Shelton, Frank Gregory

In the Court of Criminal
Appeals of Texas
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No. WR-95,713-01
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EX PARTE FRANK GREGORY SHELTON,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 1334516-A in the 209th District Court
Harris County
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YEARY, J., filed a dissenting opinion.

In January of 2012, Applicant was charged with possession of a
controlled substance, specifically, 4-400 grams of methylenedioxy
methamphetamine (MDMA), a second-degree felony. TEX. HEALTH &
SAFETY CODE §§ 481.103(a)(1) (designating MDMA as a Penalty Group
2 controlled substance), 481.116(d) (establishing possession of 4-400
SHELTON – 2

grams of a Penalty Group 2 controlled substance as a second-degree
felony). On the same day the charge was filed, Applicant pled guilty
pursuant to a plea agreement and was sentenced to two years’
imprisonment. At the time of his plea, no laboratory testing of the
substance in Applicant’s possession had occurred.
In September of 2012, nine months after Applicant’s plea, the
Houston Police Department crime laboratory released its forensic
analysis of the evidence in Applicant’s case. The report identified only
the presence of N-Benzylpiperazine (BZP), a different Penalty Group 2
controlled substance, and in an amount of 0.8 grams. See TEX. HEALTH
& SAFETY CODE § 481.103(a)(1) (designating BZP as a Penalty Group 2
controlled substance).
Later, in November of 2021, the evidence was destroyed pursuant
to a destruction order from the trial court. Then, in February of 2022,
ten years after Applicant’s plea, the Harris County District Attorney’s
Office sent Applicant notice of the variance between his charge and the
drug lab report, including a copy of the lab report. Two years later, in
March of 2024, Applicant filed the instant application for writ of habeas
corpus with the assistance of the Harris County Public Defender’s
Office. 1
Applicant raises two grounds for relief “[i]n light of the laboratory
report showing that the evidence contained a different controlled

1 Applicant long ago completed his sentence, but he has alleged in his

pleading 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). Specifically, the record indicates
that Applicant’s conviction in this cause has been used to enhance his
punishment in another criminal case.
SHELTON – 3

substance and weighed less than the amount he was charged and
convicted of possessing[.]” First, he argues that, because “the evidence
in the case cannot support the offense that Applicant was charged and
convicted of committing[,]” his conviction violates due process. Second,
he argues that his plea was involuntary because, had he known that “the
evidence in this case was not MDMA and weighed less than the amount
required to sustain the charge, he would not have pleaded guilty.”
The Court today grants Applicant relief on his second claim,
involuntary plea, under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim.
App. 2014). For reasons I have often explained, I would not grant any
applicant relief under Mable, because Mable was wrongly decided and
should be overruled. 2 Moreover, there is no evidence in this case that
Applicant was “fraudulently misled or coerced into pleading guilty or
that his plea counsel was ineffective.” Ex parte Saucedo, 576 S.W.3d 712,
721 (Tex. Crim. App. 2019) (Keasler, J., concurring). He pled guilty the
same day he was charged, one day after his arrest, when neither he nor
the State knew what testing of the evidence in his case might reveal.
This “ignorance of facts he ‘knew . . . he did not know’” does not now,

2 See Ex parte Warfield, 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021)

(Yeary, J., concurring) (“Mable should be overruled. As Judge Keasler aptly
explained in his concurring opinion in Saucedo, 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.”) (citing Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex.
Crim. App. 2019) (Keasler, J., concurring)); Ex parte Hooper, 685 S.W.3d 152,
155 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“I reaffirm my belief today
that this Court should overrule Mable because it 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 [her] plea counsel was ineffective[,]’ may retroactively render an
applicant’s plea of guilty involuntary”) (quoting Saucedo, 576 S.W.3d at 721
(Keasler, J., concurring)).
SHELTON – 4

retroactively, render his plea involuntary. Id. at 719 (Keasler, J.,
concurring) (quoting Ex parte Palmberg, 491 S.W.3d 804, 810 (Tex.
Crim. App. 2016)). I would not grant Applicant relief on the ground of
involuntary plea. 3
Instead, I would grant Applicant relief on his first claim, due
process, as the habeas court recommends, and reform his judgment. 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).
Accordingly, when post-plea analysis of the evidence in a controlled
substance case proves that the applicant is guilty only of a different
offense, due process demands that the applicant’s false judgment be
corrected. Here, Applicant pled guilty to and was convicted of possession
of a Penalty Group 2 controlled substance, and the evidence shows that
he is guilty of some level of that offense. That he actually possessed a
different Penalty Group 2 drug (BZP) than he believed he had possessed

3 Applicant’s plea was also not involuntary simply because he possessed

a different penalty group two controlled substance than the one that he pled
guilty to possessing. Ex parte Broussard, 517 S.W.3d 814, 820 (Tex. Crim. App.
2017) (“[G]uilty pleas that are otherwise valid do not become invalid merely
because laboratory tests determine the defendant was carrying a different
illicit substance.”).
SHELTON – 5

(MDMA) is of no moment because the Texas Health and Safety Code
does not create separate offenses for possession of each substance
described under Penalty Group Two. See TEX. HEALTH & SAFETY CODE §
481.116.
The degree of offense, however, does depend on the aggregate
weight of the substance. Thus, the relevant variance between
Applicant’s judgment of conviction and the evidence is that his judgment
reflects that he possessed a second-degree felony amount of a Penalty
Group 2 substance (4-400 grams) while the evidence now shows that he
possessed only a state-jail felony amount of such a substance (less than
one gram). See id. § 481.116(b), (d). But for the inaccessibility of that
now-known fact, a rational judge would not have entered Applicant’s
offense as a second-degree felony. I would therefore reform Applicant’s
judgment to reflect a conviction for the degree of offense the evidence
shows he committed: a state jail felony. 4 Because the Court, by setting
aside his judgment altogether, grants Applicant a greater form of relief
than he is entitled to receive, 5 I respectfully dissent.
FILED: July 31, 2024
PUBLISH

4 Given that Applicant’s sentence of two years’ imprisonment was
within the statutory range for a state-jail felony, TEX. PENAL CODE § 12.35(a),
and that he agreed to that sentence as part of a plea bargain, and finally that
he completed his sentence long ago, remand for a new punishment hearing is
completely unnecessary in this case.

5 The effect of setting aside Applicant’s judgment as the Court does
today is to ensure that Applicant’s conviction cannot be used to enhance his
range of punishment in any future convictions. But in my view of the case,
given that the evidence shows Applicant is guilty of a state-jail felony offense,
using that conviction as the basis of an enhancement is not inappropriate so
long as that conviction is correctly described as a state-jail felony.