In the Court of Criminal
Appeals of Texas
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No. WR-93,821-01
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EX PARTE JESSE RAY OHLEMACHER,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. 1394386-A in the 339th District Court
From Harris County
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YEARY, J., filed a concurring opinion.
In 2013, Applicant pled guilty to the offense of possession of
cocaine, a penalty group one controlled substance, and was sentenced to
one hundred eighty days’ confinement in state jail. See TEX. HEALTH &
SAFETY CODE § 481.115 (establishing the offense of possession of a
penalty group one controlled substance). Eight years later, Applicant
received a letter from the District Attorney for the county of his
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conviction. In this letter, the District Attorney informed Applicant that,
about a month after Applicant’s conviction, a crime laboratory analyzed
the substance that was found in Applicant’s possession. The lab test did
not identify any cocaine or other penalty group one controlled
substances. Instead, the lab test identified a penalty group two
controlled substance, A-PVP. The Texas Health and Safety Code
categorizes possession of a penalty group two controlled substance as a
distinct offense from possession of a penalty group one controlled
substance. TEX. HEALTH & SAFETY CODE § 481.116.
Today, the Court grants Applicant relief based on his claim that
his guilty plea was involuntary. For reasons already expressed in
previous opinions such as Judge Keasler’s concurring opinion in Ex parte
Saucedo, 576 S.W.3d 712, 712–22 (Tex. Crim. App. 2019), and my
concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 72–75 (Tex.
Crim. App. 2021), I disagree that Applicant’s guilty plea was
involuntary. But I agree that he is entitled to post-conviction relief on
due process and due course of law grounds.
When undisputed new facts that were inaccessible to both parties
at the time of a trial or plea irrefutably demonstrate that an Applicant
is not guilty of the offense for which a judgment of conviction has been
entered, the rights to due process and due course of law are implicated.
But for the inaccessibility of those newly discovered facts, a rational jury
or judge would not have entered either a finding or a judgment of guilt.
In these circumstances, a court—with jurisdiction that has been
properly invoked—must not tolerate the perpetuation of the false
judgment. The previous inaccessibility of the evidence definitively
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demonstrates the fundamental unfairness of the process that led to the
verdict, regardless of the existence of some other error. This conclusion
is necessary to preserve the very integrity of our judicial system itself.
Otherwise, our system might improperly preserve, and even honor,
demonstrably false judgments.
Applicant did plead guilty to the offense of possession of a penalty
group one controlled substance. TEX. HEALTH & SAFETY CODE § 481.115.
And his plea was not involuntary. However, it is now irrefutably clear
that he is not guilty of that offense. Instead, the undisputed facts clearly
show that, if he is guilty, he is guilty only of the offense of possession of
a penalty group two controlled substance. TEX. HEALTH & SAFETY CODE
§ 481.116. 1 Applicant’s false judgment must be overturned.
Additionally, I remain steadfast in my belief that this Court
should simply overrule Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App.
2014).
With these comments, I concur in the result.
FILED: February 1, 2023
PUBLISH
This case is not one involving what I would consider to be a mere
1
variance between similarly treated substances—one in which the substance a
defendant was convicted for possessing is different than the substance he
actually possessed, but possession of both of the substances is made a crime by
the same statute and the penalty range for possession of either substance is
the same. In this case, possession of the substance that it appears that
Applicant actually possessed is prohibited under an entirely different statute.