Ex parte Saucedo, WR-87,190-02

• Decision Date: 26 June 2019
• Docket Number: NO. WR-87,190-02,WR-87,190-02
• Citation: 576 S.W.3d 712 (Mem)
• Parties: EX PARTE Andrew SAUCEDO, Applicant
• Court: Texas Court of Criminal Appeals

576 S.W.3d 712 (Mem)

EX PARTE Andrew SAUCEDO, Applicant

NO. WR-87,190-02

Court of Criminal Appeals of Texas.

Filed: June 26, 2019

CONCURRING OPINION

Keasler, J., filed a concurring opinion, in which Hervey and Yeary, JJ., joined.

Saucedo pleaded guilty to possession of methamphetamine, but post-plea laboratory testing has shown that the substance he possessed was actually methylethcathinone. Saucedo argues that, in light of this new evidence, his guilty plea was involuntary. Under the Court's holdings in Ex parte Palmberg and Ex parte Broussard , I cannot agree that Saucedo's plea was involuntary. However, I do think that his conviction violates due process on other grounds. I write separately to explain my rationale.

I. FACTS

Saucedo was initially charged with two felony offenses: first-degree felony possession of a controlled substance, over 400 grams of diluted codeine; and second-degree felony possession of a controlled substance, between 4 and 200 grams of methamphetamine. At his first court appearance on January 27, 2014, Saucedo pleaded guilty to these charges and, pursuant to the terms of a plea-bargain agreement, was placed on a six-year term of deferred-adjudication probation. At the time he entered his plea, no confirmatory laboratory testing had been done on any of the substances Saucedo possessed.

On March 21, 2014, what was then called the Houston Police Department (HPD) Crime Laboratory prepared a report identifying some, but not all, of the substances from Saucedo's cases. The HPD Crime Laboratory reported that the substance supporting Saucedo's second-degree felony charge, initially thought to be methamphetamine, was in fact "methylethcathinone," a "derivative of 2-aminopropanal." There were 9.18 grams of this substance in the sample analyzed. Methamphetamine is a penalty group one substance, and possession of 4–200 grams of a penalty group one substance is a second-degree felony.¹ Methylethcathinone is a penalty group two substance, and possession of 4–400 grams of a penalty group two substance is also a second-degree felony.²

On January 26, 2017, Saucedo's probations were revoked, and he was sentenced to ten years' imprisonment on each charge. These sentences were ordered to run concurrently. The habeas judge made a finding that, both at the time of Saucedo's plea and at the time his probation was revoked, Saucedo was unaware of the lab report indicating that the substance he possessed was actually methylethcathinone.

On June 14, 2017, the Houston Forensic Science Center (HFSC) prepared another report pertaining to Saucedo's cases. In this report, the HFSC reported that the substance supporting Saucedo's first-degree felony charge, initially thought to be codeine, was in fact promethazine. Promethazine is not within any of the penalty groups in the Controlled Substances Act; it is, at most, a dangerous drug.³ Possession of any amount of a dangerous drug is a Class A misdemeanor offense.⁴

Shortly thereafter, Saucedo contemporaneously filed two applications for writs of habeas corpus in the convicting court. In his first, -01 writ, Saucedo argued that (1) his guilty plea as to possession of codeine was involuntary under Ex parte Mable ,⁵ and (2) his conviction violated due process because, "[i]f Applicant committed an offense, it is not the specific offense Applicant was accused of and convicted of violating." We granted relief in the -01 writ, expressly citing Mable .⁶ Whether to grant relief from Saucedo's conviction for possession of methamphetamine is the issue before us in this -02 writ.

II. LAW

A. Due Process, Involuntary Pleas, and Ex parte Mable .

If a guilty plea is not "voluntary and knowing, it has been obtained in violation of due process and is therefore void."⁷ For the plea to be voluntary and knowing, the accused must have a "sufficient awareness of the relevant circumstances and likely consequences" of his plea.⁸ To meet this standard, "the defendant must have an actual awareness of the nature and gravity of the charges against him and of the constitutional rights and privileges that he necessarily relinquishes—in short, ‘a full understanding of what the plea connotes and of its consequences.’ "⁹

Applying these principles in controlled-substance cases in which the defendant pleads guilty before the identity of the substance has been confirmed by laboratory testing has been a unique, recurring challenge for this Court—one that we first confronted head-on in Ex parte Mable .¹⁰ Mable pleaded guilty to possession of a controlled substance, but a post-plea laboratory analysis indicated that the substance he possessed "did not actually contain any illicit materials."¹¹ In light of this newly acquired evidence, Mable claimed that he was "actually innocent,"¹² but we disagreed. We noted that, under State v. Wilson , the phrase "actual innocence" applies "only in circumstances where the accused did not actually commit the charged offense or any possible lesser included offenses."¹³ We concluded that it was possible, even in light of the post-plea laboratory report, that Mable had "attempted to possess a controlled substance," and had thereby committed "a lesser included offense[ ] of possession."¹⁴

Nevertheless convinced that Mable was entitled to relief, we opted instead to invalidate his plea as insufficiently knowing and voluntary.¹⁵ We noted that "all parties involved, including the applicant, incorrectly believed the applicant had been in possession of drugs"—a fact that we described as "crucial."¹⁶ "[W]hile operating under such a misunderstanding," we said, "the applicant cannot be said to have entered his plea knowingly and intelligently."¹⁷

B. Mable 's progeny.

Mable quickly invited a spate of litigation. What other sorts of adjudicative facts, known-to-be-unknown at the time of the plea, might later be deemed "crucial" to the guilty-plea process, such that miscalculating them would render the plea invalid?

In Ex parte Palmberg , just as in Mable , the defendant pleaded guilty to possessing a controlled substance before the laboratory had completed an analysis of the substance he possessed.¹⁸ The lab eventually informed the parties, post-plea, that "there was no unprocessed sample left over for the laboratory to analyze," the arresting officer having used up all of the substance found on Palmberg for field testing.¹⁹ While Palmberg sought relief under Mable , we considered his situation to be "factually distinguishable" from Mable's.²⁰ While Mable pleaded guilty under a misapprehension that was ultimately "crucial" to his case, Palmberg had merely "overestimated the State's ability to ... prove he was guilty in the absence of his judicial confession."²¹ We rejected the idea that Mable requires the defendant to "kn[o]w every fact relevant to the prosecution of his case" before he may enter a voluntary plea.²²

In Ex parte Broussard , the defendant pleaded guilty to delivery of cocaine, but laboratory tests later determined that the substance he delivered was actually methamphetamine.²³ Broussard claimed that his plea was involuntary under Mable , but we again disagreed. We reiterated that "[e]very defendant that pleads guilty does so with the implicit understanding that conviction at trial is never certain."²⁴ So, we reasoned, a defendant should not ordinarily be allowed to withdraw his plea "simply because his good-faith evaluations of the facts turned out to be incorrect."²⁵ Because Broussard failed to articulate any "reason why he would not have accepted the plea bargain other than the bare fact that the illicit substances were different," we denied relief.²⁶

III. ANALYSIS

A. Mable should be overruled.

We ordinarily follow the doctrine of stare decisis in order to "promote judicial efficiency and consistency, encourage reliance upon judicial decisions, and contribute to the integrity of the judicial process."²⁷ But these laudable interests are not advanced when we continue to follow a precedent that was either poorly reasoned from the outset or that has, in the ensuing years, proven itself "unworkable."²⁸ In those situations, it is appropriate for the Court to overrule its prior precedent and find a better way going forward.

I. Mable was poorly reasoned.

In Mable , the Court's desire to resolve the case on involuntary-plea grounds was clearly based on the belief that it simply could not grant relief on Mable's claim of actual innocence.²⁹ This belief was, in turn, based upon language from our opinion in State v. Wilson , wherein we said that "the term ‘actual innocence’ shall apply ... only in circumstances in which an accused did not, in fact, commit the charged offense or any lesser-included offenses."³⁰

There were two problems with this approach. In the first place, Mable never claimed that his plea was involuntary. In his writ application, Mable grounded his claim for post-conviction habeas relief on a single legal theory: that he was "actually innocent" of possessing a controlled substance. The closest Mable came to arguing involuntariness was an observation that a claim of actual innocence "is much like a traditional involuntary plea" claim.³¹ But that is a far cry from Mable claiming that his own plea was coerced or that he did not understand, when he pleaded guilty, the consequences of his plea or the rights that he was necessarily relinquishing. Although the Court's instinct to invalidate Mable's conviction as inconsistent with due process was correct, for reasons that I explain below,³² involuntariness was clearly not the fundamental due-process defect that Mable asked us to cure. The Court should not have reached that issue sua sponte .

Secondly, and more importantly, Mable ' s description of what Wilson held was woefully incomplete. In Wilson , the appellee pleaded guilty to felony DWI.³³ He later came to realize that, at the time he pleaded guilty, one of his prior DWI convictions was not eligible for use as a jurisdictional enhancement. In a post-conviction habeas...