Hobson, Forrest

Court: Court of Criminal Appeals of Texas
Date filed: 2021-03-31
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Combined Opinion
           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