Wenzel, Michael Justice

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-97,482-01

EX PARTE MICHAEL JUSTICE WENZEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 25-03-04548 IN THE 221st DISTRICT COURT MONTGOMERY COUNTY Finley, J., filed a concurring opinion in which Yeary, J., joined.

CONCURRING OPINION This is an involuntary plea case. On March 25, 2025, Applicant was charged with possession with intent to distribute alprazolam, with weight more than 28 grams but less than 200 grams—a second-degree felony. Less than a month later, on April 17, 2025, and before lab testing was completed, Applicant pleaded guilty to the lesser-included offense of possession of a controlled substance, a state-jail WENZEL CONCURRENCE — 2 felony. The State filed a motion under Section 12.44(a) of the Penal Code to reduce the range of punishment of Applicant’s offense to that of a Class A misdemeanor. See Tex. Penal Code § 12.44(a). The trial court followed the plea bargain agreement, convicted Applicant of the lesser-included possession offense, and sentenced Applicant to 120 days’ confinement in the county jail.

On June 5, 2025, the State notified Applicant that the crime laboratory had analyzed the controlled substance and found it to be buspirone, not alprazolam.

Buspirone is not a controlled substance under Texas law. On January 30, 2026, Applicant filed the instant application for a writ of habeas corpus, claiming his plea was involuntary citing this Court’s decision in Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). The Court today agrees with Applicant and grants Applicant relief, citing Mable.

I have previously expressed doubts about this Court’s current involuntary plea jurisprudence. See, e.g., Ex parte Warren, 721 S.W.3d 247 (Tex. Crim. App. 2025) (Finley, J., joined by Schenck, P.J., Yeary, and Parker, JJ., dissenting); Ex parte Salas, 713 S.W.3d 777 (Tex. Crim. App. 2025) (Finley, J., joined by Schenck, P.J., and Parker, J., dissenting). For the reasons I expressed in those opinions, as well as the reasons expressed by other Judges of this Court, I believe that this Court’s continued reliance on Mable should be WENZEL CONCURRENCE — 3 abandoned and that Applicant’s plea was not involuntary. See, e.g., Ex parte Saucedo, 576 S.W.3d 712, 714 (Tex. Crim. App. 2019) (Keasler, J., concurring); id. at 722 (Hervey, J., joined by Keasler, J., concurring); Ex parte Warfield, 618 S.W.3d 69, 72 (Tex. Crim. App. 2021) (Yeary, J., concurring). “[S]o long as an accused enters a guilty plea with an awareness of what he does not know, it cannot be said that he pled involuntarily.” Warfield, 618 S.W.3d at 72 (Yeary, J., concurring); Salas, 713 S.W.3d at 779 (Finley, J., dissenting) (“The fact that his roll of the dice did not turn out as favorably as it might have had he proceeded to trial is not a ground for invalidating his plea.”). Those principles warrant denying relief on Applicant’s involuntary plea claim and counsel this Court towards abandoning Mable.

With that said, Applicant is nevertheless entitled to habeas relief for the reasons Judge Yeary explained in Warfield. 618 S.W.3d at 74–75 (Yeary, J., concurring) (“Under these circumstances, due process simply will not tolerate the maintenance of a conviction for a greater offense than the facts could possibly support under the controlling penal statute.”). Applicant has established entitlement to relief on that basis because the evidence conclusively shows that he committed no crime at all—he did not possess a controlled substance.

Consequently, due process cannot tolerate his conviction.

WENZEL CONCURRENCE — 4

I agree that Applicant is entitled to habeas relief. I simply cannot join the Court’s order granting relief on involuntary plea grounds. With these thoughts, I concur with the Court’s order.

Filed: April 30, 2026 Publish

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-97,482-01

EX PARTE MICHAEL JUSTICE WENZEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 25-03-04548 IN THE 221ST DISTRICT COURT MONTGOMERY COUNTY

Per curiam. FINLEY, J., filed a concurring opinion joined by YEARY, J.

OPINION Applicant pleaded guilty, was convicted of possession of a controlled substance, and sentenced to seven months’ imprisonment in this cause. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant contends that his plea was involuntary because at the time of his plea, he was not aware that the substance he possessed contained no controlled substances. The State agrees. Based on the record, the trial court has determined that Applicant’s plea was involuntary.

Relief is granted. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), Brady v. United States, 397 U.S. 742 (1970). The judgment in cause number 25-03- 04548 in the 221st District Court of Montgomery County is set aside, and Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the information. The trial court shall issue any necessary bench warrant within ten days from the date of this Court’s mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles.

Delivered: April 30, 2026 Publish