                                                                                          ACCEPTED
                                                                                      01-14-00901-CR
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 6/25/2015 5:55:22 PM
                                                                                CHRISTOPHER PRINE
                                                                                               CLERK

                             NO. 01-14-00901-CR
                        IN THE COURT OF APPEALS
                                                                     FILED IN
                     FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                              6/25/2015 5:55:22 PM
                                TRAVIS LAMB                   CHRISTOPHER A. PRINE
                                  Appellant                           Clerk

                                       v.
                            THE STATE OF TEXAS
                                    Appellee

                    On Appeal from Cause No. 1394200
         From the 351st Judicial District Court of Harris County, Texas

   APPELLANT’S SUPPLEMENTAL BRIEF IN LIGHT OF MCFADDEN V. UNITED
                                    STATES



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 APPELLANT
I. McFadden v. United States and the culpable mental state in federal

controlled substance act cases

      Like Appellant’s case, McFadden v. United States focuses upon the culpable

mental state needed for conviction in a controlled substance case. McFadden v. United

States, --- S.Ct. ----, No. 14–378 (June 18, 2015). In McFadden v. United States, the

Supreme Court considered the case of a defendant selling “bath salts” and convicted

under the Controlled Substances Act for delivery of a controlled substance analogue

and for conspiracy. Id. at *3; 21 U.S.C. §§ 813, 841. When chemical analysis was

performed on the “bath salts,” several notable substances were detected, including:

3,4–Methylenedioxypyrovalerone (MDPV), 3,4–Methylenedioxy–N–methylcathinone

(Methylone), and 4–Methyl–N–ethylcathinone (4–MEC). Id. at *2-3. The specific

question answered by McFadden is what culpable mental state the government was

required to prove in order to support a conviction where the controlled substance in

question was a chemical analogue. Id. at *6-7; 21 U.S.C. § 813.

      A. To support a conviction under 21 U.S.C. § 841, the government must

      prove either that a defendant knew the nature of a particular substance

      or that the defendant knew generally that the substance was some

      controlled substance

      In McFadden v. United States, the district court “instruct[ed] the jury that the

statute required that ‘the defendant knowingly and intentionally distributed a mixture

or substance that has’ substantially similar effects on the nervous system as a

                                           2
controlled substance and ‘[t]hat the defendant intended for the mixture or substance

to be consumed by humans.’” Id. at *3. The Supreme Court explained that under the

federal Controlled Substances Act, it is “unlawful for any person knowingly or

intentionally ... to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.” Id. at *4; 21 U.S.C. §

841(a)(1).   The Supreme Court further explained that there were two separate

manners by which the government can prove the requisite culpable mental state:

either the government can prove that the defendant knew the specific identity of the

substance he possessed or that the defendant knew he possessed a scheduled

controlled substance, even if he did not know the specific identity of the particular

substance. Id. at *5.

       B. To support a conviction involving a controlled substance analogue,

       the government must prove either that defendant knew the nature of the

       analogue or that the defendant knew generally that he possessed some

       illegal controlled substance analogue

       The Supreme Court then turned its attention to the interplay of the Controlled

Substance Analogue Enforcement Act and the Controlled Substances Act. Id. at *6-7.

The Supreme Court held:

       First, it can be established by evidence that a defendant knew that the
       substance with which he was dealing is some controlled substance—that
       is, one actually listed on the federal drug schedules or treated as such by
       operation of the Analogue Act—regardless of whether he knew the
       particular identity of the substance. Second, it can be established by

                                           3
       evidence that the defendant knew the specific analogue he was dealing
       with, even if he did not know its legal status as an analogue.

Id. at *7. The Supreme Court added that a person that possesses a substance with

knowledge of the chemistry of a particular drug “knows all of the facts that make his

conduct illegal.” Id. at *7-8. However, the Supreme Court expressly rejected the

government’s contention that it must only prove ‘that the defendant knowingly and

intentionally distributed a mixture or substance ... that ... was a controlled substance

analogue ... with the intent that it be consumed by humans.” Id. at *3. Much like the

legal standard for typical controlled substances, the Supreme Court held that the

government was required to prove that the defendant was required to know either the

specific identity or illicit nature of a controlled substance analogue. Id. at *1-2.

II. The Texas Controlled Substances Act requires proof of comparable

culpable mental states to those explored in McFadden v. United States

       Texas law acts in a similar fashion to the federal Controlled Substances Act.

The prosecution may prove that a person knew that they possessed a particular illicit

substance: “a person commits an offense if the person knowingly or intentionally

possesses a controlled substance listed in Penalty Group 1.” TEX. HEALTH & SAFETY

CODE § 481.115. Alternatively, the prosecution may prove that a person knowingly

possessed some illicit drug, even if the person does not know what specific drug the

person possesses: “[a] person is nevertheless criminally responsible for causing a result

if the only difference between what actually occurred and what he desired,


                                             4
contemplated, or risked is that a different offense was committed.” TEX. PENAL

CODE § 6.04(b)(1). For example, a person who believes he possesses heroin but

actually possesses cocaine may be convicted for possession of cocaine. See Mendoza v.

State, 636 S.W.2d 198, 200–201 at n.2 (Tex. Crim. App. 1982). Similar to the federal

Controlled Substances Act, the Texas Controlled Substances Act does not provide for

the prosecution of a defendant who possesses a controlled substance who intends to

consume the substance unless the person is aware of the nature or illegality of the

substance. For example, a person smoking synthetic marijuana openly sold by a

“smoke shop,” honestly believing the synthetic marijuana to be a new legal high and

not having the faintest ideas of the chemistry of the synthetic marijuana mixture does

not intentionally or knowingly possess a controlled substance listed in a penalty group

simply because AB-FUBINACA happens to be discovered in the mixture after

laboratory analysis.

III. The State failed to prove that Appellant knew that the “crystalline

substance” contained cocaine and further failed to prove that Appellant knew

the “crystalline substance” was some controlled substance or other illegal drug

       The Appellant’s brief goes through great lengths to show that the State offered

no proof that Appellant knowingly possessed cocaine. As repeatedly argued, the

State’s proof all tends to indicate that Appellant genuinely believed that he possessed

“bath salts.” (4 R.R. at 17, 40). It is important that this case involves “bath salts” and

not a traditional drug: “[u]nlike a drug like cocaine, which is made with a natural

                                            5
process, bath salts are made in a lab and constantly changing. The drug is designed

specifically to skirt the law and test the bounds of new chemicals.” Synthetic 'Bath Salts'

An Evolving Problem For DEA, KQED PUBLIC MEDIA FOR NORTHERN CA, available at

http://www.kqed.org/news/story/2012/06/30/99760/synthetic_bath_salts_an_evol

ving_problem_for_dea (last visited June 25, 2015). Without proof that a user of a

designer drug like “bath salts,” often sold openly in public Texas businesses, knew the

legal status or chemical structure of the seemingly legal “bath salts” sold in a particular

formulation, this Court should find that there is insufficient evidence to support the

culpable mental state required for the user’s conviction. As the State offered no

reason to show that Appellant knew or should have known the substance Appellant

possessed was actually a controlled substance and not some “legal high,” the State

failed to prove the culpable mental state in this case.

                                                 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


                                            6
7
                              CERTIFICATE OF SERVICE

       I certify that a copy of this Appellant’s Supplemental Brief (Lamb) has been served

upon the Harris County District Attorney's Office − Appellate Section, on June 25, 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

1,112 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).


                                                      /s/ Nicolas Hughes
                                                      NICOLAS HUGHES
                                                      Assistant Public Defender




                                           8
