Mosquera, Airton

In the Court of Criminal
Appeals of Texas
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No. WR-96,247-01
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EX PARTE AIRTON MOSQUERA,
Applicant

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On Application for a Writ of Habeas Corpus
Cause No. CR-20-2433-E-WHC1 in the 453rd District Court
From Hays County
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YEARY, J., filed a dissenting opinion in which SCHENCK, P.J., and
PARKER and FINLEY, JJ., joined.

I agree that the Court acted properly by granting rehearing in
this case. But the Court’s new opinion, in my view, is still flawed. The
cursory language adopting the convicting court’s Findings of Fact and
Conclusions of Law leaves unanswered questions. First, given that
Applicant raised multiple grounds for relief, it is unclear on what basis
the Court grants Applicant a new trial. Second, given this Court’s
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inconsistency as to what relief an applicant might be entitled to on these
claims, it is unclear why Applicant is receiving a new trial.
For my part, I am concerned that granting a new trial in these
situations places applicants at risk, if found guilty, of receiving a term
of confinement longer than they originally received when all they have
shown themselves to have actually been denied is the opportunity to be
considered for shock probation. Likewise, even if only a new punishment
proceeding was granted, a new judge might evaluate the situation
differently and impose a greater sentence. So, to avoid those potential
adverse results for applicants, the more appropriate remedy when an
individual is denied their ability to be considered for shock probation is
simply to grant an out-of-time opportunity to pursue a motion for shock
probation.
I. BACKGROUND
Applicant pled guilty to robbery and was sentenced to
confinement for ten years. But he did so with the understanding that his
counsel would file a motion for shock probation. The motion was never
filed. Subsequently, he filed this application for a writ of habeas corpus
in the county of conviction. The district clerk forwarded it to this Court.
See TEX. CODE CRIM. PROC. art. 11.07.
Applicant raised two grounds for relief. First, he asserted that his
plea was involuntary “because it was made with the understanding that
he would receive shock probation” upon the completion of an “initial
period of incarceration.” Second, he argued that he “was denied the
effective assistance of counsel when his attorney failed to file a motion
for shock probation. According to the record before us, counsel was
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aware that a post-plea filing was required to assure that Applicant
would have the opportunity to be considered for shock probation. And,
still, defense counsel failed to file the appropriate motion—a clear case
of ineffective assistance.
II. APPLICANT’S PLEA WAS NOT INVOLUNTARY
Applicant is not entitled to relief on his first claim on habeas
because his plea was not involuntary. A plea is not retroactively
rendered involuntary when counsel fails to take a particular action only
after the plea is entered. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.
Crim. App. 1997).
In Ex parte Morrow, this Court described the limited instances in
which relief is proper based on an involuntary plea claim premised on
an allegation of ineffective representation by a defendant’s counsel. Id.
There, the Court explained that, “[w]hen a defendant enters his plea
upon the advice of counsel and subsequently challenges the
voluntariness of that plea based on ineffective assistance of counsel, the
voluntariness of such plea depends on (1) whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases
and if not, (2) whether there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty[.]” Id. (citing Hill v.
Lockhart, 474 U.S. 52, 56 (1985)) (emphasis added). The analysis focuses
on the competency of counsel’s advice, which is necessarily limited to
counsel’s performance prior to the plea. Notably, then, if the alleged
ineffectiveness of counsel occurs only after the plea is entered,
involuntary plea is not the proper claim to be pursued or the proper
rationale for granting relief.
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Additionally, the notion that an unfulfilled promise necessarily
renders a plea involuntary is flawed. Puckett v. United States, 556 U.S.
129, 137–38 (2009). To illustrate, in Puckett v. United States, the
Supreme Court of the United States likened a plea agreement to a
contract. Id. at 137. Specifically, it stated that “there is nothing to
support the proposition that the Government’s breach of a plea
agreement retroactively causes the defendant’s agreement to have been
unknowing or involuntary.” Id. Just as a breach of contract does not
automatically render “the other party’s promise to have been coerced or
induced by fraud[,]” a breach of a plea agreement does not render the
plea involuntary. Id. The Court did not quibble: “In any case, it is
entirely clear that a breach does not cause the guilty plea, when entered,
to have been unknowing or involuntary.” Id. Indeed, “[i]t is precisely
because the plea was knowing and voluntary (and hence valid) that the
Government is obligated to uphold its side of the bargain.” Id. at 137–
38.
Moreover, in Puckett, the appellant specifically argued that the
United States Supreme Court had approved of an unfulfilled-promise
rationale as the basis for an involuntary plea. Id. at 138, n.1. That
argument stemmed from the Court’s decision in Brady v. United States,
where the Court approvingly quoted a Fifth Circuit opinion that
suggested a plea might be involuntary if it was induced by
“misrepresentation (including unfulfilled or unfulfillable promises)[.]”
Brady v. United States, 397 U.S. 742, 755 (1970) (quoting Shelton v.
United States, 246 F.2d 571, 572, n. 2 (5th Cir. 1957) (en banc)). But the
Court explicitly rejected that idea, explaining that “it is hornbook law
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that misrepresentation requires an intent at the time of contracting not
to perform.” Puckett, 566 U.S. at 138 n.1. (citing 23 R. Lord, Williston on
Contracts § 69.11 (4th ed. 2002)).
And it seems that this Court’s early suggestion that an attorney’s
failure to move for shock probation might render an applicant’s plea
involuntary predated Puckett. See Ex parte Davis, No. AP-76,039, 2008
WL 5049936, at *1 (Tex. Crim. App. Nov. 26, 2008) (per curiam) (not
designated for publication). In Ex parte Davis, which was decided the
year before the U.S. Supreme Court decided Puckett, this Court
concluded that an applicant’s plea “was rendered involuntary due to the
failure to timely file a motion for shock probation.” Id. Notably, though,
this Court’s unpublished decision in Davis—which cited no precedent for
granting relief—did not benefit from Puckett’s rather clear explanation
that a plea agreement is not retroactively rendered involuntary when a
breach occurs after the fact. 1 Id.
Here, counsel’s plea advice and plea representation were

1 Even after Puckett, this Court has continued to grant relief in cases

like these on the basis of the fiction that there has been an involuntary plea—
relying (without explanation) on Brady v. United States and Hill v. Lockhart.
See, e.g., Ex parte Manning, No. WR-96,034-02, 2024 WL 4833839, at *1 (Tex.
Crim. App. Nov. 20, 2024) (per curiam) (not designated for publication) (citing
Brady, 397 U.S. at 742); Ex parte Miles, No. WR-95,871-02, 2024 WL 4447413,
at *1 (Tex. Crim. App. Oct. 9, 2024) (per curiam) (not designated for
publication) (citing Lockhart, 474 U.S. at 52). But reliance on Brady in these
situations was squarely foreclosed by Puckett. Also, Lockhart examined pre-
plea ineffectiveness—not post-plea ineffectiveness. Lockhart, 474 U.S. at 56
(“[P]etitioner relies entirely on the claim that his plea was ‘involuntary’ as a
result of ineffective assistance of counsel because his attorney supplied him
with information about parole eligibility that was erroneous.”). Accordingly, it
is unclear why the Court continues to rely on those cases to support decisions
to grant relief on the ground that there has been an involuntary plea.
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competent—she secured Applicant the opportunity to move for shock
probation free of the State’s opposition. The problem only arose because
counsel subsequently failed to follow through with her own obligation to
timely seek shock probation. This failure—as the Supreme Court of the
United States has explained—simply “does not cause the guilty plea,
when entered, to have been unknowing or involuntary.” Id. at 137
(emphasis added). Because counsel’s advice and representation prior to
and leading up to the entry of Applicant’s plea were competent,
Applicant’s plea was not involuntary due to ineffective assistance of
counsel. 2
To the extent that this Court has previously suggested that an
unfulfilled promise renders a plea involuntary, those decisions run
contrary to Puckett and should be rejected. It bears repeating that the
court seems to have begun this practice—without explanation—before
Puckett was decided. When a breach occurs due to a subsequent-to-the-
plea failure to uphold a professional obligation, rather than a
misrepresentation at the time of the agreement, the plea is not
involuntary. The Court should finally and clearly acknowledge that.
III. APPLICANT’S COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE
Applicant is entitled to relief on his second claim on habeas—that

2 The convicting court, in its Conclusions of Law relating to Ground One,

cites Ex parte Bittikoffer for the notion that Applicant is entitled to relief based
on an involuntary plea due to ineffective assistance of counsel. 802 S.W.2d 701
(Tex. Crim. App. 1991). But Bittikoffer did not address a claim of involuntary
plea on the basis of ineffective assistance of counsel. See id. at 702 (noting that
the attorney was not at fault for the trial court’s loss of jurisdiction). So, the
habeas court’s reliance on Bittikoffer—in the context of involuntary plea due
to ineffective assistance of counsel—is misplaced.
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his counsel was constitutionally ineffective. See, e.g., Ex parte Leslie, No.
74,802, 2003 WL 22349049, at *1 (Tex. Crim. App. Oct. 15, 2003) (per
curiam) (not designated for publication) (granting relief on the basis on
ineffective assistance of counsel when trial counsel “failed to timely file
an application for shock probation and did not inform her of his inability
to file the application so as to permit her to obtain alternate counsel”).
Generally, under Strickland v. Washington, an applicant must show
that counsel’s performance was deficient and that—but for that deficient
performance—there is a “reasonable probability” that the outcome
would have been different. 466 U.S. 668, 694 (1984); Ex parte Chandler,
182 S.W.3d 350, 353 (Tex. Crim. App. 2005). But with respect to post-
conviction performance, when counsel’s deficient performance entirely
deprives a defendant of a proceeding, prejudice is shown, and the
defendant has a viable ineffective assistance of counsel claim. Cf. Roe v.
Flores-Ortega, 528 U.S. 470, 484–85 (2000) (“[T]o show prejudice in
these circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel's deficient failure to consult
with him about an appeal, he would have timely appealed.”); Miller v.
State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018) (“[I]f the deficient
performance might have caused the waiver of a proceeding, the
defendant’s burden is to demonstrate a reasonable probability that the
deficient performance caused the defendant to waive a judicial
proceeding that he was otherwise entitled to have.”).
Here, counsel was deficient for failing to file the motion for shock
probation that Applicant rightly anticipated. But for that failure,
Applicant would have had an opportunity to be considered for shock
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probation. In accordance with his plea bargain, he was entitled to have
the possibility of shock probation be considered by the convicting court. 3
In short, Applicant deserves relief.
IV. THE PROPER REMEDY
But, what is the proper remedy? Without citing any authority, the
Court’s terse opinion grants Applicant a whole new trial. Majority
Opinion at 1–2. But the Court should explain its rationale because it has
been inconsistent on cases like this one in the past. Compare Ex parte
Ulibarri, No. AP-75,773, 2007 WL 2852162, at *1 (Tex. Crim. App. Oct.
3, 2007) (per curiam) (not designated for publication) (granting an
applicant a new punishment hearing when counsel failed to timely
present a motion for shock probation), with Ex parte Medina, No. AP-
75,859, 2008 WL 644059, at *1 (Tex. Crim. App. Mar. 5, 2008) (per
curiam) (not designated for publication) (granting a new trial when
counsel failed to present a timely motion for shock probation). Within
the span of just over five months, two applicants received starkly
different remedies. 4 Id. One received a new punishment hearing,
Ulibarri, 2007 WL 2852162, at *1, and the other received an entire new
trial. Medina, 2008 WL 644059, at *1. 5 The Court should address the

3 The convicting court goes so far as to explicitly find that it would have

granted the motion and placed Applicant on community supervision.

4 In both of these cases, the convicting court recommended relief in the

form of an out-of-time opportunity to be considered for shock probation.

5 Admittedly, in our original opinion in the present case, we failed to

fully wrestle with this issue, and that is why I agree that granting rehearing
and withdrawing our prior opinion is the proper course of action.
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discrepancy. 6
A. New Trial or New Punishment Presents Problems
While a new trial might be one way to address Applicant’s
situation, it is not required. Puckett, 556 U.S. at 137. In Puckett, the
Supreme Court of the United States noted that, when certain
“obligations are not met, the defendant is entitled to seek a remedy,
which might in some cases be rescission of the agreement, allowing him
to take back the consideration he has furnished, i.e., to withdraw his
plea.” Id. But it also clarified that “rescission is not the only possible
remedy;” sometimes, the proper remedy is requiring the obliged party to
“fully comply with the agreement—in effect, specific performance of the
contract.” Id. (citing Santobello v. New York, 404 U.S. 257, 263 (1971)).
For my part, with respect to the propriety of granting a new trial,
I am concerned that a new trial or a new punishment phase might place
some applicants at risk of receiving a term of confinement longer than
they originally received. An applicant might not even perceive the
possibility of a greater sentence when pursuing a claim for deprivation
of a proceeding permitting a trial court to consider granting shock
probation. While due process prevents a trial judge from vindictively
increasing the range of punishment, it is entirely possible that a new
judge, or jury, might evaluate a case differently in the subsequent

6 Recently, the Court’s trend has been to grant relief on the basis of

involuntary plea, which necessarily demands unraveling the plea. See, e.g., Ex
parte Manning, 2024 WL 4833839, at *1. But, as previously explained, the
pleas in these cases are not rendered involuntary because counsel fails to move
for shock probation. See ante Part II. So, the Court should correct its course
and examine what remedy applicants are entitled to under the appropriate
ground for relief—ineffective assistance of counsel.
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proceedings and thus impose a greater punishment than Applicant
originally received. See Texas v. McCullough, 475 U.S. 134, 138–44
(1986) (explaining that the imposition of a higher sentence on a retrial
is not always vindictive). Surely, that is not the “relief” that applicants
want when they have approached the Court only because they have been
denied an opportunity to move for shock probation. And we should avoid
creating the potential for applicants to be subjected to that risk—even
when, as here, they ask for it.
B. An Opportunity for Shock Probation is Appropriate
Typically, when a trial or appellate counsel’s post-conviction
performance is constitutionally ineffective—depriving a defendant of a
procedure that he would otherwise be entitled to—the proper remedy is
to allow a defendant to pursue that procedure. Cf. Ex parte Daigle, 848
S.W.2d 691, 692 (Tex. Crim. App. 1993) (“The proper remedy in a case
such as this is to return the Applicant to the point at which he can give
notice of appeal.”). For example, in Ex parte Axel, the Court held that a
defendant’s trial counsel was constitutionally ineffective for failing to
give notice of appeal. Ex parte Axel, 757 S.W.2d 369, 374–75 (Tex. Crim.
App. 1988). The Court decided that the appropriate remedy for counsel’s
failure was the opportunity to pursue an out-of-time appeal. Id. at 375.
Likewise, in Ex parte Crow, when appellate counsel failed to inform a
defendant of his right to file a petition for discretionary review, the
Court “granted leave to file an out-of-time petition for discretionary
review.” Ex parte Crow, 180 S.W.3d 135, 139 (Tex. Crim. App. 2005).
Here, because trial counsel’s ineffectiveness occurred post-
conviction, the most appropriate remedy would be to address the post-
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conviction problem that he actually seeks to remedy—to grant Applicant
an opportunity to pursue the proceeding that he was deprived of—
affording him an out-of-time motion for shock probation. He bargained
for an opportunity to be considered for shock probation, but he did not
receive it. Like Axel and Crow, where post-conviction ineffectiveness of
counsel entitled the applicants to an opportunity to pursue the
proceeding that they were deprived of, Applicant here should be afforded
an opportunity to move for shock probation. That is the benefit he
bargained for, and he should receive specific performance of that
benefit. 7
In sum, I agree that rehearing is appropriate in this case because
it was a mistake to grant Applicant a new punishment proceeding. But
I still disagree with the Court’s new chosen remedy—a whole new trial.
I am now convinced that the proper remedy is an out-of-time motion for
shock probation. While an out-of-time motion for shock probation might
break new ground jurisprudentially, it does seem to be the most
appropriate form of relief—it is consistent with the remedy we grant in
other contexts when a trial or appellate counsel’s post-conviction
ineffectiveness deprives an applicant of a proceeding that he was
entitled to have.

7 The convicting court, in its Conclusions of Law relating to Ground

Two, cites Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990), for
the proposition that Applicant is entitled to a new trial on the basis of
ineffective assistance of counsel. But Welborn dealt with a failure to
investigate, which is pre-conviction ineffectiveness that undermined the
integrity of the verdict. Id. at 396. Because trial counsel’s ineffectiveness here
occurred post-conviction, Welborn does not control.
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V. CONCLUSION
The Court, today, is presented with an opportunity clarify a line
of our jurisprudence that runs contrary to a decision of the Supreme
Court of the United States. It is also presented with the opportunity to
rectify an inconsistency in its own jurisprudence concerning what
remedy is appropriate when an applicant does not receive a bargained
for motion for shock probation. Instead of seizing that moment, the
Court issues a perfunctory opinion that fails to address either issue. For
that reason, and because I believe the ultimate remedy granted by the
Court is flawed, I respectfully dissent.

FILED: July 2, 2025
PUBLISH