Palmberg, Bryan Elliott

Opinion

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

ii 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

iii 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

1 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,

2 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

3 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

4 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.

5 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

7 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).