Smith, G'cobra

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Do not publish.