Bell, Jerrell , 541 S.W.3d 746 ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,561-02
EX PARTE JERRELL BELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN
CAUSE NO. 1356023-A FROM THE 338 TH DISTRICT COURT
HARRIS COUNTY
A LCALA, J., filed a dissenting opinion in which R ICHARDSON and W ALKER, JJ.,
joined.
DISSENTING OPINION
Today, this Court upholds a conviction for felon in possession of a firearm against
Jerrell Bell, applicant, even though the trial court and the State agree and recommend that
his conviction should be set aside. I would grant habeas relief to applicant. Applicant is
entitled to relief because the confluence of two critical mistakes made by the State should not
result in a criminal conviction for an offense that never factually occurred. First, applicant
pleaded guilty to possession of a controlled substance, but that offense was later vacated
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because a laboratory report showed that he did not actually possess any controlled substance.
Second, despite becoming aware that applicant was not factually guilty of possession of a
controlled substance as shown by the laboratory report, the State nonetheless used that
conviction as the predicate felony to charge him with felon in possession of a firearm, and
he pleaded guilty to that offense before learning of the laboratory report. Under these
circumstances that show that the State knew that applicant was not actually guilty of the
predicate felony used to charge him as a felon in possession of a firearm, this Court should
grant habeas relief to applicant. Because this Court denies habeas relief to applicant, I
respectfully dissent.
I. Background
In May 2011, applicant pleaded guilty to possession of a controlled substance, but
subsequent developments showed that he was factually not guilty of that offense. Eight
months after he pleaded guilty, in January 2012, laboratory testing revealed that the substance
applicant had possessed was not actually a controlled substance. By the time that the
laboratory testing was completed, however, applicant had discharged his 120-day sentence
in the county jail, and thus he could not be immediately notified about the favorable
laboratory results. To ensure that he was made aware of the laboratory results, the State
asked the trial court to appoint counsel in order to locate and notify applicant about the
results and to assist him in seeking post-conviction relief on the basis of those results. In
May 2013, about two years after applicant pleaded guilty to the controlled-substance offense,
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counsel located applicant, revealed the favorable information to him, and, in October 2013,
assisted him with filing an application for post-conviction habeas relief on the basis of the
exculpatory lab results. In December 2013, this Court granted applicant’s initial application
for habeas relief by setting aside his drug-possession conviction. See Ex parte Bell, No. WR-
80,561-01, 2013 WL 6706103, at *1 (Tex. Crim. App. Dec. 18, 2013) (not designated for
publication). In its order granting applicant relief, this Court stated,
Laboratory testing conducted after Applicant’s conviction shows that the
substance he possessed was not a controlled substance. The trial court has
determined that the Applicant has proven by clear and convincing evidence
that no reasonable juror would have convicted him in light of the new
evidence. Based on the trial court’s findings and conclusions and our own
review of the entire record, we find that Applicant is entitled to relief.
Id. (citing Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002); Ex parte Elizondo,
947 S.W.2d 202, 207 (Tex. Crim. App. 1996)). In short, because the laboratory results
showed no presence of a controlled substance, this Court determined that applicant was
factually not guilty of possession of a controlled substance, and it granted him relief.1
In July 2012, in the interim between applicant’s plea of guilty to possession of a
controlled substance and this Court’s decision to set aside that conviction, applicant was
1
I note here that, although this Court granted applicant relief from his drug conviction on
the basis of actual innocence, that decision was made prior to this Court’s opinion in Ex parte Mable,
443 S.W.3d 129, 130-31 (Tex. Crim. App. 2014) (suggesting that actual-innocence relief is not
appropriate in similar circumstances because “the term ‘actual innocence’ applies only in
circumstances where the accused did not actually commit the charged offense or any possible lesser
included offenses,” and a defendant who pleads guilty to possession of a controlled substance but
later discovers that he did not in fact possess a controlled substance may nevertheless have
“attempted to possess a controlled substance (which is a lesser included offense[ ] of possession)”).
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indicted for the offense of felon in possession of a firearm. The State relied on applicant’s
conviction for possession of a controlled substance to show that he was a convicted felon
who was not permitted to possess a firearm. But, as explained above, in actuality, applicant
was factually not guilty of possession of a controlled substance, as evidenced by this Court’s
later setting aside of that conviction. Further, at the time of applicant’s indictment for the
felon-in-possession charge, the State was already on notice of the infirmity in applicant’s
underlying drug-possession conviction and of the likelihood that the drug conviction would
be set aside. Thus, in truth, applicant never should have been indicted for being a felon in
possession of a firearm because guilt for that offense was predicated on his guilt for
possession of a controlled substance, which was an offense that the State knew applicant had
not committed. In March 2013, however, despite the fact that he was factually not guilty of
the predicate felony that was used to establish that he was a felon, applicant pleaded guilty
to being a felon in possession of a firearm, with his sentence for that offense to run
concurrently with another sentence for a different charge. At the time of this plea, although
the State was in possession of the laboratory report that showed that applicant was factually
not guilty of possession of a controlled substance, the State did not notify applicant of the
laboratory report during the course of the proceedings in the felon-in-possession case. Thus,
because he had not yet been notified about the favorable laboratory results, applicant was still
unaware that he was factually not guilty of possession of a controlled substance at the time
of his guilty plea to the felon-in-possession-of-a-firearm charge.
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Today, the instant habeas application requests that this Court grant applicant habeas
relief from his conviction for being a felon in possession of a firearm on several grounds,
including a claim that his plea of guilty to that offense was made unknowingly and
involuntarily. The habeas court in the instant case has recommended that this Court grant
relief to applicant, and the State agrees with that recommendation. This Court, however,
denies habeas relief to applicant.
II. Analysis
In his application for a post-conviction writ of habeas corpus, applicant alleges that
his plea of guilty to the offense of felon in possession of a firearm was rendered involuntary
because, at the time of his plea, he was unaware that the predicate-felony conviction for
possession of a controlled substance used to establish that he was a convicted felon was
invalid on the basis that the laboratory report revealed that he did not possess any controlled
substance. See Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014).
In Mable, this Court observed that a guilty plea “cannot be truly voluntary unless the
defendant possesses an understanding of the law in relation to the facts.” Id. We explained
that “the defendant must have sufficient awareness of the relevant circumstances” and that
the “standard is whether the plea is a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Id. In Mable, Mable had pleaded guilty to
possession of a controlled substance, but forensic testing conducted after the guilty plea
demonstrated that the substance “did not actually contain any illicit materials.” Id. at 130.
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That fact was “crucial to [Mable’s] case,” we explained, because “operating under such a
misunderstanding, [Mable] cannot be said to have entered his plea knowingly and
intelligently.” Id. at 131.
Citing to our decision in Mable, the habeas court recommended that this Court grant
applicant relief. See id. In the agreed findings of fact and conclusions of law, the parties
conclude that applicant is entitled to relief on the basis of his involuntary plea claim. The
habeas court’s findings and conclusions state,
Since Applicant was not informed of the January 10, 2012 laboratory report
prior to his plea of guilty to felon in possession of a firearm, it is not a
“voluntary and intelligent choice” given that the laboratory report for the
underlying felony possession of a controlled substance later indicated that the
relevant evidence did not contain a controlled substance. Therefore, his plea
of guilty, was not a “voluntary and intelligent choice among the alternative
courses of action open to the defendant.”
Importantly, at the time that applicant pleaded guilty to felon in possession of a firearm, the
State was aware of the laboratory report that showed that applicant was factually not guilty
of the predicate felony of possession of a controlled substance and that applicant could have
his conviction set aside by this Court. However, applicant was not made aware of that fact
prior to his making his plea of guilty. Thus, the habeas court correctly determined that
applicant was unaware of facts that were material to his decision whether to plead guilty and
thus his plea of guilty was not voluntarily or intelligently made.
The instant case is somewhat analogous to Cuellar v. State, 70 S.W.3d 815 (Tex.
Crim. App. 2002). In Cuellar, this Court affirmed the judgment of the court of appeals that
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Cuellar was not guilty of being a felon in possession of a firearm because his prior,
underlying conviction for heroin possession had been set aside more than fifteen years before
he possessed the firearm giving rise to the felon-in-possession charge. Id. at 816-17, 820.
This Court explained that, because his underlying felony conviction had been set aside,
Cuellar was “not a convicted felon,” and, thus, the evidence was insufficient to support his
felon-in-possession conviction, which would require proof of a valid predicate felony
conviction. Id. at 820. On the one hand, applicant’s case is similar to Cuellar in the sense
that, at the time that he was found to be in possession of a firearm, the validity of his
underlying drug-possession conviction had already been seriously undermined because the
State was aware that he was not guilty of possession of a controlled substance. On the other
hand, applicant’s situation is different from Cuellar in that applicant’s conviction had yet to
be formally set aside at the time that he was charged with being a felon in possession of a
firearm. But that difference should not control in this case. The State knew as of January
2012 that laboratory testing had revealed that the substance applicant possessed was not a
controlled substance, and, at that time, the State asked the trial court to notify applicant about
that fact so that he would be able to seek post-conviction relief from his conviction. In
December 2013, about six months after applicant was finally notified of the laboratory
results, this Court set aside his conviction for possession of a controlled substance. Thus, had
applicant been apprised of the test results immediately, his conviction would have already
been set aside at the time that he was charged with being a felon in possession of a firearm,
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which is similar to the situation that occurred in Cuellar. Applicant should not be penalized
due to the fact that it took the court-appointed counsel one-and-a-half years to locate
applicant and inform him of the exculpatory laboratory results. In sum, the fact that applicant
was known by the State and trial court to be factually not guilty of possessing a controlled
substance before he possessed the firearm makes his case similar to Cuellar and supports the
position that applicant should not have been convicted of being a felon in possession of a
firearm. More importantly, it shows that, by entering his guilty plea without having had the
benefit of such information, applicant did not have the necessary understanding of the facts
needed to make his guilty plea to being a felon in possession of a firearm knowing and
voluntary. See Mable, 443 S.W.3d at 131.
Applicant’s case is distinguishable from the claim that was at issue in our decision in
Ex parte Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012). In Jimenez, this Court held that
a conviction for felon in possession of a firearm is “not void if the predicate felony
conviction is subsequently set aside.” Id. at 683-84. We explained that, although Jimenez’s
conviction for the predicate felony of rape of a child had been set aside on the basis of
ineffective assistance of counsel, that fact did not entitle him to relief from his conviction
eight years prior for unlawfully possessing a firearm as a felon. Id. In explaining our
reasoning, we distinguished our holding in Cuellar by noting that, whereas Cuellar’s
“predicate felony conviction was set aside before he possessed the firearm which led to his
being arrested,” in contrast, Jimenez’s underlying felony conviction was set aside long after
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he had already been convicted of unlawfully possessing a firearm as a felon. Id. at 683. We
concluded that, “[t]o obtain a valid conviction for unlawful possession of a firearm by a
felon, the State must prove a defendant’s felony status at the time of the possession of the
firearm,” and thus we declined to hold that Jimenez’s conviction for felon in possession was
void. Id. at 683-84.
In applicant’s case, however, unlike in Jimenez where the predicate felony was set
aside long after Jimenez was convicted of being a felon in possession of a firearm,
applicant’s predicate felony had already been called into serious doubt before he possessed
the firearm, and, at the time of applicant’s indictment for felon in possession of a firearm, the
State was aware that he was factually not guilty of possession of a controlled substance.
Jimenez, therefore, is distinguishable, and the reasoning of that case thus does not provide
a sound basis upon which to deny applicant relief.
Perhaps more importantly, this applicant, unlike in Jimenez, is not arguing that his
conviction for possessing a firearm must be set aside because it is void. Rather, applicant is
instead presenting a constitutional challenge to his conviction on the basis that it was the
product of an involuntary and unknowing guilty plea. This distinction is critical. We denied
relief in Jimenez because we concluded that setting aside the predicate conviction did not
automatically void or invalidate the later felon-in-possession conviction. Id. at 683-84. We
noted that, even if the underlying felony conviction were subject to collateral attack on
constitutional grounds, it could still serve as a predicate felony conviction to support a charge
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of felon in possession of a firearm. Id. at 682-83; but see Ex parte Lea, 505 S.W.3d 913(Tex. Crim. App. 2016) (holding that a facially unconstitutional statute is void from its
inception and thus conviction pursuant to that invalid statute is for “an offense that never
existed” and is similarly void). In applicant’s case, the complained of infirmity concerns the
voluntariness of his guilty plea for possession of a firearm, and it is not a Jimenez-type
complaint that his conviction for felon in possession of a firearm is void due to the infirmity
of the predicate felony. Thus, applicant’s claim is not dispositively resolved by our analysis
in Jimenez. Because applicant’s challenge is one asserting that his plea to the felon-in-
possession charge was involuntarily made due to his lack of awareness of the exculpatory
laboratory report, the issue here is whether he possessed adequate knowledge to validly
waive his right to a jury trial and plead guilty, as compared to Jimenez’s issue that focused
on whether Jimenez’s conviction was void due to the invalidity of the predicate felony.
In sum, had he been more timely notified of the favorable laboratory report in the
drug-possession case, applicant could have decided whether to plead guilty to being a felon
in possession of a firearm with full awareness of the fact that he was factually not guilty of
the underlying drug-possession offense and could seek relief from that predicate conviction.
This would have afforded applicant the opportunity to have made an intelligent choice among
the alternative courses of action open to him. Although the State had made efforts to inform
applicant about the laboratory report, it nonetheless used that concededly invalid conviction
as the predicate felony in this case, knowing that applicant was not guilty of that offense.
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Moreover, had he been timely informed of the laboratory test results, applicant probably
could have obtained relief from his conviction for possession of a controlled substance before
being charged in the felon-in-possession case. In that situation, his case would be
indistinguishable from Cuellar, and thus he would clearly be entitled to relief.
The State appears to acknowledge the mistakes that occurred in this case, and it is
apparently attempting to rectify the lapses by recommending to this Court that applicant be
granted relief from the instant conviction. I commend the district attorney’s office for these
efforts. In light of the fact that everyone involved in this case—applicant, the State’s
attorneys, and the trial court judge—agree and recommend that applicant should be granted
relief, and there are facts that support that recommendation, this Court should defer to the
trial court’s assessment that applicant’s plea to being a felon in possession of a firearm was
unknowing and involuntary. I would follow the trial court’s recommendation to grant relief
to applicant.
III. Conclusion
This conviction should be set aside because it is the result of a confluence of two
critical mistakes by the State. First, applicant was convicted of possession of a controlled
substance even though a laboratory report later showed that he did not possess any controlled
substance. Second, he was convicted of being a felon in possession of a firearm even though
the predicate felony used to show that he was a felon was the possession of a controlled
substance conviction for which he was factually not guilty. Applicant has already obtained
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habeas relief for the first mistake as to the possession charge, and he is entitled to relief for
the second mistake as to the firearm charge. This Court’s majority order denies his request
for relief, but I would grant it. I, therefore, respectfully dissent.
Filed: March 1, 2017
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