## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S
NO. WR-81,829-01

EX P ARTE QUINTEN LO VELL B ROWN, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. F R 65894-A IN THE 426T H DISTRICT COURT FROM BELL COUNTY

Per curiam . O P I N I O N
Pursuant to the provisions of Article 11.07 of the Texas C o d e o f C ri minal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte
Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant wa s convicted of possessing one
g ram or more but less than four g rams of a controlled substance in trial court cause no. 65,894. The trial court assessed a sentenc e of sevente en y ear s’ imprisonment. This sent ence is to be serve d

concur rently with another se ventee n-y ear sentenc e assessed in trial court c ause no. 66,339. In that

cause , Applicant was convicted of possessing with intent to deliver four g rams or more but less than four hundr ed g rams of a

controlled substanc e. Applicant did not appea l either c onviction. 1

T h e j u d g m e n t i n c a u s e n o . 6 6 , 3 3 9 r e f l e c t s t h a t t h e d r u g q u a n t i t y w a s “ F O U R G R A M S O R M O R E B U T L E S S 1 T H A N 2 0 0 G R A M S

. ” T h e i n d i c t m e n t , h o w e v e r , a l l e g e d “ f o u r g r a m s o r m o r e b u t l e s s t h a n 4 0 0 g r a m s . ” T h i s r a n g e c o i n c i d e s w i t h t h e r a n g e s p e c i f i e d i n t h e a p p l i c a b l e s t a t u t e o f p r o s e c u t i o n f

o r p o s s e s s i n g w i t h i n t e n t t o d e l i v e r M D M A , w h i c h i s l i s t e d u n d e r P e n a l t y G r o u p 2

. C O N T R O L L E D S U B S T A N C E S A C T § § 4 8 1

. 1 0 3 ( a ) ( 1 ) , 4 8 1

. 1 1 3 ( a ) , ( d )

.-2-

Applicant’s two convi ct i ons conce rn 3, 4-methylenedioxy -methamphe tamine (MDMA), which is commonly known as ecsta sy . See C O N T R O L L E D S U B S T A N C E S A C T § 481.103(a) (1). The char g es ar ose fr om separate ar rests. At the time of the a rre sts, the drugs were field-we ighe d at 1.2
g rams for the fi rst arr est and at 4.8 g rams for the second arr est. The State char g ed Applicant for possessing 1-4 g rams of MDMA and for possessing with intent to deliver 4-400 g rams of MDMA.
See C O N T R O L L E D S U B S T A N C E S A C T §§ 481.116(a) , (c) , 481.113(a) , (d). The State also alleg ed that Applicant had prior felony convictions, which it appea rs from the habea s rec ord raised the applicable punishment le vel for the possession case from a third-deg ree felony to a second- deg ree felony and made the minimum punishment for the delivery case , alre ady a first-degree felony , fiftee n y ear s. See
T E X
. P E N A L C O D E §§ 12.42(a) , (c) (1). Applica nt pled g uilty

to both offense s. After sentenc ing, lab testing was completed on the drug s, and it was discovere d that the true

mass of the MDMA from the first arr est was 0.60 g rams and not twice that amount as was repor ted from the field testing. Thus, the applicable offe nse level was a state jail felony , and not a third-deg ree felony enhanc eable to a second- deg ree felony , as was char g ed. See C O N T R O L L E D S U B S T A N C E S A C T § 481.116(a), (b ). The lab testing for the MDMA from the second arr est indicated a mass of 4.72
g rams, which is near the 4.8 g rams repor ted from field testing. The State informed Applicant of the lab re sults, and Applicant filed seve ral ha beas a pplications. Applicant filed this -01 habea s application conce rning the 1-4 g ram possession case (trial
court cause no. 65,894) and alleg ed that his sevente en-y ear sentenc e is in excess of that authorized by statute for a state-jail felony , which has a penalty rang e of 180 day s to two y ear s in the state jail.
T E X
. P E N A L C O D E § 12.35(a)

. The trial court, w it h th e St a te ’s ag ree ment, rec ommends g ranting relief by vacating the conviction and returning Applicant to answe r the indictment. See Ex parte Bec k , 922
S.W .2d 181 (Tex. Crim. App. 1996). The trial court’s finding s and rec ommendation are supported-3-

by the record and are adopted by this Court. Be cause Appli ca nt’s sentenc e in cause no. 65,894 is in excess of the stat u t o ry m ax imum for the offe nse, relief is g rante d. The judgme nt in cause no. 65,894 in the 426th District Court of Be ll County is set aside, an d Ap p l i ca n t is rema nded to the custody of t he S heriff of Bell County to answe r t he charg es as set out in the indictment. The trial
court shall issue any nece ssary bench war rant within 10 day s afte r the mandate of this Court issues. Applicant also filed a -02 habea s application conce rning the 4-400 g ram delivery case (trial
court c ause no. 66,339) and raised the same unauthorized sentenc e cla im based upon the same lab testing. The lab repor

t pertinent to this conviction, howeve r, shows that the seized drug s had a mass of 4.72 g rams, which is within the off ense r ang e of f

our g rams or more but less than four hundr ed
g rams. The trial court recommends that the habeas application be denied, which recommendation is supported by the habea s rec ord. The trial court’s finding s have been adopted by this Court in the -02 habe as proc eeding , and that applica tion has been de nied by

this Court. Applicant’s -03 habea s application is a duplicate of his -01 habea s application that conce rns the possession case in trial court cause no. 65,894. Be cause the -01 h ab eas application is being disposed of as discussed above, the duplicate -03 habea s application h as b ee n dismiss ed by this
Court as moot. Applicant’s -04 habea s application was filed by the attorne y who represe nted Appli cant at trial, and the application also raises an u n authoriz ed sentence claim conce rning cause no. 65,894. The trial court rec ommends that the application be dismiss ed as subsequent. This dispositi on is not

corr ect beca

use this Court, when the -04 habea s application was filed in the trial court, had not y et disposed of any habea s application for Applicant, so the -04 application is not subject to dismissal

as a subsequent habea s application. See C O D E C R I M
. P R O C
. art. 11.07 § 4(a) (stating “I f a subsequent-4-

application for writ of habea s corpus is filed afte r final dispositi on of an initial application challeng ing the same conviction, a court may not consider the merits of or g rant relief based on the subsequent application unless ....”); see also Ex parte Owe ns , 206 S.W .3d 670, 676 n. 38 and 679 (Tex. Crim. App. 2006). Be cause the relief reque sted in the -04 habea s application is being g rante d in this opinion for the -01 habea s application, the -04 habea s application has been dismiss ed by this
Court as moot. Copies of this opinion shall be sent to the Te xa s D e p a r tm e n t o f Crim in al J ustice–Corre ctional
I nstitut ions Division and Pardons and Paroles Division.

Deliver ed: September

17, 2014 Do not publish