# In the Court of Criminal Appeals of Texas

══════════ ══ No. WR

- 95,760

- 01

══════════ ══

EX PARTE JEREMIAH RENE FLORES , Applicant

═══════════════════════════════════════ On Application for Writ of Habeas Corpus In Cause No. 23

- CR

- 3451

- 83

- 1 i n the 56 th District Court Galveston County

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Y EAR Y , J., filed a dissent ing opinion in which K ELLER , P.J., and K EEL and S LAUGHTER , JJ., joined as to Parts II & III

. In September of 2023, Applicant was arrest ed 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 T EX

. H EALTH & S AFETY C ODE §§ 481.102(3)(D) (designating cocaine as a Penalty Group 1 controlled substance), 481.115(b) (establishingFLORES

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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 T EX

. P ENAL C ODE § 12.44(a) (allowing state

- jail felonies to be punished as Class A
misdemeanor s if that punishment b est serve s 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 J ail awards two

- for

- one time credit. Therefore, th e assessed punishment amounted to time served.

3 See T EX

. H EALTH & S AFETY C ODE § 481.104 (a)(2) (designating Alprazolam as a Penalty Group 3 controlled substance).FLORES

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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 convict ed.” 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 T EX

. H EALTH & S AFETY C ODE § 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 m otion to proceed to a djudicate that earlier offense . Applicant also claims that this felony conviction will be taken into consideration when Applicant is reviewed for parole , a lso, 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. V OLUNTARINESS O F P LEA 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 7 2 1 (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 sai d 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, t he Court seems to forget that the Court itself has
limit ed 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. I n 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 , t h is 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 tha t both he and the prosecution had believed he possessed. Id. T he 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 th e 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 render ed his plea inv oluntary

. T he Court ’s determination that Applicant’s plea was involuntary pursuant to Mable , at least as
Mable was limited by Broussard , is therefore flawed.
II. D UE P ROCESS 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 p enalty g roup

. 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. S ee T EX

. H EALTH & S AFETY C ODE § 481.102(3)(D)).FLORES

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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).
W hen , 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.
T he 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

. B ecause 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. C ONCLUSION 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 T EX

. P ENAL C ODE § 12. 21.FLORES

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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. B y setting aside Applicant’s judgment altogether , t he 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