Hicks, Ray Anthony

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,188-01
EX PARTE RAY ANTHONY HICKS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 139374301010 IN THE 176TH DISTRICT COURT
FROM HARRIS COUNTY
MCCLURE, J., delivered the opinion of the court in which HERVEY,
RICHARDSON, NEWELL, WALKER, and SLAUGHTER, JJ., joined. KEEL, J.,
concurred in the result. YEARY, J., filed a dissenting opinion in which KELLER,
P.J., joined only as to Part II.
OPINION
Applicant Ray Anthony Hicks pled guilty to attempted forgery of a government
instrument in 2013 and was sentenced, under a plea agreement, to 180 days of confinement
in a state jail facility. Through habeas counsel, Applicant filed this application for a writ of
habeas corpus. He contends that he is actually innocent because subsequent analysis
HICKS ― 2
showed the $100 bill he possessed was genuine. This Court does not find that Applicant is
actually innocent but instead grants relief on the ground of an involuntary plea.
Applicant was charged with forgery but ultimately pled guilty to attempted forgery.
More than five years later, the United States Secret Service notified the Webster Police
Department by letter that Applicant’s $100 bill was genuine. The habeas court now finds
that Applicant is actually innocent of the charged offense and any possible lesser included
offenses based on newly discovered evidence neither introduced nor available to the
defense at trial. Specifically, the habeas court finds that the State could not have proven
beyond a reasonable doubt that the Applicant had intent to defraud because the bill was not
actually forged. 1
This case presents an unusual nexus of the law on innocence, attempt, fraud, and the
defense of factual impossibility. To prevail in a claim of actual innocence when no
constitutional violation is alleged, the applicant “must show by clear and convincing
evidence that no reasonable juror would have convicted him in light of the new evidence.”
Ex parte Elizondo, 947 S.W.2d 202, 208, 209 (Tex. Crim. App. 1996). A person commits
criminal attempt when the person has the specific intent to commit an offense and performs
an act amounting to more than mere preparation but then fails to commit the target offense.
1
In its findings of fact and conclusions of law, the habeas court cites Ramsey v. State for the proposition that to
prove intent to harm or defraud, “the trier of fact must be able to reasonably infer that Appellant knew the
instrument was forged beyond a reasonable doubt.” 473 S.W. 3d 805, 809 (Tex. Crim. App. 2015). Ramsey relies on
Okonkwo v. State, in which we said that the State had to prove that the appellant knew the bills were forged in order
to prove intent to defraud or harm. 398 S.W. 3d 689, 695 (Tex. Crim. App. 2013). In a concurrence to Okonkwo,
three judges who also joined in the majority opinion stated that the law was unsettled on the issue of whether
knowledge is an implied element of forgery. Id. at 701. Regardless, both Ramsey and Okonkwo involved actual
forged instruments. It is not clear that Okonkwo applies to the offense of attempt when there is no forged document.
HICKS ― 3
Tex. Penal Code § 15.01. When a defendant has an objective that is forbidden in criminal
law but cannot achieve that objective due a circumstance that is unknown to him, then
factual impossibility exists. Chen v. State, 42 S.W.3d 926, 929 (Tex. Crim. App. 2001).
For example, factual impossibility includes attempting to pick an empty pocket and
attempting to kill with a poison that was not lethal. Lawhorn v. State, 898 S.W.2d 886, 891
(Tex. Crim. App. 1995). Factual impossibility is not a defense, even in the context of
attempt. Chen, 42 S.W.3d at 927, 929–30 (citing Lawhorn, 898 S.W.2d at 891).
Applicant has not demonstrated actual innocence. The Secret Service letter does not
help to exculpate him from criminal attempt. According to the arresting officer’s report,
Applicant admitted to an illegal intent: he said he knew the bill was fake and had attempted
to use it at a bonding company. With this evidence, a reasonable juror could have concluded
that Applicant had a “conscious objective”—an intent—to engage in passing a forged
document. See Tex. Penal Code §§ 6.03(a), 32.21. The fact that the bill was genuine was
merely a circumstance impeding his ability to complete the offense; it did not negate his
intent. Furthermore, the fact that he now disavows that statement is not newly discovered
evidence; if he did not know the bill was fake or did not intend to pass it, he could have
said that to the police officer or the trial court before entering his plea. Applicant does not
prove by clear and convincing evidence that no reasonable juror would have convicted him
of attempt to commit forgery.
Yet the record shows that Applicant’s plea was unknowing and thus involuntary.
This case is not unlike Ex parte Mable, and its reasoning and holding are applicable
HICKS ― 4
here. See Ex parte Mable, 443 S.W.3d 129, 130–31 (Tex. Crim. App. 2014). In Mable, we
cited Texas Code of Criminal Procedure article 26.13(b) and McCarthy v. United States,
394 U.S. 459, 466 (1969), for the rule that a plea must be entered knowingly and
voluntarily. 443 S.W.3d at 130–31. Because a guilty plea includes a waiver of
constitutional rights, the defendant must have “sufficient awareness of the relevant
circumstances.” Brady v. United States, 397 U.S. 742, 748 (1970). In Ex parte Mable, the
defendant and all parties involved believed the defendant had been in possession of drugs.
443 S.W.3d at 131. Accordingly, the defendant pled guilty to possession of a controlled
substance. Id. at 130. Not long afterward, forensic testing revealed that the substance he
possessed was not in fact illicit. Id. We held that, while the defendant may have been guilty
of a lesser included offense—such as attempt to possess a controlled substance—he was
entitled to relief because his plea could not have been entered knowingly and voluntarily.
Id. at 131.
Similarly here, all parties believed at the time of the plea that the $100 bill Applicant
possessed was fake. The Secret Service letter shows that Applicant was not aware of all
the circumstances at the time of the plea because, contrary to his professed belief, the bill
was genuine. Like Mable, Applicant was under a “misapprehension about the true nature
of the substance he possessed” and was “insufficiently aware of [a] fact that was crucial to
[his] case.” See Ex parte Palmberg, 491 S.W.3d 804, 811 (Tex. Crim. App. 2016).
Therefore, Applicant did not make an informed choice when he pled guilty.
HICKS ― 5
We distinguish this case from two other recent cases in which we declined to grant
relief under Ex parte Mable. See Ex parte Palmberg, 491 S.W.3d at 811–12; Ex parte
Broussard, 517 S.W.3d 814, 820 (Tex. Crim. App. 2017). Our opinion in both of those
cases followed the precedent of Brady v. United States, in which the Supreme Court held,
“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.”
397 U.S. at 757.
In Ex parte Palmberg, the State used up all the suspected cocaine found in
Palmberg’s possession when it conducted field tests and did not have any of the substance
remaining for laboratory tests. 491 S.W.3d at 806. Palmberg argued that his plea was
involuntary because he would not have pled guilty if he had known the State had no more
of the substance to test. Id. at 806–07. We held that a plea is not necessarily involuntary
just because “the defendant pled guilty under the mistaken belief that specific evidence
would be available for use against him at trial.” Id. at 808.
In Ex parte Broussard, a field test indicated that a substance found in the
Broussard’s possession was cocaine, and he pled guilty to delivery of cocaine. 517 S.W.3d
at 816. Later, a laboratory test identified the substance as methamphetamine, which is also
a penalty group one substance. Id. Broussard alleged that he would not have pled guilty if
he had known the results of the lab test. Id. at 818. In finding that Broussard’s plea was
voluntary and intelligent, we reasoned, “A guilty plea is not necessarily involuntary when
a defendant misapprehends a known unknown,” such as an unidentified substance. Id. at
HICKS ― 6
816, 820. Also, the complete lack of illicit substances distinguished Broussard’s case from
Mable. Id at 820.
Here, there were no “known unknowns.” There were no forged documents. The
record shows that all parties mistakenly believed the bill was fake; apparently, no one
questioned that fact at the time of the plea.
Relief is granted; Applicant is permitted to withdraw his plea. The judgment in
cause number 139374301010 in the 176th District Court of Harris County is set aside, and
Applicant is remanded to the Harris County Sheriff to answer the charge as set out in the
indictment. The trial court shall issue any necessary bench warrant within ten days from
the date of this Court’s mandate.
DELIVERED: February 16, 2022
PUBLISH