Smith, G'cobra

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2015
• Docket: WR-83,489-01
• Status: Published

Opinion

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 2

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Filed: September 16, 2015 Do not publish