                                                                                    WR-82,876-01
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                    Transmitted 7/23/2015 2:59:15 PM
July 23, 2015                                                         Accepted 7/23/2015 3:27:49 PM
                                 NO. WR-82,876-01                                     ABEL ACOSTA
                                                                                              CLERK
                        IN THE COURT OF CRIMINAL APPEALS


                       EX PARTE BRYAN ELLIOTT PALMBERG,
                                   APPLICANT


           On Application for Writ of Habeas Corpus in Cause No. 1121345-A,
                   Challenging the conviction in Cause No. 1121345,
             From the 179th Judicial District Court of Harris County, Texas

                                 APPLICANT’S BRIEF



Oral Argument Requested                             ALEXANDER BUNIN
                                                    Chief Public Defender
                                                    Harris County, Texas

                                                    NICOLAS HUGHES
                                                    Assistant Public Defender
                                                    Harris County, Texas
                                                    TBN: 24059981
                                                    1201 Franklin St., 13th Floor
                                                    Houston, Texas 77002
                                                    Phone: (713) 368-0016
                                                    Fax: (713) 437-4316
                                                    nicolas.hughes@pdo.hctx.net




                                                    ATTORNEY FOR APPLICANT
                     IDENTITY OF PARTIES AND ATTORNEYS


APPLICANT:                                BRYAN ELLIOTT PALMBERG


TRIAL PROSECUTOR:                         STACY SEDERIS
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin Street, 6th Floor
                                          Houston, Texas 77002


ATTORNEY AT TRIAL:                        HEATHER HALL
                                          Attorney at Law
                                          308 N Main St
                                          Conroe, TX 77301-2810


PRESIDING JUDGE AT TRIAL:                 HON. J. MICHAEL WILKINSON
                                          179th District Court
                                          Harris County, Texas
                                          1201 Franklin Street, 18th floor
                                          Houston, Texas 77002


ATTORNEY FOR STATE ON HABEAS:             INGER CHANDLER
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin Street, 6th Floor
                                          Houston, Texas 77002


ATTORNEY FOR APPLICANT:                   NICOLAS HUGHES
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin St., 13th Floor
                                          Houston, Texas 77002




                                     ii
                                                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND ATTORNEYS ............................................................................. II

TABLE OF CONTENTS ............................................................................................................ III

INDEX OF AUTHORITIES ........................................................................................................ V

STATEMENT OF THE CASE ..................................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

ISSUE PRESENTED ................................................................................................................... 2

STATEMENT OF FACTS............................................................................................................ 2

SUMMARY OF THE ARGUMENT .............................................................................................. 2

ARGUMENT .............................................................................................................................. 3

     I.     Applicant’s plea of guilty was involuntary when he was not aware at the
     time of his plea that the field test for controlled substances conducted by the
     police officer did not leave enough evidence for the drug lab to conduct its own
     testing. ................................................................................................................................ 3

          A. Presumptive field tests for narcotic identification are inherently unreliable,
          inadmissible at trial, and cannot support a conviction for possession of a
          controlled substance ................................................................................................... 4

                1. Presumptive field tests are simplified, cheap tests that can be performed
                under the conditions a law enforcement officer is likely to encounter .......... 4

                2. Presumptive field tests are inappropriate for use beyond an initial
                determination of “probable cause” ..................................................................... 4

                3. Both this Court and the Texas legislature have deemed the results of a
                presumptive field test, even when coupled with the testimony of an
                experienced law enforcement officer, inadmissible and insufficient to
                support a conviction ............................................................................................. 5

                     a. Under Curtis, unspecific presumptive drug field tests are insufficient to
                     support a conviction ....................................................................................... 5


                                                                      iii
                     b. Presumptive drug field tests performed outside a laboratory are
                     inadmissible under Article 38.35 of the Code of Criminal Procedure ...... 6

          B. The admission of inadmissible evidence against a defendant has been
          repeatedly held to be a basis for relief ...................................................................... 8

                1. To a defendant who is deciding whether or not to plead guilty, a
                laboratory report indicating that no analysis could be performed is
                equivalent to laboratory report indicating that no controlled substance could
                be detected ............................................................................................................. 8

                2. Strong parallels can be drawn between Applicant’s claims in this case and
                claims of Brady violations, ineffective assistance of counsel, actual
                innocence, and the presentation of false evidence .......................................... 10

                     a. A defendant is entitled to relief where his conviction is secured
                     through use of false evidence....................................................................... 10

                     b. A defendant is entitled to relief when new evidence, discovered after a
                     person’s guilty plea, reveals that that defendant is innocent .................... 11

                     c. A defendant is entitled to relief when his lawyer inexcusably fails to
                     investigate evidence material to a defendant’s guilty plea ........................ 12

                     d. Brady entitles a defendant relief when the State failed to disclose
                     material, exculpatory information prior to a guilty plea ........................... 13

                     e. A defendant should entitled to relief if he can prove that newly
                     discovered evidence shows the evidentiary foundation underlying his
                     conviction is invalid....................................................................................... 14

PRAYER .................................................................................................................................. 15

CERTIFICATE OF SERVICE .................................................................................................... 16

CERTIFICATE OF COMPLIANCE ........................................................................................... 16




                                                                    iv
                                           INDEX OF AUTHORITIES

Federal Cases

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................. 13

Hill v. Lockhart, 474 U.S. 52 (1985) ..................................................................................... 12

McCarthy v. United States, 394 U.S. 459 (1969) ..................................................................... 9

Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) .................................................................... 12

Murray v. Carrier, 477 U.S. 478 (1986)................................................................................. 15

State Cases

Burch v. State, No. 05–10–01389–CR, 2012 WL 2226456 (Tex. App.−Dallas June 18,
 2012) (mem. op., not designated for publication) ........................................................... 6

Cude v. State, 588 S.W.2d 895 (Tex. Crim. App. 1979) ..................................................... 13

Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977)................................................ 5, 6, 9

Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006) ............................................ 10

Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) ......................................... 11, 14

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)............................................. 11

Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) ....................................... 14

Ex Parte Hodges, No. WR–80,680–02, 2015 WL 376201 (Tex. Crim. App. Jan. 28,
 2015) (mem. op., not designated for publication) ......................................................... 13

Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009) ......................................... 12, 13

Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993) ................................................. 13

Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014) ................................................... 9

Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) .............................................. 15




                                                             v
Ex Parte Morton, No. AP–76663, 2011 WL 4827841 (Tex. Crim. App. Oct. 12, 2011)
 (mem. op., not designated for publication).................................................................... 12

Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011).............................................. 14

Ex parte Rodriguez, No. WR-61899-03, 2008 WL 2673789 (Tex. Crim. App. July 2,
 2008) (mem. op., not designated for publication) ......................................................... 11

Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) .................................................. 12

Houston v. Indiana, 553 N.E.2d 117 (Ind. 1990) ................................................................... 4

Milam v. State, No. AP–76379, 2012 WL 1868458 (Tex. Crim. App. May 23, 2012)
 (mem. op., not designated for publication)...................................................................... 8

New York v. Swamp, N.E.2d 774 (1995) ................................................................................ 5

Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) ...................................................... 10

State Statutes

TEX. CODE CRIM. PROC. ANN., art. 11.073 (West 2013). ................................................ 11

TEX. CODE CRIM. PROC. ANN., art. 38.35 (West 2005). ............................................ 6, 7, 9

Other Authorities

Alan Harris, A Test of a Different Color: The Limited Value of Presumptive Field Drug Tests
 and Why That Value Demands Their Exclusion from Trial, 40 SW. L. REV. 531 (2011) ..... 4

Kirk M. Grates, et al., Conclusion of Validation Study of Commercially Available Field Test
 Kits for Common Drugs of Abuse, National Forensic Science Technology Center (2008)
  ............................................................................................................................................... 5

U.S. Patent. No. US 3,955,926 (Issued May 11, 1976) ...................................................... 4




                                                                       vi
                              STATEMENT OF THE CASE

      On June 17, 2007, Applicant was charged with possession of substance in

penalty group 1, less than one gram (cocaine) in Cause 1121345. Writ Exhibit 1.On

June 19, 2007, pursuant to a plea agreement, Applicant pled guilty and was convicted.

Writ Exhibits 2, 3. Applicant has collaterally challenged his conviction on the grounds

that his plea was involuntary and that Applicant’s conviction violates his right to due

process. On February 10, 2015, the trial court entered agreed findings of fact and

conclusions of law recommending relief. Agreed Findings of Fact and Conclusions of Law,

Ex parte Palmberg, No. 1121345-A (179th Dist. Ct. Harris Cty., Tex. 2015) (filed Feb.

10, 2015). After Applicant’s case was remanded to the trial court for additional

findings, on May 19, 2015, the trial court entered agreed supplemental findings of fact

and conclusions of law recommending relief. Agreed Supplemental Findings of Fact and

Conclusions of Law, Ex parte Palmberg, No. 1121345-A (179th Dist. Ct. Harris Cty., Tex.

2015) (filed May 19, 2015).

                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument may help categorize Applicant’s case within the body of caselaw

regarding involuntary pleas. Applicant requests oral argument with the belief that it

can simplify the question before the court and can help harmonize the resolution of

Applicant’s case with existing caselaw.




                                          1
                                   ISSUE PRESENTED

Applicant’s plea of guilty was involuntary when he was not aware at the time of his

plea that the field test for controlled substances conducted by the police officer did

not leave enough evidence for the drug lab to conduct its own testing.

                                 STATEMENT OF FACTS

         On June 17, 2007, Applicant was arrested for possession of substance in

penalty group one, less than one gram (cocaine). Writ Exhibit 1. On June 19, 2007,

just two days later, Applicant pled guilty and was sentenced to 180 days in the county

jail. Writ Exhibits 2, 3. On September 14, 2009, years after Applicant’s initial arrest

and conviction, Houston Police Department laboratory analysts examined the

evidence in Applicant’s case and determined that there was no remaining sample that

could be tested using laboratory equipment. Writ Exhibit 4, Supplemental Writ

Exhibit 2. Without forensic analysis by an accredited laboratory, the evidence in

Applicant’s case was inadmissible in Court. Supplemental Conclusion of Law No. 8.

Had Applicant know that the results of the presumptive drug test kit were

inadmissible in court and there was no competent evidence to secure his conviction,

he would have insisted upon his right to trial. Supplemental Conclusion of Law No.

16-18.

                             SUMMARY OF THE ARGUMENT

         This Court has previously held that the result of a presumptive drug test kit,

even when coupled with the testimony of an experienced policeman, is insufficient to

                                            2
support a conviction for possession of a controlled substance. Additionally, Article

38.35 of the Code of Criminal Procedure deems inadmissible most forensic analysis,

including controlled substance identification, when conducted outside of an

accredited laboratory. Due to a lack of unconsumed sample, a forensic analysis could

not be performed in this case. The presumptive drug test kit in this used case,

therefore, was inadmissible.

        The presumptive drug test kit served as the evidentiary basis for Applicant’s

arrest and ultimate conviction. Applicant’s plea agreement was based on the

fundamental assumption that there was enough to legally support a verdict, an

assumption both material to the case and which turned out to be false. This Court

should grant relief on the basis that Applicant’s due process rights were violated or on

the basis of involuntary plea, as there was demonstrably insufficient evidence to

support Applicant’s conviction, a fact revealed only after the conviction occurred.

                                     ARGUMENT

   I.      Applicant’s plea of guilty was involuntary when he was not aware at

           the time of his plea that the field test for controlled substances

           conducted by the police officer did not leave enough evidence for the

           drug lab to conduct its own testing.




                                           3
   A. Presumptive field tests for narcotic identification are inherently

   unreliable, inadmissible at trial, and cannot support a conviction for

   possession of a controlled substance

      1. Presumptive field tests are simplified, cheap tests that can be

      performed under the conditions a law enforcement officer is likely to

      encounter

      The development of the quick-acting reagents used in presumptive field tests

attempted to address the need for a rapid and reliable test enabling law enforcement

to combat the trade and consumption of narcotics. U.S. Patent. No. US 3,955,926

(Issued May 11, 1976). Presumptive drug test kits are designed to be “employed by

‘field’ personnel without scientific or laboratory skills for making quick decisions such

as whether probable cause exists.” Houston v. Indiana, 553 N.E.2d 117, 120 (Ind. 1990).

“However, even guides created for [presumptive drug test kits’] proper usage state

that the tests are only designed for the ‘preliminary identification of drugs of

abuse.’ ” Alan Harris, A Test of a Different Color: The Limited Value of Presumptive Field

Drug Tests and Why That Value Demands Their Exclusion from Trial, 40 SW. L. REV. 531,

532 (2011).

      2. Presumptive field tests are inappropriate for use beyond an initial

      determination of “probable cause”

      One of the greatest limitations of most presumptive drug test kits is a lack of

specificity: not only may a number of controlled substances demonstrate a positive

                                            4
result, but over the counter drugs and other substances can demonstrate a false

positive result. Kirk M. Grates, et al., Conclusion of Validation Study of Commercially

Available Field Test Kits for Common Drugs of Abuse, National Forensic Science

Technology Center (2008). This limitation was recognized by this Court almost four

decades ago. See Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977). While a

presumptive test may be important for developing probable cause against a defendant,

at trial where the standard of proof is “beyond a reasonable doubt,” more than a field

test must be conducted. New York v. Swamp, N.E.2d 774, 777–778 (1995).

      3. Both this Court and the Texas legislature have deemed the results of a

      presumptive field test, even when coupled with the testimony of an

      experienced law enforcement officer, inadmissible and insufficient to

      support a conviction

          a. Under Curtis, unspecific presumptive drug field tests are

          insufficient to support a conviction

      In Curtis, the Court of Criminal Appeals held that the results of a Marquis

reagent presumptive field test were inadmissible, as they were not specific:

      A Marquis reagent test which is positive does not prove a substance is
      heroin. Brown correctly testified that it was merely evidence that the
      substance was an opiate derivative. There are at least twenty-five organic
      substances that can be extracted from opium; morphine, codeine and
      paregoric are among these substances.

Curtis, 548 S.W.2d at 59. The Curtis Court further explained that an officer was not

qualified to distinguish between chemicals by mere physical inspection:

                                           5
      This Court has held that an experienced officer may be qualified to
      testify that a certain green leafy plant substance is marihuana. […]
      However, we are unwilling to say that an experienced officer can look at
      a white or brown powdered substance and testify that it is heroin since
      morphine, codeine, paregoric, other opiates, other controlled substances,
      and noncontrolled substances also appear in white or brown powdered
      form. A green leafy plant substance which is marihuana has different
      characteristics from other green leafy plant substances; an expert can
      determine the difference. The evidence here does not show that even the
      experienced expert can distinguish one white or brownish powdered
      substance from another and determine which is heroin.

Id. The Curtis court determined that the balance of the evidence, absent testimony

from a laboratory analyst, was insufficient to support Curtis’s conviction. Id. The rule

set forth in Curtis remains vital today. Burch v. State, No. 05–10–01389–CR, 2012 WL

2226456, *6–7 (Tex. App.−Dallas June 18, 2012) (mem. op., not designated for

publication) (holding that where laboratory report was inadmissible due to a

Confrontation Clause problem, the law enforcement officer’s testimony about the

nature of the white substance involved in that case was also inadmissible).

          b. Presumptive drug field tests performed outside a laboratory are

          inadmissible under Article 38.35 of the Code of Criminal Procedure

      The rule set forth in Curtis is bolstered by the Texas Code of Criminal

Procedure. Article 38.35 of the Code of Criminal Procedure1 provides that


1
  Article 38.35 applies to any “chemical […] test performed on physical evidence, […]
for the purpose of determining the connection of the evidence to a criminal action”
regardless of whether the test is performed by a “laboratory or other entity that
conducts a forensic analysis subject to this article.” TEX. CODE CRIM. PROC., art.
38.35(a)(1), (a)(4) (emphasis added). Presumptive tests are considered forensic analysis
unless “performed for the purpose of determining compliance with a term or

                                           6
admissibility of forensic evidence is predicated on the analysis of the evidence by an

accredited laboratory:

       [A] forensic analysis of physical evidence under this article and expert
       testimony relating to the evidence are not admissible in a criminal action
       if, at the time of the analysis, the crime laboratory conducting the
       analysis was not accredited by the director under Section 411.0205,
       Government Code

TEX. CODE CRIM. PROC., art. 38.35(d)(1). Forensic analysis is broadly defined by the

statute:

       “Forensic analysis” means a medical, chemical, toxicologic, ballistic, or
       other expert examination or test performed on physical evidence,
       including DNA evidence, for the purpose of determining the connection
       of the evidence to a criminal action.

TEX. CODE CRIM. PROC., art. 38.35(a)(4). As presumptive drug field test is a chemical

test performed on physical evidence for the purpose of determining whether a

substance may be a controlled substance, and is therefore evidence that the crime of

possession of a controlled substance may have occurred, it is a forensic analysis. Id. As

explained by this Court, Article 38.35 “makes the admissibility of some forensic

evidence [including presumptive field tests] contingent on whether the analysis of the

evidence was conducted at an accredited laboratory.” Milam v. State, No. AP–76379,

2012 WL 1868458, 12 (Tex. Crim. App. May 23, 2012) (mem. op., not designated for




condition of community supervision or parole” and performed by or under contract
with state parole departments or community supervision and corrections departments.
TEX. CODE CRIM. PROC., art. 38.35(a)(4)(E).

                                           7
publication). No laboratory analysis was conducted in this case, and there is no

admissible proof that Applicant possessed a controlled substance.

    B. The admission of inadmissible evidence against a defendant has been

    repeatedly held to be a basis for relief

       1. To a defendant who is deciding whether or not to plead guilty, a

       laboratory report indicating that no analysis could be performed is

       equivalent to laboratory report indicating that no controlled substance

       could be detected

    Procedurally and functionally, in terms of legally admissible evidence, there is no

difference between a case involving a sample reported not to contain a controlled

substance and a sample which cannot be tested by a laboratory. In both cases, the

defendant is likely to have been arrested based on a presumptive field test.2 At the

point the defendant has been arrested, she has been told by a law enforcement officer

that the substance tested positive for a controlled substance. A defendant’s guilty plea

is always contingent, whether the defendant believes she is guilty or not, on whether

the defendant believes that the State can prove to a factfinder that the substance in

question is in fact a controlled substance. In Ex parte Mable, this Court held that the

2
  Many Texas cases explore the link between presumptive field tests and the
development of probable cause to justify an arrest or a search. See e.g. State v. Davila,
No. 03-06-00214-CR, 2007 WL 542603 (Tex. App.-Austin Feb. 23, 2007, no pet.)
(mem. op., not designated for publication); Hall v. State, No. 07-01-0014-CR, 2001 WL
1090133 (Tex. App.-Amarillo Sept. 18, 2001, no pet.) (mem. op., not designated for
publication); Bright v. State, No. 04-99-00912-CR, 2001 WL 55723 (Tex. App.-San
Antonio Jan. 24, 2001, no pet.) (mem. op., not designated for publication).

                                           8
defendant’s belief that the substance contained illegal drugs is critical to the decision

to plea:

       In this case, all parties involved, including the applicant, incorrectly
       believed the applicant had been in possession of drugs. This fact is
       crucial to this case, and while operating under such a misunderstanding,
       the applicant cannot be said to have entered his plea knowingly and
       intelligently.

Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014).

       Until there has been a forensic laboratory analysis of a suspected controlled

substance, there is no evidence sufficient to establish that a particular chemical sample

is any particular substance. Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977);

TEX. CODE CRIM. PROC., art. 38.35(d)(1). The standard for evaluating a claim of

involuntary plea is “whether the plea is a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Ex parte Mable, 443 S.W.3d at

131. The distinction between whether a laboratory tests a substance and determines

the substance not to contain any controlled substance and whether the laboratory

cannot perform a test is purely academic to a rational defendant: in neither case can

law enforcement testimony or the presumptive test be used as evidence to secure a

defendant’s guilt. Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977); TEX.

CODE CRIM. PROC., art. 38.35(d)(1). No rational defendant, positively knowing that

the State cannot prove every element in a criminal prosecution, would plead guilty to

an offense. McCarthy v. United States, 394 U.S. 459, 466 (1969).



                                            9
      2. Strong parallels can be drawn between Applicant’s claims in this case

      and claims of Brady violations, ineffective assistance of counsel, actual

      innocence, and the presentation of false evidence

      Applicant’s claims revolve around the disclosure of evidence, material to

Applicant’s case, after Applicant had already pled guilty. Several other constitutional

claims related to a defendant’s right to a fair trial, including claims of ineffective

assistance, Brady violations, actual innocence, and the presentation of false evidence,

can also involve disclosures of evidence occurring after trial. A common theme

among all these types of cases is focusing on whether the revealed evidence is material

to a defendant’s trial, and whether the result of the trial is called into question by the

new evidence:

      The mere possibility that an item of undisclosed information might have
      helped the defense, or might have affected the outcome of the trial, does
      not establish ‘materiality’ in the constitutional sense. Hence, the
      defendant must show that, in light of all the evidence, it is reasonably
      probable that the outcome of the trial would have been different had
      [there been] a timely disclosure.

Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011) (citations omitted).

          a. A defendant is entitled to relief where his conviction is secured

          through use of false evidence

      The presentation of false evidence, whether or not the prosecution is aware

that the evidence is false, violates a defendant’s right to due process. Ex parte Carmona,

185 S.W.3d 492, 496–497 (Tex. Crim. App. 2006). In Ex parte Chabot, a co-defendant’s


                                           10
testimony was critical to establishing that Chabot, acting alone, sexually assaulted and

shot the deceased. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009).

However, a DNA test revealed that the co-defendant, and not Chabot, had sexually

assaulted the deceased. Id. This Court concluded that the new evidence deeply

undercut the State’s evidence and the perjured testimony from the co-defendant

deprived Chabot of his due process rights. Id. at 772. This Court seemed to

acknowledge that it is possible that fabricated evidence could result in an involuntary

guilty plea. See Ex parte Rodriguez, No. WR-61899-03, 2008 WL 2673789 (Tex. Crim.

App. July 2, 2008) (mem. op., not designated for publication) (defendant claiming, in

part, his plea involuntary due to use of fabricated evidence against him).

          b. A defendant is entitled to relief when new evidence, discovered

          after a person’s guilty plea, reveals that that defendant is innocent

      Even if a defendant receives a perfectly procedurally fair trial, due process may

require the invalidation of a conviction when new, contradictory evidence is received

by the court. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996); TEX.

CODE CRIM. PROC., art. 11.073. This Court has held,

      [P]unishment of an innocent person violates the Due Process Clause of
      the United States Constitution. Consequently, if applicant can prove by
      clear and convincing evidence to this Court, in the exercise of its habeas
      corpus jurisdiction, that a jury would acquit him based on his newly
      discovered evidence, he is entitled to relief.

Ex parte Elizondo, 947 S.W.2d at 209. “[This] policy applies with no less force when

the conviction is obtained by a bench trial or guilty plea.” Ex parte Tuley, 109 S.W.3d

                                           11
388, 392 (Tex. Crim. App. 2002). A defendant’s due process rights are not frozen in

time at the point of trial; perhaps decades after a person’s conviction, due process may

require contemplation of whether, in light of new evidence, a defendant’s conviction

is fundamentally unfair. See e.g. Ex Parte Morton, No. AP–76663, 2011 WL 4827841

(Tex. Crim. App. Oct. 12, 2011) (mem. op., not designated for publication).

          c. A defendant is entitled to relief when his lawyer inexcusably fails to

          investigate evidence material to a defendant’s guilty plea

      Where a defense team inexcusably fails to investigate material evidence, even

where the evidence is not a bar to prosecution against a defendant, a violation of the

defendant’s constitutional rights may occur. See e.g. Miller v. Dretke, 420 F.3d 356 (5th

Cir. 2005). Furthermore, the right of effective assistance of counsel is not

extinguished by the decision to plead guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In

Ex parte Imoudu, this Court considered whether or not a lawyer’s failure to investigate

a psychiatric report rendered a defendant’s plea involuntary. Ex parte Imoudu, 284

S.W.3d 866 (Tex. Crim. App. 2009). The Court noted that the failure to investigate

the report amounted to a denial of the defendant’s constitutional rights:

      Thus, we feel that counsel had a duty to investigate the possibility that
      Applicant was insane at the time of the offense given the likelihood of
      mental illness noted in reports from jail medical personnel. Instead,
      counsel failed to even obtain Applicant's medical records. If they had, it
      would have been clear from even a cursory reading of the documents
      that Applicant was suffering from some mental problems while he was
      incarcerated. This leads us to conclude that counsel was ineffective for
      failing to investigate whether Applicant was insane at the time of the
      offense.

                                           12
Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex. Crim. App. 2009).. Denial of effective

assistance of counsel is a cousin of procedural due process claims, as ineffective

assistance of counsel deprives a defendant of a fair trial. See Cude v. State, 588 S.W.2d

895, 897–898 (Tex. Crim. App. 1979).

          d. Brady entitles a defendant relief when the State failed to disclose

          material, exculpatory information prior to a guilty plea

      The watershed Supreme Court case Brady v. Maryland established that the

suppression of important evidence could violate a defendant’s right to due process

and entitled the defendant to a new trial:

      We agree with the Court of Appeals that suppression of this confession
      was a violation of the Due Process Clause of the Fourteenth
      Amendment.
      […]
      We now hold that the suppression by the prosecution of evidence
      favorable to an accused upon request violates due process where the
      evidence is material either to guilt or to punishment, irrespective of the
      good faith or bad faith of the prosecution.

Brady v. Maryland, 373 U.S. 83, 87 (1963). Often, the substance leading to a Brady claim

is not known at the time of trial, consequently Brady claims are cognizable on habeas

corpus. See Ex parte Kimes, 872 S.W.2d 700, 701 n. 2 (Tex. Crim. App. 1993). The

failure to disclose Brady material may render a plea involuntary. See e.g. Ex Parte Hodges,

No. WR–80,680–02, 2015 WL 376201, 1 (Tex. Crim. App. Jan. 28, 2015) (mem. op.,

not designated for publication)..



                                             13
          e. A defendant should entitled to relief if he can prove that newly

          discovered evidence shows the evidentiary foundation underlying his

          conviction is invalid

      There is little to distinguish “perjured, fabricated, false, or even just plain

misleading evidence” from one another, if the ultimate effect of the evidence is the

same. Ex Parte Robbins, 360 S.W.3d 446, 464 (Tex. Crim. App. 2011) (J. Price,

concurring). Indeed, this Court has made it clear that a “gap in the evidence” may

“creat[e] a misleading impression of the facts” so great that it may violate a

defendant’s right to due process. Ex parte Ghahremani, 332 S.W.3d 470, 479, 481 (Tex.

Crim. App. 2011). A due process violation is not made palatable in the absence of bad

faith or misconduct, rather it depends on the likelihood that the misleading evidence

contributed to a defendant’s conviction or punishment. Ex parte Chabot, 300 S.W.3d at

772. Here, all parties were operating under the mistaken assumption that there was

evidence that could be forensically analyzed by a laboratory in Applicant’s case. This

misunderstanding was fundamental to Applicant’s decision to plea and to the

outcome of Applicant’s case. The same hesitation to uphold a conviction that is a

product of a lawyer’s failure to uncover important information, the suppression of

evidence, or of missing evidence which later exonerates an innocent person should

give this Court pause in this context.

      Due process ensures that “the prisoner must always have some opportunity to

reopen his case if he can make a sufficient showing that he is the victim of a

                                         14
fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S. 478, 515 (1986) (J.

Stevens, concurring). No competent lawyer, knowing that the police officer’s

testimony regarding the evidence in Applicant’s case and knowing that the

presumptive drug field test was inadmissible would advise their client to plead guilty.

See Ex parte Bryant, 448 S.W.3d at 40. No rational defendant, having been adequately

apprised that there was no admissible evidence which could sustain a conviction

under Texas’s controlled substance act, “would not have pleaded guilty and would

have insisted on going to trial.” Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim.

App. 1997). If the State had possession of the laboratory report at the time of

Applicant’s plea or even if the defense lawyer had simply failed to investigate an

existing lab report, Applicant would have a clear avenue for relief. The question of

timing should not govern the ultimate disposition of Applicant’s case when the

materiality of the evidence not disclosed to the defendant and its impact on his

decision-making process is the ultimately the basis for relief.

                                        PRAYER

       Applicant prays that this Court grant relief and remand his case to the trial

court for a new trial.

                                                 Respectfully submitted,

                                                 ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County Texas

                                                 /s/ Nicolas Hughes

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                                               NICOLAS HUGHES
                                               Assistant Public Defender
                                               Harris County Texas
                                               1201 Franklin Street, 13th Floor
                                               Houston Texas 77002
                                               (713) 368-0016
                                               (713) 386-9278 fax
                                               TBA No. 24059981
                                               nicolas.hughes@pdo.hctx.net



                              CERTIFICATE OF SERVICE

       I certify that a copy of this Applicant’s Brief (Palmberg) has been served upon the

Harris County District Attorney's Office – Conviction Integrity, on July 23, 2015 by

electronic service.

                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender

                           CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the page

and word count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains

3,540 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).

                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender



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