## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

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E X P A R T E A N D R E W S A U C E D O , A p p l i c a n t

O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S C A U S E N O
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- A I N T H E 2 6 2 D I S T R I C T C O U R T N D F R O M H A R R I S C O U N T Y

K E L L E R , P
. J
. , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h K E E L , J
. , j o i n e d
. Applicant knowing ly possessed a controlled substance. He knew at the time of his plea that
the substance had not y et been tested. But the State was g iving him a g rea t deal—six y ear s’ defe rre d adjudication—so he pled g uilty

. Testing on the substance was complete less than two months afte r the pl ea, but for almost three y ear s, Applicant did nothing to challen ge his conviction. Now that

1
his g uilt has been adjudicate d and he has been sentenc ed to ten y ear s, Applicant wants a do-over , and the Court g ives him one. Ther e ar e thre e re asons this is a mist ake.

Appl icant was place d on defe rre d adjudication on J anuar y 27, 2014. Acc ording t o 1 Applicant’s habea s application and the trial court’s finding s of fac t, the Houston Police Depa rtment Crime L abora tory tested the substance on Marc h 21, 2014. The habea s rec ord contains a labora tory repor t dated Mar ch 21, 2014, which show s methy lethcathinone r ather than methampheta mine.SAUCEDO DISSE NT — 2

First, under Ex parte Broussard , Applicant has not show n t h at h i s g uilty plea was involuntary

. The testing did not disprove Applicant’s g uilt of po s s es sing an illega l drug ; it just

2 proved tha t he possessed a differ ent illeg al drug than the one c harg ed. 3 Second, Applicant has not show n harm. Under the doctrine of transfe rre d intent, he is still

g uilty of culpably possessing the drug that the t esting reve aled, and the puni shm en t range for that drug is the same as the one with wh i ch h e wa s charg ed. Consequently , Applicant is not actua lly
innocent nor has he been subjected to a harshe r punishment r ang e than the offe nse that he ac tually committed would support.
The g ener al rule in post-conviction habea s proce eding s is that the convicted person has the
burden to s h o w h ar m
. To understand how harm could be shown in a case such as t his, we beg in 4
with the fac t that Applicant’s conviction was the result of a g uilty plea. A g uilty plea constitutes an admission of g uilt to th e ch arge d crime. I n pleading g uilty to possession of methamphetamine, 5 Applicant admitted to a ll of the elements of that off ense. H is claim now is that he is not g uilty of possession of methamphetamine beca use the testing conclusively establi shes that he possessed a differ ent drug

—methy lethcathinone. This claim does not satisfy th e r e q u ir e me n ts f o r s howing actua l
innocenc e beca

use Applicant coul d s t i ll be g uilty of the lesser- included offe nse of attempted

517 S.W .3d 814, 820 (Tex. Crim. App. 2017). 2
See id. 3 Ex parte Parrott , 396 S.W .3d 531, 534 (Tex. Crim. App. 2013). 4
United States v. Broc e , 488 U.S. 563, 570 (1989). 5SAUCEDO DISSE NT — 3

possession of methampheta mine. 6 Applicant’s g uilty plea to the methamphetamine offe nse and his habeas p l eading and

proce eding nece ssarily establish all the elem en t s o f t h e methy lethcathinone offense

. Under those
circ umstances, Applica

nt has eff ectively admitted his guilt of the methylethcathinone of fense

. Ba se drug -possession offe nses ordinarily contain four elements: (1) the possessi on of a 7 substance, (2) the amount of that substance, (3) the identity of that substance as a particula r drug , and (4) the culpable mental state for possession of t h e d ru g
. The possession of a substance and the 8

amount of that substance wer e admitted by Applicant at his g uilty plea, an d he does not now challeng e those admissions. I nstead, the claim is that the substance possessed was a differ ent drug
than the one alleg ed, namely methy lethcathinone, i n s t ea d of methamphetamine. So Applicant’s

g uilty pl ea t o the methamphetamine offe nse nece ssarily satisfied elements (1) and (2) of the methy lethcathinone of

fense

. As for element (3)—the identity of the substance as methy lethcathinone—tha t element was

nece ssarily satisfied by Applicant’s habea s pleading and this habea s proce eding

. To even make his
claim on habea s corpus, Appli cant has to conce de that the substance he possessed was methy lethcathinone. He cannot claim, for example, that the chemist tested the wrong substance or
that the testing proce dure was flawe d, beca use such claims would undermine his contention that the

See State v. W

ilson , 324 S.W .3d 595, 598 (Tex. Crim. App. 2010) (“We hold that the term 6 ‘ac tual innocenc e’ shall apply , in Texas state case s, only in c ircumstance s in which an acc used did not, in fact, c ommit t he cha rg ed off ense or any of the lesse r- include d offe nses.”)

. A base drug -possession offe nse would be one that is without enhanc ing elements such as 7 the possession being in a drug -fr ee zone. See T E X

. H E A L T H & S A F E T Y C O D E § 481.134 (drug fre e zone enhanc ement).
See e .g. , id. §§ 481.115, 481.116. 8SAUCEDO DISSE NT — 4

testing shows he did not possess methampet hamine. Applicant cannot use the identity of that
substance when it opera tes in his favor but call its identity in question when it opera tes ag ainst him.
And consistent with Applicant’s habea s pleading , the evidenc e in this habea s proce eding shows the
substance to be methy lethcathinone.
That leave s element (4), the culpable mental state. W e h av e s aid in the past that, for a possession-of-c ontrolled-substance offe nse, the State is require d to prove that the acc used “knew the

matter [poss essed] was contra band.” I f that is literally al l t h e S t at e is require d to prove, then

9 Applicant’s g uilty plea to intentionally and knowing ly possessing methamphetamine satisfies the culpable- mental-state e lement, and a ll four eleme nts have be en esta blished.
But methamphetamine and methy lethcathinone fall within differ ent penalty g roups, and it 1 0
could be arg ued that the culpable mental state applies at least to the penalty g roup that the substance
is in. I f that we re so, then the intent or knowledg e with re spect to a drug in pe nalty g roup 2 mig ht
differ from the intent or knowledg e with respe ct to a drug in penalty g roup 1. But this diff ere nce 1 1 ultimately

does not matter be cause of the lawof transf err ed intent.
The Penal Code contains two “tran s fe rr ed intent” doctrines, but the one applicable here
involves the transfe r of intent fr om one offe nse to another :

Ex parte Lane , 303 S.W .3d 702, 709 (Tex. Cri m
. App. 2009); Poindexte r v. State , 153 9 S.W .3d 402, 405 (Tex. Crim. App. 2005), overruled on other grounds by , Robinson v. State , 466 S.W .3d 166, 173 (Tex. Crim. App. 2015); Joseph v. State , 897 S.W .2d 374, 376 (Tex. Crim. App. 1995). B rac keted mate rial abse nt from Lane but present in Poindexte r and Joseph

. T E X

. H E A L T H & S A F E T Y C O D E §§ 481.102(6), 481.103( 4). 1 0 Compare T E X

. H E A L T H & S A F E T Y C O D E § 481.115 (“if the person knowing ly or 1 1 intentionally possesses a controlled substance listed in Penalty Group 1”), with id. § 481.116 (“if the person knowing ly

or intentionally

possesses a c ontrolled substance listed in P enalty Group 2” ).SAUCEDO DISSE NT — 5

A person is never

theless criminally responsible for ca u sing a result if the only differ ence betwee n what actua lly occ u rr ed and what he desired, contemplated, or risked is that . . . a diff

ere nt offense was c ommitt ed. 1 2
We have applied this version of the “tra nsfer red intent” doctrine to drug offe nses. Consequently , 1 3 Applicant’s culpable mental state with respe ct to methamphetamine, admitted to by his g uilty plea,
transfe rs to the methy lethcathinone of fense

. Be ca use Appli cant has eff ectively admitted, throug h his plea and his curr ent pl eadin gs , t o
all the elements o f p o s s es s ion of methy lethcathinone, and beca use that offe nse has the same punishment rang e as the methamphetamine offe nse to which he pled g uilty , Applicant has suffe red
no harm. Finally , Applicant should be estopped from challeng ing his plea beca use he waited to do so until his g uilt was adjudicate d. A person who rec eives probation as a part of a plea ag ree ment should
be estopped from challeng ing the validity of his plea when he enjoy s the benef its of being on probation and r aises his cha lleng e only afte r proba tion is revoked. Despite his alleg ation that he 1 4

T E X

. P E N A L C O D E § 6.04(b)( 1). 1 2
Mendoza v. State , 636 S.W .2d 198, 200 & n.2 (Tex. Crim. App. 1982). See also Palafox 1 3 v. State , 949 S.W .2d 48, 49 (Tex. App.—Texarkana 1997, no pet.). Although the lang uag e of the transfe rre d inten t i n s t ru ct i on talks about “ca using a result,” at least one court of appea ls has conclude d that possession of a controlled substance can qualify as a result-orie nted offe nse for the purpose of instructing the jury

. Adams v. State , 744 S.W .2d 622, 628-29 (Tex. A pp.—For t Worth 1987, pet. ref

’d). See also Skillern v. State , 890 S.W .2d 849 (Tex. App.—Austin 1994, no pet.) (citing Adams for the pr oposition t hat “a n offe nse may not fit neatly into either a ‘re sult’ ty

pe or a ‘nature of conduc t’ offe nse”)

. See Rhodes v. State , 240 S.W .3d 882, 890-91, 891 n.52, 892 n.57 (Tex. Crim. App. 2007) 1 4 (discussing with approva l the concur ring opinion in Ex parte W illiams , 65 S.W .3d 656, 658-60 (Tex. Crim. App. 2001) (Ke ller, P.J ., concur ring ), which conclude d that the plea- barg aining defe ndant in that case was estopped from cha lleng ing the trial court’ s judgme nt on the basis that probation was illega l beca

use he ha d acc epted the be nefits of probation).SAUCEDO DISSE NT — 6

would not have pled g uilty if he had known t h e re levant circ umstances, Applicant enjoy ed the
benef it of his plea barg ain for almost three y ear s afte r the substance was tested. The habea s court 1 5
found that Applicant was never made awa re of the lab repor

t afte r h i s initial plea or during the
motion to adjudicate

. Even so, Applicant could have inquired as to the result of testing, and had he
done so ea rl i er , could have filed a habea s application under Article 11.072, while he was still on probation. Gra

nting relief under such circ umstances crea tes a windfa ll for def endants who ha

ve 1 6 nothing to lose by lay

ing behind the log. I would hold that Applicant’s claim is barr ed by estoppel. 1 7
For these re asons, I

would deny

relief

. Filed: June 26, 2019 Publis h

See Rhodes , 2 4 0 S

. W

. 3 d at 892 (def endant was estopped who had “quietly enjoy ed the 1 5 benef its” of the illega l judgme nt, challeng ing it now only beca u s e, due to his own subsequent criminal conduc t, the judgme nt could be used to e nhance his punishment for a new offe nse).
See T E X

. C O D E C R I M

. P R O C . art. 11.072. 1 6 May be the State ag ree d to relief beca use it believed the law demande d it. But the State’s 1 7
co n ce ssion has no leg al eff ect, so by g ranting relief here , the Court establishes a rig ht to relief in these ci rc u mstances even when the State contests a writ application. The next time an applicant proves that the substance h e p l ed g uilty to possessing was in a differ ent penalty g roup than the substance he actua lly

possessed, he w ill be entitled to relief unde r the Court’s opinion.