Smith, G'cobra ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,489-01
EX PARTE G’COBRA SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1449083-A IN THE 337TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged by information with
possession of a controlled substance in Penalty Group 4, in a quantity which would have made the
offense a third degree felony. He entered a plea of guilty to the lesser offense of attempted
possession of a controlled substance in exchange for a 180-day state jail felony sentence. He did
not appeal his conviction.
After Applicant entered his plea of guilty, the items possessed by Applicant were tested and
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were determined not to contain any controlled substance. Applicant contends that his plea of guilty
to the lesser offense of attempted possession of a controlled substance was not knowingly and
voluntarily entered, because he was not aware of all of the relevant facts and would not have pleaded
guilty to the lesser charge had he known that the evidence did not support the greater charge. We
order that this application be filed and set for submission to determine whether, under these
circumstances, Applicant’s plea to a lesser offense which was arguably supported by the evidence
was rendered involuntary by the subsequent discovery that the evidence would not have supported
the greater charge. The parties shall brief these issues.
It appears that Applicant is represented by counsel. If that is not correct, the trial court shall
determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by
counsel, the trial court shall appoint an attorney to represent Applicant. TEX . CODE CRIM . PROC. art
26.04. The trial court shall send to this Court, within 30 days of the date of this order, a
supplemental transcript containing: a confirmation that Applicant is represented by counsel; the
order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with
this Court on or before November 16, 2015.
Filed: September 16, 2015
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