                                                                               WR-82,876-01
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 8/24/2015 3:07:14 PM
                                                                  Accepted 8/24/2015 3:17:45 PM
August 24, 2015                                                                   ABEL ACOSTA
                            No. WR-82,876-01                                              CLERK



                                    In the
                     Court of Criminal Appeals of Texas
                                  at Austin
                        
                           Cause No. 1121345-A
                         In the 179th District Court
                          of Harris County, Texas
                        

                  Ex parte BRYAN ELLIOTT PALMBERG

                         

                             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
                   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 habeas

             Stacy Allen Sederis – Assistant District Attorney at trial

      Applicant:

             Bryan Elliott Palmberg

      Counsel for Applicant:

             Nicolas Hughes – Counsel on habeas

             Heather Harrison Hall – Counsel at trial

      Trial Judge:

             Hon. J. Michael Wilkinson – 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 by
         Houston Police Department were fully consumed by a chemical field-
         test, leaving no remaining evidence for confirmatory testing by an
         accredited forensic laboratory. ....................................................................... 6

PRAYER FOR RELIEF ............................................................................................7

CERTIFICATE OF SERVICE ..................................................................................8

CERTIFICATE OF COMPLIANCE ......................................................................... 8




                                                          iii
                                   INDEX OF AUTHORITIES


Cases
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963) ................. 3, 5

Curtis v. State, 548 S.W.2d 57 (Tex.Crim.App. 1977)......................................... 5, 6




Statutes
TEX. CODE CRIM. PROC. art. 11.07 ............................................................................. 1




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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 by the Houston Police Department were fully consumed by a

chemical field-test, leaving no remaining evidence for confirmatory testing by an

accredited forensic laboratory.



                           STATEMENT OF THE CASE

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

applicant, Bryan Elliott Palmberg, 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 1121345 (the primary case).



                STATEMENT REGARDING ORAL ARGUMENT

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

believes oral argument will assist the court in deciding not only the issue presented

in this case, but in cases involving other variances in controlled substance


                                           1
laboratory reports that have a material impact on the integrity of the underlying

conviction, such as the identification of different controlled substances and/or

different weights.



                              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 by the
      Houston Police Department were fully consumed by the chemical field-test,
      leaving no remaining evidence for confirmatory testing by an accredited
      forensic laboratory.



             STATEMENT OF THE PROCEDURAL HISTORY

      On June 19, 2007, the applicant entered a plea of guilty to the primary case

and was convicted of the state jail felony offense of possession of cocaine (less

than one gram). The applicant entered into a plea bargain agreement with the

State, and was sentenced by the trial court to ninety (90) days in the Harris County

Jail pursuant to section 12.44(a) of the TEXAS PENAL CODE.

      On September 15, 2009, the Houston Police Department Crime Laboratory

drafted a letter to the Harris County District Attorney’s Office indicating that the

evidence had been examined, that the officer had used the entire visible sample in

the field test, and that no unprocessed sample was available for analysis. On May

27, 2014, during a comprehensive review of controlled substance variance cases,


                                         2
the State located this letter and immediately forwarded it 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).

      On January 27, 2015, the applicant, represented by Harris County Assistant

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

cause number 1121345-A. On February 10, 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 March 18, 2015, the Court of Criminal Appeals remanded the application

for additional findings of fact. On May 19, 2015, the trial court signed the parties’

Agreed Supplemental Findings of Fact and Conclusions of Law Pursuant to March

18, 2015 Order and recommended that relief be granted in the applicant’s case.

      On June 24, 2015, the Court of Criminal Appeals remanded the application

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




                            STATEMENT OF FACTS

      On June 17, 2007, Houston Police Officer J.C. Masaba observed the

applicant trespassing at a Burger King restaurant in Harris County, Texas. Officer

Masaba found the applicant to be intoxicated and arrested him for the offense of

                                           3
public intoxication. Incident to the applicant’s arrest, Officer Masaba searched the

applicant and retrieved a crack cocaine rock (with broken pieces) from the

applicant’s left front pants pocket. Officer Masaba field-tested the crack cocaine

rock and received a positive result, indicating cocaine.        The applicant was

subsequently charged with the state jail felony offense of possession of a

controlled substance, namely, cocaine (weighing less than 1 gram), in cause

number 1121345.

      On June 19, 2007, the applicant waived indictment in the primary case and

entered into a plea agreement with the State of Texas. See February 10, 2015,

Agreed Findings of Fact and Conclusions of Law, cause no. 1121345-A. After a

plea of guilty, the applicant was sentenced by the trial court to ninety (90) days in

the Harris County Jail, pursuant to section 12.44(a) of the TEXAS PENAL CODE. Id.

      On September 15, 2009, over two years after the applicant’s plea, the State

received a letter from the Houston Police Department Crime Laboratory indicating

that the evidence had been examined, that the officer had used the entire visible

sample in the field test, and that no unprocessed sample was available for analysis.

See February 10, 2015, Agreed Findings of Fact and Conclusions of Law, cause no.

1121345-A. On May 27, 2014, during a comprehensive review of controlled

substance variance cases, the State located this letter and immediately forwarded it

to the Harris County Public Defender’s Office, pursuant to its continuing


                                         4
obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed. 215 (1963).

      On January 27, 2015, the applicant, represented by Harris County Assistant

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

cause number 1121345-A, alleging that the applicant’s plea was involuntary and

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



                       SUMMARY OF THE ARGUMENT

       The applicant’s plea of guilty to the state jail felony offense of possession of

a controlled substance was involuntary when the substances seized by the Houston

Police Department were fully consumed by a chemical field-test, leaving no

remaining evidence for confirmatory testing by an accredited forensic laboratory.

Under this Court’s own jurisprudence in Curtis v. State, 548 S.W.2d 57 (Tex.

Crim. App. 1977), a positive chemical field test alone is insufficient to support a

controlled substances conviction. The applicant pled guilty to possessing less than

one gram of cocaine; however, the substance seized from the applicant was never

confirmed to be cocaine.      As a result, the State believes that the applicant’s

conviction in the primary case was, in fact, erroneous.




                                          5
                                   ARGUMENT

      THE  APPLICANT’S PLEA OF GUILTY TO THE FELONY OFFENSE OF
      POSSESSION OF A CONTROLLED SUBSTANCE WAS INVOLUNTARY
      WHEN THE SUBSTANCES SEIZED BY THE HOUSTON POLICE
      DEPARTMENT WERE FULLY CONSUMED BY THE CHEMICAL FIELD
      TEST, LEAVING NO REMAINING EVIDENCE FOR CONFIRMATORY
      TESTING BY AN ACCREDITED FORENSIC LABORATORY.

      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 for

possession of a controlled substance.         See Curtis v. State, 548 S.W.2d 57

(Tex.Crim.App. 1977)(holding that neither an experienced narcotics officer’s

testimony that a substance field-tested positive for an opiate derivative, nor his

hearsay testimony that he was told by a chemist that the substance was heroin, was

sufficient to prove that substance was, in fact, heroin). 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 substances seized from him

had been fully consumed by the chemical field test, rendering them unavailable for

confirmatory testing, his plea of guilty to possessing cocaine was unknowing and

involuntary. Had the parties known of the variance at the time of the applicant’s

plea, the case would likely have been dismissed by the Harris County District

Attorney’s Office.




                                          6
      Simply put, the applicant stands convicted of an offense for which there is

insufficient evidence.    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. The State, however, welcomes guidance from the Court on how to handle

variance cases in the future.




                                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




                                             7
                         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: August 24, 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 779 words excluding portions not to be counted

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

                                             / s / Inger H. Chandler
                                             INGER H. CHANDLER




                                         8
