Palmberg, Bryan Elliott

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,876-01
EX PARTE BRYAN PALMBERG, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1121345-A IN THE 179 TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of
cocaine and sentenced to ninety days’ county jail. He did not appeal his conviction.
Applicant contends that his plea was involuntary because the lab report, which showed there
was no usable evidence to test, was not available at the time of his plea. The parties have entered
agreed findings of fact and conclusions of law, and the trial court determined that Applicant’s
decision to plead guilty in this case was not a voluntary and intelligent choice.
In Mable, this Court held that a guilty plea to possession of a controlled substance was
involuntary when the Applicant did not know that the seized substances contained no illicit
materials. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). This Court held: “The
standard is whether the plea is a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” Id. at 130. We order that this application be filed and set for
submission to determine whether Applicant’s plea of guilty was involuntary when he was not aware
at the time of his plea that the field test for controlled substances conducted by the police officer did
not leave enough evidence for the drug lab to conduct its own testing. The parties shall brief the
issue.
It appears that Applicant is represented by counsel. If he is not, the trial court shall determine
whether he is indigent. If Applicant is indigent and desires to be represented by counsel, the trial
court shall appoint an attorney to represent him. TEX . CODE CRIM . PROC. art 26.04. The trial court
shall send to this Court, within 30 days of the date of this order, a supplemental transcript containing:
a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement
that Applicant is not indigent. All briefs shall be filed with this Court within 60 days of the date of
this order.
Delivered: June 24, 2015
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