                                                                                 WR-82,970-01
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
 June 22, 2015                                                  Transmitted 6/22/2015 11:58:12 AM
                                                                  Accepted 6/22/2015 12:42:56 PM
                              NO. WR-82,970-01                                     ABEL ACOSTA
                                                                                           CLERK
                     IN THE COURT OF CRIMINAL APPEALS


                     EX PARTE MICHAEL JAMES WILLIAMS,
                                APPLICANT


        On Application for Writ of Habeas Corpus in Cause No. 1445686-A,
                Challenging the conviction in Cause No. 1445686,
          From the 208th 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:                                MICHAEL JAMES WILLIAMS


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


ATTORNEY AT TRIAL:                        JAIME ACOSTA
                                          Attorney at Law
                                          102 S. Lockwood Dr.
                                          Houston, Texas 77011


PRESIDING JUDGE AT TRIAL:                 HON. MICHAEL MCSPADDEN
                                          209th District Court
                                          Harris County, Texas
                                          1201 Franklin Street, 17th 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 Regarding Oral Argument................................................................................... 1

Issue Presented ....................................................................................................................... 2

Statement of Facts .................................................................................................................. 2

Summary of the Argument .................................................................................................... 2

Argument ................................................................................................................................. 4

          I. As Michael Williams conclusively established that he did not possess
          MDMA, Michael Williams’s plea is involuntary and his conviction offends
          principles of due process............................................................................................ 4

                     A. Where there is no evidence to support a conviction or where the
                     evidence supporting a conviction is refuted by clear and convincing
                     evidence, the conviction is invalid ................................................................. 4

                                1. This Court has repeatedly held that where there is no evidence
                                to support an element of a person’s conviction, a defendant’s
                                conviction is invalid ............................................................................. 4

                                2. This Court has repeatedly held that where a defendant shows
                                his or her innocence of the charges, the defendant’s conviction is
                                invalid .................................................................................................... 5

                     B. The laboratory report indicates that there is no evidence to support an
                     essential element of Michael Williams’s conviction, namely the
                     requirement that Michael Williams’s actually possessed MDMA in this
                     case .................................................................................................................... 6



                                                                     iii
                                 1. The evidence conclusively establishes that Michael Williams did
                                 not possess MDMA as charged in the information......................... 6

                                 2. Michael Williams’s conviction is invalid and has the same due
                                 process implications as a no evidence or actual innocence case .... 6

                      C. There is nothing which meaningfully differentiates Michael Williams’s
                      case from previous cases involving involuntary pleas ................................ 8

           II. Upholding the conviction in this case would undermine Michael Williams’s
           constitutional rights .................................................................................................. 10

                      A. Possession of MDMA and possession of methamphetamine are
                      separate crimes ............................................................................................... 10

                      B. The Double Jeopardy implications of upholding Michael Williams’s
                      conviction for possession of MDMA ......................................................... 11

                      C. The Due Process implications of Michael Williams’s conviction ...... 12

           III. Other considerations ......................................................................................... 13

                      A. A hypothetical illustrating the greater impact of the Court’s decision
                      ......................................................................................................................... 13

                      B. It is impossible to gauge how having the laboratory report would have
                      affected Michael Williams’s case at the trial level ...................................... 14

                      C. Considerations in filing an agreed writ of habeas corpus .................... 15

Prayer ..................................................................................................................................... 16

Certificate of Service ............................................................................................................ 17

Certificate of Compliance .................................................................................................... 17




                                                                       iv
                                            INDEX OF AUTHORITIES

Federal Cases

Stirone v. United States, 361 U.S. 212 (1960) ........................................................................ 12

United States v. Prejean, 494 F.2d 495 (5th Cir. 1974) ................................................... 12, 14

State Cases

Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977)........................................................ 6

Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ............................................... 15

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) ................................................. 16

Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006)................................................... 9

Ex parte Coleman, 599 S.W.2d 305 (Tex. Crim. App. 1978) ............................................... 5

Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)....................................... 5, 6, 8

Ex Parte Frederick, No. AP-76,646, 2011 WL 4484737 (Tex. Crim. App. 2011) (not
 designated for publication) .............................................................................................. 16

Ex parte Griffin, 679 S.W.2d 15 (Tex. Crim. App. 1984) .................................................... 9

Ex Parte Mack, No. AP-75345, 2006 WL 475777 (Tex. Crim. App. 2006) (mem. op.,
 not designated for publication) ....................................................................................... 10

Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) .......................................... 9

Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)........................................ 9

Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007) .......................................... 4, 7, 8

Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006) ................................................... 16

Ex parte Russell, 632 S.W.2d 596 (Tex. Crim. App. 1982) ................................................ 11

Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995) ................................................... 9

Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) ................................................ 5, 7


                                                              v
Ex parte Williams, No. 1445686-A (208th Dist. Ct., Harris Cty., Tex. Oct. 21, 2014) ... 6

Gonzalez v. State, 588 S.W.2d 574 (Tex. Crim. App. 1979) ................................................ 4

Nichols v. State, 52 S.W.3d 501 (Tex. App.-Dallas 2001, no pet.) .................................... 12

Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) ...................................................... 15

Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978)........................................................ 7

Salazar v. State, 86 S.W.3d 640 (Tex. Crim. App. 2002) ..................................................... 8

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

Watson v. State, 900 S.W.2d 60 (Tex. Crim. App. 1995) ......................................... 7, 10, 11

State Statutes

TEX. HEALTH & SAFETY CODE ANN. § 481.102 (West 2013) ........................................ 10

TEX. HEALTH & SAFETY CODE ANN. § 481.103 (West 2013) ........................................ 10

TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2013) ........................................ 11

TEX. HEALTH & SAFETY CODE ANN. § 481.116 (West 2013) ........................................ 11

TEX. PENAL CODE ANN. § 6.04 (West 2013) ...................................................................... 7

Other Authorities

Michael Barajas, Lab Reports Show Hundreds “Convicted in Error” for Drug Offenses,
 HOUSTON           PRESS       (Oct.                29.               2014)                  available                 at
 http://www.houstonpress.com/news/lab-reports-show-hundreds-convicted-in-
 error-for-drug-offenses-6751687 .................................................................................... 15




                                                           vi
                              STATEMENT OF THE CASE

      On October 21, 2014, Applicant was charged with possession of substance in

penalty group 2, one gram or more but less than four grams (MDMA) in Cause

1445686. Writ Exhibit 1.On December 2, 2014, pursuant to a plea agreement,

Applicant pled guilty and was convicted. Writ Exhibits 2, 3, 4. Applicant has

collaterally challenged his conviction on the grounds that his plea was involuntary and

that Applicant’s conviction for an offense he did not commit violates his right to due

process of law. On February 27, 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 Williams, No. 1445686-A (208th Dist. Ct. Harris Cty., Tex. 2015) (filed

Feb. 27, 2015). On April 22, 2015, this Court ordered this case set for submission “to

determine whether Applicant’s plea of guilty was involuntary when the substances

seized and tested contained illicit materials other than those alleged” and ordered

briefing. Order, Ex parte Williams, No. WR-82,970-01 (Tex. Crim. App. 2015) (filed

Apr. 22, 2015). This brief is Applicant’s response to the April 22, 2015 order.

                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument may help categorize Applicant’s case within the body of caselaw

regarding involuntary pleas. Applicant requests oral argument with the belief that it

can simplify the question before the court and can help harmonize the resolution of

Applicant’s case with existing caselaw.



                                           1
                                   ISSUE PRESENTED

Is Applicant’s plea of guilty was involuntary when the results of the laboratory report

do not indicate the presence of the controlled substance the State alleged Applicant

possessed in the charging instrutment?

                                 STATEMENT OF FACTS

       On October 21, 2014, Applicant was charged with possession of substance in

penalty group 2, one gram or more but less than four grams (MDMA) in Cause

1445686. Writ Exhibit 1. Applicant was formally charged by information, pled guilty

pursuant to a plea agreement, and was convicted of possession of substance in penalty

group 2, one gram or more but less than four grams (MDMA) on December 2, 2014.

Writ Exhibits 2, 3, 4. About a month-and-a-half later, evidence seized from Applicant

was tested by the Houston Forensic Science Center. Writ Exhibit 5. According to the

laboratory analyst, no MDMA was detected in the evidence, but other controlled

substances were detected. Writ Exhibit 5. The State has conceded that Applicant was

not provided notice of the lack of evidence supporting his conviction for possession

of MDMA before the guilty plea was entered and accepted in this case. Agreed Findings

of Fact and Conclusions of Law at Finding of Fact 5.

                             SUMMARY OF THE ARGUMENT

       This Court has granted relief based on an involuntary plea in a wide variety of

situations, even in cases where the evidence suggests that the defendant committed

some offense or even the offense the defendant judicially confessed to committing.

                                             2
The core concern addressed by the Court in involuntary plea cases was not the

relative culpability of the defendant, but whether the defendant’s plea was knowing

and voluntary. Much like a case where a person pled guilty, but is actually innocent of

a crime, or where a person pled guilty, but is only guilty of a lesser-included offense,

no rational factfinder having access to the laboratory results in this case could find

Applicant guilty of possession of substance in penalty group 2,1 one gram or more but

less than four grams (MDMA). Consequently, it was not a rational decision to plead

guilty.

          Applicant’s conviction for possession of substance in penalty group 2, one

gram or more but less than four grams (MDMA) has constitutional implications, and

cannot be left to stand. First, as possession of MDMA and methamphetamine are

different crimes and may be prosecuted successively, there is nothing that prevents

Applicant’s being prosecuted for possession of methamphetamine, even after being

convicted for possession of MDMA. Second, as there is no valid evidence that

Applicant possessed MDMA as alleged in the indictment, Applicant has, in effect,

been convicted of charges other than those set forth in the indictment. If Applicant’s

conviction is permitted to stand, it threatens to permit the conviction of defendants,

where an offense never occurred.



1
 This brief shall employ the statutory title for the offense “possession of substance in
penalty group 2” rather than the more common parlance “possession of controlled
substance in penalty group 2.”

                                           3
                                     ARGUMENT

I. As Michael Williams conclusively established that he did not possess

MDMA, Michael Williams’s plea is involuntary and his conviction offends

principles of due process

      A. Where there is no evidence to support a conviction or where the

      evidence supporting a conviction is refuted by clear and convincing

      evidence, the conviction is invalid

             1. This Court has repeatedly held that where there is no evidence

             to support an element of a person’s conviction, a defendant’s

             conviction is invalid

      In many individual contexts, the Court of Criminal Appeals has determined

that where there is no evidence regarding a key element of a criminal allegation, a

conviction is invalid. See Gonzalez v. State, 588 S.W.2d 574, 577–578 (Tex. Crim. App.

1979). The defendant’s guilt or innocence of a similar offense, even a lesser-included-

offense, is unimportant when determining whether the State offered sufficient proof

to establish the elements of a different offense. See Ex parte Perales, 215 S.W.3d 418,

419–420 (Tex. Crim. App. 2007) (although there was evidence that Perales illegally

ingested cocaine, there was no evidence to support her conviction for delivery of

cocaine to her unborn child). Furthermore, even where the defendant pleads guilty, if

there is no evidence that can support each element of the offense, the conviction

cannot stand. See State v. Wilson, 324 S.W.3d 595, 597–598 (Tex. Crim. App. 2010)

                                          4
(even though Wilson was guilty of a lesser-included offense and pleaded guilty to the

greater offense, Wilson was entitled to relief when there was no evidence to support

the jurisdictional element in Wilson’s felony DWI case). A claim that there is no

evidence to support a conviction is so fundamental that it can be raised at any time.

Ex parte Coleman, 599 S.W.2d 305, 307 (Tex. Crim. App. 1978).

             2. This Court has repeatedly held that where a defendant shows his

             or her innocence of the charges, the defendant’s conviction is

             invalid

      A defendant who can prove actual innocence by clear and convincing evidence

is entitled to relief, even when afforded a fair trial. Ex parte Elizondo, 947 S.W.2d 202,

207–208 (Tex. Crim. App. 1996). Just as a defendant who raises a “no evidence” claim

may proceed regardless of whether the defendant pleaded guilty or innocent, the

defendant’s plea is irrelevant to the consideration of an actual innocence claim. Ex

parte Tuley, 109 S.W.3d 388, 390 (Tex. Crim. App. 2002). The central focus of actual

innocence jurisprudence is whether, after accounting for the evidence adduced after

trial, the applicant has shown “by clear and convincing evidence that no reasonable

juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947

S.W.2d at 209.




                                            5
      B. The laboratory report indicates that there is no evidence to support an

      essential element of Michael Williams’s conviction, namely the

      requirement that Michael Williams’s actually possessed MDMA in this

      case

             1. The evidence conclusively establishes that Michael Williams did

             not possess MDMA as charged in the information

      The laboratory report, included as part of the trial court’s findings, conclusively

established that there was no MDMA detected in the sample tested by the Houston

Forensic Science Center. Writ Exhibit 5 (unlabeled). All parties agreed and the trial

court concluded that there was no MDMA detected in the sample. Agreed Findings of

Fact and Conclusion of Law at Finding of Fact 4, Ex parte Williams, No. 1445686-A

(208th Dist. Ct., Harris Cty., Tex. Oct. 21, 2014) (filed Feb. 27, 2015).

             2. Michael Williams’s conviction is invalid and has the same due

             process implications as a no evidence or actual innocence case

      With the laboratory report indicating that no MDMA was found in the

evidence collected in this case, the laboratory report negates the essential element of

the offense that Applicant actually possessed MDMA. As in Ex parte Elizondo, no

juror receiving the laboratory report could rationally convict based on a police

officer’s testimony that he thought the substance contained MDMA. See Curtis v. State,

548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (police officer testimony insufficient for

controlled substance identification). If Applicant had insisted upon trial and the

                                            6
laboratory report and corresponding testimony offered as evidence, there would be

insufficient evidence to support his conviction. Id. The fact that Applicant pled guilty

should be not make any difference in the consideration of the case: “[this Court does]

not make the distinction between those who have pleaded guilty and those who have

pleaded not guilty for other claims of relief raised in habeas applications.” Ex parte

Tuley, 109 S.W.3d at 391-392. Nor should the fact that Applicant may have been

properly charged and convicted of a different offense, a distinction not made in cases

like Wilson and Ex parte Perales, which focus on whether the evidence supports the

specific conviction in a given case. Wilson, 324 S.W.3d at 597–598; Ex parte Perales, 215

S.W.3d at 419–420). It should not matter whether MDMA and methamphetamine are

both controlled substances, as possession of methamphetamine and possession of

MDMA are distinct crimes. See Watson v. State, 900 S.W.2d 60, 61 (Tex. Crim. App.

1995) (holding that possession of cocaine is a different crime than possession of

heroin). While the possession to possess one particular controlled substance may

supply the requisite culpable mental state for conviction of a different controlled

substance offense, there is no corresponding provision allowing that evidence of

detection of a specific controlled substance can support a conviction for a different

controlled substance offense. C.f. TEX. PENAL CODE § 6.04(b)(1).

      Though a judicial confession is generally sufficient evidence to support a

conviction, the judicial confession in this case has been fully refuted by the laboratory

report. Potts v. State, 571 S.W.2d 180, 181–182 (Tex. Crim. App. 1978) (a judicial

                                           7
confession is sufficient to support a conviction). This Court must ensure that

Applicant “is not convicted of a crime that never occurred.” See Salazar v. State, 86

S.W.3d 640, 644 (Tex. Crim. App. 2002) (explaining the purpose of the corpus delicti

doctrine, which ensures the integrity of cases involving extrajudicial confessions).

Additionally, the punishment of both the innocent and guilty alike violates the due

process clause of the constitution, if the evidence supporting the conviction is refuted

or there is simply no evidence supporting the conviction. See Ex parte Elizondo, 947

S.W.2d at 209; Ex parte Perales, 215 S.W.3d at 419 (Both explaining that a due process

violation has occurred where there is no evidence to support a conviction or where

the defendant is shown to be innocent of the charges). As the laboratory report

refutes the claim that Applicant possessed MDMA, the conviction cannot stand:

      Regardless of any benefit that may have accrued as a direct result of the
      plea agreement, when a defendant has been convicted of an offense for
      which he claims that he is “actually innocent, and he proves it, he will be
      relieved from the restraint of the conviction even though he may have
      pleaded guilty and confessed.”

Wilson, 324 S.W.3d at 599.

      C. There is nothing which meaningfully differentiates Michael

      Williams’s case from previous cases involving involuntary pleas

      Pleas may be found involuntary for a number of reasons, including failure to

admonish the defendant, failure to warn a defendant of the clear consequences of a




                                           8
conviction, erroneous advice of counsel, and actual innocence.2 Whether a plea is

involuntary or not does not depend upon the moral blameworthiness of the

defendant, a plea may be involuntary whether the defendant is innocent, is guilty of

some lesser offense, of even may be guilty of the offense of conviction.3 A plea in

involuntary when a defendant operates under erroneous information “of such

importance, and so critical to his decision, as to cast doubt on the validity of the plea.”

Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) (Involuntary plea when

lawyer provided erroneous advice whether sentences would run consecutively or

concurrently). This Court has previously held that where there is disagreement

between the controlled substance of conviction and the controlled substance detected

in the evidence, the defendant is entitled to relief. See Ex Parte Mack, No. AP-75345,

2006 WL 475777, 1 (Tex. Crim. App. 2006) (mem. op., not designated for

publication) (Where a defendant pleaded guilty, believing the evidence to contain one


2
  See Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995) (if a failure to
admonish a defendant affects the decision to enter into a plea, the plea is involuntary);
Ex Parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012) (a failure to warn a
defendant of clear consequences can result in an involuntary plea);
Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984) (trial counsel’s
misrepresentation to a defendant can result in an involuntary plea);
Ex parte Brown, 205 S.W.3d 538, 545–546 (Tex. Crim. App. 2006) (newly discovered
evidence exonerating a person can overcome an involuntary plea).
3
  Ex Parte Moussazadeh, 361 S.W.3d at 692 (Involuntary plea where defendant was
merely misinformed about parole eligibility as it related to his offense);
Wilson, 324 S.W.3d at 599–600 (Involuntary plea where defendant was only guilty of a
lesser-included DWI offense);
Ex parte Thompson, 153 S.W.3d 416, 420–421 (Tex. Crim. App. 2005) (Involuntary plea
where defendant was actually innocent).

                                            9
controlled substance, but where the evidence contains another substance entirely, the

defendant was entitled to relief). Holding Applicant’s plea voluntary despite the

laboratory report would offend concepts of right to notice, the right to due process,

and would produce a manifestly unjust result in this case. No rational defendant

would plead guilty to an offense the defendant did not commit. As possession of

methamphetamine and possession of MDMA are different crimes and may be

prosecuted separately, Applicant’s plea afforded him no benefit and no protection

from successive prosecution. Watson, 900 S.W.2d at 61.

II. Upholding the conviction in this case would undermine Michael Williams’s

constitutional rights

      A. Possession of MDMA and possession of methamphetamine are

         separate crimes

      Methamphetamine and MDMA are distinct chemicals, not mere analogues or

isomers, with distinguishable profiles and different effects on the body.4 Each is

located within a separate penalty group in the Texas Controlled Substance Act. TEX.

HEALTH     &   SAFETY    CODE     §§   481.102(6);   481.103(a)(1).   Possession   of

methamphetamine and MDMA are criminalized in separate statutes, and the

4
  See Methamphetamine (and Amphetamine), NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION available at http://www.nhtsa.gov/people/injury/research/
job185drugs/methamphetamine.htm; Methylenedioxymethamphetamine (MDMA, Ecstasy),
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION available at
http://www.nhtsa.gov/people/injury/research/job185drugs/methylenedioxymetham
phetamine.htm


                                         10
punishment for the offenses differs significantly for amounts over 200 grams. TEX.

HEALTH & SAFETY CODE §§ 481.115, 481.116.

      B. The Double Jeopardy implications of upholding Michael Williams’s

      conviction for possession of MDMA

      This Court has, on multiple occasions, distinguished different Controlled

Substance Act related offenses for purposes of the constitutional protections against

double jeopardy, even if the offenses arise out of the same criminal transaction. As a

general rule, “[t]o determine the double jeopardy implications of successive

prosecutions for offenses arising out of a single criminal transaction we now apply the

offense defining test set forth in Blockburger v. United States.” Ex parte Russell, 632

S.W.2d 596, 596 (Tex. Crim. App. 1982) (citation omitted). For purposes of the

double jeopardy clause of the Fifth Amendment, possession of methamphetamine

and possession of MDMA are separate crimes as “each offense requires proof of an

element that the other offense […] does not.” Watson, 900 S.W.2d at 61 (holding that

possession of cocaine is a different crime than possession of heroin). Upholding

Applicant’s conviction for possession of MDMA would have dire consequences and

would allow the State to bypass Applicant’s protection against double jeopardy. As

possession of MDMA and methamphetamine are different offenses for double

jeopardy purposes, without habeas corpus relief, Applicant remains vulnerable to

prosecution for possession of methamphetamine, notwithstanding the conviction for

possession of MDMA.

                                          11
       C. The Due Process implications of Michael Williams’s conviction

       It has long been held that “[a] court cannot permit a defendant to be tried on

charges that are not made in the indictment against him.” Stirone v. United States, 361

U.S.   212,   217    (1960).   Discussing     whether    charges    for   possession    of

methamphetamine could simply be amended to reflect charges of possession of

cocaine, the Fifth Court of Appeals in Dallas concluded that allowing the amendment

would violate a defendant’s right to a grand jury:

       If possession of each individual substance within a penalty group was
       the same statutory offense, the State could amend an indictment over
       objection, interchanging among any one of the nine subsections and
       over one hundred complex chemical structures individually composing
       Penalty Group 1, at will. This would directly contravene the statutory
       intent of the legislature as discussed in Watson.

Nichols v. State, 52 S.W.3d 501, 503 (Tex. App.−Dallas 2001, no pet.). Several decades

ago, the United States Court of Appeals for the Fifth Circuit employed similar

reasoning, concluding that if a person was convicted for an offense not alleged in the

grand jury’s indictment, the conviction is invalid:

       The Fifth Amendment gives every indicted defendant the right to be
       tried only on the charges made by the grand jury that indicted him. If he
       is to be convicted, the conviction must rest solely on the charges made
       by the indictment. Neither the prosecution nor the trial judge can alter
       the charge to fit the proof; to do so would be usurping the function of
       the grand jury.

United States v. Prejean, 494 F.2d 495, 497 (5th Cir. 1974). As relevant to this particular

case, Applicant was charged with possession of MDMA, and no evidence supports

that conviction. To uphold Applicant’s conviction for possession of MDMA on the

                                            12
belief that he possessed a different controlled substance would unconstitutionally

reach outside of the felony information and would have the same effect as altering the

charge to fit the proof in this case after the ink has dried on Applicant’s judgment.

III. Other considerations

      A. A hypothetical illustrating the greater impact of the Court’s decision

      Imagine co-defendants Arthur Alpha and Betty Bravo both shoot at Vern

Victim atop a bridge over the San Jacinto River. Vern Victim is hit and stumbles over

the bridge into the water. Though the bullet narrowly missed his vital organs, Victim

leaves behind quite a mess – and several eyewitnesses. Both Alpha and Bravo thought

they killed Victim. Victim, a strong swimmer, surfaces out of sight and manages to

evade detection as the police and emergency team drag the river and search the

surrounding environs for his body. Believe that given the chance, Alpha and Bravo

will kill him, Victim remains concealed until he finds out both Alpha and Betty Bravo

have been convicted for his murder. Alpha pled guilty to murder while Bravo insisted

on her right to trial. Two months after Bravo is convicted and sentenced for murder,

Victim is seen in town by Alpha’s lawyer. Can any valid policy differentiate between

Alpha and Bravo, who are both “not guilty of” murder, who both acted in a way that

may justify conviction of a different offense, and who both have been found criminal

responsible? See Wilson, 324 S.W.3d at 597–598 (right to relief even when a person is

guilty of a lesser-included offense). Can a valid policy deny habeas corpus relief if the

punishment range for the offense Bravo and Alpha were convicted of committing is

                                           13
identical to the punishment range for the actual offense Bravo and Alpha may have

committed, even if there is no evidence to support the offense of conviction? While

this case may superficial seem to be simply about drug cases, these wider implications

impact any criminal case where a defendant is convicted of the wrong offense.

       B. It is impossible to gauge how having the laboratory report would have

       affected Michael Williams’s case at the trial level

       It is impossible to tell how having the lab report on hand would have changed

Applicant’s decisions at the trial level:

   1) Would the prosecutor confuse 3,4-methylenedioxymethamphetamine for

       methamphetamine? If so, a canny lawyer could force the case to trial and to

       acquittal. See United States v. Prejean, 494 F.2d at 497.

   2) Would the prosecutor decide that, given the dangers of methamphetamine,

       drug treatment was more important than punishment?

   3) Would the prosecutor give a fire-sale offer rather than go through the trouble

       of re-indicting the offense?

   4) Would the mismatch between the evidence and the indictment serve as a

       bargaining chip, perhaps securing a conviction only for attempted possession

       of MDMA?

   5) Would everyone miss the mistake?

A consequence of a justice system that places thousands of new defendants in Harris

County’s felony courts annually is that mistakes are made on a daily basis. How a

                                              14
mistake will affect the trajectory of a case is pure speculation. A defendant cannot

exercise the right to a fair trial without access to exculpatory information. See Pena v.

State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (rules requiring the disclosure of

exculpatory information exist to avoid an unfair trial of the accused).

      C. Considerations in filing an agreed writ of habeas corpus

      Applicant’s case is but a single writ in a sea of applications that have stemmed

from the Harris County District Attorney’s Office’s past practice of leaving hundreds

of problematic laboratory reports collecting dust. Michael Barajas, Lab Reports Show

Hundreds “Convicted in Error” for Drug Offenses, HOUSTON PRESS (Oct. 29. 2014) available

at    http://www.houstonpress.com/news/lab-reports-show-hundreds-convicted-in-

error-for-drug-offenses-6751687. Solving this problem in an efficient manner has

been a significant concern of both the current administration of the District

Attorney’s Office and the Harris County Public Defender’s Office. As occurs with

any compromise between two parties with fundamentally different interests (the

prosecution’s function “to see that justice is done,” the defense lawyer’s function of

effectuating a defendant’s “right to be represented by counsel”), concessions are made

in order to broker wider agreement.

      Two potential grounds for relief are universally abandoned in these cases in

order to facilitate agreement: the prosecution’s failure to timely disclose favorable

evidence to the defendant and the ineffective assistance of counsel. See Ex parte

Adams, 768 S.W.2d 281, 289 (Tex. Crim. App. 1989) (writ raising issue of failure to

                                           15
disclose favorable evidence to the defendant); Ex parte Briggs, 187 S.W.3d 458, 467

(Tex. Crim. App. 2005) (failure to conduct a full investigation of scientific evidence

was ineffective assistance of counsel). Typically, an agreed writ focuses upon the

systemic breakdown which occurs in a given case, not assigning blame for the

breakdown. See Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006) (finding

systemic breakdown deprived defendant of due process). Additionally, agreed findings

of fact and conclusions of law are stripped-down and tailored to areas of agreement,

avoiding areas where an impasse would otherwise be reached.

         For several years, this Court has resolved writs involving drug cases on broad

systemic grounds. See e.g. Ex Parte Frederick, No. AP-76,646, 2011 WL 4484737 (Tex.

Crim. App. 2011) (not designated for publication). Much as any lawyer relies on the

State’s appellate courts for guidance, the solution to Harris County’s laboratory report

problem relies on this Court’s precedent. Applicant would respectfully entreat this

Court to uphold the important precedent which affords an agreed avenue for relief in

this type of cases.

                                        PRAYER

         Applicant prays that this Court grant relief and remand his case to the trial

court.

                                                Respectfully submitted,

                                                ALEXANDER BUNIN
                                                Chief Public Defender
                                                Harris County Texas

                                           16
                                               /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



                              CERTIFICATE OF SERVICE

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

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

3,652 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).

                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender

                                          17
