IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,489-01
EX PARTE G’COBRA SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1449083-A IN THE 337TH DISTRICT COURT
FROM HARRIS COUNTY
K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY
and Y EARY, JJ., joined.
DISSENTING OPINION
G’Cobra Smith was charged with the third-degree felony offense of possession of
codeine, a Penalty Group 4 controlled substance, in the amount of more than twenty eight
milligrams but less than 200 milligrams.1 Pursuant to his plea agreement with the State,
Smith pleaded guilty to the lesser included offense of attempted possession of codeine and
was sentenced to 180 days’ confinement. Subsequent chemical testing revealed that the
substance Smith allegedly possessed did not contain any controlled substances or dangerous
1
T EX. H EALTH & S AFETY C ODE §§ 481.105(a), 481.118(c) (West 2014).
SMITH DISSENT—2
drugs.
We ordered that this application be filed and set for submission with briefing by the
parties to determine whether Smith’s plea to a lesser offense was rendered involuntary by the
subsequent discovery that the evidence would not have supported the greater charge.2
Instead of substantively addressing this issue, the Court simply grants relief under Ex parte
Mable,3 assuming that its rationale applies. I don’t think it does.
Mable pleaded guilty to possession of a controlled substance, and like here,
subsequent testing revealed that the seized substances did not contain any illicit materials.4
The Court rejected Mable’s actual-innocence claim on the basis that “it [was] possible that
[Mable] . . . attempted to possess a controlled substance (which is a lesser included offense
of possession).”5 However, the Court in Mable interpreted an actual-innocence claim to also
include an involuntary plea claim.6 The Court then held Mable’s plea unknowing and
involuntary because, “all parties involved, including [Mable], incorrectly believed [Mable]
had been in possession of drugs.”7 This fact, the Court continued, was “crucial” to the case,
2
Order, Ex parte Smith, No. WR-83,489-01, 2015 WL 5453046 (Tex. Crim. App.
Sept. 16, 2015) (per curiam) (not designated for publication).
3
443 S.W.3d 129 (Tex. Crim. App. 2014).
4
Id. at 130.
5
Id. at 130–31.
6
Id. at 131.
7
Id.
SMITH DISSENT—3
and while operating under such a misunderstanding, Mable’s plea could not be knowingly
and intelligently entered.8
The key or “crucial” distinction between Mable and Smith’s case is that Smith did not
plead guilty to possession of a controlled substance; he pleaded to the lesser included offense
of attempt. A person commits the inchoate offense of criminal attempt “if, with specific
intent to commit an offense, he does an act amounting to more than mere preparation that
tends but fails to effect the commission of the offense intended.” 9 So in Smith’s case, we
cannot so boldly proclaim that the substance’s identity was crucial to his case. And because
Mable’s reasoning turns entirely on the cruciality of a misunderstanding or misestimation of
a particular fact, we cannot confidently declare as involuntary Smith’s guilty plea to the
lesser included offense of attempt. The habeas judge’s findings and conclusions and the
parties’ briefs do little to explain why Mable’s holding requires granting relief here. Without
more, I am unwilling to stretch Mable’s broad reasoning beyond its borders.
FILED: March 1, 2016
DO NOT PUBLISH
8
Id. at 131.
9
T EX. P ENAL C ODE § 15.01(a) (West 2014).