Smith, G'cobra ( 2015 )

WR-83,489-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/22/2015 4:59:31 PM
October 26, 2015 Accepted 10/26/2015 7:51:53 AM
NO. WR-83,489-01 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
EX PARTE G’COBRA SMITH,
APPLICANT
On Application for Writ of Habeas Corpus in Cause No. 1449083-A,
Challenging the conviction in Cause No. 1449083,
From the 337th Judicial District Court of Harris County, Texas
APPLICANT’S BRIEF
Oral Argument Requested ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
NICOLAS HUGHES
Assistant Public Defender
Harris County, Texas
TBN: 24059981
1201 Franklin St., 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 437-4316
nicolas.hughes@pdo.hctx.net
ATTORNEY FOR APPLICANT
IDENTITY OF PARTIES AND ATTORNEYS
APPLICANT: G’COBRA SMITH
TRIAL PROSECUTOR: COBY LESLIE
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
ATTORNEY AT TRIAL: JEANIE DICKEY
Attorney at Law
3115 Preston Road, Suite F
Pasadena, TX 77505
PRESIDING JUDGE AT TRIAL: HON. RENEE MAGEE
337th District Court
Harris County, Texas
1201 Franklin Street, 15th floor
Houston, Texas 77002
ATTORNEY FOR STATE ON HABEAS: INGER CHANDLER
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
ATTORNEY FOR APPLICANT: NICOLAS HUGHES
Assistant Public Defender
Harris County, Texas
1201 Franklin St., 13th Floor
Houston, Texas 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND ATTORNEYS ............................................................................. ii
TABLE OF CONTENTS ............................................................................................................ iii
INDEX OF AUTHORITIES ........................................................................................................ v
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 2
ISSUE PRESENTED ................................................................................................................... 2
STATEMENT OF FACTS............................................................................................................ 2
SUMMARY OF THE ARGUMENT .............................................................................................. 3
ARGUMENT .............................................................................................................................. 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 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 .................................................................................................................. 4
C. Having conclusive 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 fairness ................................................ 8
A. Newly discovered evidence and Federal habeas caselaw .................................. 8
iii
B. The use of unreliable evidence as the basis for conviction 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-prescription 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 prescription ........................................................................... 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. Prosecutions 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 considered in
this case................................................................................................................. 18
PRAYER .................................................................................................................................. 19
CERTIFICATE OF SERVICE .................................................................................................... 20
CERTIFICATE OF COMPLIANCE ........................................................................................... 20
iv
INDEX OF AUTHORITIES
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 Cases
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. Crim. 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) ........................... 7
v
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
Rodriguez 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
TEX. GOV’T CODE ANN. § 311.021 (West 2013) .............................................................. 17
TEX. GOV’T CODE ANN. § 311.026 (West 2013) .............................................................. 14
TEX. HEALTH & SAFETY CODE ANN. § 481 (West. 2013) .......................................... 7, 14
TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2013) .............................. 7, 15, 16
TEX. HEALTH & SAFETY CODE ANN. § 481.033 (West 2013) ........................................ 12
TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2013) .................................. 13, 16
TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2013) ........................................ 13
TEX. HEALTH & SAFETY CODE ANN. § 481.118 (West 2013) ............................16, 18, 19
TEX. HEALTH & SAFETY CODE ANN. § 481.119 (West 2013) ........................................ 16
TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2013) ........................................ 16
TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2013) ........................................ 16
vi
TEX. HEALTH & SAFETY CODE ANN. § 482 (West 2013) ........................................... 7, 14
TEX. HEALTH & SAFETY CODE ANN. § 482.002 (West 2013) .................................. 13, 16
TEX. HEALTH & SAFETY CODE ANN. § 483.041 (West 2013) ........................................ 16
TEX. PENAL CODE ANN. § 15.01 (West 2011)........................................................ 6, 18, 19
TEX. PENAL CODE ANN. § 6.04 (West 2011) ...................................................................... 7
TEX. PENAL CODE ANN. 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 DALLAS OBSERVER (Mar. 6, 2012) 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 TODAY (Oct. 19, 2006)
............................................................................................................................................. 17
Pleadings and Motions
Agreed 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)..................................... 1
vii
STATEMENT OF THE CASE
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.
STATEMENT OF PROCEDURAL HISTORY
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
16, 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 (179th Dist. Ct. Harris Cty., Tex. May 21, 2015) (filed June 16, 2015). On
September 16, 2015, this Court filed and set this case for submission to “determine
whether, under these circumstances, Applicant’s plea to a lesser offense which was
1
arguably supported by the evidence 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).
STATEMENT REGARDING ORAL ARGUMENT
Applicant’s case falls squarely in the area where the post-conviction 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 involuntary 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 argument.
ISSUE PRESENTED
“[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 supported
the greater charge.” Ex parte Smith, 2015 WL 5453046 at *1.
STATEMENT OF FACTS
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 pled
2
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 seized 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.
SUMMARY OF THE ARGUMENT
With a laboratory report in hand indicating that no illicit materials 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 exculpatory lab
report affects a drug possession case. In light of all the lost strategic, procedural, and
evidentiary advantages that would have been afforded to Applicant if he had the
laboratory report at the time of his plea, Applicant’s plea is involuntary.
3
ARGUMENT
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 forth 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 admission 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 circumstances. 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 possession 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, 131 (Tex. Crim. App. 2014).
B. When 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
laboratory testing is conducted and reveals the evidence in the case does not “contain
4
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 facts 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 principles 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 dictate 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 plea, 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 discovered
5
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 indicates that seized materials contain
no controlled substances is a material and exculpatory fact that has wide-ranging
implications for a defendant:
1) Attempted possession of a controlled substance has less maximum criminal
exposure than possession of a controlled substance. TEX. PENAL CODE ANN.
§ 15.01(d) (West 2011).
2) The State has an increased burden of proof in an attempted possession of a
controlled substance case. The State 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. TEX. PENAL CODE ANN. § 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 contextual 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 observations 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 indicated 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.
6
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 TEX. PENAL CODE ANN. § 6.04(b)
(West 2011); Anna Merlan, Don't Panic, But There's Probably Meth in Your
Ecstasy and De-Wormer In Your Cocaine DALLAS OBSERVER (Mar. 6, 2012)
available 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 used 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 controlled substance is involved
and Texas Health & Safety Code § 481 explicitly does not apply to over-
the-counter drugs like caffeine, it 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. TEX. HEALTH & SAFETY CODE ANN. § 481.002(49)
(West 2013). Since no controlled substances were found in this case, it
would seem that “adulterants and dilutants” 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
mentioning 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).
7
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
parte 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
presented to the state trier of facts” is presented and where the evidence “bear[s]
8
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. Crim. 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 what 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
person’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. 83, 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 a
9
“forensic scientist did not follow accepted standards when analyzing evidence and
therefore the results of his analyses are unreliable,” violating 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 underlying opinion about the case, the applicant was entitled
to relief. Ex parte Henderson, 384 S.W.3d 833, 833–834 (Tex. Crim. App. 2012). In that
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 (Price, 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 that 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 marked 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 of
10
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 actual
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.”). Without
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
detected 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 process
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 case.
11
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 controlled
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 prescription, under the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.).” TEX. HEALTH &
SAFETY ANN. § 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 that 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.
12
ii. Section 482 of the Health & Safety Code does not permit the
prosecution of one who merely possesses 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 apply 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 make the general act controlling.
Mills v. State, 722 S.W.2d 411, 413–414 (Tex. Crim. App. 1986).
In the context of delivery of a fake controlled substance, appellate courts have
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.
13
ref’d). In Rodriguez, 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 convicted 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 and 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
simulated controlled substance
While a person may be prosecuted for the mere possession of a controlled
substance under Chapter 481 of the Health & 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 provision 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 provision is the later enactment
and the manifest intent is that the general provision prevail.” TEX. GOV’T CODE ANN.
§ 311.026 (West 2013). Even assuming that Applicant thought 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 should
14
presume that Applicant’s behavior constituted a lesser 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 aggregate 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 an 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:
“Adulterant or dilutant” means any material that increases the bulk or
quantity of a controlled substance, regardless of its effect on the
chemical activity of the controlled substance.
TEX. HEALTH & SAFETY CODE ANN. § 481.002(49) (West 2013) (emphasis added). In
Seals v. State, over reservations about 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 interpreted 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 to the aggregate weight of the controlled substance as an
adulterant or dilutant.
15
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 Controlled 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 substance,” 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.” TEX. HEALTH & SAFETY CODE ANN. §§ 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. TEX. HEALTH & SAFETY CODE ANN. §§ 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 results may the court consider an interpretation that would arrive at a
16
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
substances. 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 TEX. GOV’T CODE ANN. § 311.021(2) (West 2013).
ii. Prosecutions for possession of “drank” are often classified by the
weight of the adulterants and dilutants added to codeine syrup
Codeine cough syrup is commonly recreationally abused as part 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 TODAY (Oct. 19, 2006).
17
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).
The weight of the “adulterants or dilutants” can be considered regardless of whether
the “adulterants or dilutants” increase the illicit 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, suspecting the substance to be “drank,” and
submitted the evidence for testing. Writ Exhibit 4. Before 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 than 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 TEX.
HEALTH & SAFETY CODE ANN. § 481.118(c) (West 2013); TEX. PENAL CODE ANN. §
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. See
18
TEX. HEALTH & SAFETY CODE ANN. § 481.118(c) (West 2013); TEX. PENAL CODE
ANN. § 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).
PRAYER
Applicant prays that this Court grant relief and remand his case to the trial
court for a new trial.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
Harris County Texas
1201 Franklin Street, 13th Floor
Houston Texas 77002
(713) 368-0016
(713) 386-9278 fax
TBA No. 24059981
nicolas.hughes@pdo.hctx.net
19
CERTIFICATE OF SERVICE
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
NICOLAS HUGHES
Assistant Public Defender
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP. 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 TEX. R. APP. P. 9.4(i), if applicable, because it contains
4,506 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
20