                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                               NO. WR-81,829-01


                        EX PARTE QUINTEN LOVELL BROWN, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                                 CAUSE NO. FR 65894-A
                   IN THE 426TH DISTRICT COURT FROM BELL COUNTY


         Per curiam.

                                                  OPINION

         Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possessing one

gram or more but less than four grams of a controlled substance in trial court cause no. 65,894. The

trial court assessed a sentence of seventeen years’ imprisonment. This sentence is to be served

concurrently with another seventeen-year sentence assessed in trial court cause no. 66,339. In that

cause, Applicant was convicted of possessing with intent to deliver four grams or more but less than

four hundred grams of a controlled substance.1 Applicant did not appeal either conviction.

        1
           The judgment in cause no. 66,339 reflects that the drug quantity was “FOUR GRAMS OR MORE BUT LESS
THAN 200 GRAMS.” The indictment, however, alleged “four grams or more but less than 400 grams.” This range
coincides with the range specified in the applicable statute of prosecution for possessing with intent to deliver MDMA,
which is listed under Penalty Group 2. C O N TRO LLED S UBSTAN CES A CT §§ 481.103(a)(1), 481.113(a), (d).
                                                                                                      -2-

        Applicant’s two convictions concern 3, 4-methylenedioxy-methamphetamine (MDMA),

which is commonly known as ecstasy. See CONTROLLED SUBSTANCES ACT § 481.103(a)(1). The

charges arose from separate arrests. At the time of the arrests, the drugs were field-weighed at 1.2

grams for the first arrest and at 4.8 grams for the second arrest. The State charged Applicant for

possessing 1-4 grams of MDMA and for possessing with intent to deliver 4-400 grams of MDMA.

See CONTROLLED SUBSTANCES ACT §§ 481.116(a), (c), 481.113(a), (d). The State also alleged that

Applicant had prior felony convictions, which it appears from the habeas record raised the applicable

punishment level for the possession case from a third-degree felony to a second-degree felony and

made the minimum punishment for the delivery case, already a first-degree felony, fifteen years. See

TEX . PENAL CODE §§ 12.42(a), (c)(1). Applicant pled guilty to both offenses.

        After sentencing, lab testing was completed on the drugs, and it was discovered that the true

mass of the MDMA from the first arrest was 0.60 grams and not twice that amount as was reported

from the field testing. Thus, the applicable offense level was a state jail felony, and not a third-degree

felony enhanceable to a second-degree felony, as was charged. See CONTROLLED SUBSTANCES ACT

§ 481.116(a), (b). The lab testing for the MDMA from the second arrest indicated a mass of 4.72

grams, which is near the 4.8 grams reported from field testing. The State informed Applicant of the

lab results, and Applicant filed several habeas applications.

        Applicant filed this -01 habeas application concerning the 1-4 gram possession case (trial

court cause no. 65,894) and alleged that his seventeen-year sentence is in excess of that authorized

by statute for a state-jail felony, which has a penalty range of 180 days to two years in the state jail.

TEX . PENAL CODE § 12.35(a). The trial court, with the State’s agreement, recommends granting relief

by vacating the conviction and returning Applicant to answer the indictment. See Ex parte Beck, 922

S.W.2d 181 (Tex. Crim. App. 1996). The trial court’s findings and recommendation are supported
                                                                                                  -3-

by the record and are adopted by this Court. Because Applicant’s sentence in cause no. 65,894 is

in excess of the statutory maximum for the offense, relief is granted. The judgment in cause no.

65,894 in the 426th District Court of Bell County is set aside, and Applicant is remanded to the

custody of the Sheriff of Bell County to answer the charges as set out in the indictment. The trial

court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

       Applicant also filed a -02 habeas application concerning the 4-400 gram delivery case (trial

court cause no. 66,339) and raised the same unauthorized sentence claim based upon the same lab

testing. The lab report pertinent to this conviction, however, shows that the seized drugs had a mass

of 4.72 grams, which is within the offense range of four grams or more but less than four hundred

grams. The trial court recommends that the habeas application be denied, which recommendation

is supported by the habeas record. The trial court’s findings have been adopted by this Court in the

-02 habeas proceeding, and that application has been denied by this Court.

       Applicant’s -03 habeas application is a duplicate of his -01 habeas application that concerns

the possession case in trial court cause no. 65,894. Because the -01 habeas application is being

disposed of as discussed above, the duplicate -03 habeas application has been dismissed by this

Court as moot.

       Applicant’s -04 habeas application was filed by the attorney who represented Applicant at

trial, and the application also raises an unauthorized sentence claim concerning cause no. 65,894.

The trial court recommends that the application be dismissed as subsequent. This disposition is not

correct because this Court, when the -04 habeas application was filed in the trial court, had not yet

disposed of any habeas application for Applicant, so the -04 application is not subject to dismissal

as a subsequent habeas application. See CODE CRIM . PROC. art. 11.07 § 4(a) (stating “If a subsequent
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application for writ of habeas corpus is filed after final disposition of an initial application

challenging the same conviction, a court may not consider the merits of or grant relief based on the

subsequent application unless ....”); see also Ex parte Owens, 206 S.W.3d 670, 676 n. 38 and 679

(Tex. Crim. App. 2006). Because the relief requested in the -04 habeas application is being granted

in this opinion for the -01 habeas application, the -04 habeas application has been dismissed by this

Court as moot.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: September 17, 2014
Do not publish
