holding that a guilty plea does not preclude a post-conviction claim of actual innocence under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)
How later courts described this case
- holding that a guilty plea does not preclude a post-conviction claim of actual innocence under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-87,881-01
EX PARTE GREGORY ALLEN SKINNER, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. W11-62085-M(A) IN THE 194TH DISTRICT COURT
FROM DALLAS COUNTY
Y EARY, J., filed a dissenting opinion in which K EASLER, J., joined.
DISSENTING OPINION
Applicant was convicted of the offense of possession of a firearm by a felon. He now
contends that he cannot be guilty of that offense because he was on deferred adjudication
community supervision, which he claims is not a felony conviction, at the time he was found
to be in possession of the firearm. In his original application for post-conviction habeas
corpus relief, he has argued that the evidence was legally insufficient to support his
conviction. We rejected an identical claim in Ex parte Smith, 296 S.W.3d 78, 79 (Tex. Crim.
App. 2009). While noting that a claim of legal insufficiency is not permitted to be made in
a post-conviction collateral attack, we also observed “that the appellant judicially confessed
to committing the offense, which was sufficient evidence to support a plea of guilty.” Id.
SKINNER — 2
Applicant’s claim should be similarly rejected today.
The Court nevertheless grants Applicant habeas corpus relief, but without articulating
a legal basis for doing so. Majority Opinion at 1–2. Applicant, whose application for writ of
habeas corpus was prepared by legal counsel, claimed only that the evidence was legally
insufficient to sustain his conviction. Such a claim, the Court has long maintained, is not
cognizable in a post-conviction application for writ of habeas corpus. Id.; Ex parte Perales,
215 S.W.3d 418, 419 (Tex. Crim. App. 2007). And while a claim that there is no evidence
to support a conviction is cognizable in a post-conviction application for writ of habeas
corpus, Perales, 215 S.W.3d at 418–19, Applicant has not made such a claim here.
Moreover, even if it would be acceptable to sua sponte convert Applicant’s asserted legal
basis from a legally-insufficient-evidence claim to a no-evidence claim in order to grant him
relief, in my view, it does not work.
The problem is that the record, such as it is, does not support a no-evidence claim.
Applicant pled guilty and judicially confessed to possessing a firearm as a felon. His judicial
confession includes an explicit acknowledgment that he was previously convicted of the
felony offense for which the Court today finds there was no evidence. A judicial confession,
so long as it embraces every element of the offense, will suffice to support a guilty plea.
Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Surely it must count as some
evidence of a prior felony conviction for purposes of a prosecution for possession of a
SKINNER — 3
firearm by a felon.1 Applicant has not shown entitlement to relief on this legal theory.
In any event, we have still never definitively held that deferred adjudication
community supervision does not constitute a felony conviction for purposes of the possession
of a firearm by a felon statute. We declined to resolve that question in Smith. 296 S.W.3d at
81. And we were apparently unwilling in Smith to sua sponte convert the applicant’s legal
sufficiency claim into a no-evidence claim, so as to address the issue of whether a person on
deferred adjudication probation has been convicted of a felony for purposes of the possession
of a firearm by a felon statute. I fail to see a basis for granting Applicant relief in this case
under either a legally-insufficient-evidence claim or a no-evidence claim.
Perhaps Applicant could have claimed (although he did not) that he is actually
innocent of possessing a firearm as a felon. See Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim.
App. 2002) (holding that a guilty plea does not preclude a post-conviction claim of actual
innocence under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)). But such a
claim must include an allegation of newly minted law or newly discovered or available facts.
T EX. C ODE C RIM. P ROC. art. 11.07, § 4(a)(1); Ex parte Brown, 205 S.W.3d 538, 545 (Tex.
Crim. App. 2006). Applicant knew at the time he entered his guilty plea to possession of a
1
We made no mention in Perales of just what evidence the State may have offered in
satisfaction of Article 1.15 in support of the guilty plea, much less whether the applicant in that case
entered a judicial confession. TEX . CODE CRIM . PROC. art. 1.15. Nothing in Perales refutes the
proposition that a judicial confession may provide at least some evidence in support of a conviction
for purposes of determining whether collateral relief is appropriate for a no-evidence claim. And we
certainly treated the applicant’s judicial confession as sufficient evidence of guilt in Ex parte
Smith—a case we decided after Perales. 296 S.W.3d at 79.
SKINNER — 4
firearm by a felon that he was still on deferred adjudication probation at the time he
possessed the firearm. His claim is predicated on a legal argument that has not yet been
ratified by this Court, and he presents no new facts. Moreover, for all this record reveals,
Applicant may have other prior felony convictions—that might even have been part of his
motivation to plead guilty in this case. From a factual standpoint, therefore, we cannot even
say definitively that he is actually innocent, even if the facts would not have to be new.
Perhaps Applicant could have claimed (although he did not) that his trial counsel was
constitutionally ineffective for allowing him to judicially confess, and plead guilty, to a crime
he did not commit. But such a claim would also have to be predicated on newly minted law
in order to sustain Applicant’s no-evidence claim—that a case in which deferred adjudication
has been granted, and that has never proceeded to adjudication, cannot support a possession
of a firearm by a felon conviction. At the time of Applicant’s plea, that issue was still
unsettled. And “we have repeatedly declined to find counsel ineffective for failing to take a
specific action on an unsettled issue.” State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim.
App. 2013). That is exactly the reason we declined to grant relief in Ex parte Smith based
upon a claim of ineffective assistance of counsel. 296 S.W.3d at 81.
Applicant did make another claim besides his claim of legally insufficient evidence.
While his writ application was pending, he filed a supplement in which he argued, in addition
to legal insufficiency, that his plea was involuntary. It was, in fact, on this view of the case
that the convicting court ultimately recommended that relief be granted, as a function of Ex
SKINNER — 5
parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). But such a claim is not legally viable
either.
Mable involved a mutual misunderstanding of the facts of the case with respect to a
“crucial” aspect of the State’s evidence—whether the substance the applicant was convicted
of having possessed even constituted an illicit drug. Id. at 130. There is no such factual
misunderstanding in this case. There was (as in Smith) only unsettled law. In the absence of
a more explicit claim of involuntariness due to ineffective counsel—that counsel failed to
advise him about the unsettled nature of the law, and that, but for that failure, Applicant
would have insisted on going to trial—we have no cause to presume his guilty plea was
involuntary or unknowing.2 Applicant’s lawyer may have miscalculated how this Court will
ultimately resolve the still-unsettled issue of whether deferred adjudication probation will
count as a prior felony for purposes of a subsequent prosecution for possession of a firearm
by a felon. A lawyer’s miscalculation of how an unsettled issue of law may ultimately be
resolved does not, absent constitutional deficiency, suffice to render a guilty plea involuntary
or unintelligent. See Brady v. United States, 397 U.S. 742, 757 (1970) (holding that legal
2
In his supplement to his habeas corpus application, “Applicant claims that he was not made
aware of a possible defense to his plea . . . and that his plea was not voluntary.” In an inmate
declaration attached to the supplement, he asserts that, “[a]t the time I entered my plea of guilty to
possession of a firearm by a felon, I was not aware that I did not have a felony conviction and would
not have entered my plea of guilty had I known or had been properly advised of the law.” He does
not explicitly claim that his lawyer failed to advise him of the unsettled nature of the law, although
that may be implicit in his indirect assertion that he was not “properly advised of the law.” Even if
his claim were more explicit, we would not ordinarily grant summary relief on the basis of such an
assertion, but would, at most, remand the cause for a response from trial counsel.
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advice that proved incorrect in light of subsequent case law did not serve to render a guilty
plea involuntary); Ex parte Palmberg, 491 S.W.3d 804, 808 (Tex. Crim. App. 2016)
(observing same).
Applicant is not entitled (or, at least, not yet entitled) to relief on this record, either
under the particular theories of law he has pled—or any other legal theory that is presently
supported by the record. I respectfully dissent.
FILED: November 7, 2018
DO NOT PUBLISH