Full Opinion

In the Court of Criminal Appeals of Texas ════════════ No. WR-96,233-01 ════════════ Ex Parte Quincy Devon Johnson, Applicant ═══════════════════════════════════════ On Application for Writ of Habeas Corpus In Cause No. 1111229-A In the 180th District Court Harris County ═══════════════════════════════════════ YEARY, J., filed a dissenting opinion. The Court today rejects the convicting court’s findings, as well as its recommendations that relief be either denied or dismissed, and it instead grants relief to Applicant in this post-conviction habeas proceeding under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). But the facts in Mable were very different, suggesting a different result should at least be considered here. And moreover, Mable was Johnson – 2 wrongly decided in the first place. In my view, then, the Court errs to grant relief in this case. Consequently, I respectfully dissent. I. BACKGROUND According to the convicting court, Applicant was arrested on April 5, 2007, and was charged with the possession of between 1 and 4 grams of 3,4−methylenedioxy methamphetamine (also known as “ecstasy” and hereinafter referred to as “narcotics”), a third-degree felony under Section 481.116(c) of the Texas Health and Safety Code. TEX. HEALTH & SAFETY CODE § 481.116(c). According to a police report related to the arrest, the narcotics weighed 1.1 grams. On April 9, 2007, only four days after his arrest, and while he was represented by counsel, Applicant waived indictment and pled guilty to the charge, and to a weapons charge as well, stemming from the same incident. He was sentenced to five years in prison. Here is where Applicant’s case gets weird. In a report from the Houston Police Department Crime Laboratory, dated February 6, 2009, which was nearly two years after his arrest and plea, a notation suggests that narcotics related to Applicant’s case weighed only 0.6 grams, which was below the threshold of the more than one gram required by law to support his conviction. Then, in another report dated August 13, 2020, prepared by the Houston Forensic Science Center, narcotics related to Applicant’s case were recorded as weighing only 0.38 grams. Once again, this amount is less than the threshold of the Johnson – 3 more than one gram required by law to support Applicant’s conviction, and it is also less than the weight of the narcotics recorded on February 6, 2009. Applicant was informed of these tests via letter in August of 2021, and this habeas application was filed on September 30, 2024. No one seems to know how to explain the continuously diminishing quantity of narcotics related to Applicant’s case. II. INVOLUNTARY PLEA Applicant contends that his plea was made involuntarily because, had he known about the lab report from 2009 at the time of his plea, he “would not have pleaded guilty” and would have “insisted on going to trial.” For a guilty plea to be considered voluntary, it must be “a voluntary and intelligent choice among the alternative courses of action.” State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013). Likewise, the defendant “must possess an understanding of the law in relation to the facts.” Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex Crim. App. 2023). It is not necessary that a defendant have complete knowledge of the prosecutor’s case. Id. In Palmberg, the applicant pled guilty to possession of cocaine and later claimed his plea was involuntary as he had been unaware that all of the substance he possessed was used in a field test conducted by the arresting officer. This left no remaining amount for later testing in a laboratory. There, this Court explained that “as long as [Palmberg] ha[d] a sufficient awareness of his circumstances—including an Johnson – 4 awareness that some facts simply remain[ed] unknown to him or [we]re undetermined as of the time of the plea—his potentially unwise plea [wa]s still a voluntary one.” Id. at 809. Here, the convicting court concluded that Applicant failed to show that his plea was not made knowingly. Another way of saying this is that Applicant knew what he did not know—he knew that the narcotics he possessed could have been weighed independently, but he did not fight for or even ask for such weighing to occur before his plea. Applicant has not alleged that he was coerced to plead guilty by anyone. He has not alleged that his counsel was ineffective. All he claims is that he would not have pled guilty had he known about the results reflected in a report produced almost two years after his arrest and plea. Several other findings by the convicting court also suggest that Applicant’s plea was, in fact, made knowingly. For example, the convicting court found that Applicant agreed to a plea deal that saw other, more serious charges, dismissed. Applicant also admitted to police that he was in possession of the narcotics and that he intended to sell them. Nothing he has alleged demonstrates that his plea was, in any way, made with insufficient understanding of the facts and law, or that his plea was involuntary. III. DUE PROCESS Applicant also alleges, in light of the subsequent weights reflected in reports made about the narcotics he possessed, that his Johnson – 5 guilty plea violated due process. In Mable, the defendant had pled guilty to possession of a controlled substance and did not appeal, but after subsequent testing revealed that the substance he possessed actually contained no illicit materials at all, this Court declared his plea to have been involuntary and granted him relief on habeas. I think the Court was wrong to call Mable’s plea involuntary. But even I have suggested before that, in my view, due process may be implicated “when undisputed new facts that were inaccessible to both parties at the time of the trial or plea irrefutably demonstrate that an Applicant is not guilty of the offense for which a judgment of conviction has been entered.” Ex parte Ohlemacher, 666 S.W.3d 528, 528 (Tex Crim. App. 2023) (Yeary, J., concurring). Here, unlike in Mable, where the applicant demonstrated that the substance he possessed contained no detectible narcotics at all, Applicant has failed to produce any evidence that would demonstrate that he was not in possession of between one and four grams of narcotics at the time of his arrest. 1 Applicant instead only presents evidence that narcotics related to his case were reported to weigh 0.6 grams in February of 2009, and then 0.38 grams in August of 2020, nearly two and then thirteen years post-arrest, respectively. It is worth observing 1 See Mable, 443 S.W.3d at 130 (the applicant pled guilty to possession of a controlled substance, though later testing showed that the substance “did not contain any illicit materials”) (emphasis added). Johnson – 6 again that no facts have been provided to this Court to explain or to account for these variances. IV. CONFINEMENT Applicant has also failed to show, as he must, that he is truly confined due to this offense. Under Article 11.07, Section 3(c), an applicant must show that he is confined, which is defined as “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” TEX. CODE CRIM. PROC. art. 11.07, § 3(c) (emphasis added). If Applicant remains “confined” at all, it is not due to the conviction he challenges here. Applicant has already discharged his sentence. So, Applicant must allege in this proceeding that he is confined due to collateral consequences he is suffering because of his conviction. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). He alleges, among other things, loss of job opportunities, inability to find housing, and difficulty obtaining both federal and state benefits. He also claims that his conviction has been used for enhancement purposes in subsequent criminal cases. But Applicant has failed to show that these disadvantages are truly a result of his conviction in this case. See, e.g., Ex parte Thompson, 726 S.W.3d 462, 465−66 (Tex Crim. App. 2025) (Finley, J., concurring) (“There is no evidence in the record, other than Applicant's unsworn declaration, to support his claim that the collateral Johnson – 7 consequences ‘result[ ] from the conviction that is the basis of the instant habeas corpus.’ TEX. CODE CRIM. PROC. art. 11.07, § 3(c).”). According to the convicting court’s findings, before Applicant’s arrest and plea in this case, he had already been convicted of five previous felonies, including three separate third-degree felonies. These facts, if true, would directly contradict Applicant’s unsworn statement, in which he claims that the present case was his first felony conviction. Applicant also appears to have received two subsequent felony convictions. If Applicant had presented definitive evidence that he possessed only 0.6 or 0.38 grams of narcotics at the time of his arrest, which he has not, then I could potentially agree that his judgement of conviction should be reformed on due process grounds. But he has not made such a showing. Even if he had, in that circumstance, he would only have demonstrated that he possessed narcotics of some amount under one gram, which would still have subjected him to conviction for a state jail felony. See TEX. HEALTH & SAFETY CODE § 481.116(b). And even if Applicant had been convicted only of a state jail felony, he would have still been subject to many of the same kinds of collateral consequences which he argues the current conviction unjustly imposes on him. Given this fact, it is hard to imagine how the equities might favor granting relief to Applicant in this case. Johnson – 8 V. CONCLUSION Today, the Court rejects the convicting court’s findings, as well as its recommendations that relief be either denied or dismissed, and grants relief requested by Applicant on the grounds that his plea was made involuntarily under our decision in Mable. But the Court fails to account for and explain why Mable, which was based on facts very different from those presented by Applicant, should afford him the relief the Court grants. And even if Mable did seem to necessarily and properly control the outcome in this case, for reasons I have explained before, 2 Mable was wrongly decided, and it should be overruled. Applicant has failed to show either that his plea was involuntary or that his due process rights have been violated. And he has similarly failed to demonstrate that his writ application should result in the granting of 2 See Ex parte Shelton, 693, S.W.3d 340, 341 n. 2 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“Mable was wrongly decided and should be overruled.”); Ex parte Warfield, 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021) (Yeary, J., concurring) (“Mable should be overruled. As Judge Keasler aptly explained in his concurring opinion in Saucedo, 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.”) (citing Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, J., concurring)); Ex parte Hooper, 685 S.W.3d 152, 155 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“I reaffirm my belief today that this Court should overrule Mable because it 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 [her] plea counsel was ineffective[,]’ may retroactively render an applicant’s plea of guilty involuntary”) (quoting Saucedo, 576 S.W.3d at 721 (Keasler, J., concurring)). Johnson – 9 relief in order to rescue him from collateral consequences growing out of his plea in this case. For all these reasons, I respectfully dissent. FILED: September 17, 2026 PUBLISH