Flores, Jeremiah Rene

In the Court of Criminal
Appeals of Texas
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No. WR-95,760-01
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EX PARTE JEREMIAH RENE FLORES,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 23-CR-3451-83-1 in the 56th District Court
Galveston County
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YEARY, J., filed a dissenting opinion in which KELLER, P.J., and
KEEL and SLAUGHTER, JJ., joined as to Parts II & III.

In September of 2023, Applicant was arrested and charged with
possession of a controlled substance, specifically, less than one gram of
cocaine, a state-jail felony. 1 At the time of his arrest, Officer Ramirez,

1 See TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D) (designating
cocaine as a Penalty Group 1 controlled substance), 481.115(b) (establishing
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the arresting officer, tested the substance found on Applicant’s person
with a cocaine field test kit. The results came back positive for cocaine.
Applicant was incarcerated and was unable to make bond.
In October of 2023, the Galveston County Criminal District
Attorney’s Office offered Applicant a time-served plea bargain.
Applicant accepted the offer and pled guilty. Pursuant to the plea
bargain, the trial court sentenced him to fifty-two days in the Galveston
County Jail with twenty-six days credit. 2 See TEX. PENAL CODE §
12.44(a) (allowing state-jail felonies to be punished as Class A
misdemeanors if that punishment best serves the ends of justice).
At the time of his plea, no laboratory testing of the substance
found in Applicant’s possession had been conducted. In November of
2023, however, about a month after Applicant’s plea, the Texas
Department of Public Safety Houston Crime Laboratory issued a lab
report which concluded that the substance found in Applicant’s
possession was not cocaine but Alprazolam, a Penalty Group 3 controlled
substance, in the amount of 0.12 (± 0.06) grams. 3 According to the lab
report, Applicant committed not a state jail felony but a Class A
misdemeanor. 4 So, a month later, in December of 2023, Applicant filed

possession of less than one gram of a controlled substance listed under Penalty
Group 1 as a state-jail felony).

2 The Galveston County Jail awards two-for-one time credit. Therefore,

the assessed punishment amounted to time served.

3 See TEX. HEALTH & SAFETY CODE§ 481.104(a)(2) (designating Alprazolam
as a Penalty Group 3 controlled substance).
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this writ application with the assistance of counsel. 5
In light of the laboratory results, Applicant now raises two
grounds for relief in this writ application. First, he argues that he was
“denied due process of law because the laboratory results prove that he
was actually innocent of the charge for which he was convicted.” Second,
he argues that his plea “was involuntary because the laboratory results
prove that he is actually innocent of the charge for which he was
convicted.” The State then responds, in its supplemental answer to
Applicant’s post-conviction habeas corpus application, that “all parties
involved, including Applicant, incorrectly believed, at the time of his
guilty plea, that the substance he possessed contained cocaine.”
Today, the Court grants Applicant relief under Ex parte Mable,
443 S.W.3d 129 (Tex. Crim. App. 2014), on the basis that his plea was
involuntary because he was unaware of the laboratory results that were
not in existence at the time of his plea. Majority Opinion at 1. As I have

4 See TEX. HEALTH & SAFETY CODE § 481.117(b) (establishing that
possession of less than 28 grams of a controlled substance listed under Penalty
Group 3 is a Class A misdemeanor).

5 Applicant has completed his sentence, but he has alleged the existence

of collateral consequences “sufficient to establish ‘confinement’ so as to trigger
application of art. 11.07.” Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim.
App. 2010). As best as we can tell, at the time of his guilty plea he was
apparently serving a two-year period of deferred adjudicated community
supervision in another cause number and, due in part to the offense subject to
this application, the State filed a motion to proceed to adjudicate that earlier
offense. Applicant also claims that this felony conviction will be taken into
consideration when Applicant is reviewed for parole, also, presumably, with
respect to that earlier offense.
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articulated many times before, 6 I continue to believe that Mable was
wrongly decided and should be overruled for the reasons explained by
Judge Keasler’s concurring opinion in Ex parte Saucedo, 576 S.W.3d
712–22 (Keasler, J., concurring) (Tex. Crim. App. 2021), and my
concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 72–75 (Yeary,
J., concurring) (Tex. Crim. App. 2021).
But I do believe that Applicant should get relief. Although I would
not grant Applicant relief on the ground that his plea was involuntary,
I am convinced he has shown a violation of his right to due process. Allow
me to explain.
I. VOLUNTARINESS OF PLEA
Mable stands for the erroneous proposition that subsequent
factual developments, without any “suggestion that [the applicant] was
fraudulently misled or coerced into pleading guilty or that [his] plea
counsel was ineffective[,]” may retroactively render an applicant’s plea
of guilty involuntary. Saucedo, 576 S.W.3d at 721 (Keasler, J.,
concurring). But that, I believe, is a mistake. As I have explained before,
“so long as an accused enters a guilty plea with an awareness of what
he does not know, it cannot be said that he pled involuntarily.” Warfield,
618 S.W.3d at 72 (Yeary, J., concurring) (quoting Saucedo, 576 S.W.3d
at 719 (Keasler, J., concurring)).
Even so, the Court seems to forget that the Court itself has
limited the circumstances in which the rationale from Mable should be

6 See, e.g., Ex parte Hooper, 685 S.W.3d 152 (Tex. Crim. App. 2024)
(Yeary, J., dissenting); Ex parte Thompson, 584 S.W.3d 874 (Tex. Crim. App.
2019) (Yeary, J., dissenting).
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applied. In Ex parte Broussard, this Court limited Mable, specifically, to
“cases [that] fall within the specific circumstances presented in Mable
itself”—where, after laboratory testing, it was found that the substance
Mable possessed was not an illicit substance at all. 517 S.W.3d 814, 820
(Tex. Crim. App. 2017). 7
In Broussard, this Court observed that Broussard’s guilty plea
was not rendered invalid simply because subsequent testing revealed
that he had possessed a different controlled substance in the same
penalty group that both he and the prosecution had believed he
possessed. Id. The Court explained there that “[a] guilty plea is not
necessarily involuntary when a defendant misapprehends a known
unknown [and that] guilty pleas that are otherwise valid do not become
invalid merely because laboratory tests determine the [applicant] was
carrying a different illicit substance.” Id. So, even if the Court does not
see fit to overrule Mable as I would do today, it should at least be guided
by the limiting principle it established in Broussard—that is the
principle that should govern the Court’s involuntary-plea analysis in
this case.
Here, unlike in Mable, and like in Broussard, laboratory testing
revealed that the substance Applicant possessed was still an illicit
substance. At the time of Applicant’s plea, both he and the prosecution
were under the mutual misassumption that Applicant had possessed a

7 As the Court explained in Broussard, “Mable’s guilty plea to
possession of a controlled substance was involuntary [only] because, in fact, he
was not carrying any illicit substances. It was the complete lack of illicit
substances that qualified as a ‘crucial’ fact in Mable’s involuntary-plea
calculus.” 517 S.W.3d at 820.
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state-jail-felony amount of cocaine. Both parties apparently assented to
the accuracy of Officer Ramirez’s field test of the substance that was
found in Applicant’s possession. Both parties took the calculated risk
that laboratory testing might reveal that Applicant possessed a different
substance other than cocaine. And nothing in the record suggests that
any coercion, intentional misrepresentation, or other action on the
State’s part rendered his plea involuntary. The Court’s determination
that Applicant’s plea was involuntary pursuant to Mable, at least as
Mable was limited by Broussard, is therefore flawed.
II. DUE PROCESS
Where the facts of this case and Broussard diverge, however, is
that here subsequent testing showed that Applicant possessed a
different substance in a different penalty group. 8 Had that evidence been
available at the time of Applicant’s plea, Applicant would not have pled
guilty to the state-jail felony cocaine possession offense. Instead, he
would have been charged with, and convicted of, only a Class A
misdemeanor.
Undisputed proof has now been presented irrefutably
demonstrating that Applicant has been convicted of a crime that he
manifestly did not commit. The information demonstrating this fact was
inaccessible to the parties at the time of Applicant’s plea. As I explained
in Ex parte Ohlemacher:
When undisputed new facts that were inaccessible to both
parties at the time of a trial or plea irrefutably demonstrate

8 In Broussard, the substance was believed to be cocaine, but
subsequent laboratory testing revealed the substance to be methamphetamine.
Both are listed under Penalty Group 1. 517 S.W.3d at 816. See TEX. HEALTH &
SAFETY CODE § 481.102(3)(D)).
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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 (Tex. Crim. App. 2023) (Yeary, J., concurring).
When, as in this case, a subsequent analysis of the evidence in a
controlled substance case proves that an applicant possessed a different
substance than he pled guilty to possessing, such that an applicant
should have been convicted only of a lesser offense, due process demands
that the applicant’s false judgment be corrected.
The judgment of conviction against Applicant does not accurately
reflect the crime that a rational jury or judge would have found
Applicant guilty of had the newly found facts been accessible to them
when determining his guilt. Because laboratory testing results clearly
show that Applicant committed, not the state-jail felony of possession of
cocaine, but the Class A misdemeanor of possession of a Penalty Group
3 controlled substance (Alprazolam) in an amount less than one gram, I
would reform the judgment of conviction to accurately reflect the crime
the evidence actually shows he committed.
III. CONCLUSION
I would grant Applicant relief on due process grounds by
reforming his judgment to reflect a conviction for the crime he
committed: a Class A misdemeanor. Since his sentence was within the
punishment range for a Class A misdemeanor, 9 and since he has already

9 See TEX. PENAL CODE § 12.21.
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served his sentence of 52 days in the Galveston County Jail, there seems
to be no reason to remand for resentencing. By setting aside Applicant’s
judgment altogether, the Court grants Applicant a greater form of relief
than the evidence shows he is entitled to. I therefore respectfully
dissent.

FILED: September 11, 2024
PUBLISH