In the Court of Criminal
Appeals of Texas
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No. WR-95,325-01
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EX PARTE CHRISTINA MICHELLE HOLMES
A.K.A. CHRISTINA MICHELLE HILLER,
Applicant
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On Application for Writ of Habeas Corpus
In Cause No. 23-04-05568(1)
In the 9th District Court
Montgomery County
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YEARY, J., filed a concurring opinion.
In April of 2023, Applicant pled guilty to possession of a
controlled substance—methamphetamine—and was sentenced to
thirty days confinement. See TEX. HEALTH & SAFETY CODE §
481.115(b) (establishing possession of less than one gram of a
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penalty group one controlled substance as a state jail felony); TEX.
PENAL CODE § 12.44(a) (permitting state jail felonies to be
punished as Class A misdemeanors in the interests of justice).
Three months later, in July of 2023, Applicant’s plea counsel
received a letter from the District Attorney from the county of her
conviction. In this letter, the District Attorney informed
Applicant’s counsel that, 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
methamphetamine or any other controlled substance.
In November of 2023, Applicant, through her plea counsel,
filed this application for a writ of habeas corpus in the county of
conviction. TEX. CODE CRIM. PROC. art. 11.07. In her application,
she alleges that “her plea was not freely and voluntarily entered
because the evidence was legally insufficient to support it.”
Today, the Court grants Applicant relief on the basis that her plea
was involuntary, citing Ex parte Mable, 443 S.W.3d 129 (Tex.
Crim. App. 2014). Majority Opinion at 2.
I have steadfastly argued that Mable was wrongly decided
and should be overruled for the reasons articulated by Judge
Keasler’s concurring opinion in Ex parte Saucedo, 576 S.W.3d
712, 712–22 (Keasler, J., concurring) (Tex. Crim. App. 2019) and
my concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 72–
75 (Yeary, J., concurring) (Tex. Crim. App. 2021). I reaffirm my
belief today that this Court should overrule Mable. Subsequent
factual developments, without any “suggestion that [the
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applicant] was fraudulently misled or coerced into pleading guilty
or that [her] plea counsel was ineffective[,]” should not
retroactively render an applicant’s plea of guilty involuntary.
Saucedo, 576 S.W.3d at 721, 719 (Keasler, J., concurring) (an
applicant’s “ignorance of facts [s]he ‘knew . . . [s]he did not know’
should not invalidate [her] otherwise voluntary decision to plead
guilty”) (quoting Ex parte Palmberg, 491 S.W.3d 804, 810 (Tex.
Crim. App. 2016)).
In this case, Applicant has pled no facts demonstrating
that her plea of guilty was involuntary at the time she made it.
Consequently, I disagree that Applicant is entitled to relief on the
ground that her plea was involuntary. I do agree, however, that
Applicant is entitled to post-conviction relief—but on grounds of
due process and due course of law. As I wrote in Ex parte
Ohlemacher:
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 right 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.
666 S.W.3d 528, 528 (Yeary, J., concurring) (Tex. Crim. App.
2023).
The subsequent analysis of the evidence in this case proves
that Applicant was not guilty of possession of a controlled
substance. No rational judge would have entered a judgment of
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guilt had that fact been available to him. The undisputed facts
show that Applicant is, at most, guilty of attempted possession of
a penalty group one controlled substance. TEX. HEALTH & SAFETY
CODE § 481.115(b); TEX. PENAL CODE § 15.01(a). Therefore, due
process dictates that Applicant’s conviction for an offense she
demonstrably did not commit be overturned. 1
With these thoughts, I concur in the result.
FILED: January 24, 2024
DO NOT PUBLISH
1 I would reach this conclusion because “an applicant who can
show that [her] conviction was based on ‘no evidence’ may obtain post-
conviction relief on due process grounds.” Ex parte Lane, 670 S.W.3d
662, 685 (Tex. Crim. App. 2023) (Yeary, J., dissenting) (citing Ex parte
Perales, 215 S.W.3d 418, 419–20 (Tex. Crim. App. 2007)). In my view,
Applicant’s assertion of insufficient evidence to convict her of possession
of less than one gram of a controlled substance, when the evidence
conclusively shows she possessed no controlled substance at all,
amounts to a “no evidence” due process claim. See Perales, 215 S.W.3d
at 420 (“If the record is devoid of evidentiary support for a conviction,
an evidentiary challenge is cognizable on a writ of habeas corpus.”).
Applicant frames her complaint as an involuntary plea based on
the lack of evidence to support her conviction. She probably presents
her claim this way to satisfy Mable. I do not believe that her plea was
involuntary, and I believe that Mable should be overruled. But I would
not penalize Applicant for framing her application to satisfy that, albeit
wrongly decided, precedent—at least not when the meat of her
application also arguably raises a due process claim. See Ex parte
Coleman, 599 S.W.2d 305, 307 (Tex. Crim. App. 1978) (“Where there
has been no evidence upon which to base a conviction, a violation of due
process has occurred[.]”). In any event, whether we should describe her
claim as a “no evidence” or some other species of due process claim, I
believe that Applicant’s conviction violated due process and that she is
entitled to relief. See Lane, 670 S.W.3d at 685 (Yeary, J., dissenting)
(“We should . . . grant relief to Applicant in this case today, whatever
label we choose to append to [her] due process claim.”); Warfield, 618
S.W.3d at 74–75 (Yeary, J., concurring).