WR-82,970-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 22, 2015 Transmitted 6/22/2015 11:58:12 AM
Accepted 6/22/2015 12:42:56 PM
NO. WR-82,970-01 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
EX PARTE MICHAEL JAMES WILLIAMS,
APPLICANT
On Application for Writ of Habeas Corpus in Cause No. 1445686-A,
Challenging the conviction in Cause No. 1445686,
From the 208th 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: MICHAEL JAMES WILLIAMS
TRIAL PROSECUTOR: GREG HOULTEN
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th Floor
Houston, Texas 77002
ATTORNEY AT TRIAL: JAIME ACOSTA
Attorney at Law
102 S. Lockwood Dr.
Houston, Texas 77011
PRESIDING JUDGE AT TRIAL: HON. MICHAEL MCSPADDEN
209th District Court
Harris County, Texas
1201 Franklin Street, 17th 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 Regarding Oral Argument................................................................................... 1
Issue Presented ....................................................................................................................... 2
Statement of Facts .................................................................................................................. 2
Summary of the Argument .................................................................................................... 2
Argument ................................................................................................................................. 4
I. As Michael Williams conclusively established that he did not possess
MDMA, Michael Williams’s plea is involuntary and his conviction offends
principles of due process............................................................................................ 4
A. Where there is no evidence to support a conviction or where the
evidence supporting a conviction is refuted by clear and convincing
evidence, the conviction is invalid ................................................................. 4
1. This Court has repeatedly held that where there is no evidence
to support an element of a person’s conviction, a defendant’s
conviction is invalid ............................................................................. 4
2. This Court has repeatedly held that where a defendant shows
his or her innocence of the charges, the defendant’s conviction is
invalid .................................................................................................... 5
B. The laboratory report indicates that there is no evidence to support an
essential element of Michael Williams’s conviction, namely the
requirement that Michael Williams’s actually possessed MDMA in this
case .................................................................................................................... 6
iii
1. The evidence conclusively establishes that Michael Williams did
not possess MDMA as charged in the information......................... 6
2. Michael Williams’s conviction is invalid and has the same due
process implications as a no evidence or actual innocence case .... 6
C. There is nothing which meaningfully differentiates Michael Williams’s
case from previous cases involving involuntary pleas ................................ 8
II. Upholding the conviction in this case would undermine Michael Williams’s
constitutional rights .................................................................................................. 10
A. Possession of MDMA and possession of methamphetamine are
separate crimes ............................................................................................... 10
B. The Double Jeopardy implications of upholding Michael Williams’s
conviction for possession of MDMA ......................................................... 11
C. The Due Process implications of Michael Williams’s conviction ...... 12
III. Other considerations ......................................................................................... 13
A. A hypothetical illustrating the greater impact of the Court’s decision
......................................................................................................................... 13
B. It is impossible to gauge how having the laboratory report would have
affected Michael Williams’s case at the trial level ...................................... 14
C. Considerations in filing an agreed writ of habeas corpus .................... 15
Prayer ..................................................................................................................................... 16
Certificate of Service ............................................................................................................ 17
Certificate of Compliance .................................................................................................... 17
iv
INDEX OF AUTHORITIES
Federal Cases
Stirone v. United States, 361 U.S. 212 (1960) ........................................................................ 12
United States v. Prejean, 494 F.2d 495 (5th Cir. 1974) ................................................... 12, 14
State Cases
Curtis v. State, 548 S.W.2d 57 (Tex. Crim. App. 1977)........................................................ 6
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) ............................................... 15
Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) ................................................. 16
Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006)................................................... 9
Ex parte Coleman, 599 S.W.2d 305 (Tex. Crim. App. 1978) ............................................... 5
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)....................................... 5, 6, 8
Ex Parte Frederick, No. AP-76,646, 2011 WL 4484737 (Tex. Crim. App. 2011) (not
designated for publication) .............................................................................................. 16
Ex parte Griffin, 679 S.W.2d 15 (Tex. Crim. App. 1984) .................................................... 9
Ex Parte Mack, No. AP-75345, 2006 WL 475777 (Tex. Crim. App. 2006) (mem. op.,
not designated for publication) ....................................................................................... 10
Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) .......................................... 9
Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)........................................ 9
Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007) .......................................... 4, 7, 8
Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006) ................................................... 16
Ex parte Russell, 632 S.W.2d 596 (Tex. Crim. App. 1982) ................................................ 11
Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995) ................................................... 9
Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) ................................................ 5, 7
v
Ex parte Williams, No. 1445686-A (208th Dist. Ct., Harris Cty., Tex. Oct. 21, 2014) ... 6
Gonzalez v. State, 588 S.W.2d 574 (Tex. Crim. App. 1979) ................................................ 4
Nichols v. State, 52 S.W.3d 501 (Tex. App.-Dallas 2001, no pet.) .................................... 12
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011) ...................................................... 15
Potts v. State, 571 S.W.2d 180 (Tex. Crim. App. 1978)........................................................ 7
Salazar v. State, 86 S.W.3d 640 (Tex. Crim. App. 2002) ..................................................... 8
State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) ...........................................passim
Watson v. State, 900 S.W.2d 60 (Tex. Crim. App. 1995) ......................................... 7, 10, 11
State Statutes
TEX. HEALTH & SAFETY CODE ANN. § 481.102 (West 2013) ........................................ 10
TEX. HEALTH & SAFETY CODE ANN. § 481.103 (West 2013) ........................................ 10
TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2013) ........................................ 11
TEX. HEALTH & SAFETY CODE ANN. § 481.116 (West 2013) ........................................ 11
TEX. PENAL CODE ANN. § 6.04 (West 2013) ...................................................................... 7
Other Authorities
Michael Barajas, Lab Reports Show Hundreds “Convicted in Error” for Drug Offenses,
HOUSTON PRESS (Oct. 29. 2014) available at
http://www.houstonpress.com/news/lab-reports-show-hundreds-convicted-in-
error-for-drug-offenses-6751687 .................................................................................... 15
vi
STATEMENT OF THE CASE
On October 21, 2014, Applicant was charged with possession of substance in
penalty group 2, one gram or more but less than four grams (MDMA) in Cause
1445686. Writ Exhibit 1.On December 2, 2014, pursuant to a plea agreement,
Applicant pled guilty and was convicted. Writ Exhibits 2, 3, 4. Applicant has
collaterally challenged his conviction on the grounds that his plea was involuntary and
that Applicant’s conviction for an offense he did not commit violates his right to due
process of law. On February 27, 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 Williams, No. 1445686-A (208th Dist. Ct. Harris Cty., Tex. 2015) (filed
Feb. 27, 2015). On April 22, 2015, this Court ordered this case set for submission “to
determine whether Applicant’s plea of guilty was involuntary when the substances
seized and tested contained illicit materials other than those alleged” and ordered
briefing. Order, Ex parte Williams, No. WR-82,970-01 (Tex. Crim. App. 2015) (filed
Apr. 22, 2015). This brief is Applicant’s response to the April 22, 2015 order.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument may help categorize Applicant’s case within the body of caselaw
regarding involuntary pleas. Applicant requests oral argument with the belief that it
can simplify the question before the court and can help harmonize the resolution of
Applicant’s case with existing caselaw.
1
ISSUE PRESENTED
Is Applicant’s plea of guilty was involuntary when the results of the laboratory report
do not indicate the presence of the controlled substance the State alleged Applicant
possessed in the charging instrutment?
STATEMENT OF FACTS
On October 21, 2014, Applicant was charged with possession of substance in
penalty group 2, one gram or more but less than four grams (MDMA) in Cause
1445686. Writ Exhibit 1. Applicant was formally charged by information, pled guilty
pursuant to a plea agreement, and was convicted of possession of substance in penalty
group 2, one gram or more but less than four grams (MDMA) on December 2, 2014.
Writ Exhibits 2, 3, 4. About a month-and-a-half later, evidence seized from Applicant
was tested by the Houston Forensic Science Center. Writ Exhibit 5. According to the
laboratory analyst, no MDMA was detected in the evidence, but other controlled
substances were detected. Writ Exhibit 5. The State has conceded that Applicant was
not provided notice of the lack of evidence supporting his conviction for possession
of MDMA before the guilty plea was entered and accepted in this case. Agreed Findings
of Fact and Conclusions of Law at Finding of Fact 5.
SUMMARY OF THE ARGUMENT
This Court has granted relief based on an involuntary plea in a wide variety of
situations, even in cases where the evidence suggests that the defendant committed
some offense or even the offense the defendant judicially confessed to committing.
2
The core concern addressed by the Court in involuntary plea cases was not the
relative culpability of the defendant, but whether the defendant’s plea was knowing
and voluntary. Much like a case where a person pled guilty, but is actually innocent of
a crime, or where a person pled guilty, but is only guilty of a lesser-included offense,
no rational factfinder having access to the laboratory results in this case could find
Applicant guilty of possession of substance in penalty group 2,1 one gram or more but
less than four grams (MDMA). Consequently, it was not a rational decision to plead
guilty.
Applicant’s conviction for possession of substance in penalty group 2, one
gram or more but less than four grams (MDMA) has constitutional implications, and
cannot be left to stand. First, as possession of MDMA and methamphetamine are
different crimes and may be prosecuted successively, there is nothing that prevents
Applicant’s being prosecuted for possession of methamphetamine, even after being
convicted for possession of MDMA. Second, as there is no valid evidence that
Applicant possessed MDMA as alleged in the indictment, Applicant has, in effect,
been convicted of charges other than those set forth in the indictment. If Applicant’s
conviction is permitted to stand, it threatens to permit the conviction of defendants,
where an offense never occurred.
1
This brief shall employ the statutory title for the offense “possession of substance in
penalty group 2” rather than the more common parlance “possession of controlled
substance in penalty group 2.”
3
ARGUMENT
I. As Michael Williams conclusively established that he did not possess
MDMA, Michael Williams’s plea is involuntary and his conviction offends
principles of due process
A. Where there is no evidence to support a conviction or where the
evidence supporting a conviction is refuted by clear and convincing
evidence, the conviction is invalid
1. This Court has repeatedly held that where there is no evidence
to support an element of a person’s conviction, a defendant’s
conviction is invalid
In many individual contexts, the Court of Criminal Appeals has determined
that where there is no evidence regarding a key element of a criminal allegation, a
conviction is invalid. See Gonzalez v. State, 588 S.W.2d 574, 577–578 (Tex. Crim. App.
1979). The defendant’s guilt or innocence of a similar offense, even a lesser-included-
offense, is unimportant when determining whether the State offered sufficient proof
to establish the elements of a different offense. See Ex parte Perales, 215 S.W.3d 418,
419–420 (Tex. Crim. App. 2007) (although there was evidence that Perales illegally
ingested cocaine, there was no evidence to support her conviction for delivery of
cocaine to her unborn child). Furthermore, even where the defendant pleads guilty, if
there is no evidence that can support each element of the offense, the conviction
cannot stand. See State v. Wilson, 324 S.W.3d 595, 597–598 (Tex. Crim. App. 2010)
4
(even though Wilson was guilty of a lesser-included offense and pleaded guilty to the
greater offense, Wilson was entitled to relief when there was no evidence to support
the jurisdictional element in Wilson’s felony DWI case). A claim that there is no
evidence to support a conviction is so fundamental that it can be raised at any time.
Ex parte Coleman, 599 S.W.2d 305, 307 (Tex. Crim. App. 1978).
2. This Court has repeatedly held that where a defendant shows his
or her innocence of the charges, the defendant’s conviction is
invalid
A defendant who can prove actual innocence by clear and convincing evidence
is entitled to relief, even when afforded a fair trial. Ex parte Elizondo, 947 S.W.2d 202,
207–208 (Tex. Crim. App. 1996). Just as a defendant who raises a “no evidence” claim
may proceed regardless of whether the defendant pleaded guilty or innocent, the
defendant’s plea is irrelevant to the consideration of an actual innocence claim. Ex
parte Tuley, 109 S.W.3d 388, 390 (Tex. Crim. App. 2002). The central focus of actual
innocence jurisprudence is whether, after accounting for the evidence adduced after
trial, the applicant has shown “by clear and convincing evidence that no reasonable
juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947
S.W.2d at 209.
5
B. The laboratory report indicates that there is no evidence to support an
essential element of Michael Williams’s conviction, namely the
requirement that Michael Williams’s actually possessed MDMA in this
case
1. The evidence conclusively establishes that Michael Williams did
not possess MDMA as charged in the information
The laboratory report, included as part of the trial court’s findings, conclusively
established that there was no MDMA detected in the sample tested by the Houston
Forensic Science Center. Writ Exhibit 5 (unlabeled). All parties agreed and the trial
court concluded that there was no MDMA detected in the sample. Agreed Findings of
Fact and Conclusion of Law at Finding of Fact 4, Ex parte Williams, No. 1445686-A
(208th Dist. Ct., Harris Cty., Tex. Oct. 21, 2014) (filed Feb. 27, 2015).
2. Michael Williams’s conviction is invalid and has the same due
process implications as a no evidence or actual innocence case
With the laboratory report indicating that no MDMA was found in the
evidence collected in this case, the laboratory report negates the essential element of
the offense that Applicant actually possessed MDMA. As in Ex parte Elizondo, no
juror receiving the laboratory report could rationally convict based on a police
officer’s testimony that he thought the substance contained MDMA. See Curtis v. State,
548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (police officer testimony insufficient for
controlled substance identification). If Applicant had insisted upon trial and the
6
laboratory report and corresponding testimony offered as evidence, there would be
insufficient evidence to support his conviction. Id. The fact that Applicant pled guilty
should be not make any difference in the consideration of the case: “[this Court does]
not make the distinction between those who have pleaded guilty and those who have
pleaded not guilty for other claims of relief raised in habeas applications.” Ex parte
Tuley, 109 S.W.3d at 391-392. Nor should the fact that Applicant may have been
properly charged and convicted of a different offense, a distinction not made in cases
like Wilson and Ex parte Perales, which focus on whether the evidence supports the
specific conviction in a given case. Wilson, 324 S.W.3d at 597–598; Ex parte Perales, 215
S.W.3d at 419–420). It should not matter whether MDMA and methamphetamine are
both controlled substances, as possession of methamphetamine and possession of
MDMA are distinct crimes. See Watson v. State, 900 S.W.2d 60, 61 (Tex. Crim. App.
1995) (holding that possession of cocaine is a different crime than possession of
heroin). While the possession to possess one particular controlled substance may
supply the requisite culpable mental state for conviction of a different controlled
substance offense, there is no corresponding provision allowing that evidence of
detection of a specific controlled substance can support a conviction for a different
controlled substance offense. C.f. TEX. PENAL CODE § 6.04(b)(1).
Though a judicial confession is generally sufficient evidence to support a
conviction, the judicial confession in this case has been fully refuted by the laboratory
report. Potts v. State, 571 S.W.2d 180, 181–182 (Tex. Crim. App. 1978) (a judicial
7
confession is sufficient to support a conviction). This Court must ensure that
Applicant “is not convicted of a crime that never occurred.” See Salazar v. State, 86
S.W.3d 640, 644 (Tex. Crim. App. 2002) (explaining the purpose of the corpus delicti
doctrine, which ensures the integrity of cases involving extrajudicial confessions).
Additionally, the punishment of both the innocent and guilty alike violates the due
process clause of the constitution, if the evidence supporting the conviction is refuted
or there is simply no evidence supporting the conviction. See Ex parte Elizondo, 947
S.W.2d at 209; Ex parte Perales, 215 S.W.3d at 419 (Both explaining that a due process
violation has occurred where there is no evidence to support a conviction or where
the defendant is shown to be innocent of the charges). As the laboratory report
refutes the claim that Applicant possessed MDMA, the conviction cannot stand:
Regardless of any benefit that may have accrued as a direct result of the
plea agreement, when a defendant has been convicted of an offense for
which he claims that he is “actually innocent, and he proves it, he will be
relieved from the restraint of the conviction even though he may have
pleaded guilty and confessed.”
Wilson, 324 S.W.3d at 599.
C. There is nothing which meaningfully differentiates Michael
Williams’s case from previous cases involving involuntary pleas
Pleas may be found involuntary for a number of reasons, including failure to
admonish the defendant, failure to warn a defendant of the clear consequences of a
8
conviction, erroneous advice of counsel, and actual innocence.2 Whether a plea is
involuntary or not does not depend upon the moral blameworthiness of the
defendant, a plea may be involuntary whether the defendant is innocent, is guilty of
some lesser offense, of even may be guilty of the offense of conviction.3 A plea in
involuntary when a defendant operates under erroneous information “of such
importance, and so critical to his decision, as to cast doubt on the validity of the plea.”
Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) (Involuntary plea when
lawyer provided erroneous advice whether sentences would run consecutively or
concurrently). This Court has previously held that where there is disagreement
between the controlled substance of conviction and the controlled substance detected
in the evidence, the defendant is entitled to relief. See Ex Parte Mack, No. AP-75345,
2006 WL 475777, 1 (Tex. Crim. App. 2006) (mem. op., not designated for
publication) (Where a defendant pleaded guilty, believing the evidence to contain one
2
See Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995) (if a failure to
admonish a defendant affects the decision to enter into a plea, the plea is involuntary);
Ex Parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012) (a failure to warn a
defendant of clear consequences can result in an involuntary plea);
Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984) (trial counsel’s
misrepresentation to a defendant can result in an involuntary plea);
Ex parte Brown, 205 S.W.3d 538, 545–546 (Tex. Crim. App. 2006) (newly discovered
evidence exonerating a person can overcome an involuntary plea).
3
Ex Parte Moussazadeh, 361 S.W.3d at 692 (Involuntary plea where defendant was
merely misinformed about parole eligibility as it related to his offense);
Wilson, 324 S.W.3d at 599–600 (Involuntary plea where defendant was only guilty of a
lesser-included DWI offense);
Ex parte Thompson, 153 S.W.3d 416, 420–421 (Tex. Crim. App. 2005) (Involuntary plea
where defendant was actually innocent).
9
controlled substance, but where the evidence contains another substance entirely, the
defendant was entitled to relief). Holding Applicant’s plea voluntary despite the
laboratory report would offend concepts of right to notice, the right to due process,
and would produce a manifestly unjust result in this case. No rational defendant
would plead guilty to an offense the defendant did not commit. As possession of
methamphetamine and possession of MDMA are different crimes and may be
prosecuted separately, Applicant’s plea afforded him no benefit and no protection
from successive prosecution. Watson, 900 S.W.2d at 61.
II. Upholding the conviction in this case would undermine Michael Williams’s
constitutional rights
A. Possession of MDMA and possession of methamphetamine are
separate crimes
Methamphetamine and MDMA are distinct chemicals, not mere analogues or
isomers, with distinguishable profiles and different effects on the body.4 Each is
located within a separate penalty group in the Texas Controlled Substance Act. TEX.
HEALTH & SAFETY CODE §§ 481.102(6); 481.103(a)(1). Possession of
methamphetamine and MDMA are criminalized in separate statutes, and the
4
See Methamphetamine (and Amphetamine), NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION available at http://www.nhtsa.gov/people/injury/research/
job185drugs/methamphetamine.htm; Methylenedioxymethamphetamine (MDMA, Ecstasy),
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION available at
http://www.nhtsa.gov/people/injury/research/job185drugs/methylenedioxymetham
phetamine.htm
10
punishment for the offenses differs significantly for amounts over 200 grams. TEX.
HEALTH & SAFETY CODE §§ 481.115, 481.116.
B. The Double Jeopardy implications of upholding Michael Williams’s
conviction for possession of MDMA
This Court has, on multiple occasions, distinguished different Controlled
Substance Act related offenses for purposes of the constitutional protections against
double jeopardy, even if the offenses arise out of the same criminal transaction. As a
general rule, “[t]o determine the double jeopardy implications of successive
prosecutions for offenses arising out of a single criminal transaction we now apply the
offense defining test set forth in Blockburger v. United States.” Ex parte Russell, 632
S.W.2d 596, 596 (Tex. Crim. App. 1982) (citation omitted). For purposes of the
double jeopardy clause of the Fifth Amendment, possession of methamphetamine
and possession of MDMA are separate crimes as “each offense requires proof of an
element that the other offense […] does not.” Watson, 900 S.W.2d at 61 (holding that
possession of cocaine is a different crime than possession of heroin). Upholding
Applicant’s conviction for possession of MDMA would have dire consequences and
would allow the State to bypass Applicant’s protection against double jeopardy. As
possession of MDMA and methamphetamine are different offenses for double
jeopardy purposes, without habeas corpus relief, Applicant remains vulnerable to
prosecution for possession of methamphetamine, notwithstanding the conviction for
possession of MDMA.
11
C. The Due Process implications of Michael Williams’s conviction
It has long been held that “[a] court cannot permit a defendant to be tried on
charges that are not made in the indictment against him.” Stirone v. United States, 361
U.S. 212, 217 (1960). Discussing whether charges for possession of
methamphetamine could simply be amended to reflect charges of possession of
cocaine, the Fifth Court of Appeals in Dallas concluded that allowing the amendment
would violate a defendant’s right to a grand jury:
If possession of each individual substance within a penalty group was
the same statutory offense, the State could amend an indictment over
objection, interchanging among any one of the nine subsections and
over one hundred complex chemical structures individually composing
Penalty Group 1, at will. This would directly contravene the statutory
intent of the legislature as discussed in Watson.
Nichols v. State, 52 S.W.3d 501, 503 (Tex. App.−Dallas 2001, no pet.). Several decades
ago, the United States Court of Appeals for the Fifth Circuit employed similar
reasoning, concluding that if a person was convicted for an offense not alleged in the
grand jury’s indictment, the conviction is invalid:
The Fifth Amendment gives every indicted defendant the right to be
tried only on the charges made by the grand jury that indicted him. If he
is to be convicted, the conviction must rest solely on the charges made
by the indictment. Neither the prosecution nor the trial judge can alter
the charge to fit the proof; to do so would be usurping the function of
the grand jury.
United States v. Prejean, 494 F.2d 495, 497 (5th Cir. 1974). As relevant to this particular
case, Applicant was charged with possession of MDMA, and no evidence supports
that conviction. To uphold Applicant’s conviction for possession of MDMA on the
12
belief that he possessed a different controlled substance would unconstitutionally
reach outside of the felony information and would have the same effect as altering the
charge to fit the proof in this case after the ink has dried on Applicant’s judgment.
III. Other considerations
A. A hypothetical illustrating the greater impact of the Court’s decision
Imagine co-defendants Arthur Alpha and Betty Bravo both shoot at Vern
Victim atop a bridge over the San Jacinto River. Vern Victim is hit and stumbles over
the bridge into the water. Though the bullet narrowly missed his vital organs, Victim
leaves behind quite a mess – and several eyewitnesses. Both Alpha and Bravo thought
they killed Victim. Victim, a strong swimmer, surfaces out of sight and manages to
evade detection as the police and emergency team drag the river and search the
surrounding environs for his body. Believe that given the chance, Alpha and Bravo
will kill him, Victim remains concealed until he finds out both Alpha and Betty Bravo
have been convicted for his murder. Alpha pled guilty to murder while Bravo insisted
on her right to trial. Two months after Bravo is convicted and sentenced for murder,
Victim is seen in town by Alpha’s lawyer. Can any valid policy differentiate between
Alpha and Bravo, who are both “not guilty of” murder, who both acted in a way that
may justify conviction of a different offense, and who both have been found criminal
responsible? See Wilson, 324 S.W.3d at 597–598 (right to relief even when a person is
guilty of a lesser-included offense). Can a valid policy deny habeas corpus relief if the
punishment range for the offense Bravo and Alpha were convicted of committing is
13
identical to the punishment range for the actual offense Bravo and Alpha may have
committed, even if there is no evidence to support the offense of conviction? While
this case may superficial seem to be simply about drug cases, these wider implications
impact any criminal case where a defendant is convicted of the wrong offense.
B. It is impossible to gauge how having the laboratory report would have
affected Michael Williams’s case at the trial level
It is impossible to tell how having the lab report on hand would have changed
Applicant’s decisions at the trial level:
1) Would the prosecutor confuse 3,4-methylenedioxymethamphetamine for
methamphetamine? If so, a canny lawyer could force the case to trial and to
acquittal. See United States v. Prejean, 494 F.2d at 497.
2) Would the prosecutor decide that, given the dangers of methamphetamine,
drug treatment was more important than punishment?
3) Would the prosecutor give a fire-sale offer rather than go through the trouble
of re-indicting the offense?
4) Would the mismatch between the evidence and the indictment serve as a
bargaining chip, perhaps securing a conviction only for attempted possession
of MDMA?
5) Would everyone miss the mistake?
A consequence of a justice system that places thousands of new defendants in Harris
County’s felony courts annually is that mistakes are made on a daily basis. How a
14
mistake will affect the trajectory of a case is pure speculation. A defendant cannot
exercise the right to a fair trial without access to exculpatory information. See Pena v.
State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (rules requiring the disclosure of
exculpatory information exist to avoid an unfair trial of the accused).
C. Considerations in filing an agreed writ of habeas corpus
Applicant’s case is but a single writ in a sea of applications that have stemmed
from the Harris County District Attorney’s Office’s past practice of leaving hundreds
of problematic laboratory reports collecting dust. Michael Barajas, Lab Reports Show
Hundreds “Convicted in Error” for Drug Offenses, HOUSTON PRESS (Oct. 29. 2014) available
at http://www.houstonpress.com/news/lab-reports-show-hundreds-convicted-in-
error-for-drug-offenses-6751687. Solving this problem in an efficient manner has
been a significant concern of both the current administration of the District
Attorney’s Office and the Harris County Public Defender’s Office. As occurs with
any compromise between two parties with fundamentally different interests (the
prosecution’s function “to see that justice is done,” the defense lawyer’s function of
effectuating a defendant’s “right to be represented by counsel”), concessions are made
in order to broker wider agreement.
Two potential grounds for relief are universally abandoned in these cases in
order to facilitate agreement: the prosecution’s failure to timely disclose favorable
evidence to the defendant and the ineffective assistance of counsel. See Ex parte
Adams, 768 S.W.2d 281, 289 (Tex. Crim. App. 1989) (writ raising issue of failure to
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disclose favorable evidence to the defendant); Ex parte Briggs, 187 S.W.3d 458, 467
(Tex. Crim. App. 2005) (failure to conduct a full investigation of scientific evidence
was ineffective assistance of counsel). Typically, an agreed writ focuses upon the
systemic breakdown which occurs in a given case, not assigning blame for the
breakdown. See Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006) (finding
systemic breakdown deprived defendant of due process). Additionally, agreed findings
of fact and conclusions of law are stripped-down and tailored to areas of agreement,
avoiding areas where an impasse would otherwise be reached.
For several years, this Court has resolved writs involving drug cases on broad
systemic grounds. See e.g. Ex Parte Frederick, No. AP-76,646, 2011 WL 4484737 (Tex.
Crim. App. 2011) (not designated for publication). Much as any lawyer relies on the
State’s appellate courts for guidance, the solution to Harris County’s laboratory report
problem relies on this Court’s precedent. Applicant would respectfully entreat this
Court to uphold the important precedent which affords an agreed avenue for relief in
this type of cases.
PRAYER
Applicant prays that this Court grant relief and remand his case to the trial
court.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
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/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
CERTIFICATE OF SERVICE
I certify that a copy of this Applicant’s Brief (Williams) has been served upon the
Harris County District Attorney's Office – Conviction Integrity, on June 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
3,652 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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