             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                    NO. WR-82,876-01



               EX PARTE BRYAN ELLIOTT PALMBERG, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                      IN CAUSE NO. 1121345-A FROM THE
                    TH
                 179 DISTRICT COURT OF HARRIS COUNTY



       A LCALA, J., filed a dissenting opinion in which M EYERS and J OHNSON, JJ.,
joined.

                                 DISSENTING OPINION

       In this application for a post-conviction writ of habeas corpus, Bryan Elliott Palmberg,

applicant, seeks relief from his felony conviction for possession of a controlled substance on

the basis that his plea of guilty to that offense was unknowing and involuntary. See T EX .

C ODE C RIM. P ROC. art. 11.07; Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014).

In particular, applicant alleges that his plea was rendered involuntary because, at the time of

his plea, he was unaware that the substance he had been charged with possessing was fully

consumed by a chemical field-test, leaving no remaining evidence for confirmatory testing
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by an accredited forensic laboratory. Applicant, the State, and the habeas court all agree that

applicant is entitled to relief from his conviction on the basis that the State would not have

prosecuted him for the offense, and that he would not have pleaded guilty, had the parties

known that there was no evidence available for testing by a laboratory chemist. This Court’s

majority opinion denies his request for relief, but I would grant it. I, therefore, respectfully

dissent.

       The facts of the offense at this juncture are undisputed. In 2007, a police officer

arrested applicant for public intoxication and recovered what the officer believed to be a

crack-cocaine rock from applicant’s pocket. The officer field-tested the substance and

received a positive result, indicating the presence of cocaine. Applicant was charged with

possession of cocaine. Pursuant to a plea agreement with the State, applicant waived

indictment and was sentenced to ninety days’ confinement in the county jail.

       Two years later, the Houston Police Department Crime Laboratory drafted a letter to

the Harris County District Attorney’s Office indicating that the evidence had been examined,

that the entire visible sample had been consumed in the field test, and that no unprocessed

sample was available for analysis. Five years after that, the State discovered this letter and

forwarded it to the Harris County Public Defender’s Office, pursuant to the State’s

continuing obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S.

83 (1963). After receiving that information, applicant filed the instant application for a writ

of habeas corpus. The habeas court adopted the parties’ agreed-upon findings of fact and
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conclusions of law, and it recommended that relief be granted.

       The State agrees that applicant is entitled to habeas relief. In its brief to this Court,

the State observes that a conviction for possession of a controlled substance may not be

sustained based solely on an officer’s field test. See Curtis v. State, 548 S.W.2d 57, 59 (Tex.

Crim. App. 1977). The State agrees with applicant’s contention that, “[b]ecause he was

unaware that the substances seized from him had been fully consumed by the chemical field-

test, rendering them unavailable for confirmatory testing, his plea of guilty to possessing

cocaine was unknowing and involuntary.” The State continues, “Had the parties known of

the variance at the time of the applicant’s plea, the case would likely have been dismissed by

the Harris County District Attorney’s Office.” Urging this Court to grant applicant his

requested relief, the State concedes that, “[s]imply put, the applicant stands convicted of an

offense for which there is insufficient evidence.”

       Ex parte Mable is similar to this case and, I conclude, its reasoning and holding are

applicable here. See Mable, 443 S.W.3d at 130-31. In that case, Mable pleaded guilty to

possession of a controlled substance, but it was later revealed through laboratory testing that

the substance that he was arrested for possessing did not actually contain any illicit materials.

Id. This Court granted habeas relief, explaining that all the parties involved “incorrectly

believed [that Mable] had been in possession of drugs. This fact is crucial to this case, and

while operating under such a misunderstanding, [Mable] cannot be said to have entered his

plea knowingly and intelligently.” Id. at 131. As in Mable, here all of the parties relied upon
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their mutual belief, later proven to be incorrect, that the evidence would show that applicant

possessed a controlled substance. Perhaps more importantly, the State concedes that it would

not have prosecuted applicant had it been aware of the fact that there was no admissible

evidence to support applicant’s conviction. Given that there is no dispute that, had the

parties been aware that it was impossible for the laboratory to test the substance, applicant

would not have pleaded guilty to the offense and the State would not have prosecuted him

for the offense, this case is indistinguishable from Mable.

       This case is unlike Ex parte Barnaby, a case in which this Court denied habeas relief

to Barnaby because only one of his four convictions was affected by the complained-of

evidence. See Ex parte Barnaby, 475 S.W.3d 316, 327 (Tex. Crim. App. 2015). Barnaby was

arrested for possessing a bag of white rocks that resembled crack-cocaine, which field-tested

positive as cocaine, and a subsequent laboratory test confirmed that the substance was

cocaine. Id. at 319. Barnaby pleaded guilty to possession with intent to deliver that

substance, and he also pleaded guilty to three other charges arising from other incidents. Id.

at 326. Two years later, Barnaby was informed that the laboratory technician who tested the

substance was under investigation for fabricating lab-test results. Id. at 320. Barnaby filed

an application for a writ of habeas corpus contending that, because the lab technician’s report

was false, his guilty plea was involuntary. Id. at 322. This Court denied Barnaby habeas

relief, reasoning that, because he had three other charges against him for separate crimes, and

because these three other charges were included in the package plea bargain, he had failed
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to demonstrate the involuntariness of his plea. We said, “[T]he value of the plea bargain .

. . outweighed the value of knowing, before entering into his plea, that the laboratory report

in this single case was false.” Id. at 327. The case before us is distinguishable because here,

unlike Barnaby, applicant was convicted of a single possession of a controlled substance,

and, therefore, there is no suggestion that he received any benefit from his plea bargain that

would have outweighed the significance of the incorrect information upon which he relied

in pleading guilty. In other words, in Barnaby’s case, the false lab report was not material

to his decision to plead guilty because the report affected only one of four offenses disposed

of in the plea bargain. Here, however, as both applicant and the State suggest, the existence

of testable evidence against applicant was material to his decision to plead guilty.

       Although it is factually distinguishable in that it involved a package deal plea bargain

and in that it involved an allegation of false evidence, Ex parte Barnaby is instructive with

respect to how a habeas court should decide whether a particular fact is material to a

defendant’s decision to plead guilty. See id. at 318. The Barnaby Court explained, “In

determining the voluntariness of a plea of guilty, the more logical question is whether there

is a reasonable likelihood that [false evidence or undisclosed information] affected the

defendant’s decision to plead guilty[.]” Id. at 325. To determine whether a defendant

reasonably would have chosen to pursue a trial over a guilty plea, the Court examined

“whether the value of the undisclosed information . . . was outweighed by the benefit of

accepting the plea offer.” Id. at 326.
                                                                                  Palmberg - 6

       Because the amount and strength of the evidence has been recognized as a proper

basis for entering a guilty plea, it was reasonable for the habeas court to consider those

matters in finding that applicant’s plea was involuntary. A defendant may consider the

strength of the State’s evidence when deciding whether to plead guilty. See North Carolina

v. Alford, 400 U.S. 25, 37-38 (1970) (holding that a defendant may choose to plead guilty due

to the quality and quantity of the State’s evidence against him even while believing himself

innocent). Here, in assessing the merits of applicant’s claim, the habeas court properly

considered and determined that, had applicant known that the substance could not be tested

by a laboratory and that the State would not have prosecuted him for the offense if it had

been aware of that fact, he would not have pleaded guilty to this offense and, therefore, his

guilty plea was involuntary. I agree. The majority opinion, however, observes that, “so long

as [the applicant] knew what he did not know—then he was sufficiently aware of the relevant

circumstances[.]” Such a holding would call into question cases like Mable, in which the

evidence showed that Mable pleaded guilty before a laboratory had examined the substance

he was charged with possessing, and before he learned that the testing had failed to yield any

positive result for controlled substances. With respect to the voluntariness of the plea at the

time it was entered into, I can see no legal distinction between the position of Mable and

applicant, both of whom pleaded guilty knowing that the substances in their respective cases

had not yet been tested by a laboratory. It is true that Mable’s substance was later tested and

found not to contain a controlled substance, whereas applicant’s substance was never tested.
                                                                                  Palmberg - 7

But that is a distinction without a difference. With respect to the materiality question, there

is no difference between the laboratory report in Mable showing that Mable did not possess

a controlled substance and the State’s conceded inability in this case to determine whether

the substance applicant possessed was a controlled substance. In each case, the State had no

evidence to establish guilt. The majority opinion cannot be reconciled with Mable, and I,

therefore, conclude that this decision implicitly overrules Mable. Because I continue to

believe that Mable was correctly decided and should remain the controlling precedent for

deciding when pleas are involuntary under these or similar circumstances, I would grant

relief to applicant. I, therefore, respectfully dissent.

Filed: February 24, 2016

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