The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-91,289-01
EX PARTE ROLLIE DARNELL WARFIELD, Applicant
ON APPLICANT’S APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. W12-51838-V(A) FROM THE 292ND DISTRICT COURT
DALLAS COUNTY
N EWELL, J., filed a concurring opinion in which H ERVEY
and R ICHARDSON, JJ., joined .
This is a straightforward case. The State charged Applicant with a
second-degree offense of possessing identifying information, but a self-
initiated audit revealed Applicant had only committed a third-degree
offense. So, Applicant filed an application for writ of habeas corpus based
upon this Court’s established precedent. Applicant alleges that he is
entitled to relief because his guilty plea was involuntary under Ex parte
Warfield Concurring — 2
Mable.1 He also argues that he is entitled to relief as a matter of due
process under State v. Wilson. 2
All the parties agree that Applicant is entitled to relief under both
theories, and the habeas court recommends granting relief. The Court
rightly grants relief based upon this Court’s established precedent. I
support the Court’s decision to do so, as either theory results in the same
degree of relief. Nevertheless, we are asked again to reconsider our
decision in Ex parte Mable.3 There is also another suggestion, albeit an
implicit one, that we raise the standard for determining actual innocence
again, even though Applicant does not seek actual innocence relief in this
case. I write separately to address our precedent in these areas, as well
as the Texas Supreme Court’s recent decision in In re Lester. 4
Mable and Wilson
This Court has already heard and rejected the criticisms of Ex parte
Mable. We adhere to binding precedent because it promotes judicial
efficiency and consistency, encourages reliance upon judicial decisions,
1
Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).
2
State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010).
3
Mable, 443 S.W.3d 129.
4
In re Lester, 602 S.W.3d 469, 475 (Tex. 2020).
Warfield Concurring — 3
and contributes to the integrity of the judicial process. 5 Repeatedly re-
examining this precedent on our own when no one has asked us to has
the opposite effect. In the end, binding precedent is the law. Absent a
reason to abandon the doctrine of stare decisis, the Court rightly follows
it in this case.
And again, I agree that this Court can grant relief as a matter of due
process under State v. Wilson, as well as under an involuntary-plea
theory. But it is confusing to lump State v. Wilson in with our “actual
innocence” jurisprudence. Wilson does discuss some cases using the
term “actual innocence,” but those cases dealt with the applicability of an
exception to procedural default on federal habeas claims. 6 They did not
recognize a right to actual innocence relief as a matter of due process.
Further, this Court did not hold that Wilson was “actually innocent.”
As Applicant himself noted in his application, the defendant in Wilson
raised a claim that he was actually innocent, and this Court rejected it.
Instead, the Court held in Wilson that a defendant was entitled to relief
5
See Paulson v. Sate, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).
6
Wilson, 324 S.W.3d at 597–98 (citing Sawyer v. Whitley, 505 U.S. 333, 336 (1992);
Dretke v. Haley, 541 U.S. 386, 393 (2004); and Murray v. Carrier, 477 U.S. 478 (1986)).
Warfield Concurring — 4
even though he was not “actually innocent” because it was still possible
he had committed a lesser-included offense. 7
Significantly, Wilson was not concerned with the types of innocence
claims raised in Ex parte Miles,8 Ex parte Cacy,9 Ex parte Mayhugh, 10 or
Ex parte Chaney.11 The claim in Wilson was that the defendant had not
committed felony DWI because one of the elemental priors was not a final
conviction.12 It was an entirely different theory of relief than what is
typically thought of as an “actual innocence” case. The standard by which
the Court resolved the claim in Wilson is not a substitute for claims for
relief in cases where new evidence that the defendant did not commit the
offense comes to light after a wrongful conviction. And advocating for
relief under the standard set out in Wilson does not provide support for
opposition to the standard set out in Elizondo. Actual innocence claims
are properly governed by the standard this Court set out in Ex parte
7
Id. at 598.
8
Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012).
9
Ex parte Cacy, WR-85,420-01, 2016 WL 6525721 (Tex. Crim. App. Nov. 2, 2016) (not
designated for publication).
10
Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016) (plurality op.).
11
Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018).
12
Wilson, 324 S.W.3d at 596.
Warfield Concurring — 5
Elizondo.13 As with the arguments against continuing to follow Mable, this
Court has considered and rejected arguments to raise the standard for
determining actual innocence. This case is not a vehicle to reconsider
them, especially considering that Applicant is not even arguing he is
entitled to actual innocence relief.
In re Lester
Finally, it would be a mistake to read the Texas Supreme Court’s
decision in In re Lester as limiting actual innocence review to the types
of claims raised in that case. Starting relatively recently, the Texas
Supreme Court has been actively removing barriers to righting wrongful
convictions. Our sister court has held that a wrongfully convicted
defendant is entitled to compensation even under a Schlup-type
procedural claim of actual innocence, which carries a lower standard for
determining actual innocence that the standard set out in Ex parte
Elizondo.14 And, more recently, the Court held that a finding of actual
innocence entered by a court without jurisdiction is sufficient to trigger a
13
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) (To be granted actual
innocence relief based solely on newly discovered evidence, the applicant must show that the
new evidence unquestionably establishes his innocence—i.e., he must prove by clear and
convincing evidence that no reasonable juror would have convicted the applicant in light of
the new evidence.).
14
In re Allen, 366 S.W.3d 696 (Tex. 2012).
Warfield Concurring — 6
magisterial duty on the part of the comptroller to pay compensation to
som eone who has been wrongfully convicted. 15 Nothing in In re Lester
suggests that the Texas Supreme Court is on a different course.
Indeed, Lester only dealt with the rare circumstance in which a
defendant was prosecuted under a statute that had already been declared
facially unconstitutional at the time the defendant was prosecuted. 16 In
that context, our sister court recognized an additional theory for
innocence relief beyond the two types of innocence claims already
recognized by this Court.17 As the Court recognized, “Just because
existing actual innocence jurisprudence does not contemplate something
as outrageous as Lester’s case does not mean that Lester who committed
no crime is anything but actually innocent.” 18
If anything, Lester suggests the Supreme Court disagrees with our
precedent dealing with the impact of Ex parte Lo. When Lester’s case was
before this Court, we did not grant “actual innocence” relief; we relied
upon our previous decision in Ex parte Chance to vacate Lester’s
15
In re Brown, ---S.W.3d---, 2020 WL 7413728 (Tex. 2020).
16
Lester, 602 S.W.3d at 471.
17
Id. at 472–73.
18
Id. at 473.
Warfield Concurring — 7
conviction as a void judgment and dismiss the indictment without
declaring him innocent.19 In Chance, we had the opportunity to hold that
someone who had been convicted under a facially unconstitutional statute
was actually innocent because such a statute is void ab initio. 20 But we
didn’t do that. Then, in Ex parte Fournier, we rejected that theory,
holding that a defendant who had been convicted under a statute that
was later determined to be facially unconstitutional was entitled to relief,
just not actual innocence relief. 21
The Supreme Court’s decision seems to suggest that we did not go
far enough in Chance and Fournier. So, if we are going to apply Lester,
that case seems to require this Court—in cases in which a later legal
determination has rendered a conviction void—to not only grant habeas
corpus relief as a matter of due process, but also declare innocence.
Doing so, however, would necessarily expand the available relief to
19
Ex parte Lester, WR–88,227–01, 2018 WL 1736686 (Tex. Crim. App. Apr. 11, 2018)
(not designated for publication). The Court rejected the argument that Lester was only
entitled to relief under a theory of ineffective assistance of counsel. Id.; see also id. at *2
(Yeary, J., concurring) (agreeing with the Court’s decision to grant Applicant relief but stating
he would grant relief only on Applicant’s ineffective assistance of counsel claim).
20
Ex parte Chance, 439 S.W.3d 918, 922 (Tex. Crim. App. 2014) (Cochran, J.,
concurring) (“Anyone who has been convicted under the now void provisions of Section
32.021(b) is ‘innocent’ and may obtain an acquittal, whether it is in the trial court, or direct
appeal, or in a habeas proceeding.”).
21
Ex parte Fournier, 473 S.W.2d 789, 796 (Tex. Crim. App. 2015); see also id. at 800
(Yeary, J., dissenting) (agreeing to the denial of actual innocence relief but dissenting to the
grant of relief).
Warfield Concurring — 8
defendants who have been prosecuted under the statute declared
unconstitutional in Ex parte Lo.22 But if we aren’t going to apply it, then
this discussion about “actual innocence” is unnecessary for the resolution
of an otherwise straightforward case.
With these thoughts, I join the court’s opinion granting relief.
Filed: February 24, 2021
Publish
22
Cf. Ex parte Fournier, 473 S.W.3d 789, 800 (Tex. Crim. App. 2015) (Yeary, J.,
dissenting) (arguing for a complete denial of habeas corpus relief to applicants who have been
prosecuted under a facially unconstitutional statute); Ex parte Miller, 2016 WL 158648, *1
(Tex. Crim. App. Jan. 13, 2016) (per curiam, not designated for publication) (Yeary, J.,
dissenting)(same); Ex parte Anthony, 2016 WL 368324, *1 (Tex. Crim. App. Jan. 27, 2016)
(per curiam, not designated for publication) (Yeary, J., dissenting)(same); Ex parte Ardie,
2016 WL 1477710, *1 (Tex. Crim. App. Apr. 13, 2016) (per curiam, not designated for
publication) (Yeary, J., dissenting)(same); Ex parte Stewart, 2018 WL 4344339, *1 (Tex.
Crim. App. Sept. 12, 2018) (per curiam, not designated for publication) (Yeary, J.,
dissenting)(same).