.J., and 

KEEL and SLAUGHTER, JJ., joined as to Parts II & III.

In September of 2023, Applicant was arrested and charged with 

possession of a controlled substance, specifically, less than one gram of 

cocaine, a state-jail felony.1 At the time of his arrest, Officer Ramirez, 

1 See TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D) (designating 

cocaine as a Penalty Group 1 controlled substance), 481.115(b) (establishing 
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the arresting officer, tested the substance found on Applicant’s person 

with a cocaine field test kit. The results came back positive for cocaine. 

Applicant was incarcerated and was unable to make bond. 

In October of 2023, the Galveston County Criminal District 

Attorney’s Office offered Applicant a time-served plea bargain.

Applicant accepted the offer and pled guilty. Pursuant to the plea 

bargain, the trial court sentenced him to fifty-two days in the Galveston 

County Jail with twenty-six days credit.2 See TEX. PENAL CODE § 

12.44(a) (allowing state-jail felonies to be punished as Class A 

misdemeanors if that punishment best serves the ends of justice). 

At the time of his plea, no laboratory testing of the substance

found in Applicant’s possession had been conducted. In November of 

2023, however, about a month after Applicant’s plea, the Texas 

Department of Public Safety Houston Crime Laboratory issued a lab 

report which concluded that the substance found in Applicant’s 

possession was not cocaine but Alprazolam, a Penalty Group 3 controlled 

substance, in the amount of 0.12 (± 0.06) grams.3 According to the lab 

report, Applicant committed not a state jail felony but a Class A 

misdemeanor.4 So, a month later, in December of 2023, Applicant filed 

possession of less than one gram of a controlled substance listed under Penalty 

Group 1 as a state-jail felony).

2 The Galveston County Jail awards two-for-one time credit. Therefore, 

the assessed punishment amounted to time served. 

3 See TEX. HEALTH & SAFETY CODE § 481.104(a)(2) (designating Alprazolam 

as a Penalty Group 3 controlled substance). 
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this writ application with the assistance of counsel.5

In light of the laboratory results, Applicant now raises two 

grounds for relief in this writ application. First, he argues that he was 

“denied due process of law because the laboratory results prove that he 

was actually innocent of the charge for which he was convicted.” Second, 

he argues that his plea “was involuntary because the laboratory results 

prove that he is actually innocent of the charge for which he was 

convicted.” The State then responds, in its supplemental answer to 

Applicant’s post-conviction habeas corpus application, that “all parties 

involved, including Applicant, incorrectly believed, at the time of his 

guilty plea, that the substance he possessed contained cocaine.”

Today, the Court grants Applicant relief under Ex parte Mable, 

443 S.W.3d 129 (Tex. Crim. App. 2014), on the basis that his plea was 

involuntary because he was unaware of the laboratory results that were 

not in existence at the time of his plea. Majority Opinion at 1. As I have 

4 See TEX. HEALTH & SAFETY CODE § 481.117(b) (establishing that 

possession of less than 28 grams of a controlled substance listed under Penalty 

Group 3 is a Class A misdemeanor). 

5 Applicant has completed his sentence, but he has alleged the existence 

of collateral consequences “sufficient to establish ‘confinement’ so as to trigger 

application of art. 11.07.” Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. 

App. 2010). As best as we can tell, at the time of his guilty plea he was 

apparently serving a two-year period of deferred adjudicated community

supervision in another cause number and, due in part to the offense subject to 

this application, the State filed a motion to proceed to adjudicate that earlier 

offense. Applicant also claims that this felony conviction will be taken into 

consideration when Applicant is reviewed for parole, also, presumably, with 

respect to that earlier offense.
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articulated many times before,6 I continue to believe that Mable was 

wrongly decided and should be overruled for the reasons explained by 

Judge Keasler’s concurring opinion in Ex parte Saucedo, 576 S.W.3d 

712–22 (Keasler, J., concurring) (Tex. Crim. App. 2021), and my 

concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 72–75 (Yeary, 

J., concurring) (Tex. Crim. App. 2021). 

But I do believe that Applicant should get relief. Although I would 

not grant Applicant relief on the ground that his plea was involuntary, 

I am convinced he has shown a violation of his right to due process. Allow 

me to explain. 

I. VOLUNTARINESS OF PLEA

Mable stands for the erroneous proposition that subsequent 

factual developments, without any “suggestion that [the applicant] was 

fraudulently misled or coerced into pleading guilty or that [his] plea 

counsel was ineffective[,]” may retroactively render an applicant’s plea 

of guilty involuntary. Saucedo, 576 S.W.3d at 721 (Keasler, J., 

concurring). But that, I believe, is a mistake. As I have explained before, 

“so long as an accused enters a guilty plea with an awareness of what 

he does not know, it cannot be said that he pled involuntarily.” Warfield, 

618 S.W.3d at 72 (Yeary, J., concurring) (quoting Saucedo, 576 S.W.3d 

at 719 (Keasler, J., concurring)). 

Even so, the Court seems to forget that the Court itself has 

limited the circumstances in which the rationale from Mable should be 

6 See, e.g., Ex parte Hooper, 685 S.W.3d 152 (Tex. Crim. App. 2024) 

(Yeary, J., dissenting); Ex parte Thompson, 584 S.W.3d 874 (Tex. Crim. App. 

2019) (Yeary, J., dissenting). 
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applied. In Ex parte Broussard, this Court limited Mable, specifically, to 

“cases [that] fall within the specific circumstances presented in Mable

itself”—where, after laboratory testing, it was found that the substance 

Mable possessed was not an illicit substance at all. 517 S.W.3d 814, 820 

(Tex. Crim. App. 2017).7

In Broussard, this Court observed that Broussard’s guilty plea 

was not rendered invalid simply because subsequent testing revealed 

that he had possessed a different controlled substance in the same 

penalty group that both he and the prosecution had believed he 

possessed. Id. The Court explained there that “[a] guilty plea is not 

necessarily involuntary when a defendant misapprehends a known 

unknown [and that] guilty pleas that are otherwise valid do not become 

invalid merely because laboratory tests determine the [applicant] was 

carrying a different illicit substance.” Id. So, even if the Court does not 

see fit to overrule Mable as I would do today, it should at least be guided 

by the limiting principle it established in Broussard—that is the

principle that should govern the Court’s involuntary-plea analysis in 

this case. 

Here, unlike in Mable, and like in Broussard, laboratory testing 

revealed that the substance Applicant possessed was still an illicit 

substance. At the time of Applicant’s plea, both he and the prosecution 

were under the mutual misassumption that Applicant had possessed a 

7 As the Court explained in Broussard, “Mable’s guilty plea to 

possession of a controlled substance was involuntary [only] because, in fact, he 

was not carrying any illicit substances. It was the complete lack of illicit 

substances that qualified as a ‘crucial’ fact in Mable’s involuntary-plea 

calculus.” 517 S.W.3d at 820.
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state-jail-felony amount of cocaine. Both parties apparently assented to 

the accuracy of Officer Ramirez’s field test of the substance that was 

found in Applicant’s possession. Both parties took the calculated risk 

that laboratory testing might reveal that Applicant possessed a different 

substance other than cocaine. And nothing in the record suggests that 

any coercion, intentional misrepresentation, or other action on the 

State’s part rendered his plea involuntary. The Court’s determination 

that Applicant’s plea was involuntary pursuant to Mable, at least as 

Mable was limited by Broussard, is therefore flawed. 

II. DUE PROCESS 

Where the facts of this case and Broussard diverge, however, is 

that here subsequent testing showed that Applicant possessed a 

different substance in a different penalty group.8 Had that evidence been 

available at the time of Applicant’s plea, Applicant would not have pled 

guilty to the state-jail felony cocaine possession offense. Instead, he 

would have been charged with, and convicted of, only a Class A 

misdemeanor. 

Undisputed proof has now been presented irrefutably 

demonstrating that Applicant has been convicted of a crime that he 

manifestly did not commit. The information demonstrating this fact was 

inaccessible to the parties at the time of Applicant’s plea. As I explained 

in Ex parte Ohlemacher: 

When undisputed new facts that were inaccessible to both 

parties at the time of a trial or plea irrefutably demonstrate 

8 In Broussard, the substance was believed to be cocaine, but 

subsequent laboratory testing revealed the substance to be methamphetamine.

Both are listed under Penalty Group 1. 517 S.W.3d at 816. See TEX. HEALTH &

SAFETY CODE § 481.102(3)(D)). 
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that an Applicant is not guilty of the offense for which a 

judgment of conviction has been entered, the right to due 

process and due course of law are implicated. But for the 

inaccessibility of those newly discovered facts, a rational 

jury or judge would not have entered either a finding or a 

judgment of guilt.

666 S.W.3d 528, 528 (Tex. Crim. App. 2023) (Yeary, J., concurring). 

When, as in this case, a subsequent analysis of the evidence in a 

controlled substance case proves that an applicant possessed a different 

substance than he pled guilty to possessing, such that an applicant 

should have been convicted only of a lesser offense, due process demands 

that the applicant’s false judgment be corrected. 

The judgment of conviction against Applicant does not accurately 

reflect the crime that a rational jury or judge would have found 

Applicant guilty of had the newly found facts been accessible to them 

when determining his guilt. Because laboratory testing results clearly 

show that Applicant committed, not the state-jail felony of possession of 

cocaine, but the Class A misdemeanor of possession of a Penalty Group 

3 controlled substance (Alprazolam) in an amount less than one gram, I 

would reform the judgment of conviction to accurately reflect the crime 

the evidence actually shows he committed.

III. CONCLUSION

I would grant Applicant relief on due process grounds by 

reforming his judgment to reflect a conviction for the crime he 

committed: a Class A misdemeanor. Since his sentence was within the 

punishment range for a Class A misdemeanor,9 and since he has already 

9 See TEX. PENAL CODE § 12.21.
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served his sentence of 52 days in the Galveston County Jail, there seems 

to be no reason to remand for resentencing. By setting aside Applicant’s

judgment altogether, the Court grants Applicant a greater form of relief 

than the evidence shows he is entitled to. I therefore respectfully 

dissent. 

FILED: September 11, 2024

PUBLISH