IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,876-01
EX PARTE BRYAN E. PALMBERG, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1121345-A IN THE 179TH 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 pleaded guilty, was convicted of
possession of cocaine less than one gram, and sentenced to ninety days imprisonment in county jail.
He did not appeal his conviction.
Applicant contends, among other things, that his plea was involuntary because he was not
made aware of a lab report, dated three months after his plea, showing that the evidence gathered
contained no illicit substances. The State and trial court agree that Applicant is entitled to relief.
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The trial court found that “On September 14, 2009, evidence from Applicant’s case was tested at the
Houston Police Department Crime Lab . . . The laboratory analysis did not indicate the presence of
any controlled substance or dangerous drug.” The trial court’s finding relies on a letter from the
Houston Crime Lab to the Harris County District Attorney’s office. However, the letter contradicts
the trial court’s finding. The letter does not state that there were no illicit drugs found in the sample
as the trial court finds, but that a police officer used the entire sample for his field test, leaving no
unprocessed evidence to analyze. The lab performed no analysis because there was no evidence to
analyze.
Because the parties agreed to the findings and recommended granting relief, and those
findings are contradicted by the record, additional findings are necessary. As we held in Ex parte
Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for
findings of fact. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, §
3(d).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,
it shall determine whether Applicant is indigent. If the trial court elects to hold a hearing, it shall
determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law in regard to Applicant’s
claim that his plea was involuntary. The trial court shall also make any other findings of fact and
conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for
habeas corpus relief.
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This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: March 18, 2015
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