WR-82,876-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/24/2015 3:07:14 PM
Accepted 8/24/2015 3:17:45 PM
August 24, 2015 ABEL ACOSTA
No. WR-82,876-01 CLERK
In the
Court of Criminal Appeals of Texas
at Austin
Cause No. 1121345-A
In the 179th District Court
of Harris County, Texas
Ex parte BRYAN ELLIOTT PALMBERG
STATE’S BRIEF
Devon Anderson
District Attorney
Harris County, Texas
Inger H. Chandler
Assistant District Attorney
Harris County, Texas
State Bar No. 24041051
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713-755-1570
Fax No.: 713-368-9275
Chandler_Inger@dao.hctx.net
Counsel for The State of Texas
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.2(a), a complete list of the names of all
interested parties is provided below so that the members of this Honorable Court
may at once determine whether they are disqualified to serve or should recuse
themselves from participating in the decision of the case.
Counsel for the State:
Devon Anderson – District Attorney of Harris County
Inger H. Chandler – Assistant District Attorney on habeas
Stacy Allen Sederis – Assistant District Attorney at trial
Applicant:
Bryan Elliott Palmberg
Counsel for Applicant:
Nicolas Hughes – Counsel on habeas
Heather Harrison Hall – Counsel at trial
Trial Judge:
Hon. J. Michael Wilkinson – Presiding Judge
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
ISSUE PRESENTED .................................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY ...............................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENT ........................................................................5
ARGUMENT .............................................................................................................6
The applicant’s plea of guilty to the felony offense of possession of a
controlled substance was involuntary when the substances seized by
Houston Police Department were fully consumed by a chemical field-
test, leaving no remaining evidence for confirmatory testing by an
accredited forensic laboratory. ....................................................................... 6
PRAYER FOR RELIEF ............................................................................................7
CERTIFICATE OF SERVICE ..................................................................................8
CERTIFICATE OF COMPLIANCE ......................................................................... 8
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INDEX OF AUTHORITIES
Cases
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963) ................. 3, 5
Curtis v. State, 548 S.W.2d 57 (Tex.Crim.App. 1977)......................................... 5, 6
Statutes
TEX. CODE CRIM. PROC. art. 11.07 ............................................................................. 1
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas, by and through the undersigned Harris County Assistant
District Attorney, files its brief in response to the Court of Criminal Appeals’ filing
and setting for submission the issue of whether the applicant’s plea of guilty to the
felony offense of possession of a controlled substance was involuntary when the
substances seized by the Houston Police Department were fully consumed by a
chemical field-test, leaving no remaining evidence for confirmatory testing by an
accredited forensic laboratory.
STATEMENT OF THE CASE
This case involves an application for writ of habeas corpus filed by the
applicant, Bryan Elliott Palmberg, pursuant to TEX. CODE OF CRIM. PROC. art.
11.07. The applicant is seeking habeas relief from his plea of guilty and
subsequent felony conviction for the offense of possession of a controlled
substance in cause number 1121345 (the primary case).
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument. The State
believes oral argument will assist the court in deciding not only the issue presented
in this case, but in cases involving other variances in controlled substance
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laboratory reports that have a material impact on the integrity of the underlying
conviction, such as the identification of different controlled substances and/or
different weights.
ISSUE PRESENTED
(1) Whether the applicant’s plea of guilty to the felony offense of possession of
a controlled substance was involuntary when the substances seized by the
Houston Police Department were fully consumed by the chemical field-test,
leaving no remaining evidence for confirmatory testing by an accredited
forensic laboratory.
STATEMENT OF THE PROCEDURAL HISTORY
On June 19, 2007, the applicant entered a plea of guilty to the primary case
and was convicted of the state jail felony offense of possession of cocaine (less
than one gram). The applicant entered into a plea bargain agreement with the
State, and was sentenced by the trial court to ninety (90) days in the Harris County
Jail pursuant to section 12.44(a) of the TEXAS PENAL CODE.
On September 15, 2009, the Houston Police Department Crime Laboratory
drafted a letter to the Harris County District Attorney’s Office indicating that the
evidence had been examined, that the officer had used the entire visible sample in
the field test, and that no unprocessed sample was available for analysis. On May
27, 2014, during a comprehensive review of controlled substance variance cases,
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the State located this letter and immediately forwarded it to the Harris County
Public Defender’s Office, pursuant to its continuing obligation to disclose
exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed. 215 (1963).
On January 27, 2015, the applicant, represented by Harris County Assistant
Public Defender Nicholas Hughes, filed an application for writ of habeas corpus,
cause number 1121345-A. On February 10, 2015, the trial court signed the parties’
Agreed Findings of Fact and Conclusions of Law and recommended that relief be
granted in the applicant’s case.
On March 18, 2015, the Court of Criminal Appeals remanded the application
for additional findings of fact. On May 19, 2015, the trial court signed the parties’
Agreed Supplemental Findings of Fact and Conclusions of Law Pursuant to March
18, 2015 Order and recommended that relief be granted in the applicant’s case.
On June 24, 2015, the Court of Criminal Appeals remanded the application
for further briefing on the legal issue presented by the application.
STATEMENT OF FACTS
On June 17, 2007, Houston Police Officer J.C. Masaba observed the
applicant trespassing at a Burger King restaurant in Harris County, Texas. Officer
Masaba found the applicant to be intoxicated and arrested him for the offense of
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public intoxication. Incident to the applicant’s arrest, Officer Masaba searched the
applicant and retrieved a crack cocaine rock (with broken pieces) from the
applicant’s left front pants pocket. Officer Masaba field-tested the crack cocaine
rock and received a positive result, indicating cocaine. The applicant was
subsequently charged with the state jail felony offense of possession of a
controlled substance, namely, cocaine (weighing less than 1 gram), in cause
number 1121345.
On June 19, 2007, the applicant waived indictment in the primary case and
entered into a plea agreement with the State of Texas. See February 10, 2015,
Agreed Findings of Fact and Conclusions of Law, cause no. 1121345-A. After a
plea of guilty, the applicant was sentenced by the trial court to ninety (90) days in
the Harris County Jail, pursuant to section 12.44(a) of the TEXAS PENAL CODE. Id.
On September 15, 2009, over two years after the applicant’s plea, the State
received a letter from the Houston Police Department Crime Laboratory indicating
that the evidence had been examined, that the officer had used the entire visible
sample in the field test, and that no unprocessed sample was available for analysis.
See February 10, 2015, Agreed Findings of Fact and Conclusions of Law, cause no.
1121345-A. On May 27, 2014, during a comprehensive review of controlled
substance variance cases, the State located this letter and immediately forwarded it
to the Harris County Public Defender’s Office, pursuant to its continuing
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obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed. 215 (1963).
On January 27, 2015, the applicant, represented by Harris County Assistant
Public Defender Nicolas Hughes, filed an application for writ of habeas corpus,
cause number 1121345-A, alleging that the applicant’s plea was involuntary and
that his conviction violates due process. See applicant’s writ. The State agrees.
SUMMARY OF THE ARGUMENT
The applicant’s plea of guilty to the state jail felony offense of possession of
a controlled substance was involuntary when the substances seized by the Houston
Police Department were fully consumed by a chemical field-test, leaving no
remaining evidence for confirmatory testing by an accredited forensic laboratory.
Under this Court’s own jurisprudence in Curtis v. State, 548 S.W.2d 57 (Tex.
Crim. App. 1977), a positive chemical field test alone is insufficient to support a
controlled substances conviction. The applicant pled guilty to possessing less than
one gram of cocaine; however, the substance seized from the applicant was never
confirmed to be cocaine. As a result, the State believes that the applicant’s
conviction in the primary case was, in fact, erroneous.
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ARGUMENT
THE APPLICANT’S PLEA OF GUILTY TO THE FELONY OFFENSE OF
POSSESSION OF A CONTROLLED SUBSTANCE WAS INVOLUNTARY
WHEN THE SUBSTANCES SEIZED BY THE HOUSTON POLICE
DEPARTMENT WERE FULLY CONSUMED BY THE CHEMICAL FIELD
TEST, LEAVING NO REMAINING EVIDENCE FOR CONFIRMATORY
TESTING BY AN ACCREDITED FORENSIC LABORATORY.
A positive chemical field test, and an officer’s subsequent testimony about
the result of said field test, is insufficient evidence to support a conviction for
possession of a controlled substance. See Curtis v. State, 548 S.W.2d 57
(Tex.Crim.App. 1977)(holding that neither an experienced narcotics officer’s
testimony that a substance field-tested positive for an opiate derivative, nor his
hearsay testimony that he was told by a chemist that the substance was heroin, was
sufficient to prove that substance was, in fact, heroin). In the applicant’s case, the
only evidence that he was privy to at the time of his plea was the result of the
chemical field test. Because he was unaware that the substances seized from him
had been fully consumed by the chemical field test, rendering them unavailable for
confirmatory testing, his plea of guilty to possessing cocaine was unknowing and
involuntary. Had the parties known of the variance at the time of the applicant’s
plea, the case would likely have been dismissed by the Harris County District
Attorney’s Office.
6
Simply put, the applicant stands convicted of an offense for which there is
insufficient evidence. As a result, has asserted a claim that his plea was
unknowing and involuntary. Because the evidence in possession of the State does
not support the applicant’s conviction, the State agrees that the applicant is entitled
to relief. The State, however, welcomes guidance from the Court on how to handle
variance cases in the future.
PRAYER FOR RELIEF
Based on the foregoing, the State respectfully requests that this Court grant
the application for writ of habeas corpus.
/ s / Inger H. Chandler
INGER H. CHANDLER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-1570
(713) 368-9275 (telecopier)
State Bar No. 24041051
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been served on
the following counsel of record:
Mr. Nicolas Hughes
Harris County Public Defender’s Office
1201 Franklin Street, 13th Floor
Houston, TX 77002
Date: August 24, 2015
/ s / Inger H. Chandler
INGER H. CHANDLER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of TEX. R. APP.
PROC. 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. PROC. 9.4(i), if
applicable, because it contains 779 words excluding portions not to be counted
under TEX. R. APP. PROC. 9.4(i)(1).
/ s / Inger H. Chandler
INGER H. CHANDLER
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