## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-82,876-01
EX P ARTE BRYAN E. P ALMBERG, A ppl icant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1121345-A IN THE 179 DISTRICT COURT T H F ROM HARRIS COUNTY
Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1
. 07 of the Texas Code of Criminal 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 pleade d guilty , was convicted of possession of coca ine less than one g ram, and sentenc ed to ninety day s imprisonment in county jail. He did not appe al his conviction. Applicant contends, among o t h er things, t hat hi s plea was involuntary beca use he was not
m ad e aw ar e o f a lab report, dated three months afte r hi s plea, showing that the evidence ga there d cont ained no illicit substances. The S tate and trial court ag ree that Applicant is entitled to relief
.2

The trial court found that “On September 14, 2009, evidenc e from Applicant’s case was tested at the Houston Police Depa

rtment Crime L ab
. . . The laboratory analy sis did not indicate the prese nce of any co n t ro l l ed s ubstance or dang erous drug .” The trial court’s finding relies on a letter from the Houston Crime L ab to the Har ris County District Attorney ’s office
. Howeve r, the letter contra dicts the trial court’s finding
. The letter does not state that there wer e no illicit drug s found in the sample as t he trial court finds, but t hat a police office r used the e ntire sample for hi s field t est, leaving no unproce ssed evidenc e to a naly ze. T he lab perf

ormed no analy sis be cause there was no evidenc e to analy ze. Be ca use the parties ag ree d to the finding s and rec ommended g ranting relief , and those finding s are contra dicted by the record, additional finding s are nece ssary . As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I t appea

rs that Applicant is repr esente d by counsel. I f the trial court elec ts to hold a hear ing, it shall deter

mine whether Applica n t i s indige nt. I f t he trial court elects t o hold a hearing , it shall deter mine if Applicant is repr esente d by counsel, and if not, wh et h er Ap plicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, t h e t ri al co urt shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t a nd conclusions of law in reg ard to Applicant’s claim t hat hi s plea was involuntary
. The trial court shall also make any other fi ndings of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief.3

This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolv ed wi t h i n 9 0 day s of this order
. A supplemental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of t his order
. Any extensions of ti me shall be obtained f

rom this Court.

Filed: Mar ch 18, 2015 Do not publish