IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-96,045-01
EX PARTE DANNY ABRAHAM SALAS, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 84046-01-D-WR IN THE 320TH DISTRICT COURT POTTER COUNTY
FINLEY, J., filed a dissenting opinion in which SCHENCK, P.J., and PARKER, J., joined.
DISSENTING OPINION
Applicant was charged with possession of a controlled substance. The
State alleged that the substance Applicant possessed weighed at least one
gram but less than four grams. Against the advice of counsel, and before the
crime lab tested the controlled substance, Applicant pleaded guilty. Applicant
was sentenced to three years’ confinement. After his plea, the Texas
Department of Public Safety (DPS) Crime Laboratory issued its testing report SALAS DISSENT — 2
that indicated the weight of the substance was under one gram. After the State
disclosed that report, Applicant filed this application for a writ of habeas
corpus. Applicant claims that his plea was involuntary, and his sentence was
illegal. The Court today grants relief on Applicant’s involuntary plea claim,
citing Brady v. United States, 397 U.S. 742 (1970).
Under the Court’s precedent, Applicant’s plea was not involuntary.
However, Applicant is entitled to relief on his illegal sentence claim. I would
reform Applicant’s judgment of conviction to the lesser-included state-jail
felony offense and remand for a new punishment hearing. Because the Court
does not, I respectfully dissent.
I. Background
Applicant was indicted on July 20, 2023, for the offense of possession of
a controlled substance, penalty group 1, with weight greater than or equal to
one gram but less than four grams, a felony of the third degree. TEX. HEALTH
& SAFETY CODE § 481.115(c). The State alleged a prior conviction, which
enhanced the offense to a felony of the second degree. TEX. PENAL CODE
§ 12.42(a). The range of punishment for a felony of the second degree is two to
twenty years’ confinement. Id. § 12.33. Applicant was initially found
incompetent and committed to the state hospital. Later, Applicant’s
competency was re-assessed, and he was found competent on March 19, 2024. SALAS DISSENT — 3
Against trial counsel’s advice and before DPS completed lab testing of
the seized drugs, Applicant pleaded guilty to the charged offense and true to
the enhancement paragraph on April 11, 2024. In exchange, the State
recommended a sentence of three years’ imprisonment. On May 28, 2024, the
State sent Applicant a Brady notice. The Brady notice said that the lab testing
indicated that the weight of the substance was 0.58 grams (+/– 0.06 grams).
Applicant filed the instant application for a writ of habeas corpus, raising
involuntary plea and illegal sentence claims.
II. Involuntary Plea
In Brady, cited by the Court’s per curiam opinion, the Supreme Court
held that “[a] defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely penalties attached
to alternative courses of action.” 397 U.S. at 757. A guilty plea induced by the
State’s misrepresentations or improper promises is involuntary. Id. at 755.
Later, in Ex parte Palmberg, we emphasized that “even if the defendant is less-
well informed, as long as he has sufficient awareness of his circumstances—
including an awareness that some facts simply remain unknown to him or are
undetermined as of the time of his plea—his potentially unwise plea is still a
voluntary one.” 491 S.W.3d 804, 809 (Tex. Crim. App. 2016). SALAS DISSENT — 4
Palmberg resolves Applicant’s involuntary plea claim. At the time of his
plea, before lab testing was complete, Applicant knew that he was unaware of
certain facts—namely, the methamphetamine’s weight. Nevertheless, he
entered into a plea-bargain agreement against trial counsel’s advice.
Applicant’s plea was not rendered involuntary because he did not know the
actual weight of the controlled substance. In Ex parte Broussard, 517 S.W.3d
814 (Tex. Crim. App. 2017), the applicant had been arrested for possession of
a controlled substance weighing less than one gram. Id. at 816. A field test
determined that the substance was cocaine. Id. Before lab testing, applicant
entered into a plea-bargain agreement, in exchange for the State dropping two
enhancement paragraphs and recommending a reduced sentence. Id. Lab
testing later confirmed that the substance was, in fact, not cocaine. Id. We
rejected the applicant’s involuntary plea claim, relying on Palmberg, reasoning
that “a defendant who pleads guilty knowing that a certain fact is unknown
cannot invalidate his plea because he misapprehended that fact.” Id. at 819
(citing Palmberg, 491 S.W.3d at 809). The same is true here: that Applicant
misapprehended a certain fact (in Broussard, whether the seized substance
was cocaine; here, whether the methamphetamine’s weight was at least one
gram but less than four grams) does not render his plea involuntary. SALAS DISSENT — 5
Curiously, the Court does not cite Ex parte Mable, 443 S.W.3d 129 (Tex.
Crim. App. 2014), as support for granting Applicant relief. In Mable, we held
that a defendant who pleads guilty to possessing a controlled substance and is
later found out not to have actually possessed an illegal substance is entitled
to involuntary plea relief. Id. at 131. But that is not the case here. Applicant is
still guilty of possessing a controlled substance—albeit, of a lower weight.
Like the defendant in Broussard, Applicant “chose to avoid the risks
involved at trial and pleaded guilty, gaining the certainty and benefits
associated with the plea.” Id. As we said in Palmberg, “[t]he fact that his roll
of the dice did not turn out as favorably as it might have had he proceeded to
trial is not a ground for invalidating his plea.” 491 S.W.3d at 810; see also id.
at n.13 (“Allowing such a defendant to undo his plea because the State’s
evidence turned out to be insufficient would be similar to a poker player
wanting to undo his fold upon realizing that his opponent did not have a
winning hand. A defendant cannot claim involuntariness just because he
wrongly guessed what was in the State’s ‘hand’ for trial.”). Applicant’s plea was
not involuntary, so he is not entitled to relief on that basis.
III. Illegal Sentence
This leaves Applicant’s illegal sentence claim. An illegal sentence is one
that is not authorized by law; therefore, a sentence that is outside the SALAS DISSENT — 6
authorized range of punishment is considered illegal. Ex Parte Parrott, 396
S.W.3d 531, 534 (Tex. Crim. App. 2013); Mizell v. State, 119 S.W.3d 804, 806
(Tex. Crim. App. 2003).
The habeas record shows that Applicant possessed a controlled
substance with a weight less than one gram. I would reform the judgment of
conviction to that offense. See Thornton v.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-96,045-01
EX PARTE DANNY ABRAHAM SALAS, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 84046-01-D-WR IN THE 320TH DISTRICT COURT POTTER COUNTY
FINLEY, J., filed a dissenting opinion in which SCHENCK, P.J., and PARKER, J., joined.
DISSENTING OPINION
Applicant was charged with possession of a controlled substance. The
State alleged that the substance Applicant possessed weighed at least one
gram but less than four grams. Against the advice of counsel, and before the
crime lab tested the controlled substance, Applicant pleaded guilty. Applicant
was sentenced to three years’ confinement. After his plea, the Texas
Department of Public Safety (DPS) Crime Laboratory issued its testing report SALAS DISSENT — 2
that indicated the weight of the substance was under one gram. After the State
disclosed that report, Applicant filed this application for a writ of habeas
corpus. Applicant claims that his plea was involuntary, and his sentence was
illegal. The Court today grants relief on Applicant’s involuntary plea claim,
citing Brady v. United States, 397 U.S. 742 (1970).
Under the Court’s precedent, Applicant’s plea was not involuntary.
However, Applicant is entitled to relief on his illegal sentence claim. I would
reform Applicant’s judgment of conviction to the lesser-included state-jail
felony offense and remand for a new punishment hearing. Because the Court
does not, I respectfully dissent.
I. Background
Applicant was indicted on July 20, 2023, for the offense of possession of
a controlled substance, penalty group 1, with weight greater than or equal to
one gram but less than four grams, a felony of the third degree. TEX. HEALTH
& SAFETY CODE § 481.115(c). The State alleged a prior conviction, which
enhanced the offense to a felony of the second degree. TEX. PENAL CODE
§ 12.42(a). The range of punishment for a felony of the second degree is two to
twenty years’ confinement. Id. § 12.33. Applicant was initially found
incompetent and committed to the state hospital. Later, Applicant’s
competency was re-assessed, and he was found competent on March 19, 2024. SALAS DISSENT — 3
Against trial counsel’s advice and before DPS completed lab testing of
the seized drugs, Applicant pleaded guilty to the charged offense and true to
the enhancement paragraph on April 11, 2024. In exchange, the State
recommended a sentence of three years’ imprisonment. On May 28, 2024, the
State sent Applicant a Brady notice. The Brady notice said that the lab testing
indicated that the weight of the substance was 0.58 grams (+/– 0.06 grams).
Applicant filed the instant application for a writ of habeas corpus, raising
involuntary plea and illegal sentence claims.
II. Involuntary Plea
In Brady, cited by the Court’s per curiam opinion, the Supreme Court
held that “[a] defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely penalties attached
to alternative courses of action.” 397 U.S. at 757. A guilty plea induced by the
State’s misrepresentations or improper promises is involuntary. Id. at 755.
Later, in Ex parte Palmberg, we emphasized that “even if the defendant is less-
well informed, as long as he has sufficient awareness of his circumstances—
including an awareness that some facts simply remain unknown to him or are
undetermined as of the time of his plea—his potentially unwise plea is still a
voluntary one.” 491 S.W.3d 804, 809 (Tex. Crim. App. 2016). SALAS DISSENT — 4
Palmberg resolves Applicant’s involuntary plea claim. At the time of his
plea, before lab testing was complete, Applicant knew that he was unaware of
certain facts—namely, the methamphetamine’s weight. Nevertheless, he
entered into a plea-bargain agreement against trial counsel’s advice.
Applicant’s plea was not rendered involuntary because he did not know the
actual weight of the controlled substance. In Ex parte Broussard, 517 S.W.3d
814 (Tex. Crim. App. 2017), the applicant had been arrested for possession of
a controlled substance weighing less than one gram. Id. at 816. A field test
determined that the substance was cocaine. Id. Before lab testing, applicant
entered into a plea-bargain agreement, in exchange for the State dropping two
enhancement paragraphs and recommending a reduced sentence. Id. Lab
testing later confirmed that the substance was, in fact, not cocaine. Id. We
rejected the applicant’s involuntary plea claim, relying on Palmberg, reasoning
that “a defendant who pleads guilty knowing that a certain fact is unknown
cannot invalidate his plea because he misapprehended that fact.” Id. at 819
(citing Palmberg, 491 S.W.3d at 809). The same is true here: that Applicant
misapprehended a certain fact (in Broussard, whether the seized substance
was cocaine; here, whether the methamphetamine’s weight was at least one
gram but less than four grams) does not render his plea involuntary. SALAS DISSENT — 5
Curiously, the Court does not cite Ex parte Mable, 443 S.W.3d 129 (Tex.
Crim. App. 2014), as support for granting Applicant relief. In Mable, we held
that a defendant who pleads guilty to possessing a controlled substance and is
later found out not to have actually possessed an illegal substance is entitled
to involuntary plea relief. Id. at 131. But that is not the case here. Applicant is
still guilty of possessing a controlled substance—albeit, of a lower weight.
Like the defendant in Broussard, Applicant “chose to avoid the risks
involved at trial and pleaded guilty, gaining the certainty and benefits
associated with the plea.” Id. As we said in Palmberg, “[t]he fact that his roll
of the dice did not turn out as favorably as it might have had he proceeded to
trial is not a ground for invalidating his plea.” 491 S.W.3d at 810; see also id.
at n.13 (“Allowing such a defendant to undo his plea because the State’s
evidence turned out to be insufficient would be similar to a poker player
wanting to undo his fold upon realizing that his opponent did not have a
winning hand. A defendant cannot claim involuntariness just because he
wrongly guessed what was in the State’s ‘hand’ for trial.”). Applicant’s plea was
not involuntary, so he is not entitled to relief on that basis.
III. Illegal Sentence
This leaves Applicant’s illegal sentence claim. An illegal sentence is one
that is not authorized by law; therefore, a sentence that is outside the SALAS DISSENT — 6
authorized range of punishment is considered illegal. Ex Parte Parrott, 396
S.W.3d 531, 534 (Tex. Crim. App. 2013); Mizell v. State, 119 S.W.3d 804, 806
(Tex. Crim. App. 2003).
The habeas record shows that Applicant possessed a controlled
substance with a weight less than one gram. I would reform the judgment of
conviction to that offense. See Thornton v. State, 425 S.W.3d 289, 299–300 (Tex.
Crim. App. 2014). The lesser-included offense of possession of a controlled
substance under one gram is a state-jail felony. TEX. HEALTH & SAFETY CODE
§ 481.115(b). The range of punishment for a state-jail felony offense is
confinement in the state jail for a period no less than 180 days and no more
than two years. TEX. PENAL CODE § 12.35. 1 Here, Applicant was sentenced to
three years’ confinement, which is outside the range of punishment allowed by
law. Consequently, Applicant is entitled to a new punishment hearing.
IV. Conclusion
Based on the Court’s well-established involuntary plea jurisprudence,
Applicant is not entitled to relief on that claim. Nevertheless, Applicant is
entitled to relief on his illegal sentence claim. I would reform Applicant’s
1 With the newly reformed offense, it matters not that Applicant pleaded true to the
enhancement paragraph because a state-jail felony offense cannot be enhanced to a third-degree felony with a single prior felony conviction. See TEX. PENAL CODE § 12.425. SALAS DISSENT — 7
conviction to the lesser-included offense and remand for a new punishment
hearing. Because the Court does not, I respectfully dissent.
Filed: May 7, 2025 Publish