             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. WR-87,190-02



                      EX PARTE ANDREW SAUCEDO, Applicant

              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 1415435-A IN THE 262 ND DISTRICT COURT
                          FROM HARRIS COUNTY

               K ELLER, P.J., filed a dissenting opinion in which K EEL, J., joined.

       Applicant knowingly possessed a controlled substance. He knew at the time of his plea that

the substance had not yet been tested. But the State was giving him a great deal—six years’ deferred

adjudication—so he pled guilty. Testing on the substance was complete less than two months after

the plea,1 but for almost three years, Applicant did nothing to challenge his conviction. Now that

his guilt has been adjudicated and he has been sentenced to ten years, Applicant wants a do-over, and

the Court gives him one. There are three reasons this is a mistake.



       1
           Applicant was placed on deferred adjudication on January 27, 2014. According to
Applicant’s habeas application and the trial court’s findings of fact, the Houston Police Department
Crime Laboratory tested the substance on March 21, 2014. The habeas record contains a laboratory
report dated March 21, 2014, which shows methylethcathinone rather than methamphetamine.
                                                                        SAUCEDO DISSENT — 2

       First, under Ex parte Broussard, Applicant has not shown that his guilty plea was

involuntary.2 The testing did not disprove Applicant’s guilt of possessing an illegal drug; it just

proved that he possessed a different illegal drug than the one charged.3

       Second, Applicant has not shown harm. Under the doctrine of transferred intent, he is still

guilty of culpably possessing the drug that the testing revealed, and the punishment range for that

drug is the same as the one with which he was charged. Consequently, Applicant is not actually

innocent nor has he been subjected to a harsher punishment range than the offense that he actually

committed would support.

       The general rule in post-conviction habeas proceedings is that the convicted person has the

burden to show harm.4 To understand how harm could be shown in a case such as this, we begin

with the fact that Applicant’s conviction was the result of a guilty plea. A guilty plea constitutes an

admission of guilt to the charged crime.5 In pleading guilty to possession of methamphetamine,

Applicant admitted to all of the elements of that offense. His claim now is that he is not guilty of

possession of methamphetamine because the testing conclusively establishes that he possessed a

different drug—methylethcathinone. This claim does not satisfy the requirements for showing actual

innocence because Applicant could still be guilty of the lesser-included offense of attempted




       2
           517 S.W.3d 814, 820 (Tex. Crim. App. 2017).
       3
           See id.
       4
           Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013).
       5
           United States v. Broce, 488 U.S. 563, 570 (1989).
                                                                          SAUCEDO DISSENT — 3

possession of methamphetamine.6

            Applicant’s guilty plea to the methamphetamine offense and his habeas pleading and

proceeding necessarily establish all the elements of the methylethcathinone offense. Under those

circumstances, Applicant has effectively admitted his guilt of the methylethcathinone offense.

        Base drug-possession offenses7 ordinarily contain four elements: (1) the possession of a

substance, (2) the amount of that substance, (3) the identity of that substance as a particular drug, and

(4) the culpable mental state for possession of the drug.8 The possession of a substance and the

amount of that substance were admitted by Applicant at his guilty plea, and he does not now

challenge those admissions. Instead, the claim is that the substance possessed was a different drug

than the one alleged, namely methylethcathinone, instead of methamphetamine. So Applicant’s

guilty plea to the methamphetamine offense necessarily satisfied elements (1) and (2) of the

methylethcathinone offense.

        As for element (3)—the identity of the substance as methylethcathinone—that element was

necessarily satisfied by Applicant’s habeas pleading and this habeas proceeding. To even make his

claim on habeas corpus, Applicant has to concede that the substance he possessed was

methylethcathinone. He cannot claim, for example, that the chemist tested the wrong substance or

that the testing procedure was flawed, because such claims would undermine his contention that the


        6
          See State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010) (“We hold that the term
‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did
not, in fact, commit the charged offense or any of the lesser- included offenses.”).
        7
         A base drug-possession offense would be one that is without enhancing elements such as
the possession being in a drug-free zone. See TEX . HEALTH & SAFETY CODE § 481.134 (drug free
zone enhancement).
        8
            See e.g., id. §§ 481.115, 481.116.
                                                                         SAUCEDO DISSENT — 4

testing shows he did not possess methampethamine. Applicant cannot use the identity of that

substance when it operates in his favor but call its identity in question when it operates against him.

And consistent with Applicant’s habeas pleading, the evidence in this habeas proceeding shows the

substance to be methylethcathinone.

       That leaves element (4), the culpable mental state. We have said in the past that, for a

possession-of-controlled-substance offense, the State is required to prove that the accused “knew the

matter [possessed] was contraband.”9 If that is literally all the State is required to prove, then

Applicant’s guilty plea to intentionally and knowingly possessing methamphetamine satisfies the

culpable-mental-state element, and all four elements have been established.

       But methamphetamine and methylethcathinone fall within different penalty groups,10 and it

could be argued that the culpable mental state applies at least to the penalty group that the substance

is in. If that were so, then the intent or knowledge with respect to a drug in penalty group 2 might

differ from the intent or knowledge with respect to a drug in penalty group 1.11 But this difference

ultimately does not matter because of the law of transferred intent.

       The Penal Code contains two “transferred intent” doctrines, but the one applicable here

involves the transfer of intent from one offense to another:



       9
        Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009); Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled on other grounds by, Robinson v. State, 466
S.W.3d 166, 173 (Tex. Crim. App. 2015); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App.
1995). Bracketed material absent from Lane but present in Poindexter and Joseph.
       10
            TEX . HEALTH & SAFETY CODE §§ 481.102(6), 481.103(4).
       11
            Compare TEX . HEALTH & SAFETY CODE § 481.115 (“if the person knowingly or
intentionally possesses a controlled substance listed in Penalty Group 1”), with id. § 481.116 (“if the
person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2”).
                                                                        SAUCEDO DISSENT — 5

       A person is nevertheless criminally responsible for causing a result if the only
       difference between what actually occurred and what he desired, contemplated, or
       risked is that . . . a different offense was committed.12

We have applied this version of the “transferred intent” doctrine to drug offenses.13 Consequently,

Applicant’s culpable mental state with respect to methamphetamine, admitted to by his guilty plea,

transfers to the methylethcathinone offense.

       Because Applicant has effectively admitted, through his plea and his current pleadings, to

all the elements of possession of methylethcathinone, and because that offense has the same

punishment range as the methamphetamine offense to which he pled guilty, Applicant has suffered

no harm.

       Finally, Applicant should be estopped from challenging his plea because he waited to do so

until his guilt was adjudicated. A person who receives probation as a part of a plea agreement should

be estopped from challenging the validity of his plea when he enjoys the benefits of being on

probation and raises his challenge only after probation is revoked.14 Despite his allegation that he



       12
            TEX . PENAL CODE § 6.04(b)(1).
       13
           Mendoza v. State, 636 S.W.2d 198, 200 & n.2 (Tex. Crim. App. 1982). See also Palafox
v. State, 949 S.W.2d 48, 49 (Tex. App.—Texarkana 1997, no pet.). Although the language of the
transferred intent instruction talks about “causing a result,” at least one court of appeals has
concluded that possession of a controlled substance can qualify as a result-oriented offense for the
purpose of instructing the jury. Adams v. State, 744 S.W.2d 622, 628-29 (Tex. App.—Fort Worth
1987, pet. ref’d). See also Skillern v. State, 890 S.W.2d 849 (Tex. App.—Austin 1994, no pet.)
(citing Adams for the proposition that “an offense may not fit neatly into either a ‘result’ type or a
‘nature of conduct’ offense”).
       14
           See Rhodes v. State, 240 S.W.3d 882, 890-91, 891 n.52, 892 n.57 (Tex. Crim. App. 2007)
(discussing with approval the concurring opinion in Ex parte Williams, 65 S.W.3d 656, 658-60 (Tex.
Crim. App. 2001) (Keller, P.J., concurring), which concluded that the plea-bargaining defendant in
that case was estopped from challenging the trial court’s judgment on the basis that probation was
illegal because he had accepted the benefits of probation).
                                                                        SAUCEDO DISSENT — 6

would not have pled guilty if he had known the relevant circumstances, Applicant enjoyed the

benefit of his plea bargain for almost three years after the substance was tested.15 The habeas court

found that Applicant was never made aware of the lab report after his initial plea or during the

motion to adjudicate. Even so, Applicant could have inquired as to the result of testing, and had he

done so earlier, could have filed a habeas application under Article 11.072, while he was still on

probation.16 Granting relief under such circumstances creates a windfall for defendants who have

nothing to lose by laying behind the log. I would hold that Applicant’s claim is barred by estoppel.17

       For these reasons, I would deny relief.

Filed: June 26, 2019
Publish




       15
          See Rhodes, 240 S.W.3d at 892 (defendant was estopped who had “quietly enjoyed the
benefits” of the illegal judgment, challenging it now only because, due to his own subsequent
criminal conduct, the judgment could be used to enhance his punishment for a new offense).
       16
            See TEX . CODE CRIM . PROC. art. 11.072.
       17
          Maybe the State agreed to relief because it believed the law demanded it. But the State’s
concession has no legal effect, so by granting relief here, the Court establishes a right to relief in
these circumstances even when the State contests a writ application. The next time an applicant
proves that the substance he pled guilty to possessing was in a different penalty group than the
substance he actually possessed, he will be entitled to relief under the Court’s opinion.
