Broussard, Kenneth

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 2016
• Docket: WR-83,014-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,014-01

EX PARTE KENNETH BROUSSARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1451074-A IN THE 178TH 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 delivery of less

than one gram of cocaine, and was sentenced to eight months in state jail. He did not appeal his

conviction.

Applicant contends that his plea was involuntary and that his conviction violates due process

because the evidence in his case was tested and found not to contain any cocaine, even though the

lab test shows that the evidence contained methamphetamine, a different controlled substance. 2

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). We order that this application

be filed and 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, but which are

within the same penalty group under the Health and Safety Code. 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 them. 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: March 9, 2016 Do not publish