                                                                              WR-82,970-01
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 6/30/2015 12:10:28 PM
                                                                Accepted 6/30/2015 12:14:24 PM
June 30, 2015                                                                    ABEL ACOSTA
                          No. WR-82,970-01                                               CLERK



                                  In the
                   Court of Criminal Appeals of Texas
                                at Austin
                      
                         Cause No. 1445686-A
                       In the 208th District Court
                        of Harris County, Texas
                      

                Ex parte MICHAEL JAMES WILLIAMS

                       

                           STATE’S BRIEF

                       


                                       Devon Anderson
                                       District Attorney
                                       Harris County, Texas

                                       Inger H. Chandler
                                       Assistant District Attorney
                                       Harris County, Texas
                                       State Bar No. 24041051
                                       1201 Franklin, Suite 600
                                       Houston, Texas 77002
                                       Telephone: 713-755-1570
                                       Fax No.: 713-368-9275
                                       Chandler_Inger@dao.hctx.net

                                             Counsel for The State of Texas


ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPLICANT

                                   i
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.2(a), a complete list of the names of all

interested parties is provided below so that the members of this Honorable Court

may at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case.

      Counsel for the State:

             Devon Anderson – District Attorney of Harris County

             Inger H. Chandler – Assistant District Attorney on appeal

             Greg Houlton – Assistant District Attorney at trial

      Applicant:

             Michael James Williams

      Counsel for Applicant:

             Nicolas Hughes – Counsel on appeal

             Jaime Garcia Acosta – Counsel at trial

      Trial Judge:

             Hon. Denise Collins – Presiding Judge




                                         ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES.....................................................................................iv

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

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

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

STATEMENT OF THE PROCEDURAL HISTORY ...............................................2

STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT .............................................................................................................6

         The applicant’s plea of guilty to the felony offense of possession of a
         controlled substance was involuntary when the substances seized and
         tested by the Houston Forensic Science Center contained illicit
         materials other than those alleged in the charging instrument and
         belonging to a different penalty group. ........................................................... 6

         In the narrowly-tailored circumstance of pre-indictment pleas of
         guilty to drug possession charges, if a variance between the illicit
         substance alleged in the charging instrument and the results of a
         confirmatory laboratory report result in a conviction under an
         incorrect statute, habeas relief must be granted to maintain the
         integrity of the conviction ............................................................................. 12

PRAYER FOR RELIEF ..........................................................................................13

CERTIFICATE OF SERVICE ................................................................................14

APPENDIX .............................................................................................................. 15

                                                           iii
                                    INDEX OF AUTHORITIES
Cases
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963) ..................... 2

Curtis v. State, 548 S.W.2d 57 (Tex.Crim.App. 1977)........................................... 10

Ex parte Bisor, No. WR-82,382-01, 2014 WL 6789865 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12

Ex parte Lucas, No. WR-82,306-01, 2014 WL 6789947 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12

Ex parte Mable, 443 S.W.3d 129 (Tex.Crim.App. 2014) ....................................... 12

Ex parte Mayo, No. WR-82,047-01, 2014 WL 6788221 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12

Ex parte Williams, No. WR-82,307-01, 2014 WL 6788359 (Tex. Crim. App. 2014)
(not designated for publication) ............................................................................... 12

Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.Crim.App. 1993) ...................... 11

Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) ............................... 11


Statutes
TEX. CODE CRIM. PROC. art. 11.07 ........................................................................... 16

TEX. HEALTH & SAFETY CODE § 481.102 ............................................................. 7, 9

TEX. HEALTH & SAFETY CODE § 481.103 .................................................................. 5

TEX. HEALTH & SAFETY CODE § 481.115 .................................................................. 5

TEX. HEALTH & SAFETY CODE § 481.116 .................................................................. 5

TEX. HEALTH & SAFETY CODE §§ 481.101-481.105 ................................................. 7

TEX. HEALTH & SAFETY CODE §§ 481.112-481.118 ................................................. 7

                                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         The State of Texas, by and through the undersigned Harris County Assistant

District Attorney, files its brief in response to the Court of Criminal Appeals’ filing

and setting for submission the issue of whether the applicant’s plea of guilty to the

felony offense of possession of a controlled substance was involuntary when the

substances seized and tested contained illicit materials other than those alleged;

and the State would show the following:



                           STATEMENT OF THE CASE

         This case involves an application for writ of habeas corpus filed by the

applicant, Michael James Williams, pursuant to TEX. CODE         OF   CRIM. PROC. art.

11.07.     The applicant is seeking habeas relief from his plea of guilty and

subsequent felony conviction for the offense of possession of a controlled

substance in cause number 1445686 (the primary case).



                STATEMENT REGARDING ORAL ARGUMENT

         Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is requested by the applicant.




                                           1
                                    ISSUE PRESENTED

(1)      Whether the applicant’s plea of guilty to the felony offense of possession of
         a controlled substance was involuntary when the substances seized and
         tested contained illicit materials other than those alleged.



                  STATEMENT OF THE PROCEDURAL HISTORY

         On December 2, 2014, the applicant entered a plea of guilty to the primary

case and was convicted of the third-degree felony offense of possession of a

penalty       group     two    controlled     substance,     namely,      3,4-methylenedioxy

methamphetamine1 (more than one and less than four grams). Pursuant to a plea

bargain agreement, the applicant was sentenced by the trial court to two (2) years

in the Texas Department of Criminal Justice – Institutional Division.

         On January 23, 2015, the State received a copy of the laboratory report

associated with the applicant’s disposed case from the Houston Forensic Science

Center. The laboratory report indicated that the controlled substance possessed by

the applicant was methamphetamine, not 3,4-methylenedioxy methamphetamine,

as alleged in the criminal complaint and judgment. The State immediately

forwarded the laboratory report to the Harris County Public Defender’s Office,

pursuant to its continuing obligation to disclose exculpatory evidence under Brady

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963).


1
    Commonly known as “ecstasy” (in pill form) or “molly” (in a crystalline powder form).

                                                 2
       On February 19, 2015, the applicant, represented by Harris County Assistant

Public Defender Nicholas Hughes, filed an application for writ of habeas corpus,

cause number 1445686-A. On February 27, 2015, the trial court signed the parties’

Agreed Findings of Fact and Conclusions of Law and recommended that relief be

granted in the applicant’s case.

       On April 22, 2015, the Court of Criminal Appeals remanded the application

for further briefing on the legal issues presented by the application.




                               STATEMENT OF FACTS

       On October 20, 2014, the applicant was arrested and charged with the

second-degree felony offense of possession of a penalty group one controlled

substance, namely, cocaine (weighing more than 4 and less than 200 grams), in

cause number 1445685, and the third-degree felony offense of possession of a

penalty    group     two     controlled     substance,     namely,      3,4-methylenedioxy

methamphetamine (weighing more than one and less than four grams), in cause

number 1445686 (the primary case).             See Appendix, State’s Exhibit A & B,

Criminal Complaints, cause nos. 1445685 and 1445686, respectively.2



2
  The applicant’s co-defendant, Charles Lamont Waller, was arrested and charged with the
second-degree felony offense of possession of a penalty group one controlled substance, namely,
cocaine (more than four and less than two hundred grams), in cause number 1445687, and the
third-degree felony offense of possession of a penalty group two controlled substance, namely,

                                              3
      On December 2, 2014, the applicant waived indictment in the primary case

and entered into a plea agreement with the State of Texas. See February 27, 2015,

Court’s Findings of fact, Conclusions of Law, and Order, cause no. 1445686-A.

After a plea of guilty, the applicant was sentenced by the trial court to two (2)

years in the Texas Department of Criminal Justice – Institutional Division. See

Appendix, State’s Exhibit C, Judgment of Conviction by Court – Waiver of Jury

Trial, cause no. 1445686. As part of the applicant’s plea bargain agreement, cause

number 1445685 was dismissed on motion of the State.3 See Appendix, State’s

Exhibit D, Motion to Dismiss, cause no. 1445685.

      On January 23, 2015, nearly two months after the applicant’s plea, the State

received a copy of the laboratory report associated with the applicant’s cases from

the Houston Forensic Science Center. See Appendix, State’s Exhibit E, Laboratory

Report #1, Houston Forensic Science Center. The laboratory report indicated that

the controlled substances possessed by the applicant were methamphetamine (1.48

grams) and cocaine (6.99 grams), not 3,4-methylenedioxy methamphetamine and

cocaine as alleged in the criminal complaints. See Appendix, State’s Exhibits A, B

and E.    The State immediately forwarded the laboratory report to the Harris

County Public Defender’s Office pursuant to its continuing obligation to disclose


3,4-methylenedioxy methamphetamine (more than one and less than four grams), in cause
number 1445688.
3
  The applicant’s co-defendant, Charles Lamont Waller, received an identical plea bargain
agreement.

                                           4
exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed. 215 (1963).4       See Appendix, State’s Exhibit F, E-mail correspondence

between Harris County District Attorney’s Office and Harris County Public

Defender’s Office dated January 23, 2015.

       On February 19, 2015, the applicant, represented by Harris County Assistant

Public Defender Nicholas Hughes, filed an application for writ of habeas corpus,

cause number 1445686-A, alleging that the applicant’s plea was involuntary and

that his conviction violates due process. See applicant’s writ.

       Based on the State’s belief that the applicant’s conviction in the primary

case was, in fact, erroneous, the State joined the applicant in filing Agreed

Findings of Fact and Conclusions of Law.          On February 27, 2015, the trial court

signed the parties’ agreed findings and recommended that relief be granted in the

applicant’s case. See February 27, 2015, Court’s Findings of fact, Conclusions of

Law, and Order, cause no. 1445686-A.



                        SUMMARY OF THE ARGUMENT

       The applicant’s plea of guilty to the third-degree felony offense of

possession of a controlled substance was involuntary when the substances seized

and tested by the Houston Forensic Science Center contained illicit materials other

4
  The applicant’s co-defendant, Charles Lamont Waller, has a pending writ of habeas corpus on
this identical issue, No. WR-83,098-01.

                                             5
than those alleged in the charging instrument and belonging to a different penalty

group.       The   applicant   pled   guilty   to   possessing   3,4-methylenedioxy

methamphetamine, a penalty group two controlled substance, when, in fact, he

possessed methamphetamine, a penalty group one controlled substance. Due to the

categorizing of drug possession offenses by penalty group under the Texas

Controlled Substances Act (Chapter 481, TEX. HEALTH & SAFETY CODE), and the

potentially differing punishment ranges associated with each penalty group, the

State believes that the applicant’s conviction in the primary case was, in fact,

erroneous.

      In the narrowly-tailored circumstance of pre-indictment pleas of guilty to

drug possession charges, if a variance is discovered between the illicit substance

alleged in the charging instrument and the results of a confirmatory laboratory

report, and that variance results in a conviction under an incorrect statute, habeas

relief must be granted to maintain the integrity of the conviction. The State’s duty

to seek justice requires that known errors in convictions be corrected as

expeditiously as possible.

                                  ARGUMENT

      THE  APPLICANT’S PLEA OF GUILTY TO THE FELONY OFFENSE OF
      POSSESSION OF A CONTROLLED SUBSTANCE WAS INVOLUNTARY
      WHEN THE SUBSTANCES SEIZED AND TESTED BY THE HOUSTON
      FORENSIC SCIENCE CENTER CONTAINED ILLICIT MATERIALS OTHER
      THAN THOSE ALLEGED IN THE CHARGING INSTRUMENT AND
      BELONGING TO A DIFFERENT PENALTY GROUP.

                                          6
      Chapter 481 of the TEXAS HEALTH       AND   SAFETY CODE sets out the Texas

Controlled Substances Act. The act categorizes controlled substances by penalty

group. See TEX. HEALTH & SAFETY CODE §§ 481.101-481.105. Within each

penalty group, the act further categorizes each penalty group by degree of offense

and punishment range. See TEX. HEALTH & SAFETY CODE §§ 481.112-481.118.

      In cause number 1445685, the applicant was arrested and charged – with

specificity – with possessing cocaine, a penalty group one controlled substance.

See TEX. HEALTH & SAFETY CODE § 481.102(3)(d). No other penalty group in the

Texas Controlled Substances Act contains cocaine. The weight of the cocaine was

between 4 and 200 grams; thus, the applicant was charged with the second-degree

felony offense of possession of a controlled substance.     See TEX. HEALTH &

SAFETY CODE § 481.115(d).

      Likewise, in cause number 1445686, the applicant was arrested and charged

– with specificity – with possessing 3,4-methylenedioxy methamphetamine, a

penalty group two controlled substance. See TEX. HEALTH & SAFETY CODE §

481.103(1).   No other penalty group in the Texas Controlled Substances Act

contains 3,4-methylenedioxy methamphetamine.           The weight of the 3,4-

methylenedioxy methamphetamine was between 1 and 4 grams; thus, the applicant

was charged with the third-degree felony offense of possession of a controlled

substance. See TEX. HEALTH & SAFETY CODE § 481.116(c).


                                        7
      Because the applicant was charged with possessing two different controlled

substances that belong to two different penalty groups, the applicant was charged

with two separate offenses.      Controlled substance offenses not only have

potentially different punishment ranges based on the penalty group to which they

are assigned, but at the Harris County District Attorney’s Office, they are further

categorized by separate and distinct NCIC/TCIC codes for crime reporting

purposes:

   Possession of PG 1       less than 1 gram – State Jail            5599 04
                            1-4 grams – 3rd Degree                   5599 05
                            4-200 grams – 2nd Degree                 5599 06
                            200-400 grams – 1st Degree               5599 07
                            >400 grams – 1st Degree (10yr min)       3599 03
   Possession of PG 2       less than 1 gram – State Jail            5599 08
                            1-4 grams – 3rd Degree                   5599 09
                            4-400 grams – 2nd Degree                 5599 10
                            >400 – 1st Degree                        3599 06
   Possession of PG 3       less than 28 grams – Class A Misd.       5599 11
                            28-200 grams – 3rd Degree                5599 12
                            200-400 grams – 2nd Degree               5599 13
                            >400 grams – 1st Degree                  3599 09
   Possession of PG 4       less than 28 grams – Class B Misd.       5599 14
                            28-200 grams – 3rd Degree                5599 15
                            200-400 grams – 2nd Degree               5599 16
                            >400 grams – 1st Degree                  3599 12

See TEX. HEALTH & SAFETY CODE §§ 481.112-481.118.

      Therefore, the applicant was charged in cause number 1445685 with the

second-degree felony offense of possession of a controlled substance, namely,

cocaine, with a distinctive NCIC code of 5599 06. See Appendix, State’s Exhibit


                                        8
A. He was further charged in cause number 1445686 with the third-degree felony

offense of possession of a controlled substance, namely, 3,4-methylenedioxy

methamphetamine, with a distinctive NCIC code of 5599 09.           See Appendix,

State’s Exhibit B.

      On December 2, 2014, on his second court appearance and without the

benefit of the results of the confirmatory laboratory testing, the applicant waived

indictment in the primary case and entered into a plea agreement with the State of

Texas. See February 27, 2015, Court’s Findings of fact, Conclusions of Law, and

Order, cause no. 1445686-A. After a plea of guilty, the applicant was sentenced by

the trial court to two (2) years in the Texas Department of Criminal Justice –

Institutional Division. See Appendix, State’s Exhibit C.

      On January 23, 2015, nearly two months after the applicant’s plea, the State

received a copy of the laboratory report associated with the applicant’s cases from

the Houston Forensic Science Center. See Appendix, State’s Exhibit E. The

laboratory report indicated that the controlled substances possessed by the

applicant were cocaine (6.99 grams) and methamphetamine (1.48 grams), not

cocaine and 3,4-methylenedioxy methamphetamine as alleged in the criminal

complaints. See Appendix, State’s Exhibits A, B and E.     Methamphetamine is a

penalty group one controlled substance. See TEX. HEALTH & SAFETY CODE §




                                         9
481.102(6).   No other penalty group in the Texas Controlled Substances Act

contains methamphetamine.

      It is well established that a positive chemical field test, and an officer’s

subsequent testimony about the result of said field test, is insufficient evidence to

support a conviction. See Curtis v. State, 548 S.W.2d 57, 59 (Tex.Crim.App.

1977). In the applicant’s case, the only evidence that he was privy to at the time of

his plea was the result of the chemical field test. Because he was unaware that the

confirmatory testing would yield a different result, his plea of guilty to possessing

3,4-methylenedioxy methamphetamine was unknowing and involuntary. Had the

parties known of the variance at the time of the applicant’s plea, the case could

have been refiled by the Harris County District Attorney’s Office to reflect the

correct controlled substance, the correct penalty group, and the correct NCIC code.

      It is as simple and as complicated as this: the applicant is not now, nor has

he ever been, guilty of possessing 3,4-methylenedioxy methamphetamine. Had the

State proceeded to trial without a confirmatory laboratory report, the jury would

have been instructed to acquit the applicant. Id. Had the State proceeded to trial

with a confirmatory laboratory report indicating methamphetamine, but had not

refiled (or at least fully and properly amended) the charging instrument, the jury

would have been instructed to acquit the applicant if the State did not prove




                                         10
beyond a reasonable doubt that the applicant had possessed 3,4-methylenedioxy

methamphetamine. Again, the jury would have had no choice but to acquit.

       The undersigned Assistant District Attorney has found no indication, neither

in case law nor statute, that possession of 3,4-methylenedioxy methamphetamine is

a lesser-included offense of possession of methamphetamine. As this Court is

aware, a two-part test is used to determine whether a lesser-included offense may

be submitted to a jury. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.Crim.App.

1993). First, the lesser offense must be included within the proof necessary to

establish the offense charged. Id. Second, some evidence must exist in the record

that would permit a jury to rationally find that if the applicant is guilty, he is guilty

only of the lesser offense. Rousseau, 855 S.W.2d at 672–73; Royster v. State, 622

S.W.2d 442, 446 (Tex.Crim.App. 1981). In the applicant’s case, it cannot be said

that possession of 3,4-methylenedioxy methamphetamine is included within the

proof necessary to establish the offense of possession of methamphetamine. If

anything, the opposite may be true.

       Simply put, the applicant stands convicted of the wrong offense and, as a

result, has asserted a claim that his plea was unknowing and involuntary. Because

the evidence in possession of the State does not support the applicant’s conviction,

the State agrees that the applicant is entitled to relief.




                                            11
      IN THE NARROWLY-TAILORED CIRCUMSTANCE OF PRE-INDICTMENT
      PLEAS OF GUILTY TO DRUG POSSESSION CHARGES, IF A VARIANCE
      BETWEEN THE ILLICIT SUBSTANCE ALLEGED IN THE CHARGING
      INSTRUMENT AND THE RESULTS OF A CONFIRMATORY LABORATORY
      REPORT RESULTED IN A CONVICTION UNDER AN INCORRECT
      STATUTE, HABEAS RELIEF MUST BE GRANTED TO MAINTAIN THE
      INTEGRITY OF THE CONVICTION.

      The State has a vested interest in maintaining the integrity of their

convictions and the accuracy of their crime reporting. Convictions that are “close

enough” do not help the State fulfill those interests. This Court has previously held

that confirmatory laboratory test results that show no illicit substances render a

guilty plea unknowing and involuntary. See Ex parte Mable, 443 S.W.3d 129

(Tex. Crim. App. 2014). Additionally, this court has cited Mable in the granting

habeas     relief   in   other    applications    involving     3,4-methylenedioxy

methamphetamine and methamphetamine. See Ex parte Lucas, No. WR-82,306-

01, 2014 WL 6789947 (Tex. Crim. App. 2014)(not designated for publication); see

also Ex parte Mayo, No. WR-82,047-01, 2014 WL 6788221 (Tex. Crim. App.

2014)(not designated for publication); see also Ex parte Williams, No. WR-82,307-

01, 2014 WL 6788359 (Tex. Crim. App. 2014)(not designated for publication); see

also Ex parte Bisor, No. WR-82,382-01, 2014 WL 6789865 (Tex. Crim. App.

2014)(not designated for publication).

      This Court should hold that when variances occur between the controlled

substance alleged in a charging instrument and the confirmatory laboratory report,


                                         12
resulting in a conviction under an inaccurate statutory provision, habeas relief

should be granted to afford the parties the opportunity to correct the error in a

timely manner.




                             PRAYER FOR RELIEF

      Based on the foregoing, the State respectfully requests that this Court grant

the application for writ of habeas corpus.




                                              / s / Inger H. Chandler
                                              INGER H. CHANDLER
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              (713) 755-1570
                                              (713) 368-9275 (telecopier)
                                              State Bar No. 24041051




                                         13
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been served on

the following counsel of record:

      Mr. Nicolas Hughes
      Harris County Public Defender’s Office
      1201 Franklin Street, 13th Floor
      Houston, TX 77002


Date: June 23, 2015

                                             / s / Inger H. Chandler
                                             INGER H. CHANDLER




                      CERTIFICATE OF COMPLIANCE

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

PROC. 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. PROC. 9.4(I), if

applicable, because it contains 2289 words excluding portions not to be counted

under TEX. R. APP. PROC. 9.4(I)(1).

                                             / s / Inger H. Chandler
                                             INGER H. CHANDLER




                                        14
APPENDIX




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