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


                        EX PARTE BRYAN E. PALMBERG, Applicant


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


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty, was convicted of

possession of cocaine less than one gram, and sentenced to ninety days imprisonment in county jail.

He did not appeal his conviction.

        Applicant contends, among other things, that his plea was involuntary because he was not

made aware of a lab report, dated three months after his plea, showing that the evidence gathered

contained no illicit substances. The State and trial court agree that Applicant is entitled to relief.
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The trial court found that “On September 14, 2009, evidence from Applicant’s case was tested at the

Houston Police Department Crime Lab . . . The laboratory analysis did not indicate the presence of

any controlled substance or dangerous drug.” The trial court’s finding relies on a letter from the

Houston Crime Lab to the Harris County District Attorney’s office. However, the letter contradicts

the trial court’s finding. The letter does not state that there were no illicit drugs found in the sample

as the trial court finds, but that a police officer used the entire sample for his field test, leaving no

unprocessed evidence to analyze. The lab performed no analysis because there was no evidence to

analyze.

        Because the parties agreed to the findings and recommended granting relief, and those

findings are contradicted by the record, additional findings are necessary. As we held in Ex parte

Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for

findings of fact. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, §

3(d).

        It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,

it shall determine whether Applicant is indigent. If the trial court elects to hold a hearing, it shall

determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If

Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

           The trial court shall make findings of fact and conclusions of law in regard to Applicant’s

claim that his plea was involuntary. The trial court shall also make any other findings of fact and

conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for

habeas corpus relief.
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       This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.



Filed: March 18, 2015
Do not publish
