Love, Tony Emil Jr. ( 2024 )


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  •           In the Court of Criminal
    Appeals of Texas
    ════════════
    No. WR-95,475-01
    ════════════
    EX PARTE TONY EMIL LOVE, JR.,
    Applicant
    ═══════════════════════════════════════
    On Application for Writ of Habeas Corpus
    In Cause No. 1408920-A
    In the 232nd District Court
    Harris County
    ═══════════════════════════════════════
    YEARY, J., filed a dissenting opinion, in which KELLER, P.J.,
    joined.
    In November of 2013, Applicant pled guilty to possession of
    between four ounces and five pounds of marihuana, a state-jail-felony
    offense. TEX. HEALTH & SAFETY CODE § 481.121(b)(3). The trial court
    deferred adjudication of Applicant’s guilt and placed him on community
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    supervision for three years. In May of 2015, Applicant pled true to
    violating the terms of his community supervision. The trial court found
    him guilty. Applicant was then sentenced to confinement for thirteen
    months in state jail.
    More than six years later, in August of 2021, the Harris County
    District Attorney sent a letter to Applicant which included the crime
    laboratory’s January 2020 analysis of the substance that was found in
    Applicant’s possession. That lab test identified the presence of Cannabis
    sativa L., but in an amount less than four ounces—specifically, 3.25
    ounces. See id. § 481.002(26) (“‘Marihuana’ means the plant Cannabis
    Sativa L.”).
    In January of 2023, Applicant, with the assistance of counsel,
    filed an application for a writ of habeas corpus in the county of
    conviction. TEX. CODE CRIM. PROC. art. 11.07. In his pleading, Applicant
    asserts that, “[i]n light of the laboratory report showing that the
    evidence contained a lesser amount of marijuana than Applicant was
    charged with possessing,” (1) his due process rights were violated, and
    (2) his plea was involuntary.
    Today, the Court grants Applicant relief on the basis that his plea
    was involuntary. I do not foreclose the possibility that Applicant may
    ultimately be entitled to relief. But I believe granting relief on the
    current record is premature.
    The January 2020 lab report indicates that the evidence in this
    case had previously been tested on December 17, 2013, and the current
    report was a “confirmation analysis” performed at the request of the
    Harris County District Attorney’s Office. The 2013 report is not included
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    in the record. Consequently, at this stage, we do not know what amount
    of marihuana the first lab report may have identified.
    If the 2013 report also indicated that Applicant possessed less
    than four ounces of marihuana, then I would agree that Applicant may
    be entitled to relief. But if the first analysis indicated the presence of
    four or more ounces of marihuana before testing, I would be more
    skeptical of Applicant’s claim. So far as I can tell at this point, there still
    exists a possibility that there may be a variance between the amount of
    the substance found in the 2013 report and the amount found in the
    2020 report. I could even speculate that, if there was a variance in
    weight, it might be due to some amount of the substance potentially
    being destroyed in the process of testing it, or that, in the period of time
    between 2013 and 2020, the substance may have dried out some, causing
    it to lose weight. But for now, it is far from clear that Applicant is
    actually entitled to the relief the Court affords him.
    I would remand this case with instructions to the convicting court
    to try to obtain for the record a copy of the initial, December 17, 2013,
    laboratory report and to make any appropriate supplemental findings of
    fact and conclusions of law. In particular, I would instruct the trial court
    to determine, if possible, whether the initial laboratory report also
    indicated that the evidence contained less than four ounces of
    marihuana. Because the Court does otherwise, I respectfully dissent.
    FILED:                                            April 3, 2024
    DO NOT PUBLISH
    

Document Info

Docket Number: WR-95,475-01

Filed Date: 4/3/2024

Precedential Status: Precedential

Modified Date: 4/7/2024