## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S NO. WR-95,630-01

EX PARTE STANLEY LEE JOHNSON, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 1087344-A IN THE 230TH DISTRICT COURT

HARRIS COUNTY
K E L L E R 

### , P.J., filed a dissenting opinion in w hich S L A U G H T E R 

### , J., joined.

DISSENTING OP INION Fi f t e e n y ears after Applicant pled g uilty to possession of PCP, testing showed the amount of the drug was less than what he p l e d t o . Bu t Applicant received the minimum sentence f or possession of even the lower amount. Applicant isn’t claiming that, had he known, he would have refused t o p l e a d g uilty a t all and insisted on a trial. And, importantly , the State abandoned the
ag g r avating element of “intent to deliver” in e x chang e f o r Applicant’s plea. Under these circumstances, we should not find his plea involuntary under Mable. Applicant w as charg ed with possession of 4 g rams o r more but less than 2 00 g rams of PCP,JOHNSON DISSENT — 2

with intent to deliver. That offense was a first-deg r ee felony , 1 w ith a punishment rang e of 5 to 99
y ears or life. 2 I n 2006, in ex chang e for a plea of g u ilty , the State a bandoned the “intent to deliver” element, making the offense a second-degree felony , 3 with a p unishment r ang e of 2 to 20 y ears. 4 The State also ag reed to the minimum possible sentence—two y ears. A t t h e t ime he pled g uilty , Applicant had t h re e p r ior convictions: a 2002 misdemeanor conviction for unlawfully carry ing a weapo n , a 2005 state-jail-felony conviction for possession of a controlled substance, a nd a 2005 misdemeanor assault conviction. I n 2021, the PCP that Applicant had possessed was tested, and the weig ht was found to be
approx imately 2.5 g rams. That a mount would make the p ossession offense a third d eg ree felony , 5 with a punishment rang e of 2 to 10 y ears. 6 I t would make possession with intent to deliver a second deg ree felony , 7 with the 2-to-20-y ear rang e of punishment. I n his affidavit, Applicant say s, “Had I known that the evidence I was arrested with weig hed only 2.518 +/-

. 02.6 g ram s , I w o u ld not have p leaded g uilty to possession of 4 to 200 g rams of a controlled substance (phency clidine).” Given the two-y ear sentence he received, and the “intent to deliver” element the State abandoned, that a lleg ation is not enoug h. Of course Applicant would not

1 T E X
. H E A L T H & S A F E T Y C O D E § 481.112(d).

2 T E X
. P E

N A L C O D E § 12.32(a).

3 T E X
. H E A L T H & S A F E T Y C O D E § 481.115(d).

4 T E X
. P E

N A L C O D E § 12.33(a).

5 T E X
. H E A L T H & S A F E T Y C O D E § 481.115(c).

6 T E X
. P E

N A L C O D E § 12.34(a).

7 T E X
. H E A L T H & S A F E T Y C O D E § 481.112(c).JOHNSON DISSENT — 3

have pled g uilty

to possessing four g rams or more of PCP in the face of scientific testing showing that the PCP weig hed l e s s , a n d t h e S t ate would not have pursued such a charg e. B ut that doesn’t

mean he would not have pled g uilty at all, or even that he would n ot have pled g uilty to a PCP charg e of the same deg ree and with the same punishment. On this r ecord, he certainly could have. The State

was willing to ag ree to a two-y e ar sentence. That could not happen with a first-deg ree felony charg e, with its five-y ear minimum, so the State h ad to abandon the “ intent to deliver” element to drop the punishment rang e to a minimum of two y ears. B ut if the substance h ad been f o und to be its current weig ht before the plea, there would have been no need to drop t h e “i n t e n t to deliver” element, because two y ears would have been within the p unishment rang e. Under t h o s e c ircumstances, Applicant could still have pled to a second-degree felony (possession w ith intent to deliver the lower amount) and received a two-y ear sentence. Even if we a ssume that Applicant thoug ht the “intent to deliver” element couldn’t be proven (which he hasn’t alleg ed), there is still no reason to b elieve that A pplicant would h ave p assed up a two-y ear sentence w hen his ex posure for possession of the lower amount w a s t e n y e a r s and f or “intent to deliver” the lower a mount w as twenty y ears. A pplicant acknowledg es that h e was arrested with the PCP. He h a s g iven the Court no reason to think that he had any defense to possession. And he could not have g otten a lower sentence. The only way Applicant could do “better” than a two-y ear sentence (if it really is better) would have been to g et probation or deferred adjudication. Applicant hasn’t alleg ed that he would have soug ht one o f these options, and he hasn ’ t p r e s e nted any evidence that the State would have
ag reed to either of them. B oth sides would have had r easons not to ag ree to either of these options. The State could have w eig hed A p p l i c a nt’s recent prior criminal record—including a controlledJOHNSON DISSENT — 4

substance offense c ommitted just a y ear earlier—ag ainst probation. And for Applicant, sig ning on
to p robation or deferred adjudication would have posed serious risks of a much long er sentence on revocation than the two-y ear sentence he received. 8 Applicant has not alleg ed that if he had known about the weig ht of the controlled substance, he would have rolled the dice and insisted on a trial. And even if he had, the statement would not be particularly credible since he has alleg ed no defense to the p ossession charg e, he received the absolute minimum sentence, he would still have been ex posed to a possible twenty

- y ear sentence, and he had a recent prior criminal record. B ut he hasn’t even alleg ed it. T he most w e should do is reform the judg ment from a second-deg ree offense to a thirddeg ree offense. I am n o t sure that we should even do that because I am r e asonably certain that, if Applicant had known the weig ht of the PCP at the time of the plea, he would still have pled g uilty
to and been convicted of a second-deg ree felony offense (possession with intent to deliver the lower amount). B ut I have no doubt a t a ll that he w ould have pled to a nd been convicted of at least a thirddeg ree felony

. To wipe that felony away , with the possible effect of undoing other convictions based in part on it, would be a windfall Applicant does not deserve. F iled: J u ne 19, 2024 Publish

8 A sentence as long as ten y ears could be a ssessed with the imposition of proba t i o n b y a judg e or a jury , T E X
. C O D E C R I M
. P R O C
. art. 42.12, § 3(e)(1) (2006), to be served if th e p r o b a t ion we r e e v e r r e voked, a

nd an a djudication of g u ilt would ex pose the defendant to the full rang e of punishment. I

d. , § 5(b). Applicant’s prior criminal record didn’t reflect g ood prospects f or completing a possibly ten y ear period of supervision. And knowing what we now know about the offenses for which he was later convicted—terroristic threat in 2008, possession of a controlled substance in 2009, reckless driving in 2013, a nd manufacture or delivery of a controlled substance in 2014—his probation would almost certainly have been revoked.