ACCEPTED
01-14-00901-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/25/2015 5:55:22 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00901-CR
IN THE COURT OF APPEALS
FILED IN
FOR THE FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
6/25/2015 5:55:22 PM
TRAVIS LAMB CHRISTOPHER A. PRINE
Appellant Clerk
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause No. 1394200
From the 351st Judicial District Court of Harris County, Texas
APPELLANT’S SUPPLEMENTAL BRIEF IN LIGHT OF MCFADDEN V. UNITED
STATES
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 APPELLANT
I. McFadden v. United States and the culpable mental state in federal
controlled substance act cases
Like Appellant’s case, McFadden v. United States focuses upon the culpable
mental state needed for conviction in a controlled substance case. McFadden v. United
States, --- S.Ct. ----, No. 14–378 (June 18, 2015). In McFadden v. United States, the
Supreme Court considered the case of a defendant selling “bath salts” and convicted
under the Controlled Substances Act for delivery of a controlled substance analogue
and for conspiracy. Id. at *3; 21 U.S.C. §§ 813, 841. When chemical analysis was
performed on the “bath salts,” several notable substances were detected, including:
3,4–Methylenedioxypyrovalerone (MDPV), 3,4–Methylenedioxy–N–methylcathinone
(Methylone), and 4–Methyl–N–ethylcathinone (4–MEC). Id. at *2-3. The specific
question answered by McFadden is what culpable mental state the government was
required to prove in order to support a conviction where the controlled substance in
question was a chemical analogue. Id. at *6-7; 21 U.S.C. § 813.
A. To support a conviction under 21 U.S.C. § 841, the government must
prove either that a defendant knew the nature of a particular substance
or that the defendant knew generally that the substance was some
controlled substance
In McFadden v. United States, the district court “instruct[ed] the jury that the
statute required that ‘the defendant knowingly and intentionally distributed a mixture
or substance that has’ substantially similar effects on the nervous system as a
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controlled substance and ‘[t]hat the defendant intended for the mixture or substance
to be consumed by humans.’” Id. at *3. The Supreme Court explained that under the
federal Controlled Substances Act, it is “unlawful for any person knowingly or
intentionally ... to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.” Id. at *4; 21 U.S.C. §
841(a)(1). The Supreme Court further explained that there were two separate
manners by which the government can prove the requisite culpable mental state:
either the government can prove that the defendant knew the specific identity of the
substance he possessed or that the defendant knew he possessed a scheduled
controlled substance, even if he did not know the specific identity of the particular
substance. Id. at *5.
B. To support a conviction involving a controlled substance analogue,
the government must prove either that defendant knew the nature of the
analogue or that the defendant knew generally that he possessed some
illegal controlled substance analogue
The Supreme Court then turned its attention to the interplay of the Controlled
Substance Analogue Enforcement Act and the Controlled Substances Act. Id. at *6-7.
The Supreme Court held:
First, it can be established by evidence that a defendant knew that the
substance with which he was dealing is some controlled substance—that
is, one actually listed on the federal drug schedules or treated as such by
operation of the Analogue Act—regardless of whether he knew the
particular identity of the substance. Second, it can be established by
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evidence that the defendant knew the specific analogue he was dealing
with, even if he did not know its legal status as an analogue.
Id. at *7. The Supreme Court added that a person that possesses a substance with
knowledge of the chemistry of a particular drug “knows all of the facts that make his
conduct illegal.” Id. at *7-8. However, the Supreme Court expressly rejected the
government’s contention that it must only prove ‘that the defendant knowingly and
intentionally distributed a mixture or substance ... that ... was a controlled substance
analogue ... with the intent that it be consumed by humans.” Id. at *3. Much like the
legal standard for typical controlled substances, the Supreme Court held that the
government was required to prove that the defendant was required to know either the
specific identity or illicit nature of a controlled substance analogue. Id. at *1-2.
II. The Texas Controlled Substances Act requires proof of comparable
culpable mental states to those explored in McFadden v. United States
Texas law acts in a similar fashion to the federal Controlled Substances Act.
The prosecution may prove that a person knew that they possessed a particular illicit
substance: “a person commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 1.” TEX. HEALTH & SAFETY
CODE § 481.115. Alternatively, the prosecution may prove that a person knowingly
possessed some illicit drug, even if the person does not know what specific drug the
person possesses: “[a] person is nevertheless criminally responsible for causing a result
if the only difference between what actually occurred and what he desired,
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contemplated, or risked is that a different offense was committed.” TEX. PENAL
CODE § 6.04(b)(1). For example, a person who believes he possesses heroin but
actually possesses cocaine may be convicted for possession of cocaine. See Mendoza v.
State, 636 S.W.2d 198, 200–201 at n.2 (Tex. Crim. App. 1982). Similar to the federal
Controlled Substances Act, the Texas Controlled Substances Act does not provide for
the prosecution of a defendant who possesses a controlled substance who intends to
consume the substance unless the person is aware of the nature or illegality of the
substance. For example, a person smoking synthetic marijuana openly sold by a
“smoke shop,” honestly believing the synthetic marijuana to be a new legal high and
not having the faintest ideas of the chemistry of the synthetic marijuana mixture does
not intentionally or knowingly possess a controlled substance listed in a penalty group
simply because AB-FUBINACA happens to be discovered in the mixture after
laboratory analysis.
III. The State failed to prove that Appellant knew that the “crystalline
substance” contained cocaine and further failed to prove that Appellant knew
the “crystalline substance” was some controlled substance or other illegal drug
The Appellant’s brief goes through great lengths to show that the State offered
no proof that Appellant knowingly possessed cocaine. As repeatedly argued, the
State’s proof all tends to indicate that Appellant genuinely believed that he possessed
“bath salts.” (4 R.R. at 17, 40). It is important that this case involves “bath salts” and
not a traditional drug: “[u]nlike a drug like cocaine, which is made with a natural
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process, bath salts are made in a lab and constantly changing. The drug is designed
specifically to skirt the law and test the bounds of new chemicals.” Synthetic 'Bath Salts'
An Evolving Problem For DEA, KQED PUBLIC MEDIA FOR NORTHERN CA, available at
http://www.kqed.org/news/story/2012/06/30/99760/synthetic_bath_salts_an_evol
ving_problem_for_dea (last visited June 25, 2015). Without proof that a user of a
designer drug like “bath salts,” often sold openly in public Texas businesses, knew the
legal status or chemical structure of the seemingly legal “bath salts” sold in a particular
formulation, this Court should find that there is insufficient evidence to support the
culpable mental state required for the user’s conviction. As the State offered no
reason to show that Appellant knew or should have known the substance Appellant
possessed was actually a controlled substance and not some “legal high,” the State
failed to prove the culpable mental state in this case.
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
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CERTIFICATE OF SERVICE
I certify that a copy of this Appellant’s Supplemental Brief (Lamb) has been served
upon the Harris County District Attorney's Office − Appellate Section, on June 25, 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
1,112 words excluding portions not to be counted under TEX. R. APP. P. 9.4(i)(1).
/s/ Nicolas Hughes
NICOLAS HUGHES
Assistant Public Defender
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