i No. WR- 82 ,970- 01

In the Court of Criminal Appeals of Texas

at Austin  Cause No. 1445686-A In the 2 08 th District Court of Harris County, Texas  Ex parte MICHAEL JAMES WILLIAMS

 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 ONLY IF REQUESTED BY APPLICANT WR-82,970-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/30/2015 12:10:28 PM Accepted 6/30/2015 12:14:24 PM

ABEL ACOSTA CLERKii IDENTITY OF PARTIES AND COUNSEL
Pursuant to T EX
. R. A PP
. 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 fro m 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 appeal Greg Houlton

– Assistant District Attorney at trial App licant : Michael James Williams Counsel for App licant : Nicolas Hughes

– Counsel on appeal Jaime Garcia Acosta

– Counsel at trial Trial Judge:
Hon. Denise Collins

– Presiding Judgeiii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL

................................ ........................... ii
TABLE OF CONTENTS

................................ ................................ ......................... i ii
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 f elony offense of possession of a controlled substance was involuntary when the substances seized and tested by the Houston Forensic Science Center contained illicit materials other than those alleged in the charging instrument and belonging to a different penalty group.

................................ ........................... 6 In the narrowly

- tailored circumstance of pre

- indictment pleas of guilty to drug possession charges, if a variance between the illicit substance alleged in the charging instrument and the results of a confirmatory laboratory report result in a conviction under an incorrect statute, habeas relief must be granted to maintain the integrity of the conviction

................................ ................................ ............. 1 2
PRAYER FOR RELIEF

................................ ................................ .......................... 1 3
CERTIFICATE OF SERVICE

................................ ................................ ................ 1 4 APPENDIX

................................ ................................ ................................ .............. 1 5iv INDEX OF AUTHORITIES Cases Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963)

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

................................ ........... 10 Ex parte Bisor , No. WR

- 82,382

- 01, 2014 WL 6789865 (Tex. Crim. App. 2014) (not designated for publication)

................................ ................................ ............... 12 Ex parte Lucas , No. WR

- 82,306

- 01, 2014 WL 6789947 (Tex. Crim. App. 2014) (not designated for publication)

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

................................ ....... 12 Ex parte Mayo , No. WR

- 82,047

- 01, 2014 WL 6788221 (Tex. Crim. App. 2014) (not designated for publication)

................................ ................................ ............... 12 Ex parte Williams , No. WR

- 82,307

- 01, 2014 WL 6788359 (Tex. Crim. App. 2014) (not designated for publication )

................................ ................................ ............... 12 Rousseau v. State, 855 S.W.2d 666, 672

– 73 (Tex.Crim.App. 1993)

...................... 11 Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981)

............................... 11

Statutes T EX
. C ODE C RIM
. P ROC
. art. 11.07

................................ ................................ ........... 1 6 T EX
. H EALTH & S AFETY C ODE § 481.102

................................ ............................. 7 , 9
T EX
. H EALTH & S AFETY C ODE § 481.103

................................ ................................ .. 5 T EX
. H EALTH & S AFETY C ODE § 481.115

................................ ................................ .. 5
T EX
. H EALTH & S AFETY C ODE § 481.116

................................ ................................ .. 5
T EX
. H EALTH & S AFETY C ODE §§ 481.101

- 481.105

................................ ................. 7
T EX
. H EALTH & S AFETY C ODE §§ 481.112

- 481.118

................................ ................. 71

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 and tested contained illicit materials other than those alleged; and the State would show the following:

STATEMENT OF THE CASE This case involves an application fo r writ of habeas corpus filed by the applicant, Michael James Williams, pursuant to T EX
. C ODE OF C RIM
. P ROC
. 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 1445686 (the primary case)

.

STATEMENT REGARDING ORAL ARGUMENT
Pursuant to T EX
. R. A PP
. P. 39 , the State requests oral argument only if oral argument is requested by the applicant.2 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 and tested contained illicit materials other than those alleged.

STATEMENT OF THE PROCEDURAL HISTORY
O n December 2, 2014, the applicant entered a plea of guilty to the primary

case and was convicted of the third

- degree felony offense of possession of a penalty group two controlled substance, namely, 3,4

- methylenedioxy methamphetamine 1 (more than one and less than four grams) . Pursuant to a plea bargain agreement, the applicant was sentenced by the trial court to two (2) years in the Texas Department of Criminal Justice

– Institutional Divisi on . On January 23, 2015, the State received a copy of the laboratory report associated with the applicant’s disposed case from the Houston Forensic Science
Center. The laboratory report indicated that the controlled substance possessed by the applicant w as methamphetamine , not 3,4

- methylenedioxy methamphetamine, as alleged in the criminal complaint and judgment . T he State immediately forwarded the laboratory report 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)

.

1 Commonly known as “ ecstasy ” (in pill form) or “molly” (in a crystalline powder form).3

On February 19, 2015, the applicant, represented by Harris County Assistant Public Defender Nicholas Hughes , f iled an application for writ of habeas corpus , cause number 1445686

- A

. On February 27, 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 April 22, 2 015 , the Court of Criminal Appeals remanded the application for further briefing on the legal issues presented by the application.

STATEMENT OF FACTS
On October 20 , 2014 , the applicant was arrested and charged with the second

- degree felony offense of possession of a penalty group one controlled substance, namely, cocaine ( weighing more than 4 and less than 200 grams), in cause number 1445685, and the third

- degree felony offense of possession of a penalty group two controlled substance, namely, 3,4

- meth ylenedioxy methamphetamine ( weighing more than one and less than four grams), in cause number 1445686 (the primary case)

. See Appendix, State’s Exhibit A & B , Criminal Complaints , cause no s . 1445685 and 1445686 , respectively

. 2

2 T he applicant ’s co

- defendant, Charles Lamont Waller, was arrested and charged with the second

- degree felony offense of possession of a penalty group one controlled substance, namely, cocaine (more than four and less than two hundred grams), in cause number 144568 7 , and the third

- degree felony offense of possession of a penalty group two controlled substance, namely,4

On December 2, 2014, the applicant waived indictment in the primary case and entered into a plea agreement with the State of Texas. See February 27, 2015, Court’s Findings of fact, Conclusions of Law, and Order , cause no. 1445686

- A

. After a plea of guilty , the applicant was sentenced by the trial court to two (2)
years in the Texas Department of Criminal Justice

– Institutional Division

. See Appendix, State’s Exhibit C , Judgment of Conviction by Court

– Waiver of Jury Trial, cause no. 144 5686

. As part of the applicant’s plea bargain agreement, cause
number 1445685 was dismissed on motion of the State. 3 See Appendix, State’s
Exhibit D , Motion to Dismiss , cause no. 144568 5

. On January 23, 2015, nearly two months after the applicant’s plea, the State received a copy of the laboratory report associated with the applicant’s case s from the Houston Forensic Science Center. See Appendix, State’s Exhibit E , Laboratory Report #1, Houston Forensic Science Center. The laboratory report indicated that the controlled substance s possessed by the applicant were methamphetamine (1.48 grams) and cocaine (6.99 grams) , not 3,4

- methylenedioxy methamphetamine and
cocaine as alleged in the criminal complaint s . See Appendix, State’s Exhibit s A , B

a nd E

. The State immediately forwarded the laboratory report to the Harris County Public Defender’s Office pursuant to its continuing obligation to disclose

3,4

- methylenedioxy methamphetamine (more than one and less than four grams), in cause number 144568 8. 3 The applicant’s co

- defe ndant, Charles Lamont Waller, received an identical plea bargain agreement.5

exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963)

. 4 Se e Appendix, State’s Exhibit F , E

- mail correspondence between Harris County District Attorney’s Office and Harris County Public Defender’s Office dated January 23, 2015.
On February 19, 2015, the applicant, represented by Harris County Assistant
Public Def

ender Nicholas Hughes, filed an application for writ of habeas corpus, cause number 1445686

- A , alleging that the applicant’s plea was involuntary and that his conviction violates due process

. See applicant’s writ

. Based on the State’s belief that the applicant’s conviction in the primary case was, in fact, erroneous , the State joined the applicant in filing Agreed Findings of Fact and Conclusions of Law

. On February 27, 2015, the trial court signed the parties’ agreed findings and re commended that relief be granted in the applicant’s case. See February 27, 2015, Court’s Findings of fact, Conclusions of Law, and Order , cause no. 1445686

- A

.

SUMMARY OF THE ARGUMENT The applicant’s plea of guilty to the third

- degree felony offense o f possession of a controlled substance was involuntary when the substances seized
and tested by the Houston Forensic Science Center contained illicit materials other

4 The applicant’s co

- defendant, Charles Lamont Waller, has a pending writ of habeas corpus on this identical issue, No. WR

- 83,098

- 01.6

than those alleged in the charging instrument and belonging to a different penalty
group . The applicant pled guilty to possessing 3,4

- methylenedioxy methamphetamine, a penalty group two controlled substance, when, in fact, he possessed methamphetamine, a penalty group one controlled substance. Due to the categorizing of drug possession offen ses by penalty group under the Texas Controlled Substances Act (Chapter 481, T EX
. H EALTH & S AFETY C ODE ) , and the potentially differing punishment ranges associated with each penalty group , the State believes that the applicant’s conviction in the primary c ase was, in fact,

erroneous. In the narrowly

- tailored circumstance of pre - indictment pleas of guilty to drug possession charges, if a variance is discovered between the illicit substance alleged in the charging instrument and the results of a confirmatory laboratory report , and that variance result s in a conviction under an incorrect statute , habeas relief must be granted to maintain the integrity of the conviction

. The State ’s duty to seek justice requires that known errors in convictions be corrected as expeditiously as possible.
A RGUMENT
T HE APPLICANT ’ S PLEA OF GUILTY TO THE FELONY OFFENSE O F POSSESSION OF A CONT ROLLED SUBSTANCE WAS INVOLUNTARY WHEN THE SUBSTANCES SEIZED AND TESTED BY THE H OUSTON F ORENSIC S CIENCE C ENTER CONTAINED ILLICIT MATERIALS OTHE R THAN THOSE ALLEGED I N THE CHARGING INSTR UMENT AND BELONGING TO A DIFFE RENT PENALTY GROUP .7

Chapter 481 of the T EXAS H EALTH AND S AFETY C ODE sets out the Texas Controlled Substances Act . Th e a ct categorizes controlled substance s by penalty
group . See T EX
. H EALTH & S AFETY C ODE §§ 481.10 1

- 481.105. W ithin each penalty group, the act further categorizes each penalty group by degree of offense and punishment range. See T EX
. H EALTH & S AFETY C ODE §§ 481.112

- 481.1 18. In cause number 1445685, the applicant wa s arrested and charged

– with specificity

– with possessing cocaine , a penalty group one controlled substance

. See T EX
. H EALTH & S AFETY C ODE § 481.102(3)(d). No other penalty group in the Texas Controlled Substances Act contains cocaine. T he weight of the cocaine was between 4 and 200 grams ; thus, the applicant was charged with the second

- degree felony offense of possession of a controlled substance. See T EX
. H EALTH &
S AFETY C ODE § 481.115(d). Likewise, in cause number 1445686, the applica nt was arrested and charged

– with specificity

– with possessing 3,4

- methylenedioxy methamphetamine, a penalty group two controlled substance

. See T EX
. H EALTH & S AFETY C ODE §
481.10 3 ( 1 ). No other penalty group in the Texas Controlled Substances Act contai ns 3,4

- methylenedioxy methamphetamine

. T he weight of the 3,4

- methylenedioxy methamphetamine was between 1 and 4 grams ; thus, the applicant was charged with the third

- degree felony offense of possession of a controlled substance. See T EX
. H EALTH & S AFETY C ODE § 481.11 6 ( c )

.8

B ecause the applicant was charged with possessing two different controlled substances that belong to two different penalty groups, the applicant was charged with two separate offenses. Controlled substance offenses not only have potentially different punishment ranges based on the penalty group to which they are assigned , but at the Harris County District Attorney’s Office, they are further categorized by separate and distinct NCIC/TCIC codes for crime reporting
purposes : Possessi on of PG 1 less than 1 gram

– State Jail 1

- 4 grams

– 3 rd Degree 4

- 200 grams

– 2 nd Degree 200

- 400 grams

– 1 st Degree >400 grams

– 1 st Degree (10yr min) 5599 04 5599 05 5599 06 5599 07 3599 03 Possession of PG 2 less than 1 gram

– State Jail 1

- 4 grams

– 3 r d Degree 4

- 400 grams

– 2 nd Degree >400

– 1 st Degree 5599 08 5599 09 5599 10 3599 06 Possession of PG 3 less than 28 grams

– Class A Misd.

28

- 200 grams

– 3 rd Degree 200

- 400 grams

– 2 nd Degree >400 grams

– 1 st Degree 5599 11 5599 12 5599 13 3599 09 Possession of PG 4 less than 28 grams

– Class B Misd.

28

- 200 grams

– 3 rd Degree 200

- 400 grams

– 2 nd Degree >400 grams

– 1 st Degree 5599 14 5599 15 5599 16 3599 12
See T EX
. H EALTH & S AFETY C ODE §§ 481.112

- 481.118

. Therefore, the applicant was charged in cause number 1445685 with the second

- degree felony offense of possession of a controlled substance, namely, cocaine, with a distinctive NCIC code of 5599 06. See Appendix, State’s Exhibit9

A . He was further charged in cause number 1445686 with the thir d

- degree felony offense of possession of a controlled substance, namely, 3,4

- methylenedioxy methamphetamine , with a distinctive NCIC code of 5599 09. See Appendix, State’s Exhibit B

. On December 2, 2014, on his second court appearance and without the
benefit of the results of the confirmatory laboratory testing, the applicant waived indictment in the primary case and entered into a plea agreement with the State of
Texas. See February 27, 2015, Court’s Findings of fact, Conclusions of Law, and Order , c ause no. 1445686

- A

. After a plea of guilty, the applicant was sentenced by the trial court to two (2) years in the Texas Department of Criminal Justice

– Institutional Division

. See Appendix, State’s Exhibit C

. On January 23, 2015, nearly two months aft er the applicant’s plea, the State received a copy of the laboratory report associated with the applicant’s cases from
the Houston Forensic Science Center. See Appendix, State’s Exhibit E

. The laboratory report indicated that the controlled substances po ssessed by the applicant were cocaine (6.99 grams) and methamphetamine (1.48 grams), not cocaine and 3,4

- methylenedioxy methamphetamine as alleged in the criminal complaints. See Appendix, State’s Exhibit s A , B and E

. Methamphetamine is a penalty group one controlled substance. See T EX
. H EALTH & S AFETY C ODE §10

481.102(6). No other penalty group in the Texas Controlled Substances Act contains methamphetamine

. It is well established that a positive chemical field test, and an officer’s subsequent testimony about the result of said field test, is in sufficient evidence to support a conviction. See Curtis v. State , 548 S.W.2d 57, 59 (Tex.Crim.App. 1977). In the a

pplicant’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 confirmatory testing would yield a different result, his plea of guilty to possessing 3,4

- methylened ioxy methamphetamine was unknowing and involuntary. Had the parties known of the variance at the time of the applicant’s plea, the case could have been refiled by the Harris County District Attorney’s Office to reflect the correct controlled substance, th e correct penalty group, and the correct NCIC code. It is as simple and as complicated as this: the applicant is not now, nor has he ever been, guilty of possessing 3,4

- methylenedioxy methamphetamine. Had the State proceeded to trial without a confirmatory laboratory report, the jury would have been instructed to acquit the applicant. Id. Had the State proceeded to trial with a confirmatory laboratory report indicatin g methamphetamine, but had not refiled (or at least fully and properly amend ed ) the charging instrument, the jury would have been instructed to acquit the applicant if the State did not prove11

beyond a reasonable doubt that the applicant had possessed 3,4

- m ethylenedioxy methamphetamine. Again, the jury would have had no choice but to acquit

. T he undersigned Assistant District Attorney has found no indication, neither
in case law nor statute, that possession of 3,4

- methylenedioxy methamphetamine is a lesser

- included offense of possession of methamphetamine

. As this Court is

aware, a two

- part test is used to determine whether a lesser

- included offense may be submitted to a jury. Rousseau v. State, 855 S.W.2d 666, 672

– 73 (Tex.Crim.App. 1993). First, the lesser offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would permit a jury to rationally find that if the applicant is guilty, he is guilty only of th e lesser offense. Rousseau, 855 S.W.2d at 672

– 73; Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) . In the applicant’s case, it cannot be said that possession of 3,4

- methylenedioxy methamphetamine is included within the proof necessary to estab lish the offense of possession of methamphetamine. If anything, the opposite may be true. Simply put, the applicant stands convicted of the wrong offense and, as a result, has asserted a claim that his plea was unknowing and involuntary. Because the ev idence in possession of the State does not support the applicant’s conviction, the State agrees that the applicant is entitled to relief.12

I N THE NARROWLY - TAILORED CIRCUMSTANC E OF PRE - INDICTMENT PLEAS OF GUILTY TO D RUG POSSESSION CHARG ES , IF A VARIANCE BE TWEEN THE ILLICIT SU BSTANCE ALLEGED IN T HE CHARGING INSTRUMENT AND THE R ESULTS OF A CONFIRMA TORY LABORATORY REPORT RESULTED IN A CONVIC TION UNDER AN INCORR ECT STATUTE , HABEAS RELIEF MUST B E GRANTED TO MAINTAI N THE INTEGRITY OF THE CON VICTION . The State has a vested interest in maintaining the integrity of their convictions and the accuracy of their crime reporting. Convictions that are “close enough” do not help the State fulfill those interests. This C ourt has previously held that confirmato ry laboratory test results that show no illicit substances render a guilty plea unknowing and involuntary. See Ex parte Mable , 443 S.W.3d 129 (Tex. Crim. App. 2014 ). Additionally, this court has cited Mable in the granting habeas relief in other applicat ions involving 3,4

- methylenedioxy methamphetamine and methamphetamine. See Ex parte Lucas , No. WR

- 82,306

- 01, 2014 WL 6789947 (Tex. Crim. App. 2014)(not designated for publication); s ee also Ex parte Mayo , No. WR

- 82,047

- 01, 2014 WL 6788221 (Tex. Crim. App. 2014)(not designated for publication); see also Ex parte Williams , No. WR

- 82,307

- 01, 2014 WL 6788359 (Tex. Crim. App. 2014)(not designated for publication); see also Ex parte Bisor , No. WR

- 82,382

- 01, 2014 WL 6789865 (Tex. Crim. App. 2014)(not designated f

or publication).
T his C ourt should hold that when variances occur between the controlled substance alleged in a charging instrument and the confirmatory laboratory report,13

resulting in a conviction under an inaccurate statutory provision, habeas relief should be granted to afford the parties the opportunity to correct the error in a timely manner.

PRAYER FOR RELIEF Based on the foregoing, the State respectfully requests that this Court grant the application for wr it 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. 2404 105114 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, 13 t h Floor Houston, TX 77002

Date: June 23, 2015 / s / Inger H. Chandler INGER H. CHANDLER

CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of T EX
. R. A PP
. P ROC
. 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 ROC
. 9.4( I ) , if applicable, because it cont ains 2289 words excluding portions not to be counted under T EX
. R. A PP
. P ROC
. 9.4( I )(1)

. / s / Inger H. Chandler INGER H. CHANDLER15 

# APPENDIX