In the Court of Criminal Appeals of Texas ══════════ No. WR-94,041-01 ══════════ EX PARTE JOSE D. GONZALEZ, Applicant ═══════════════════════════════════════ On Application for a Writ of Habeas Corpus Cause No. 1191091-A in the 208th District Court From Harris County ═══════════════════════════════════════ YEARY, J., filed a dissenting opinion. The Court today grants relief. Regarding Applicant’s actual innocence claim, I agree with the majority. For the reasons stated in Ex parte Fournier, Applicant is not actually innocent. See Ex parte Fournier, 473 S.W.3d 789, 790–96 (Tex. Crim. App. 2015) (explaining that an actual innocence claim is a factually based claim alleging that newly discovered evidence shows that the applicant did not commit the GONZALEZ – 2 charged conduct as a matter of historical fact). In this case, Applicant’s purely legal basis for his claim that the convicting statue is unconstitutionally overbroad does not amount to an actual innocence claim. 1 I nevertheless dissent to the Court’s ultimate disposition of this 1 This case is distinguishable from Ex parte Warfield, in which I agreed with the Court that the Applicant therein was “actually innocent.” Ex parte Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021). In Warfield, the Applicant pled guilty to fraudulent possession of identifying information and to possession of more than ten “items . . . possessed,” which made the offense a second-degree felony. After Warfield’s plea, this Court, in Ex parte Cortez, construed the phrase “item of . . . identifying information,” in an opinion, for the very first time. 469 S.W.3d 593 (Tex. Crim. App. 2015). That construction of the unit of prosecution language revealed that Warfield had actually possessed only six “items,” meaning that he was, in fact, never guilty of the second-degree felony, as a matter of historical fact, pursuant to a proper understanding of the law involved. The Court’s decision in Warfield explained that, in order to be guilty of the greater offense, Warfield must have possessed a certain number of “items,” and he in fact never possessed that number of “items.” It was a factually and historically based actual innocence claim. In this case, however, Gonzales does not claim that he did not, in fact, commit the exact conduct for which he was convicted. He merely brings the purely legal claim that he is entitled to retroactive relief since he was convicted under a statute that this Court has subsequently declared to be overbroad. If the Applicant in this case had argued that he was convicted under a facially unconstitutional statute that is unconstitutional in every possible application, rather than simply overbroad, I would not distinguish this Applicant’s claim from that in Warfield. If Applicant had brought such a claim, he would be arguing that he in fact never committed any constitutionally proscribable conduct, making him “actually innocent” in the same absolute sense as the applicant in Warfield. Just as the statute in Warfield meant what the Court found it to mean since the moment of its enactment, a facially unconstitutional statute, invalid in every application, is …
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