N O . WR -83,489- 01 I N T HE C OURT OF C RIMINAL A PPEALS

E X P ARTE G’C OBRA S MITH , A PPLICANT

On Application for Writ of Habeas Corpus in Cause No. 1449083-A, Challenging the conviction in Cause No. 1449083, From the 337 th Judicial District Court of Harris County, Texas

A PPLICANT ’ S B RIEF

Oral Argument Requested A LEXANDER B UNIN Chief Public Defender Harris County, Texas
N ICOLAS H UGHES Assistant Public Defender Harris County, Texas TBN : 24059981 1201 Franklin St., 13 th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 437-4316 nicolas.hughes@pdo.hctx.net

A TTORNEY FOR A

PPLICANT WR-83,489-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/22/2015 4:59:31 PM Accepted 10/26/2015 7:51:53 AM

ABEL ACOSTA CLERKii I DENTITY OF P ARTIES AND A TTORNEYS

A PP LICANT : G ’C OBRA S MITH

T RIAL P ROSECUTOR : C OBY L ESLIE Assistant District Attorney Harris County, Texas 1201 Franklin Street, 6 th Floor H ouston, Texas 77002

A TTORNEY AT T RIAL : J EANIE D ICK EY Attorney at Law 3115 Preston Road, Suite F Pasadena, TX 77505

P RESIDING J UDGE AT T RIAL : H ON
. R ENEE M AGEE 337 th District Court Harris County, Texas 1201 Franklin Street, 1 5 th floor Houston, Texas 77002

A TTORNEY FOR S TATE ON H ABEAS : I NGER C HANDLER Assistant District Attorney Harris County, Texas 1201 Franklin Street, 6 th Floor H ouston, Texas 77002

A TTORNEY FOR A PP LICANT : N ICOLAS H UGHES Assistant Public Defender Harris County, Texas 1201 Franklin St., 13 th Floor Houston, Texas 77002iii T ABLE OF C ONTENTS
I DENTITY OF P ARTIES AND A TTORNEYS

................................ ................................ ............. ii
T ABLE OF C ONTENTS

................................ ................................ ................................ ............ iii
I NDEX OF A UTHORITIES

................................ ................................ ................................ ........ v S TATEM ENT OF THE C ASE

................................ ................................ ................................ ..... 1
S TATEMENT OF P ROCEDURAL H ISTORY

................................ ................................ .............. 1
S TATEMENT R EGARDING O RAL A RGUMENT

................................ ................................ ...... 2
I SSUE P RESENTED

................................ ................................ ................................ ................... 2
S TATEMENT OF F ACTS

................................ ................................ ................................ ............ 2
S UMMARY OF THE A RGUMENT

................................ ................................ .............................. 3
A RGUMENT

................................ ................................ ................................ .............................. 4 1. Applicant’s plea is rendered involuntary in light of the discovery that the plastic bottle seized from Applicant did not contain any illicit substances

........................... 4 A. The standard of review employed in involuntary plea cases

............................ 4 B. When reviewing the voluntariness of a plea in light of new ex culpatory information, this Court should focus on the hypothetical question of what the Applicant would have done differently if he had known of the exculpatory information

................................ ................................ ................................ .................. 4 C. Having conclus ive evidence that the plastic bottle contains no controlled substances materially increases the strength of Applicant’s case

.......................... 6 D. Applicant would not have pled guilty if he had known that the substance seized in his case did not contain any illicit materials

................................ ............. 8 2. In light of the revelation of material, exculpatory evidence, Applicant’s conviction offends fundamental principles of f airness

................................ ................ 8 A. Newly discovered evidence and Federal habeas caselaw

................................ .. 8iv

B. The use of unreliable evidence as the basis for convictio n offends a person’s right to due process

................................ ................................ ................................ .... 9 C. In light of the newly discovered evidence, Applicant’s conviction violates due process

................................ ................................ ................................ ................ 10 3. The fact that the evidence contains no controlled substances has important legal implications in Applicant’s case

................................ ................................ .................... 12 A. Applicant’s mere possession of a non

- scheduled, non

- prescrip tion substance is not a crime, even if one believes it is truly a controlled substance

................. 12 i. By its own text, Section 481 does not apply to any substance which may be sold without a prescripti on ................................ ................................ ........... 12 ii. Section 482 of the Health & Safety Code does not permit the prosecution of one who merely possesses a simulated controlled substance

................... 13

a. Section 482 of the Health & Safety Code is in pari materia with Section 481 of the Health & Safety Code

................................ .................. 13 b. Applicant may not be prosecuted for allegedly mere possession of a simulated controlled substance

................................ ................................ .... 14 B. The aggregate weight of the evidence, including “adulterants or dilutants” was improperly considered in fixing Applicant’s punishment

............................ 15 i. “Adulterants or dilutants” can only be added to the aggregate weight in cases involving an actual controlled substance

................................ ................ 15
ii. Prosecution s for possession of “drank” are often classified by the weight of the adulterants and dilutants added to codeine syrup

................................ 17 iii. The weight of “adulterants or dilutants” was improperly considere d in this case

................................ ................................ ................................ ................. 18
P RAYER

................................ ................................ ................................ ................................ .. 19
C ERTIFICATE OF S ERVICE

................................ ................................ ................................ .... 20
C ERTIFICAT E OF C OMPLIANCE

................................ ................................ ........................... 20v I NDEX OF A

UTHORITIES Federal Cases Brady v. Maryland

, 373 U.S. 83 (1963)

................................ ................................ ............. 9, 11 Townsend v. Sain , 372 U.S. 293 (1963) overruled on other grounds by Keeney v. Tamayo

- Reyes , 504 U.S. 1 (1992)

................................ ................................ ................................ ................. 9 State Case s Boykin v. State , 818 S.W.2d 782 (Tex. Crim. App. 1991)

................................ .................. 17 Brown v. State , 491 S.W.2d 124 (Tex. Crim. App. 1973)

................................ ..................... 5 Cheney v. State , 755 S.W.2d 123 (Tex. Crim. App. 1988)

................................ .................. 13 Daughtry v. State , 2003 WL 139599, Nos. 01

- 02

- 00250

- CR, 01

- 02

- 00251

- CR (Tex. App .−Houston [1st Dist.] Jan. 9, 2003, pet. ref’d) (mem. op., not designated for publication)

................................ ................................ ................................ ........................ 17 Ex parte Elizondo , 947 S.W.2d 202 (Tex. Crim. App. 1996)

................................ ............... 9 Ex parte Henderson , 384 S.W.3d 833 (Tex. Crim. App. 2012)

................................ ...... 2, 10 Ex parte Hobbs , 393 S.W.3d 780 (Tex. Cr im. App. 2013)

................................ ............ 8, 10 Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014)

................................ ........... 4, 5, 8 Ex parte Smith , NO. WR

– 83,489

– 01, 2015 WL 5453046 (Tex. Crim. App., Sept. 16, 2015)

................................ ................................ ................................ ................................ ..... 2 Leonard v. State , 385 S.W.3d 570 (Tex. Crim. App. 2012)

................................ .................. 9 Massachusetts v. Scott

, 5 N.E .3d 530 (Mass. 2014)

................................ ......................... 4, 5, 6 Miles v. State , 357 S.W.3d 629 Tex. Crim. App. 2011)

................................ ...................... 17 Mills v. State , 722 S.W.2d 411 (Tex. Crim. App. 1986)

................................ ..................... 13 Nimer v. State , No. 01

- 99

- 00229

- CR, 1999 WL 997813 (Tex. App.−Houston [1st Dist.] Nov. 4, 1999, pet. ref’d) (mem. op., not designated for publication)

........................... 7vi

Oliver v. State , 2015 WL 1933389, No. 14

– 13

– 00957

– CR (Tex. App.−Houston [14th Dist.] May 20, 2015, pet. ref’d) (mem. op., not designated for publication)

............. 17 Pena v. State , 353 S.W.3d 797 (Tex. Crim. App. 2011)

................................ ........................ 9 Rodr iguez v. State , 879 S.W.2d 283 (Tex. App.−Houston [14th Dist.] 1994) (pet. ref’d)

................................ ................................ ................................ ................................ . 13, 14, 15 Seals v. State , 187 S.W.3d 417 (Tex. Crim. App. 2005)

................................ ............... 16, 18 Sosa v. Warden , No. CV020817531, 2004 WL 1925898 (Conn. Super. Ct. July 26, 2004) (unpub.)

................................ ................................ ................................ .............................. 11 State v. Wilson , 324 S.W.3d 595 (Tex. Crim. App. 2010)

................................ .................. 19 Sweed v. State , 2003 WL 22456107, No. 01

- 02

- 00486

- CR (Tex. App.−Houston [1st Dist.] Oct. 30, 2003, no pet.)(mem. op., not designated for publication)

.................. 18 Whitfield v. State , 916 S.W.2d 49 (Tex. App.−Houston [1st Dist.] 1996) (pet. ref’d)

.... 14 State Statutes
T EX
. G OV ’ T C ODE A NN
. § 311.021 (West 2013)

................................ .............................. 17 T EX
. G OV ’ T C ODE A NN
. § 311.026 (West 2013)

................................ .............................. 14 T EX
. H EALTH & S AFETY C ODE A NN
. § 481 (West. 2013)

................................ .......... 7, 14 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.002 (West 2013)

.............................. 7, 15, 16 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.033 (West 2013)

................................ ........ 12 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.112 (West 2013)

................................ .. 13, 16 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.115 (West 2013)

................................ ........ 13 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.118 (West 2013)

............................ 16, 18, 19 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.119 (West 2013)

................................ ........ 16 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.120 (West 2013)

................................ ........ 16 T EX
. H EALTH & S AFETY C ODE A NN
. § 481.121 (West 2013)

................................ ........ 16vii

T EX
. H EALTH & S AFETY C ODE A NN
. § 482 (West 2013)

................................ ........... 7, 14 T EX
. H EALTH & S AFETY C ODE A NN
. § 482.002 (West 2013)

................................ .. 13, 16 T EX
. H EALTH & S AFETY C ODE A NN
. § 483.041 (West 2013)

................................ ........ 16 T EX
. P ENAL C ODE A NN
. § 15.01 (West 2011)

................................ ........................ 6, 18, 19 T EX
. P ENAL C ODE A NN
. § 6.04 (West 2011)

................................ ................................ ...... 7 T EX
. P ENAL C ODE A NN
. Ch. 15

................................ ................................ ......................... 12 Federal Regulations 21 C.F.R. § 340

................................ ................................ ................................ ...................... 12 Stimulant Drug Products for Over

- the

- Counter Human Use; Final Monograph; Final Rule , 53 Fed. Reg. 6100 (Feb. 29, 1988)

................................ ................................ ........................ 12 Other Authorities Anna Merlan, Don't Panic, But There's Probably Meth in Your Ecstasy and De

- Wormer In Your Cocaine D ALLAS O BSERVER (Mar. 6, 201 2) available at http://www.dallasobserver.com/news/dont

- panic

- but

- theres

- probably

- meth

- in

your

- ecstasy

- and

- de

- wormer

- in

- your

- cocaine

- 7145964

................................ ................. 7 Donna Leinwand, DEA warns of soft drink

- cough syrup mix , USA T ODAY (Oct. 19, 2006)

................................ ................................ ................................ ................................ ............. 17 Pleadings and Motions Agree d Findings of Fact and Conclusions of Law, Ex parte Smith , No. 1449083

- A (179th Dist. Ct. Harris Cty., Tex. May 21, 2015) (filed June 16, 2015)

................................ ..... 11 S TATEMENT OF THE C ASE On November 20, 2014, Applicant was charged for the possession of a plastic bottle suspected to contain a mixture of codeine cough syrup and other liquids. Without the benefit of a forensic analysis of the liquids inside the bottle, Applicant pled guilty to possession of substance in penalty group four (codeine and non

narcotic ingredients), at least 28 grams but less than 200 grams in weight. On March 23, 2015, the evidence inside the plastic bottle was tested and was determined not to contain any illicit materials. Applicant challenges the validity of the plea agreement in light of the newly discovered, exculpatory information.

S TATEMENT OF P ROCEDURAL H ISTORY On November 20, 2014, Applicant was charged with possession of substance
in penalty group 4 (codeine and nonnarcotic ingredients) , at least 28 grams but less than 200 grams in Cause 1449083. Writ Exhibit 1. On November 24, 2014, pursuant to a plea agreement, Applicant pled guilty and was convicted. Writ Exhibits 2, 3. Applicant has collaterally challenged his conviction on the grounds that his plea was involuntary and that Applicant’s conviction violates his right to due process. On June
1 6, 2015, the trial court entered agreed findings of fact and conclusions of law recommending relief. Agreed Findings of Fact and Conclusions of Law, Ex parte Smith , No.
1449083

- A (17 9th Dist. Ct. Harris Cty., Tex. May 21, 2015) ( filed June 16 , 2015)

. On September 16, 20 15, this Court filed and set this case for submission to “d etermine whether, under these circumstances, Applicant’s plea to a lesser offense which was2

arguably supported by the evidenc e was rendered involuntary by the subsequent discovery that the evidence would not have supported the greater charge. The parties
shall brief these issues. ” Ex parte Smith , NO. WR

– 83,489

– 01, 2015 WL 5453046 * 1 (Tex. Crim. App. , Sept. 16, 2015)

.

S TATEMENT R EGARDING O RAL A RGUMENT Applicant’s case falls squarely in the area where the post

- co nviction analysis of due process has yet to be fully articulated

. See Ex parte Henderson , 384 S.W.3d 833, 835 (Tex. Crim. App. 2012) (Price, J. concurring). Additionally, Applicant’s case presents a novel issue in terms of whether Applicant’s plea was invo l untary when he pleaded guilty to a lesser

- included offense, an offense possibly supported by the evidence in
this case . In light of the importance of this case, not only to the Applicant but to Texas jurisprudence as a whole , Applicant requests oral argum ent.
I SSUE P RESENTED

“ [W]hether, under [the] circumstances [of Applicant’s case], Applicant's plea to a lesser offense which was arguably supported by the evidence was rendered involuntary by the subsequent discovery that the evidence would not have suppo rted the greater charge. ” Ex parte Smith , 2015 WL 5453046 at *1

. S TATEMENT OF F ACTS On November 20, 2014, Applicant was arrested and charged with possession
of substance in penalty group 4 (codeine and nonnarcotic ingredients) , at least 28 grams but less than 200 grams. Writ Exhibit 1. Just four days later, Applicant pled3

guilty to the lesser included offense of attempted possession of substance in penalty group 4 (codeine and nonnarcotic ingredients), at least 28 grams but less than 200 grams, was convicted, and was sentenced to 180 days in state jail. Writ Exhibits 2, 3, 4 On March 23, 2015, months after Applicant had been convicted, the Harris County
Institute of Forensic Science tested the evidence s eized in Applicant’s case and determined that the evidence in this case did not contain any illicit materials , but was merely a caffeinated beverage . Writ Exhibit 5.
S UMMARY OF THE A RGUMENT With a laboratory report in hand indicating that no illicit mate rials were found in evidence seized by law enforcement, a defendant’s prospects change dramatically when facing charges related to drug possession. The laboratory report can affect the plea negotiation process, the State’s desire to prosecute or dismiss a case, the State’s burden of proof, the legal defenses to the case, and the credibility of offense reports and witness statements made in connection with the case. Though the Applicant pled to attempted possession of a substance in penalty group 4 (codeine and nonnarcotic ingredients), at least 28 grams but less than 200 grams, an offense which may possibly be supported by the evidence in this case, the ultimate statutory offense of conviction and punishment exposure represent but a single facet of how an e xculpatory lab report affects a drug possession case. In light of all the lost strategic, procedural, and evidentiary advantages that would have been aff orded to Applicant if he had the laboratory report at the time of his plea , Applicant’s plea is invol untary.4 A RGUMENT 1. Applicant’s plea is rendered involuntary in light of the discovery that the plastic bottle seized from Applicant did not contain any illicit substances A. The standard of review employed in involuntary plea cases Ex parte Mable set fo rth the standard of review employed in cases where it is revealed that seized evidence does not contain any controlled substances: It is well established that a guilty plea must be entered knowingly and voluntarily. Moreover, because a guilty plea is an ad mission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. This means that the defendant must have sufficient awareness of the relevant circumst ances. The standard is whether the plea is a voluntary and intelligent choice among the alternative courses of action open to the defendant. In this case, all parties involved, including the applicant, incorrectly believed the applicant had been in possess ion of drugs. This fact is crucial to this case, and while operating under such a misunderstanding, the applicant cannot be said to have entered his plea knowingly and intelligently. Ex parte Mable , 443 S.W.3d 129, 13 1 (Tex. Crim. App. 2014)

. B. Whe n reviewing the voluntariness of a plea in light of new exculpatory information, this Court should focus on the hypothetical question of what the Applicant would have done differently if he had known of the exculpatory information “[A] defendant's guilty plea [...] may be vacated as involuntary because of external circumstances or information that later comes to light. ” Massachusetts v. Scott , 5 N.E.3d 530, 540 (Mass. 2014) ( Massachusetts case stemming from laboratory head Annie Dookhan’s pervasive misconduct). This Court has acknowledged that when
laborato ry testing is conducted and reveals the evidence in the case does not “contain5

any illicit materials,” the fact is “crucial to [the] case, and while operating under [a misunderstanding about the nature of the evidence,] the applicant cannot be said to
have entered his plea knowingly and intelligently.” Ex parte Mable , 443 S.W.3d at 130

- 131. But apart from the generally applicable proclamation that the Court must
consider “all the fact s and circumstances,” there are few detailed examples of how the Court should evaluate an involuntary plea involving “newly discovered evidence.”
Brown v. State , 491 S.W.2d 124, 125 (Tex. Crim. App. 1973)

. Applicant believes that Massachusetts v. Scott endorses legal pr inciples compatible
with Texas jurisprudence and applicable to this case: Therefore, in [the Applicant’s] case, the [Court] may consider such relevant facts as the circumstances of the defendant's arrest and whether the [State] possessed other circumstantial evidence tending to support the charge of drug possession, along with the [...] terms of the sentence [...] he received and other facts that may come to light on reconsideration of the defendant's [case], including any anticipated collateral consequences stemming from accepting a plea offer rather than pursuing a trial by jury. Thus, we emphasize that the full context of the defendant's decision to enter a plea agreement will dict ate the assessment of his claim that [the newly discovered evidence] would have influenced the defendant's decision to plead guilty. See Ferrara , 456 F.3d at 294 ("Because a multiplicity of factors may influence a defendant's decision to enter a guilty ple a, a court attempting to answer this question must use a wide

- angled lens").
Massachusetts v. Scott

, 5 N.E.3d at 548. The Scott court cautioned against looking to how the prosecution might have corrected the problems exposed by the newly discovered6

evidence , 1 as it “would require a court to heap inference upon inference and will bring the inquiry under this prong too far afield of the facts and circumstances actually
known to the defendant at the time of his guilty plea.” Id

. C. Having conclusive evidence that the plastic bottle contains no controlled substances materially increases the strength of Applicant’s case Knowing a forensic analysis conclusively indicat es that seized materials contain no controlled substances is a material and exculpatory fact that has wide

- rangin g implications for a defendant: 1) Attempted possession of a controlled substance has less maximum criminal exposure than possession of a controll ed substance. T EX
. P ENAL C ODE A NN
. § 15.01(d) (West 2011)

. 2) The State has an increased burden of proof in an attempted possession of a controlled substance case. The Stat e must show that the defendant specifically intended to possess a specific drug, and may not prove that a defendant merely knowingly possessed what might

– or might not have been

– a controlled substance. T EX
. P ENAL C ODE A NN
. § 15.01(a) (West 2011)

. 3) Evidence that does not contain a controlled substance has no inherent evidentiary value, and the State would have to prove that a defendant attempted to possess a controlled substance by potentially ambiguous or innocuous cont extual evidence (appearance of the packaging, appearance, color, smell, etc.) and by Applicant’s admissible statements. In the context of what turned out to be merely a caffeinated beverage in a plastic cup, this would be a difficult showing. 4) Any observat

ions by officers regarding Applicant’s suspected codeine intoxication would lose credibility as there would be no forensic evidence to support those observations , potentially affecting the Court ’s analysis under the

1 In the Scott case, the prosecution indicate d that it would have offered to retest the evidence, had it known of Dookhan’s misconduct. Massachusetts v. Scott , 5 N.E.3d at 548.7

Fourth Amendment and the jury’s analysis under Article 38.23 of the Code of Criminal Procedure. 5) Other significant legal challenges may hamper the state’s case

a. Since the “doctrine of transferred intent” does not apply unless a person “caused a result,” the State would be required to prove that Applicant was certain the beverage contained a mixture of codeine and other nonnarcotic medical ingredients, and that Applicant was certain that beverage had not been adulterated or contained some substitute drug in place of codeine cough syrup. See T EX
. P ENAL C ODE A NN
. § 6.04(b) (West 2011) ; Anna Merlan, Don't Panic, But There's Probably Meth in Your Ecstasy and De

- Wormer In Your Cocaine D ALLAS O BSERVER (Mar. 6, 2012) avail able at http://www.dallasobserver.com/news/dont

- panic

- but

- theres

probably

- meth

- in

- your

- ecstasy

- and

- de

- wormer

- in

- your

- cocaine

- 7145964 (explaining that street drugs are often impure and that cheaper substitute drugs are often us ed in place of more expensive drugs).
b. As Texas Health & Safety Code § 481 is in pari materia with Texas Health & Safety Code § 482 when a simulated c ontrolled substance is involved and Texas Health & Safety Code § 481 explicitly does not apply to over

the

- counte r drugs like caffeine, i t is questionable whether a person can be prosecuted for mere possession of a simulated controlled substance. See infra at § 3(A).

c. “Adulterants and dilutants” are substances that increase the bulk of a controlled substance. T EX
. H EALTH & S AFETY C ODE A NN
. § 481.002(49) (West 2013) . Since no controlled substances were found in this case, it would seem that “adulterants and di lutants” could not be used to determine Applicant’s punishment range. See infra at § 3 ( B ). 6) Where no drugs are found in seized evidence, the State would be less inclined to prosecute a defendant’s case. The only easily

- found Houston

- area appeal mentionin g attempted possession of a controlled substance is a bizarre case where the defendant sought to find a crooked police officer to help him steal drugs from a cocaine dealer. Nimer v. State , No. 01

- 99

- 00229

- CR, 1999 WL 997813 (Tex. App.−Houston [1st Dist.] Nov. 4, 1999, pet. ref’d) (mem. op., not designated for publication )

.8

D. Applicant would not have pled guilty if he had known that the substance seized in his case did not contain any illicit materials Within the full context of the decision to plead guilty, it is not possible to discount the significance of having the forensic report at the time of making a decision to plead or proceed to trial. See Ex parte Mable , 443 S.W.3d at 131. Applicant’s
claim is stronger than many claims which have led to relief in similar context. When a forensic analyst’s practices were called into question in Ex parte Hobbs , this Court granted relief because the foundational evidence in the case was no longer reliable. Ex p arte Hobbs , 393 S.W.3d 780, 781 (Tex. Crim. App. 2013) . In Ex parte Hobbs , the defendant may, in fact, have committed the very offense he was convicted of, but uncertainty in the evidence necessitated a new trial. Id

. In Applicant’s case, there is no question of whether Applicant may have possessed codeine

– the question has been conclusively answered that no, he did not possess codeine. In light of the new evidence, in the interest of justice, and to promote fairness, Applicant should be provided a new trial with the advantage of the laboratory report before Applicant makes any strategic critical decisions in his case. 2. In light of the revelation of material, exculpatory evidence, Applicant’s conviction offends fundamental principles of fairness A. Newly discovered evidence and Federal habeas caselaw The Supreme Court has long recognized that a habeas applicant may be entitled to relief where newly discovered evidence “ which could not reasonably have been
presen ted to the state trier of facts” is presented and where the evidence “bear[s]9

upon the constitutionality of the applicant’s detention.” Townsend v. Sain , 372 U.S. 293 , 317 (1963) overruled on other grounds by Keeney v. Tamayo

- Reyes , 504 U.S. 1 (1992)

. The right to relief on the basis of newly discovered evidence is well settled when the evidence establishes a person’s innocence or when exculpatory evidence is deliberately suppressed by the prosecution. See Pena v. State , 353 S.W.3d 797, 809 (Tex. Cri m. App. 2011) (the suppression of Brady evidence violates a person’s due process rights); Ex parte Elizondo , 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) ( the incarceration of those who prove actual innocence by newly discovered evidence violates due process). Left unanswered by clear Federal precedent is wh at becomes of an applicant whose newly discovered evidence is exculpatory, but insufficient to establish actual innocence, and whose newly discovered evidence is not Brady evidence.
B. The use of unreliable evidence as the basis for conviction offends a pe rson’s right to due process Due process protects the accused from “an unfair trial,” from unfair treatment, and a trial which “comport[s] with standards of justice,” even absent any misconduct by any of the parties to a trial. Brady v. Maryland , 373 U.S. 8 3 , 87

– 88 (1963) . The conviction of a person based on unreliable evidence has been found to offend due process by this Court in several different contexts. In Leonard v. State , the use of unreliable polygraph examinations to revoke a person’s deferred

- adjudication community supervision was found to offend due process. Leonard v. State , 385 S.W.3d 570, 582

– 583 (Tex. Crim. App. 2012)

. In Ex parte Hobbs , this Court determined that a10

“ forensic scientist did not follow accepted standards when analyzing evidence and therefore the results of his analyses are unreliable ,” violatin g the defendant’s right to due process. Ex parte Hobbs , 393 S.W.3d at 781

. In Ex parte Henderson , this Court concluded that where new scientific evidence convinced the testifying medical examiner to change his unde rlying opinion about the case, the applicant was entitled
to relief. Ex parte Henderson , 384 S.W.3d 833, 833

– 8 34 (Tex. Crim. App. 2012)

. In tha t case, a majority of the Court concluded that the government had inadvertently used false or unreliable evidence. Changing science has cast doubt on the accuracy of the original jury verdict. Id. at 836

- 837 ( Pr ice, J. concurring, Cochran J. concurring). The link uniting these cases and other similar cases is that the Court lost its ability to conclude the defendant had been afforded a fair trial, whether or not any wrongdoing
ever occurred. Applicant has shown t hat his conviction was “based in critical part upon an opinion from the [officer that has been] disowned because it has been shown by subsequent scientific [testing] to be [false],” and his conviction violates due
process. Id. at 835 (J. Price, concurring). C. In light of the newly discovered evidence, Applicant’s conviction violates due process Without forensic testing showing that the evidence in this case contained no illicit materials, Applicant was at a mar ked disadvantage in the plea negotiation process. Even had Applicant protested his innocence, such claims often fall on deaf ears: overwhelming numbers of the accused protest their innocence, but many of11

those have no basis for that claim. See e.g. Sosa v. Warden , No. CV020817531, 2004 WL 1925898, 9 (Conn. Super. Ct. July 26, 2004) (unpub.) . (“[T]he claim of actu al innocence is frequently raised in a petition for a writ of habeas corpus. Nevertheless, in many cases such as in the case at bar, the petitioner and his counsel do not make anything other than a cursory attempt to prove the actual innocence claim.”). Wi thout concrete proof that the plastic cup did not contain codeine, there was ultimately no reason for the prosecutor to believe that Applicant would eventually be vindicated. Additionally, proof that codeine (along with nonnarcotic ingredients) could be
d etected in the plastic bottle was an essential element of the State’s initial prosecution of the Applicant. The contents of the plastic bottle were material evidence, likely the most critical evidence in Applicant’s case. If the main function of the due proces s clause is to ensure the accused receives a fair trial which comports with the standards of justice, then significant, exculpatory revelations which undermine the State’s case must trigger due process protection. Brady v. Maryland , 373 U.S. at 87

– 88. It simply seems fundamentally unfair that Applicant made the most important decision in his case, the decision to plead guilty and waive trial, without the benefit of the clear, exculpatory evidence revealed in his cas e.12

3
. The fact that the evidence contains no controlled substances has important legal implications in Applicant’s case A. Applicant’s mere possession of a non

- scheduled, non

- prescription substance is not a crime, even if one believes it is truly a control led substance i. By its own text, Section 481 does not apply to any substance which may be sold without a prescription A substance is excluded from the application of the Controlled Substances Act if it “may lawfully be sold over the counter without a pre scription , under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.). ” T EX
. H EALTH &
S AFETY A NN
. § 481.033(a, b) (West 2013)

. In 1988, the FDA approved caffeine as an

over

- the

- counter drug. Stimulant Drug Products for Over

- the

- Counter Human Use; Final Monograph; Final Rule , 53 Fed. Reg. 6100 (Feb. 29, 1988) . Since codification within the Code of Federal Regulations, the law regarding the over

- the

- counter dispensation of caffeine has remained relatively unchanged. See 21 C.F. R. § 340 et. seq. Inasmuch as Applicant possessed liquid containing caffeine, a substance which is explicitly excluded from the application of Section 481, it is improper to bring any prosecution
under t hat section in this case. The State should not be permitted to utilize Chapter 15
of the Penal Code to defeat the principle enunciated in Section 481.033

.13

ii. Section 482 of the Health & Safety Code does not permit the prosecution of one who merely posses ses a simulated controlled substance

a. Section 482 of the Health & Safety Code is in pari materia with Section 481 of the Health & Safety Code
The rule of in pari materia is a principle of statutory interpretation which is used to harmonize statutes which ap ply in a similar context: It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature. Cheney v. State , 755 S.W.2d 123, 126 (Tex. Crim. App. 1988)

. General and special acts may be in pari materia . If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to mak e the general act controlling.
Mills v. State , 722 S.W.2d 411, 413

– 4 14 (Tex. Crim. App. 1986)

. In the context of delivery of a fake controlled substance, appellate courts h ave held that the offense of delivery of a simulated controlled substance under Texas Health & Safety Code § 482.002 is in pari materia with offenses for delivery of a controlled substance under Texas Health & Safety Code §§ 481.112

- 481.115

. See Rodriguez v. State , 879 S.W.2d 283, 286 (Tex. App.−Houston [14th Dist.] 1994 , pet. ref’d) ; Whitfield v. State , 916 S.W.2d 49, 52 (Tex. App.−Houston [1st Dist.] 1996 , pet.14

ref’d) . In Rodri

guez , the Fourteenth Court of Appeals concluded that Rodriguez should have been charged with delivery of a simulated controlled substance after delivering 400 grams of flour to law enforcement officers: In this case, although appellant could have been conv icted under either statute, we find that Section 482.002 covers his actions with much greater precision than Section 481.112. Since there are conflicts between the statutes as to elements of proof and penalty provisions, the statutes are in pari materia an d appellant should have been charged with the more specific offense of delivery of a simulated controlled substance. Rodriguez , 879 S.W.2d at 286. b. Applicant may not be prosecuted for mere possession of a
s imulated controlled substance While a person may be prosecuted for the mere possession of a controlled substance under Chapter 481 of the H ealth & Safety Code , Chapter 482 of the Health & Safety Code contains no such provision allowing the prosecution of a person who merely possesses a simulated controlled substance. The specific provision which deals with simulated controlled substances must prevail over the general pro vision defining controlled substance offenses: “[i] f the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provi sion is the later enactment and the manifest intent is that the general provision prevail. ” T EX
. G OV ’ T C ODE A NN
. § 311.026 (West 2013) . Even assuming that Applicant t hought the substance in the plastic bottle contained codeine cough syrup, the only substance detected in the bottle was caffeine. Writ Exhibit 5. Under the rules of statutory construction, a court should15

presume that Applicant’s behavior constituted a less er harm to society than [the possession] of an actual controlled substance, ” because the legislature decided not to penalize the mere possession of a simulated controlled substance. Rodriguez , 879
S.W.2d at 286.
B
. The a ggregate weight of the evidence, including “adulterants or dilutants” was improperly considered in fixing Applicant’s punishment
i
. “Adulterants or dilutants” can only be added to the aggregate weight in cases involving a n actual controlled substance
While the definition of “ adulterant or dilutant ” is broad, it is a term that is
defined in the context of a mixture of a controlled substance and some other
substance:

“ A dulterant or dilutant ” means any material that increases the bulk or quantity of a control led substance , regardless of its effect on the chemical activity of the controlled substance.
T EX
. H EALTH & S AFETY C ODE A NN
. § 481.002(49) (West 2013) (emphasis added). In
Seals v. State , over reservations a bout the wisdom of the definition of “adulterants or dilutants” and over questions of whether the Controlled Substances Act could be applied in an unconstitutional manner, this Court held that the definition of
“adulterants or dilutants” must be interprete d according to its plain text : The literal meaning of the legislature's adulterant and dilutant definition is that any substance that is added to or mixed with a controlled substance, regardless of when, how, or why that substance was added, may be added t o the aggregate weight of the controlled substance as an adulterant or dilutant.16

Seals v. State , 187 S.W.3d 417, 420 (Tex. Crim. App. 2005) . However, unless a controlled substance is present in the mixture, the plain language of the statute does not authorize the inclusion of “adulterants or dilutants” when classifying a substance
that is not a controlled substance. As this Court has already noted, Texas’s Con trolled Substance Act places a heavy importance on context. For example, within the context of determining the aggregate weight of a controlled substance, an “adulterant or dilutant” means “ any material that increases the bulk or quantity of a controlled s ubstance , ” while within the context of drug paraphernalia, “adulterant or dilutant” is defined as a substance “that is used or intended to be used to increase the amount or weight of or to transfer
a controlled substance.” T EX
. H EALTH & S AFETY C ODE A NN
. §§ 481.002(17(F)), 481.002(49) (West 2013) . Additionally, the importance of the weight of a controlled substance varies upon context: while the punishment of a controlled substance listed within a penalty group depends heavily on the weight or abuse units of the controlled substance, the punishment of the possession of controlled substances not listed in a penalty group, dangerous drugs , and the delivery of simulated controlled substance does not depend on weight

. T EX
. H EALTH & S AFETY C ODE A NN
. §§ 481.112

- 481.118 , 481.120

- 121 ( controlled substances in a penalty group and marijuana); 481.119 (controlled substances not in a penalty group); 483.041 (dangerous drugs); 482.002 (simulated controlled substances). Only where the plain language of a statute would
lead to absurd resu lts may the court consider an interpretation that would arrive at a17

sensible interpretation of that statute See Boykin v. State , 818 S.W.2d 782, 785

– 786 (Tex. Crim. App. 1991)

. It is not an absurd result to include adulterants and dilutants when measuring the quantity of a controlled substance mixture, but to exclude any adulterants and dilutants when considering a substance that contains no controlled
substanc es. To the contrary, given that there is no prohibited substance to adulterate, it would be absurd to consider the weight of any “adulterants or dilutants” when determining the aggregate weight of something that is not a controlled substance. Excluding the weight of “adulterants and dilutants” in a case not involving a controlled substance gives effect to the entirety of the Controlled Substance Act and its related provisions. See T EX
. G OV ’ T C ODE A NN
. § 311.021(2) (West 2013)

. ii . Prosecutions for possession of “drank” are often c lassified by the weight of the adulterants and dilutants added to c odeine syrup Codeine cough syrup is commonly recreationally abused as par t of a beverage
sometimes called “lean,” “syrup,” or “drank.” 2 The codeine beverage often contains prescription codeine cough syrup, soda, and other inert ingredients like candy to make the beverage more palatable. 3 Under Texas’s liberal “adulterants and dilutants” definition, recreational users are frequently charged with felonies, as the weight of the

2 See Miles v. State , 357 S.W.3d 629, 642 Tex. Crim. App. 2011) (defining drank); Daughtry v. State , 2003 WL 139599, Nos. 01

- 02

- 00250

- CR, 01

- 02

- 00251

- CR *1 at n. 1, 2 (Tex. App.−Houston [1st Dist.] Jan. 9, 2003, pet. ref’d) (mem. op., not designated for publication) (defining “lean” and “syrup”). 3 See Oliver v. State , 2015 WL 1933389, No. 14

– 13

– 00957

– CR *1 (Tex. App.−Houston [14th Dist.] May 20, 2015, pet. ref’d) (mem. op., not designated for publication) (explaining how codeine is commonly recreationally abused); see Donna Leinwand, DEA warns of soft drink

- cough syrup mix , USA T ODAY (Oct. 19, 2006)

.18

soda in “drank” can easily transform a possession of a small amount of codeine into a serious felony. See e.g. Sweed v. State , 2003 WL 22456107, No. 01

- 02

- 00486

- CR, *1 (Tex. App.−Houston [1st Dist.] Oct. 30, 2003, no pet.)(mem. op., not designated for publication) (possession of the personal use of “drank” punished as a felony offense).
T he weight of the “adulterants or dilutants” can be considered regardless of whether
the “adulterants or dilutants” increase the il licit retail quantity of codeine syrup or whether the “adulterants or dilutants” are used to convert codeine syrup into “drank” for personal consumption. Seals , 187 S.W.3d at 420.
iii
. The weight of “adulterants or dilutants ” was improperly considered in this case When Applicant was arrested, officers retrieved 178.736 grams of “red liquid substance” found in a plastic bottle, suspect ing the substance to be “drank,” and submitted the evidence for testing. Writ Exhibit 4. Be fore the evidence was tested and determined not to contain any illegal controlled substances, Applicant pled guilty. Writ Exhibit 3. Applicant was convicted of possession of a substance in penalty group 4 (a codeine mixture), at least 28 grams but less tha n 200 grams in weight. Writ
Exhibit 3. The entire aggregate weight of the evidence , including soda or any other liquid part of the beverage, was used to determine Applicant’s punishment. See T EX
. H EALTH & S AFETY C ODE A NN
. § 481.11 8 (c) (West 2013) ; T EX
. P ENAL C ODE A NN
. §
15.01 (d) (West 2001) . The maximum punishment Applicant could have faced for attempted possession of substance in penalty group 4 is a class C misdemeanor. See19

T EX
. H EALTH & S AFETY C ODE A NN
. § 481.118(c) (West 2013) ; T EX
. P ENAL C ODE
A NN
. § 15.01 (d) (West 2013). Applicant was ineligible for the state

- jail sentence
assessed. State v. Wilson , 324 S.W.3d 595, 598 (Tex. Crim. App. 2010)

. P RAYER Applicant prays that this Court grant relief and remand his case to the trial
court for a new trial. Respectfully submitted,
A LEXANDER B UNIN Chief Public Defender Harris County Texas /s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender Harris County Texas 12 01 Franklin Street, 13 th Floor Houston Texas 77002 (713) 368

- 001 6 (713) 386

- 9278 fax TBA No. 24059981 nicolas.hughes@pdo.hctx.net20 C ERTIFICATE OF S ERVICE I certify that a copy of this Applicant’s Brief (Smith) has been served upon the Harris County District Attorney's Office

– Conviction Integrity, on October 22 , 2015 by
electronic service

. /s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender
C ERTIFICATE OF C OMPLIANCE This document complies with the typeface requirements of T EX
. R. A PP
. 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 T EX
. R. A PP
. P. 9.4(i), if applicable, because it contains 4,506 words excluding portions not to be counted under T EX
. R. A PP
. P. 9.4 (i)(1). /s/ Nicolas Hughes N ICOLAS H UGHES Assistant Public Defender