Palmberg, Bryan Elliott

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-82,876-01

EX PARTE BRYAN PALMBERG, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1121345-A IN THE 179 TH 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 possession of

cocaine and sentenced to ninety days’ county jail. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the lab report, which showed there

was no usable evidence to test, was not available at the time of his plea. 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). This Court held: “The

standard is whether the plea is a voluntary and intelligent choice among the alternative courses of

action open to the defendant.” Id. at 130. We order that this application be filed and set for

submission to determine whether Applicant’s plea of guilty was involuntary when he was not aware

at the time of his plea that the field test for controlled substances conducted by the police officer did

not leave enough evidence for the drug lab to conduct its own testing. 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 him. 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Delivered: June 24, 2015 Do not publish