                                                                                    WR-83,489-01
                                                                     COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                   Transmitted 10/22/2015 4:59:31 PM
October 26, 2015                                                     Accepted 10/26/2015 7:51:53 AM
                                 NO. WR-83,489-01                                     ABEL ACOSTA
                                                                                              CLERK
                        IN THE COURT OF CRIMINAL APPEALS


                             EX PARTE G’COBRA SMITH,
                                    APPLICANT


           On Application for Writ of Habeas Corpus in Cause No. 1449083-A,
                   Challenging the conviction in Cause No. 1449083,
             From the 337th 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:                                G’COBRA SMITH


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


ATTORNEY AT TRIAL:                        JEANIE DICKEY
                                          Attorney at Law
                                          3115 Preston Road, Suite F
                                          Pasadena, TX 77505


PRESIDING JUDGE AT TRIAL:                 HON. RENEE MAGEE
                                          337th District Court
                                          Harris County, Texas
                                          1201 Franklin Street, 15th 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 OF PROCEDURAL HISTORY .............................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 2

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

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

SUMMARY OF THE ARGUMENT .............................................................................................. 3

ARGUMENT .............................................................................................................................. 4

     1. Applicant’s plea is rendered involuntary in light of the discovery that the plastic
     bottle seized from Applicant did not contain any illicit substances ........................... 4

          A. The standard of review employed in involuntary plea cases ............................ 4

          B. When reviewing the voluntariness of a plea in light of new exculpatory
          information, this Court should focus on the hypothetical question of what the
          Applicant would have done differently if he had known of the exculpatory
          information .................................................................................................................. 4

          C. Having conclusive evidence that the plastic bottle contains no controlled
          substances materially increases the strength of Applicant’s case .......................... 6

          D. Applicant would not have pled guilty if he had known that the substance
          seized in his case did not contain any illicit materials ............................................. 8

     2. In light of the revelation of material, exculpatory evidence, Applicant’s
     conviction offends fundamental principles of fairness ................................................ 8

          A. Newly discovered evidence and Federal habeas caselaw .................................. 8


                                                                   iii
          B. The use of unreliable evidence as the basis for conviction offends a person’s
          right to due process .................................................................................................... 9

          C. In light of the newly discovered evidence, Applicant’s conviction violates
          due process ................................................................................................................ 10

     3. The fact that the evidence contains no controlled substances has important legal
     implications in Applicant’s case .................................................................................... 12

          A. Applicant’s mere possession of a non-scheduled, non-prescription substance
          is not a crime, even if one believes it is truly a controlled substance ................. 12

                i. By its own text, Section 481 does not apply to any substance which may
                be sold without a prescription ........................................................................... 12

                ii. Section 482 of the Health & Safety Code does not permit the prosecution
                of one who merely possesses a simulated controlled substance ................... 13

                     a. Section 482 of the Health & Safety Code is in pari materia with
                     Section 481 of the Health & Safety Code .................................................. 13

                     b. Applicant may not be prosecuted for allegedly mere possession of a
                     simulated controlled substance .................................................................... 14

          B. The aggregate weight of the evidence, including “adulterants or dilutants”
          was improperly considered in fixing Applicant’s punishment ............................ 15

                i. “Adulterants or dilutants” can only be added to the aggregate weight in
                cases involving an actual controlled substance ................................................ 15

                ii. Prosecutions for possession of “drank” are often classified by the weight
                of the adulterants and dilutants added to codeine syrup ................................ 17

                iii. The weight of “adulterants or dilutants” was improperly considered in
                this case................................................................................................................. 18

PRAYER .................................................................................................................................. 19

CERTIFICATE OF SERVICE .................................................................................................... 20

CERTIFICATE OF COMPLIANCE ........................................................................................... 20



                                                                    iv
                                                 INDEX OF AUTHORITIES

Federal Cases

Brady v. Maryland, 373 U.S. 83 (1963) ............................................................................. 9, 11

Townsend v. Sain, 372 U.S. 293 (1963) overruled on other grounds by Keeney v. Tamayo-Reyes,
  504 U.S. 1 (1992) ................................................................................................................. 9

State Cases

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) .................................................. 17

Brown v. State, 491 S.W.2d 124 (Tex. Crim. App. 1973) ..................................................... 5

Cheney v. State, 755 S.W.2d 123 (Tex. Crim. App. 1988) .................................................. 13

Daughtry v. State, 2003 WL 139599, Nos. 01-02-00250-CR, 01-02-00251-CR (Tex.
 App.−Houston [1st Dist.] Jan. 9, 2003, pet. ref’d) (mem. op., not designated for
 publication) ........................................................................................................................ 17

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)............................................... 9

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) ...................................... 2, 10

Ex parte Hobbs, 393 S.W.3d 780 (Tex. Crim. App. 2013) ............................................ 8, 10

Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014) ........................................... 4, 5, 8

Ex parte Smith, NO. WR–83,489–01, 2015 WL 5453046 (Tex. Crim. App., Sept. 16,
 2015) ..................................................................................................................................... 2

Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) .................................................. 9

Massachusetts v. Scott, 5 N.E.3d 530 (Mass. 2014) ......................................................... 4, 5, 6

Miles v. State, 357 S.W.3d 629 Tex. Crim. App. 2011) ...................................................... 17

Mills v. State, 722 S.W.2d 411 (Tex. Crim. App. 1986) ..................................................... 13

Nimer v. State, No. 01-99-00229-CR, 1999 WL 997813 (Tex. App.−Houston [1st Dist.]
 Nov. 4, 1999, pet. ref’d) (mem. op., not designated for publication) ........................... 7



                                                                      v
Oliver v. State, 2015 WL 1933389, No. 14–13–00957–CR (Tex. App.−Houston [14th
 Dist.] May 20, 2015, pet. ref’d) (mem. op., not designated for publication) ............. 17

Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) ........................................................ 9

Rodriguez v. State, 879 S.W.2d 283 (Tex. App.−Houston [14th Dist.] 1994) (pet. ref’d)
  .................................................................................................................................13, 14, 15

Seals v. State, 187 S.W.3d 417 (Tex. Crim. App. 2005) ............................................... 16, 18

Sosa v. Warden, No. CV020817531, 2004 WL 1925898 (Conn. Super. Ct. July 26, 2004)
  (unpub.) .............................................................................................................................. 11

State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) .................................................. 19

Sweed v. State, 2003 WL 22456107, No. 01-02-00486-CR (Tex. App.−Houston [1st
  Dist.] Oct. 30, 2003, no pet.)(mem. op., not designated for publication) .................. 18

Whitfield v. State, 916 S.W.2d 49 (Tex. App.−Houston [1st Dist.] 1996) (pet. ref’d) .... 14

State Statutes

TEX. GOV’T CODE ANN. § 311.021 (West 2013) .............................................................. 17

TEX. GOV’T CODE ANN. § 311.026 (West 2013) .............................................................. 14

TEX. HEALTH & SAFETY CODE ANN. § 481 (West. 2013) .......................................... 7, 14

TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2013) .............................. 7, 15, 16

TEX. HEALTH & SAFETY CODE ANN. § 481.033 (West 2013) ........................................ 12

TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2013) .................................. 13, 16

TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2013) ........................................ 13

TEX. HEALTH & SAFETY CODE ANN. § 481.118 (West 2013) ............................16, 18, 19

TEX. HEALTH & SAFETY CODE ANN. § 481.119 (West 2013) ........................................ 16

TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2013) ........................................ 16

TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2013) ........................................ 16



                                                                     vi
TEX. HEALTH & SAFETY CODE ANN. § 482 (West 2013) ........................................... 7, 14

TEX. HEALTH & SAFETY CODE ANN. § 482.002 (West 2013) .................................. 13, 16

TEX. HEALTH & SAFETY CODE ANN. § 483.041 (West 2013) ........................................ 16

TEX. PENAL CODE ANN. § 15.01 (West 2011)........................................................ 6, 18, 19

TEX. PENAL CODE ANN. § 6.04 (West 2011) ...................................................................... 7

TEX. PENAL CODE ANN. Ch. 15......................................................................................... 12

Federal Regulations

21 C.F.R. § 340...................................................................................................................... 12

Stimulant Drug Products for Over-the-Counter Human Use; Final Monograph; Final Rule, 53
  Fed. Reg. 6100 (Feb. 29, 1988) ........................................................................................ 12

Other Authorities

Anna Merlan, Don't Panic, But There's Probably Meth in Your Ecstasy and De-Wormer In
 Your    Cocaine   DALLAS      OBSERVER        (Mar.    6,      2012)            available           at
 http://www.dallasobserver.com/news/dont-panic-but-theres-probably-meth-in-
 your-ecstasy-and-de-wormer-in-your-cocaine-7145964 ................................................. 7

Donna Leinwand, DEA warns of soft drink-cough syrup mix, USA TODAY (Oct. 19, 2006)
 ............................................................................................................................................. 17

Pleadings and Motions

Agreed Findings of Fact and Conclusions of Law, Ex parte Smith, No. 1449083-A (179th
 Dist. Ct. Harris Cty., Tex. May 21, 2015) (filed June 16, 2015)..................................... 1




                                                                      vii
                              STATEMENT OF THE CASE

      On November 20, 2014, Applicant was charged for the possession of a plastic

bottle suspected to contain a mixture of codeine cough syrup and other liquids.

Without the benefit of a forensic analysis of the liquids inside the bottle, Applicant

pled guilty to possession of substance in penalty group four (codeine and non-

narcotic ingredients), at least 28 grams but less than 200 grams in weight. On March

23, 2015, the evidence inside the plastic bottle was tested and was determined not to

contain any illicit materials. Applicant challenges the validity of the plea agreement in

light of the newly discovered, exculpatory information.

                      STATEMENT OF PROCEDURAL HISTORY

      On November 20, 2014, Applicant was charged with possession of substance

in penalty group 4 (codeine and nonnarcotic ingredients), at least 28 grams but less

than 200 grams in Cause 1449083. Writ Exhibit 1. On November 24, 2014, 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 June

16, 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 Smith, No.

1449083-A (179th Dist. Ct. Harris Cty., Tex. May 21, 2015) (filed June 16, 2015). On

September 16, 2015, this Court filed and set this case for submission to “determine

whether, under these circumstances, Applicant’s plea to a lesser offense which was

                                           1
arguably supported by the evidence was rendered involuntary by the subsequent

discovery that the evidence would not have supported the greater charge. The parties

shall brief these issues.” Ex parte Smith, NO. WR–83,489–01, 2015 WL 5453046 *1

(Tex. Crim. App., Sept. 16, 2015).

                    STATEMENT REGARDING ORAL ARGUMENT

      Applicant’s case falls squarely in the area where the post-conviction analysis of

due process has yet to be fully articulated. See Ex parte Henderson, 384 S.W.3d 833, 835

(Tex. Crim. App. 2012) (Price, J. concurring). Additionally, Applicant’s case presents a

novel issue in terms of whether Applicant’s plea was involuntary when he pleaded

guilty to a lesser-included offense, an offense possibly supported by the evidence in

this case. In light of the importance of this case, not only to the Applicant but to

Texas jurisprudence as a whole, Applicant requests oral argument.

                                 ISSUE PRESENTED

“[W]hether, under [the] circumstances [of Applicant’s case], Applicant's plea to a

lesser offense which was arguably supported by the evidence was rendered

involuntary by the subsequent discovery that the evidence would not have supported

the greater charge.” Ex parte Smith, 2015 WL 5453046 at *1.

                               STATEMENT OF FACTS

      On November 20, 2014, Applicant was arrested and charged with possession

of substance in penalty group 4 (codeine and nonnarcotic ingredients), at least 28

grams but less than 200 grams. Writ Exhibit 1. Just four days later, Applicant pled


                                           2
guilty to the lesser included offense of attempted possession of substance in penalty

group 4 (codeine and nonnarcotic ingredients), at least 28 grams but less than 200

grams, was convicted, and was sentenced to 180 days in state jail. Writ Exhibits 2, 3, 4

On March 23, 2015, months after Applicant had been convicted, the Harris County

Institute of Forensic Science tested the evidence seized in Applicant’s case and

determined that the evidence in this case did not contain any illicit materials, but was

merely a caffeinated beverage. Writ Exhibit 5.

                            SUMMARY OF THE ARGUMENT

      With a laboratory report in hand indicating that no illicit materials were found

in evidence seized by law enforcement, a defendant’s prospects change dramatically

when facing charges related to drug possession. The laboratory report can affect the

plea negotiation process, the State’s desire to prosecute or dismiss a case, the State’s

burden of proof, the legal defenses to the case, and the credibility of offense reports

and witness statements made in connection with the case. Though the Applicant pled

to attempted possession of a substance in penalty group 4 (codeine and nonnarcotic

ingredients), at least 28 grams but less than 200 grams, an offense which may possibly

be supported by the evidence in this case, the ultimate statutory offense of conviction

and punishment exposure represent but a single facet of how an exculpatory lab

report affects a drug possession case. In light of all the lost strategic, procedural, and

evidentiary advantages that would have been afforded to Applicant if he had the

laboratory report at the time of his plea, Applicant’s plea is involuntary.

                                            3
                                      ARGUMENT

1. Applicant’s plea is rendered involuntary in light of the discovery that the
   plastic bottle seized from Applicant did not contain any illicit substances

   A. The standard of review employed in involuntary plea cases

      Ex parte Mable set forth the standard of review employed in cases where it is

revealed that seized evidence does not contain any controlled substances:

      It is well established that a guilty plea must be entered knowingly and
      voluntarily. Moreover, because a guilty plea is an admission of all the
      elements of a formal criminal charge, it cannot be truly voluntary unless
      the defendant possesses an understanding of the law in relation to the
      facts. This means that the defendant must have sufficient awareness of
      the relevant circumstances. The standard is whether the plea is a
      voluntary and intelligent choice among the alternative courses of action
      open to the defendant. 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).

   B. When reviewing the voluntariness of a plea in light of new exculpatory
      information, this Court should focus on the hypothetical question of
      what the Applicant would have done differently if he had known of the
      exculpatory information

      “[A] defendant's guilty plea […] may be vacated as involuntary because of

external circumstances or information that later comes to light.” Massachusetts v. Scott, 5

N.E.3d 530, 540 (Mass. 2014) (Massachusetts case stemming from laboratory head

Annie Dookhan’s pervasive misconduct). This Court has acknowledged that when

laboratory testing is conducted and reveals the evidence in the case does not “contain



                                            4
any illicit materials,” the fact is “crucial to [the] case, and while operating under [a

misunderstanding about the nature of the evidence,] the applicant cannot be said to

have entered his plea knowingly and intelligently.” Ex parte Mable, 443 S.W.3d at 130-

131. But apart from the generally applicable proclamation that the Court must

consider “all the facts and circumstances,” there are few detailed examples of how the

Court should evaluate an involuntary plea involving “newly discovered evidence.”

Brown v. State, 491 S.W.2d 124, 125 (Tex. Crim. App. 1973).

      Applicant believes that Massachusetts v. Scott endorses legal principles compatible

with Texas jurisprudence and applicable to this case:

      Therefore, in [the Applicant’s] case, the [Court] may consider such
      relevant facts as the circumstances of the defendant's arrest and whether
      the [State] possessed other circumstantial evidence tending to support
      the charge of drug possession, along with the […] terms of the sentence
      […] he received and other facts that may come to light on
      reconsideration of the defendant's [case], including any anticipated
      collateral consequences stemming from accepting a plea offer rather
      than pursuing a trial by jury. Thus, we emphasize that the full context of
      the defendant's decision to enter a plea agreement will dictate the
      assessment of his claim that [the newly discovered evidence] would have
      influenced the defendant's decision to plead guilty. See Ferrara, 456 F.3d
      at 294 ("Because a multiplicity of factors may influence a defendant's
      decision to enter a guilty plea, a court attempting to answer this question
      must use a wide-angled lens").

Massachusetts v. Scott, 5 N.E.3d at 548. The Scott court cautioned against looking to how

the prosecution might have corrected the problems exposed by the newly discovered




                                           5
evidence,1 as it “would require a court to heap inference upon inference and will bring

the inquiry under this prong too far afield of the facts and circumstances actually

known to the defendant at the time of his guilty plea.” Id.

    C. Having conclusive evidence that the plastic bottle contains no controlled
       substances materially increases the strength of Applicant’s case

       Knowing a forensic analysis conclusively indicates that seized materials contain

no controlled substances is a material and exculpatory fact that has wide-ranging

implications for a defendant:

    1) Attempted possession of a controlled substance has less maximum criminal
       exposure than possession of a controlled substance. TEX. PENAL CODE ANN.
       § 15.01(d) (West 2011).

    2) The State has an increased burden of proof in an attempted possession of a
       controlled substance case. The State must show that the defendant specifically
       intended to possess a specific drug, and may not prove that a defendant merely
       knowingly possessed what might – or might not have been – a controlled
       substance. TEX. PENAL CODE ANN. § 15.01(a) (West 2011).

    3) Evidence that does not contain a controlled substance has no inherent
       evidentiary value, and the State would have to prove that a defendant
       attempted to possess a controlled substance by potentially ambiguous or
       innocuous contextual evidence (appearance of the packaging, appearance,
       color, smell, etc.) and by Applicant’s admissible statements. In the context of
       what turned out to be merely a caffeinated beverage in a plastic cup, this would
       be a difficult showing.

    4) Any observations by officers regarding Applicant’s suspected codeine
       intoxication would lose credibility as there would be no forensic evidence to
       support those observations, potentially affecting the Court’s analysis under the


1
 In the Scott case, the prosecution indicated that it would have offered to retest the
evidence, had it known of Dookhan’s misconduct. Massachusetts v. Scott, 5 N.E.3d at
548.

                                           6
   Fourth Amendment and the jury’s analysis under Article 38.23 of the Code of
   Criminal Procedure.

5) Other significant legal challenges may hamper the state’s case

      a. Since the “doctrine of transferred intent” does not apply unless a person
         “caused a result,” the State would be required to prove that Applicant
         was certain the beverage contained a mixture of codeine and other
         nonnarcotic medical ingredients, and that Applicant was certain that
         beverage had not been adulterated or contained some substitute drug in
         place of codeine cough syrup. See TEX. PENAL CODE ANN. § 6.04(b)
         (West 2011); Anna Merlan, Don't Panic, But There's Probably Meth in Your
         Ecstasy and De-Wormer In Your Cocaine DALLAS OBSERVER (Mar. 6, 2012)
         available at http://www.dallasobserver.com/news/dont-panic-but-theres-
         probably-meth-in-your-ecstasy-and-de-wormer-in-your-cocaine-7145964
         (explaining that street drugs are often impure and that cheaper substitute
         drugs are often used in place of more expensive drugs).

      b. As Texas Health & Safety Code § 481 is in pari materia with Texas Health
         & Safety Code § 482 when a simulated controlled substance is involved
         and Texas Health & Safety Code § 481 explicitly does not apply to over-
         the-counter drugs like caffeine, it is questionable whether a person can
         be prosecuted for mere possession of a simulated controlled substance.
         See infra at § 3(A).

      c. “Adulterants and dilutants” are substances that increase the bulk of a
         controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(49)
         (West 2013). Since no controlled substances were found in this case, it
         would seem that “adulterants and dilutants” could not be used to
         determine Applicant’s punishment range. See infra at § 3(B).

6) Where no drugs are found in seized evidence, the State would be less inclined
   to prosecute a defendant’s case. The only easily-found Houston-area appeal
   mentioning attempted possession of a controlled substance is a bizarre case
   where the defendant sought to find a crooked police officer to help him steal
   drugs from a cocaine dealer. Nimer v. State, No. 01-99-00229-CR, 1999 WL
   997813 (Tex. App.−Houston [1st Dist.] Nov. 4, 1999, pet. ref’d) (mem. op.,
   not designated for publication).




                                       7
   D. Applicant would not have pled guilty if he had known that the substance
      seized in his case did not contain any illicit materials

       Within the full context of the decision to plead guilty, it is not possible to

discount the significance of having the forensic report at the time of making a

decision to plead or proceed to trial. See Ex parte Mable, 443 S.W.3d at 131. Applicant’s

claim is stronger than many claims which have led to relief in similar context. When a

forensic analyst’s practices were called into question in Ex parte Hobbs, this Court

granted relief because the foundational evidence in the case was no longer reliable. Ex

parte Hobbs, 393 S.W.3d 780, 781 (Tex. Crim. App. 2013). In Ex parte Hobbs, the

defendant may, in fact, have committed the very offense he was convicted of, but

uncertainty in the evidence necessitated a new trial. Id. In Applicant’s case, there is no

question of whether Applicant may have possessed codeine – the question has been

conclusively answered that no, he did not possess codeine. In light of the new

evidence, in the interest of justice, and to promote fairness, Applicant should be

provided a new trial with the advantage of the laboratory report before Applicant

makes any strategic critical decisions in his case.

2. In light of the revelation of material, exculpatory evidence, Applicant’s
   conviction offends fundamental principles of fairness

   A. Newly discovered evidence and Federal habeas caselaw

       The Supreme Court has long recognized that a habeas applicant may be entitled

to relief where newly discovered evidence “which could not reasonably have been

presented to the state trier of facts” is presented and where the evidence “bear[s]


                                             8
upon the constitutionality of the applicant’s detention.” Townsend v. Sain, 372 U.S. 293,

317 (1963) overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The

right to relief on the basis of newly discovered evidence is well settled when the

evidence establishes a person’s innocence or when exculpatory evidence is deliberately

suppressed by the prosecution. See Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App.

2011) (the suppression of Brady evidence violates a person’s due process rights); Ex

parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) (the incarceration of those

who prove actual innocence by newly discovered evidence violates due process). Left

unanswered by clear Federal precedent is what becomes of an applicant whose newly

discovered evidence is exculpatory, but insufficient to establish actual innocence, and

whose newly discovered evidence is not Brady evidence.

   B. The use of unreliable evidence as the basis for conviction offends a
      person’s right to due process

      Due process protects the accused from “an unfair trial,” from unfair treatment,

and a trial which “comport[s] with standards of justice,” even absent any misconduct

by any of the parties to a trial. Brady v. Maryland, 373 U.S. 83, 87–88 (1963). The

conviction of a person based on unreliable evidence has been found to offend due

process by this Court in several different contexts. In Leonard v. State, the use of

unreliable polygraph examinations to revoke a person’s deferred-adjudication

community supervision was found to offend due process. Leonard v. State, 385 S.W.3d

570, 582–583 (Tex. Crim. App. 2012). In Ex parte Hobbs, this Court determined that a


                                           9
“forensic scientist did not follow accepted standards when analyzing evidence and

therefore the results of his analyses are unreliable,” violating the defendant’s right to

due process. Ex parte Hobbs, 393 S.W.3d at 781. In Ex parte Henderson, this Court

concluded that where new scientific evidence convinced the testifying medical

examiner to change his underlying opinion about the case, the applicant was entitled

to relief. Ex parte Henderson, 384 S.W.3d 833, 833–834 (Tex. Crim. App. 2012). In that

case, a majority of the Court concluded that the government had inadvertently used

false or unreliable evidence. Changing science has cast doubt on the accuracy of the

original jury verdict. Id. at 836-837 (Price, J. concurring, Cochran J. concurring). The

link uniting these cases and other similar cases is that the Court lost its ability to

conclude the defendant had been afforded a fair trial, whether or not any wrongdoing

ever occurred. Applicant has shown that his conviction was “based in critical part

upon an opinion from the [officer that has been] disowned because it has been shown

by subsequent scientific [testing] to be [false],” and his conviction violates due

process. Id. at 835 (J. Price, concurring).

   C. In light of the newly discovered evidence, Applicant’s conviction violates
      due process

       Without forensic testing showing that the evidence in this case contained no

illicit materials, Applicant was at a marked disadvantage in the plea negotiation

process. Even had Applicant protested his innocence, such claims often fall on deaf

ears: overwhelming numbers of the accused protest their innocence, but many of


                                              10
those have no basis for that claim. See e.g. Sosa v. Warden, No. CV020817531, 2004 WL

1925898, 9 (Conn. Super. Ct. July 26, 2004) (unpub.). (“[T]he claim of actual

innocence is frequently raised in a petition for a writ of habeas corpus. Nevertheless,

in many cases such as in the case at bar, the petitioner and his counsel do not make

anything other than a cursory attempt to prove the actual innocence claim.”). Without

concrete proof that the plastic cup did not contain codeine, there was ultimately no

reason for the prosecutor to believe that Applicant would eventually be vindicated.

      Additionally, proof that codeine (along with nonnarcotic ingredients) could be

detected in the plastic bottle was an essential element of the State’s initial prosecution

of the Applicant. The contents of the plastic bottle were material evidence, likely the

most critical evidence in Applicant’s case. If the main function of the due process

clause is to ensure the accused receives a fair trial which comports with the standards

of justice, then significant, exculpatory revelations which undermine the State’s case

must trigger due process protection. Brady v. Maryland, 373 U.S. at 87–88. It simply

seems fundamentally unfair that Applicant made the most important decision in his

case, the decision to plead guilty and waive trial, without the benefit of the clear,

exculpatory evidence revealed in his case.




                                             11
3. The fact that the evidence contains no controlled substances has important
   legal implications in Applicant’s case

   A. Applicant’s mere possession of a non-scheduled, non-prescription
      substance is not a crime, even if one believes it is truly a controlled
      substance

      i. By its own text, Section 481 does not apply to any substance which may
          be sold without a prescription

      A substance is excluded from the application of the Controlled Substances Act

if it “may lawfully be sold over the counter without a prescription, under the Federal

Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.).” TEX. HEALTH &

SAFETY ANN. § 481.033(a, b) (West 2013). In 1988, the FDA approved caffeine as an

over-the-counter drug. Stimulant Drug Products for Over-the-Counter Human Use; Final

Monograph; Final Rule, 53 Fed. Reg. 6100 (Feb. 29, 1988). Since codification within the

Code of Federal Regulations, the law regarding the over-the-counter dispensation of

caffeine has remained relatively unchanged. See 21 C.F.R. § 340 et. seq. Inasmuch as

Applicant possessed liquid containing caffeine, a substance which is explicitly

excluded from the application of Section 481, it is improper to bring any prosecution

under that section in this case. The State should not be permitted to utilize Chapter 15

of the Penal Code to defeat the principle enunciated in Section 481.033.




                                          12
      ii. Section 482 of the Health & Safety Code does not permit the
          prosecution of one who merely possesses a simulated controlled
          substance

          a. Section 482 of the Health & Safety Code is in pari materia with
             Section 481 of the Health & Safety Code

      The rule of in pari materia is a principle of statutory interpretation which is used

to harmonize statutes which apply in a similar context:

      It is a settled rule of statutory interpretation that statutes that deal with
      the same general subject, have the same general purpose, or relate to the
      same person or thing or class of persons or things, are considered as
      being in pari materia though they contain no reference to one another,
      and though they were passed at different times or at different sessions of
      the legislature.

Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988).

      General and special acts may be in pari materia. If so, they should be
      construed together. Where one statute deals with a subject in general
      terms, and another deals with a part of the same subject in a more
      detailed way, the two should be harmonized if possible; but if there is
      any conflict, the latter will prevail, regardless of whether it was passed
      prior to the general statute, unless it appears that the legislature intended
      to make the general act controlling.

Mills v. State, 722 S.W.2d 411, 413–414 (Tex. Crim. App. 1986).

      In the context of delivery of a fake controlled substance, appellate courts have

held that the offense of delivery of a simulated controlled substance under Texas

Health & Safety Code § 482.002 is in pari materia with offenses for delivery of a

controlled substance under Texas Health & Safety Code §§ 481.112-481.115. See

Rodriguez v. State, 879 S.W.2d 283, 286 (Tex. App.−Houston [14th Dist.] 1994, pet.

ref’d); Whitfield v. State, 916 S.W.2d 49, 52 (Tex. App.−Houston [1st Dist.] 1996, pet.

                                           13
ref’d). In Rodriguez, the Fourteenth Court of Appeals concluded that Rodriguez should

have been charged with delivery of a simulated controlled substance after delivering

400 grams of flour to law enforcement officers:

       In this case, although appellant could have been convicted under either
       statute, we find that Section 482.002 covers his actions with much
       greater precision than Section 481.112. Since there are conflicts between
       the statutes as to elements of proof and penalty provisions, the statutes
       are in pari materia and appellant should have been charged with the more
       specific offense of delivery of a simulated controlled substance.

Rodriguez, 879 S.W.2d at 286.

          b. Applicant may not be prosecuted for mere possession of a
             simulated controlled substance

       While a person may be prosecuted for the mere possession of a controlled

substance under Chapter 481 of the Health & Safety Code, Chapter 482 of the Health

& Safety Code contains no such provision allowing the prosecution of a person who

merely possesses a simulated controlled substance. The specific provision which deals

with simulated controlled substances must prevail over the general provision defining

controlled substance offenses: “[i]f the conflict between the general provision and the

special or local provision is irreconcilable, the special or local provision prevails as an

exception to the general provision, unless the general provision is the later enactment

and the manifest intent is that the general provision prevail.” TEX. GOV’T CODE ANN.

§ 311.026 (West 2013). Even assuming that Applicant thought the substance in the

plastic bottle contained codeine cough syrup, the only substance detected in the bottle

was caffeine. Writ Exhibit 5. Under the rules of statutory construction, a court should

                                            14
presume that Applicant’s behavior constituted a lesser harm to society than [the

possession] of an actual controlled substance,” because the legislature decided not to

penalize the mere possession of a simulated controlled substance. Rodriguez, 879

S.W.2d at 286.

   B. The aggregate weight of the evidence, including “adulterants or
      dilutants” was improperly considered in fixing Applicant’s punishment

      i. “Adulterants or dilutants” can only be added to the aggregate weight
          in cases involving an actual controlled substance

      While the definition of “adulterant or dilutant” is broad, it is a term that is

defined in the context of a mixture of a controlled substance and some other

substance:

      “Adulterant or dilutant” means any material that increases the bulk or
      quantity of a controlled substance, regardless of its effect on the
      chemical activity of the controlled substance.

TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (West 2013) (emphasis added). In

Seals v. State, over reservations about the wisdom of the definition of “adulterants or

dilutants” and over questions of whether the Controlled Substances Act could be

applied in an unconstitutional manner, this Court held that the definition of

“adulterants or dilutants” must be interpreted according to its plain text:

      The literal meaning of the legislature's adulterant and dilutant definition
      is that any substance that is added to or mixed with a controlled
      substance, regardless of when, how, or why that substance was added,
      may be added to the aggregate weight of the controlled substance as an
      adulterant or dilutant.




                                           15
Seals v. State, 187 S.W.3d 417, 420 (Tex. Crim. App. 2005). However, unless a

controlled substance is present in the mixture, the plain language of the statute does

not authorize the inclusion of “adulterants or dilutants” when classifying a substance

that is not a controlled substance.

      As this Court has already noted, Texas’s Controlled Substance Act places a

heavy importance on context. For example, within the context of determining the

aggregate weight of a controlled substance, an “adulterant or dilutant” means “any

material that increases the bulk or quantity of a controlled substance,” while within

the context of drug paraphernalia, “adulterant or dilutant” is defined as a substance

“that is used or intended to be used to increase the amount or weight of or to transfer

a controlled substance.” TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(17(F)),

481.002(49) (West 2013). Additionally, the importance of the weight of a controlled

substance varies upon context: while the punishment of a controlled substance listed

within a penalty group depends heavily on the weight or abuse units of the controlled

substance, the punishment of the possession of controlled substances not listed in a

penalty group, dangerous drugs, and the delivery of simulated controlled substance

does not depend on weight. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112-481.118,

481.120-121 (controlled substances in a penalty group and marijuana); 481.119

(controlled substances not in a penalty group); 483.041 (dangerous drugs); 482.002

(simulated controlled substances). Only where the plain language of a statute would

lead to absurd results may the court consider an interpretation that would arrive at a

                                          16
sensible interpretation of that statute See Boykin v. State, 818 S.W.2d 782, 785–786

(Tex. Crim. App. 1991). It is not an absurd result to include adulterants and dilutants

when measuring the quantity of a controlled substance mixture, but to exclude any

adulterants and dilutants when considering a substance that contains no controlled

substances. To the contrary, given that there is no prohibited substance to adulterate,

it would be absurd to consider the weight of any “adulterants or dilutants” when

determining the aggregate weight of something that is not a controlled substance.

Excluding the weight of “adulterants and dilutants” in a case not involving a

controlled substance gives effect to the entirety of the Controlled Substance Act and

its related provisions. See TEX. GOV’T CODE ANN. § 311.021(2) (West 2013).

      ii. Prosecutions for possession of “drank” are often classified by the
          weight of the adulterants and dilutants added to codeine syrup

      Codeine cough syrup is commonly recreationally abused as part of a beverage

sometimes called “lean,” “syrup,” or “drank.”2 The codeine beverage often contains

prescription codeine cough syrup, soda, and other inert ingredients like candy to make

the beverage more palatable.3      Under Texas’s liberal “adulterants and dilutants”

definition, recreational users are frequently charged with felonies, as the weight of the

2
  See Miles v. State, 357 S.W.3d 629, 642 Tex. Crim. App. 2011) (defining drank);
Daughtry v. State, 2003 WL 139599, Nos. 01-02-00250-CR, 01-02-00251-CR *1 at n. 1,
2 (Tex. App.−Houston [1st Dist.] Jan. 9, 2003, pet. ref’d) (mem. op., not designated
for publication) (defining “lean” and “syrup”).
3
  See Oliver v. State, 2015 WL 1933389, No. 14–13–00957–CR *1 (Tex. App.−Houston
[14th Dist.] May 20, 2015, pet. ref’d) (mem. op., not designated for publication)
(explaining how codeine is commonly recreationally abused); see Donna Leinwand,
DEA warns of soft drink-cough syrup mix, USA TODAY (Oct. 19, 2006).

                                           17
soda in “drank” can easily transform a possession of a small amount of codeine into a

serious felony. See e.g. Sweed v. State, 2003 WL 22456107, No. 01-02-00486-CR, *1

(Tex. App.−Houston [1st Dist.] Oct. 30, 2003, no pet.)(mem. op., not designated for

publication)(possession of the personal use of “drank” punished as a felony offense).

The weight of the “adulterants or dilutants” can be considered regardless of whether

the “adulterants or dilutants” increase the illicit retail quantity of codeine syrup or

whether the “adulterants or dilutants” are used to convert codeine syrup into “drank”

for personal consumption. Seals, 187 S.W.3d at 420.

      iii. The weight of “adulterants or dilutants” was improperly considered
           in this case

      When Applicant was arrested, officers retrieved 178.736 grams of “red liquid

substance” found in a plastic bottle, suspecting the substance to be “drank,” and

submitted the evidence for testing. Writ Exhibit 4. Before the evidence was tested

and determined not to contain any illegal controlled substances, Applicant pled guilty.

Writ Exhibit 3. Applicant was convicted of possession of a substance in penalty group

4 (a codeine mixture), at least 28 grams but less than 200 grams in weight. Writ

Exhibit 3. The entire aggregate weight of the evidence, including soda or any other

liquid part of the beverage, was used to determine Applicant’s punishment. See TEX.

HEALTH & SAFETY CODE ANN. § 481.118(c) (West 2013); TEX. PENAL CODE ANN. §

15.01(d) (West 2001). The maximum punishment Applicant could have faced for

attempted possession of substance in penalty group 4 is a class C misdemeanor. See


                                          18
TEX. HEALTH & SAFETY CODE ANN. § 481.118(c) (West 2013); TEX. PENAL CODE

ANN. § 15.01(d) (West 2013). Applicant was ineligible for the state-jail sentence

assessed. State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010).

                                       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
                                               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




                                          19
                              CERTIFICATE OF SERVICE

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

Harris County District Attorney's Office – Conviction Integrity, on October 22, 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

4,506 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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