Smith, G'cobra

• Court: Court of Criminal Appeals of Texas
• Decided: March 2, 2016
• 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

M EYERS, J., delivered the opinion of the Court in which J OHNSON, A LCALA, R ICHARDSON, and N EWELL, JJ., joined. K EASLER, J., filed a dissenting opinion in which K ELLER, P.J., and H ERVEY and Y EARY, JJ., joined.

OPINION

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 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. Smith - Page 2

After Applicant entered his plea, the items he possessed were tested and were

determined to not contain any controlled substance. Applicant contends that his plea was not

knowingly and voluntarily entered because he was not aware of the relevant facts and would

not have pled guilty to the lesser charge had he known the evidence did not support the

greater charge.

The parties have entered agreed findings of fact and conclusions of law, which the

trial court has adopted. The trial court has determined that Applicant’s decision to plead

guilty in this case was not a voluntary and intelligent choice. Applicant is entitled to relief.

Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014).

Relief is granted. The judgment in Cause No. 1449083-A in the 337 th District Court

of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of

Harris County to answer the charges as set out in the indictment. The trial court shall issue

any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal

Justice–Correctional Institutions Division and Pardons and Paroles Division.

Meyers, J.

Delivered: March 2, 2016

Do not publish.