IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-91,256-01
EX PARTE FORREST HOBSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 19F0701-005 IN THE 5TH DISTRICT COURT
FROM BOWIE COUNTY
YEARY, J., filed a concurring opinion.
CONCURRING OPINION
In 2019, Forrest Hobson, the Applicant in this case, pled guilty to possessing a
controlled substance and, pursuant to the plea agreement, was sentenced to eight years’
imprisonment. Applicant filed a post-conviction application for writ of habeas corpus
contending that he is actually innocent because the Texas Department of Public Safety
lab’s testing later showed that Applicant did not possess any controlled substance. Today,
the Court grants relief to Applicant based on the involuntariness of Applicant’s guilty plea,
rather than actual innocence. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).
For the reasons developed extensively in my concurring opinion in Ex parte Warfield, __
Hobson – 2
S.W.3d __, No. 91,289-01, 2021 WL 710232 (Tex. Crim. App. 2021) (Yeary, J.,
concurring), I can likewise only concur in the Court’s decision today.
Although I do not believe Applicant’s guilty plea was involuntary, Applicant is
entitled to relief because “due process simply will not tolerate the maintenance of a
conviction for a greater offense than the facts could possibly support under the controlling
penal statute.” Id. at *6. Here, I would eschew the label of “actual innocence,” id. at *5,
because, under the facts as we now know them to be, he might still ultimately be found
guilty of attempted possession of a controlled substance. I nevertheless believe Applicant
has at least satisfied the standard for obtaining relief under Ex parte Elizondo, 947 S.W.2d
202, 209 (Tex. Crim. App. 1996), with respect to the greater offense of possession of an
actual controlled substance, and he is therefore entitled to a new trial. With these thoughts,
I concur in today’s decision.
FILED: March 31, 2021
PUBLISH
Hobson, Forrest
Combined Opinion