Reeder, Shanea Lynn ( 2024 )

In the Court of Criminal
Appeals of Texas
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No. WR-93,824-01
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EX PARTE SHANEA LYNN REEDER, Applicant
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On Application for Writ of Habeas Corpus
In Cause No. 5427-A in the 31st Judicial District Court
Wheeler County
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YEARY, J., filed a dissenting opinion.
The Court decides in this case that Applicant could not have been
lawfully convicted of possession of a firearm by a felon because he was
only placed on deferred adjudication community supervision in the
underlying case that was alleged to be the predicate felony conviction.
Majority Opinion at Part II (ANALYSIS OF THE STATUTE), 4−9. I agree
with that much of its analysis. Applicant cannot lawfully have been
convicted for being a convicted felon in possession of a weapon based
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upon the merely-deferred-adjudication-imposed case for which he was
incorrectly alleged in the information to have been previously
“convicted.” See TEX. PENAL CODE § 46.04(a) (“A person who has been
convicted of a felony commits an offense if he possesses a firearm . . .”).
I disagree, however, that his conviction must be set aside on the ground
that his guilty plea was involuntary. And while I might ultimately agree
that Applicant is entitled to relief, I cannot come to that conclusion
without remanding the case to the convicting court for a second time.
I. INVOLUNTARY PLEA
Applicant is pursuing this post-conviction application for writ of
habeas corpus pro se. Nowhere, in either the application he has filed, or
in his memorandum in support, do the words “involuntary plea” appear.
Nor does his legal argument embrace “involuntary plea” as a rationale
justifying relief. “[T]his Court should not sua sponte ‘create’ Applicant’s
claim for him even if it thinks that claim has merit.” Ex parte Hicks, 640
S.W.3d 232, 236 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (citing Ex
parte Carter, 521 S.W.3d 344, 350 (Tex. Crim. App. 2017)). In any event,
the Court relies upon Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App.
2016), for the proposition that Applicant’s guilty plea was involuntary.
Majority Opinion at Part III (ANALYSIS OF RELIEF), 9−13. For reasons
most recently explained in my dissenting opinion in Ex parte Hooper,
685 S.W.3d 152, 155−56 (Tex. Crim. App. 2024), I reject the Mable
involuntary-plea rationale for granting relief in cases like this one.
II. ABSOLUTE INNOCENCE
On the other hand, I believe Applicant has stated facts that could
possibly support granting him relief on a claim that I have called
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“absolute innocence.” See Ex parte Warfield, 618 S.W.3d 69, 74 (Tex.
Crim. App. 2021) (Yeary, J., concurring) (“If the penal provision under
which an applicant is convicted is later construed for the first time in
such a way that it manifestly could not support a conviction based upon
the undisputed facts of the case, we should be able to declare the
applicant ‘actually innocent’ of that offense—even for the first time in
post-conviction proceedings.”). Applicant has stated facts which might
entitle him to relief under this due process theory. See Ex parte Lane,
670 S.W.3d 662, 685 (Tex. Crim. App. 2023) (“We should . . . grant relief
to Applicant in this case today, whatever label we choose to append to
his due process claim.”).
The problem for Applicant, and the reason I cannot yet agree that
relief is appropriate in this case, is that if there was some other felony
conviction on Applicant’s record that could have supported his
conviction for possession of a firearm by a felon, then he may not be
entitled to relief under this due process theory either. Cf. Ex parte
Rodgers, 598 S.W.3d 262 (Tex. Crim. App. 2020) (even a defective
enhancement that has jurisdictional implications may be harmless if an
alternative prior conviction exists that would have supported
enhancement). For this reason, when the Court remanded this case to
the convicting court in November of 2022, it instructed the convicting
court to “make findings of fact and conclusions of law as to whether
Applicant had a different felony conviction which could have been used
as the predicate offense for this felony conviction.” Ex parte Reeder, No.
WR-93,824-01, 2022 WL 16627573, at *1 (Tex. Crim. App. Nov. 2, 2022)
(ord., not designated for publication). It is not clear to me, however, that
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the convicting court has complied with the Court’s order.
After the Court’s remand order, the District Attorney of the 31st
Judicial District, which includes Wheeler County, executed an affidavit
in which he proclaimed:
After examining the criminal history for Shanea Lynn
Reeder, what appears to be a conviction in Cause Number
5054 [the alleged underlying felony in this case] was in
truth and in-fact a probation “sentence modification[”] …
Therefore[,] Shan[e]a Lynn Reeder was not a convicted
felon at the time of his plea in cause number 5427 [the
unlawful possession of a firearm by a felon case].
Accordingly, in its only conclusion of law following our remand order,
the convicting court concluded that Applicant “was not a convicted felon
on the date of his arrest for Unlawful Possession of Firearm by Felon as
charged and convicted in Cause Number 5427, until 181 days after his
arrest for Unlawful Possession of Firearm by Felon[,]” when the
convicting court adjudicated him guilty of the underlying offense.
(Emphasis Added.)
Neither the District Attorney’s affidavit, nor the convicting
court’s findings of fact in support of the above-quoted conclusion of law,
unequivocally constitutes a finding of fact that Applicant had suffered
no other felony conviction that might have supported his conviction for
possession of a firearm by a felon. In context, the affidavit and findings
seem to be nothing more than assertions that Applicant’s deferred
adjudication status rendered the alleged underlying felony insufficient
to satisfy the penal statute. But that is not the information the Court’s
remand order sought.
Acknowledging that the Court had “remanded the case to
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determine whether Applicant had another felony conviction that would
have supported his guilty plea[,]” the Court concludes that “[h]e did not.”
Majority Opinion at 4, 12. In my view, however, the record of this case
still does not firmly establish that no other felony conviction exists.
III. CONCLUSION
I would not grant Applicant post-conviction relief without first
remanding the case a second time for the convicting court to clarify
whether Applicant has any other felony conviction that might have
supported conviction in this case. I respectfully dissent.
FILED: June 26, 2024
PUBLISH