Carpenter, Thomas Allen III

In the Court of Criminal
Appeals of Texas
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No. WR-95,319-01
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EX PARTE THOMAS ALLEN CARPENTER III,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 23-CR-1575-83-1
In the 405th District Court
Galveston County
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YEARY, J., filed a concurring opinion.

In May of 2023, Applicant pled guilty to possession of
between one and four grams of a penalty group one controlled
substance—methamphetamine—and was sentenced to two years’
imprisonment. See TEX. HEALTH & SAFETY CODE § 481.115(c)
(establishing possession of “one gram or more but less than four
CARPENTER – 2

grams” of a penalty group one controlled substance as a third
degree felony), § 481.102(6) (listing methamphetamine as a
penalty group one substance). Two months later, in July of 2023,
a crime laboratory released its analysis of the substance that was
found in Applicant’s possession. The lab test identified the
presence of methamphetamine but in an amount of “0.72 grams
(+/- 0.09 grams).”
In October of 2023, Applicant, through his plea counsel,
filed an original and an amended application for a writ of habeas
corpus in the county of conviction. TEX. CODE CRIM. PROC. art.
11.07. In his original application, Applicant asserted that there is
“insufficient evidence for conviction of possession of one to four
grams of [a] controlled substance” because “[t]he lab result[] of the
controlled substance is less than one gram.” In his “amended”
application, Applicant reframes his ground for relief as an
involuntary plea, repeating the supporting facts of his original
application—with the addition that “[t]he appellant would not
have pled to possession of one to four grams.”
Today, the Court grants Applicant relief on the basis that
his 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 (Tex. Crim. App.
2019) (Keasler, J., concurring), and in my concurring opinion in
Ex parte Warfield, 618 S.W.3d 69, 72–75 (Tex. Crim. App. 2021)
CARPENTER – 3

(Yeary, J., concurring). I reaffirm my belief today that this Court
should overrule Mable. Subsequent factual developments,
without any “suggestion that [the applicant] was fraudulently
misled or coerced into pleading guilty or that [her] plea counsel
was ineffective[,]” do 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 he ‘knew . . . he
did not know’ should not invalidate his 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 his plea of guilty was involuntary at the time he made it.
Consequently, I disagree that Applicant is entitled to relief on the
ground that his 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 (Tex. Crim. App. 2023) (Yeary, J.,
concurring).
The subsequent analysis of the evidence in this case proves
CARPENTER – 4

that Applicant was not guilty of possession of one to four grams
of a controlled substance, but of less than one gram. The
undisputed facts show that Applicant is, at most, guilty of
possession of less than one gram of a penalty group one controlled
substance. TEX. HEALTH & SAFETY CODE § 481.115(b). Therefore,
Applicant’s conviction for an offense he demonstrably did not
commit is a false judgment which due process demands be
overturned. 1
With these thoughts, I concur in the result.

FILED: January 10, 2024
DO NOT PUBLISH

1 I would reach this conclusion because “an applicant who can

show that his 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 original assertion that there was insufficient evidence to
convict him for possession of one to four grams of a controlled substance,
when the evidence conclusively shows he possessed less than one gram,
amounts to a “no evidence” due process claim.
As I acknowledge above, Applicant amended his application to
reframe his claim as an involuntary plea, probably to satisfy Mable. I
do not believe that his plea was involuntary, and I believe that Mable
should be overruled. But I would not penalize Applicant for reframing
his application to satisfy that, albeit wrongly decided, precedent—at
least not when his amended application essentially preserves the
essence of his original due process claim. Whether we should describe
his claim as a “no evidence” or some other species of due process claim,
I believe that Applicant’s conviction violated due process and that he is
entitled to relief. See id. (Yeary, J., dissenting) (“We should . . . grant
relief to Applicant in this case today, whatever label we choose to
append to his due process claim.”); Warfield, 618 S.W.3d at 74–75
(Yeary, J., concurring).