             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                        NO. WR-87,190-02


     EX PARTE ANDREW MELCHOR SAUCEDO, Applicant


    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
  CAUSE NO. 1415435-A IN THE 262ND DISTRICT COURT
                FROM HARRIS COUNTY

     N EWELL, J. filed a concurring opinion in which R ICHARDSON,
W ALKER and S LAUGHTER, JJ., joined.

     This is another case where an applicant pleaded guilty to possession

of a controlled substance before laboratory testing on the substance was

completed.   I agree with the Court that Applicant is entitled to relief

because the testing now shows he did not possess the controlled

substance the State alleged he had possessed. In these types of

situations, it should be enough that the State, the applicant, and the

habeas court all agree that the applicant is entitled to relief.   I write
                                                               Saucedo Concurring — 2

separately to address the suggestion of overruling Ex parte Mable.1

       In Mable, we held that a guilty plea to possession of a controlled

substance was involuntary when the applicant did not know that the

seized substances contained no illicit materials.2 We reasoned that this

“fact [wa]s crucial to th[e] case, and while operating under such a

misunderstanding, the applicant cannot be said to have entered his plea

knowingly and intelligently.” 3

       We have previously said that the Court should not frivolously

overrule established precedent.4 “We follow the doctrine of stare decisis

to promote judicial efficiency and consistency, encourage reliance on

judicial decisions, and contribute to the integrity of the judicial process.” 5

Overruling precedent, however, is acceptable under certain circumstances

when the goals of stare decisis would not be achieved.6 But those special


      1
        Ex parte Mable, 443 S.W .3d 129 (Tex. Crim . App. 2014). See Keasler, J.,
Concurring Opinion at 8-24.

      2
           Ex parte Mable, 443 S.W .3d at 131.

       3
           Id.

      4
           Paulson v. State, 28 S.W .3d 570, 571 (Tex. Crim . App. 2000).

       5
           Id.

      6
          Id.; Jordan v. State, 54 S.W .3d 783, 786 (Tex. Crim . App. 2001) (“Som e factors
supporting the overruling of precedent are: (1) when the original rule is flawed from the
outset, (2) when the reasons underlying the precedent have been undercut with the passage
of tim e, and (3) when the rule consistently creates unjust results or places unnecessary
burdens upon the system .”).
                                                              Saucedo Concurring — 3

circumstances are not present in the aftermath of Mable, and there is no

reason to believe that adhering to Mable fails to achieve the goals of stare

decisis.

       The suggestion for overruling Mable seems to flow from Ex parte

Broussard, where we held that, in a possession-of-a-controlled-substance

case, the identity of the controlled substance isn’t a crucial fact.7 But we

ignored our prior cases Watson v. State and Mable, both of which held

that the identity of the controlled substance is an essential element of the

offense of possession of a controlled substance.8 We are better served

by following that precedent than by jerry-rigging a different test that will

ultimately result in the same relief as a straight-up application of Mable.9

       To that end, I see no reason to overrule Mable. It is not enough to

simply say that Applicant “knew that he did not know” the identity of the

substance he possessed because that is not the whole picture. In these

types of cases, both the applicant and the State are operating on the



       7
           Ex parte Broussard, 517 S.W .3d 814, 820 (Tex. Crim . App. 2017).

       8
         W atson v. State, 900 S.W.2d 60, 62 (Tex. Crim . App. 1995); Ex parte Mable, 443
S.W .3d at 131. See also Nichols v. State, 52 S.W .3d 501, 503 (Tex. App.— Dallas 2001, no
pet.) (“If possession of each individual substance within a penalty group was the sam e
statutory offense, the State could am end an indictm ent over objection, interchanging am ong
any one of the nine subsections and over one hundred com plex chem ical structures
individually com posing Penalty Group 1, at will.”).

       9
           See Keasler, J., Concurring Opinion at 22.
                                                               Saucedo Concurring — 4

assumption that the identity of the substance possessed is exactly what

the State has alleged. This situation is distinguishable from that in Ex

parte Palmberg.10 In Palmberg, the fact that there was no substance left

to be tested did not undermine both parties’ assumption that Palmberg

had possessed cocaine. In that sense, the lack of remaining evidence

was not a crucial fact. But in Mable, the affirmative evidence showing

that the substance possessed was not a controlled substance at all made

it clear that both Mable and the State had wrongly assumed that Mable

had actually possessed a certain controlled substance.11

       The same holds true in this case.                Applicant and the State both

operated under the assumption at the time of the plea that Applicant had

possessed methamphetamine, but later testing made it clear that both

parties        were     mistaken.           Applicant       had     actually   possessed

methylethcathinone.

       The outlier, therefore, is not Mable—it’s Broussard.12 There is no

meaningful distinction between the facts of this case and those in



      10
            Ex parte Palm berg, 491 S.W .3d 804 (Tex. Crim . App. 2016).

       11
            Ex parte Mable, 443 S.W .3d at 131.

      12
         Cf. Ex parte Johnson, 541 S.W .3d 827, 830 (Tex. Crim . App. 2017) (overruling Ex
parte Sepeda, 506 S.W .3d 25 (Tex. Crim . App. 2016) because it was “an anom aly in our
habeas jurisprudence”).
                                                             Saucedo Concurring — 5

Broussard.13 In Broussard, both the State and Broussard operated under

the assumption at the time of the plea that Broussard had delivered

cocaine, but subsequent testing revealed that he had actually delivered

methamphetamine.14 And yet, we distinguished Broussard from Mable by

holding that the parties’ mistake about the identity of the controlled

substance did not render the plea involuntary.15 If we are going to get rid

of one of these cases, it should be Broussard rather than Mable.

       Discovering new information crucial to the plea bargain can

retroactively invalidate the underlying agreement.                      Under the well-

established doctrine of mutual mistake, a contract can be rescinded

“[w]here a mistake of both parties at the time the contract was made as

to a basic assumption on which the contract was made has a material

effect on the agreed exchange of performances.” 16 When both parties

enter into a plea bargain while awaiting lab results, both parties operate


       13
            Keasler, J., Concurring Opinion at 1, 7.

       14
            Ex parte Broussard, 517 S.W .3d at 820.

       15
            Id.

       16
          See William s v. Glash, 789 S.W .2d 261, 263-64 (Tex. 1990) (citing Restatem ent
(Second) of Contracts § 152 (1981)); see also United States v. Cook, 406 F.3d 485, 487
(7th Cir. 2005) (“There are other grounds for rescinding a plea agreem ent besides
ineffective assistance of counsel, such as m utual m istake. A plea agreem ent is a contract,
and like any contract can be rescinded on the basis of such a m istake. . . . A defendant who
has signed a plea agreem ent has all the defenses he would have under contract law, plus
som e.”).
                                                              Saucedo Concurring — 6

on the assumption that the testing will confirm what the State has

alleged. Even if the parties are “rolling the dice,” they are both betting

on the same outcome based upon that assumption.                              If affirmative

evidence reveals that they were both mistaken about the underlying

assumption of the identity of the controlled substance, the plea bargain

may be involuntary because of that mutual mistake. Given the inability

to rely on sight alone to accurately identify most controlled substances 17

and the State’s control of the investigation, analysis, and charging

processes, it is appropriate to treat the plea as involuntary based on the

mutual mistake about the identity of the controlled substance at issue.

       I also disagree that Mable is unworkable. It provides a clear ruling

that is easy to follow:         when laboratory testing subsequent to a plea

establishes that a defendant did not possess the drug he was alleged to

have possessed, he gets his plea back.                   We are the ones who have

continued to file and set these cases even though the State and the

applicants repeatedly agree (and make their agreements clear to the

habeas courts and this Court) that relief is warranted under Mable. We


       17
          See, e.g., Curtis v. State, 548 S.W .2d 57, 59 (Tex. Crim . App. 1977) (“[W ]e are
unwilling to say that an experienced officer can look at a white or brown powdered
substance and testify that it is heroin since m orphine, codeine, paregoric, other opiates,
other controlled substances, and noncontrolled substances also appear in white or brown
powdered form .”).
                                                            Saucedo Concurring — 7

can quite easily apply Mable here to determine the outcome.18                  Just

because some don’t want to doesn’t make Mable unworkable.

     What will be unworkable is holding that the identity of the controlled

substance is not an essential element of a possession-of-a-controlled-

substance offense. If that were so, a defendant who possesses multiple

different controlled substances that fall within the same penalty group

would be guilty of only one offense. Would the State have to prove that

the defendant knew which penalty group the possessed substance

belongs to? And would the State ever even need to allege the specific

controlled substance? I see nothing wrong with holding the State to the

burden of proving the specific identity of the controlled substance it

alleges in the indictment.

     In this case, the State and Applicant agree that relief is warranted

under Mable. The trial court agrees and recommends that we grant relief.

Rather than overrule Mable and apply a due-process framework that will

nevertheless invariably lead to the same results as Mable, I would hold

that the identity of the controlled substance at issue is a material or

“crucial” fact underlying the plea bargain and give the parties what they




     18
          See Carson v. State, 559 S.W .3d 489, 495 (Tex. Crim . App. 2018).
                                                Saucedo Concurring — 8

ask for.   In light of this understanding, I believe Applicant’s plea was

involuntary because both parties in this case were mistaken at the time

of the plea about a material fact—the identity of the controlled substance

possessed. With these thoughts, I concur.

Filed: June 26, 2019

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