IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,190-02
EX PARTE ANDREW SAUCEDO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1415435-A IN THE 262 ND DISTRICT COURT FROM HARRIS COUNTY
K ELLER, P.J., filed a dissenting opinion in which K EEL, J., joined.
Applicant knowingly possessed a controlled substance. He knew at the time of his plea that
the substance had not yet been tested. But the State was giving him a great deal—six years’ deferred
adjudication—so he pled guilty. Testing on the substance was complete less than two months after
the plea,1 but for almost three years, Applicant did nothing to challenge his conviction. Now that
his guilt has been adjudicated and he has been sentenced to ten years, Applicant wants a do-over, and
the Court gives him one. There are three reasons this is a mistake.
1 Applicant was placed on deferred adjudication on January 27, 2014. According to Applicant’s habeas application and the trial court’s findings of fact, the Houston Police Department Crime Laboratory tested the substance on March 21, 2014. The habeas record contains a laboratory report dated March 21, 2014, which shows methylethcathinone rather than methamphetamine. SAUCEDO DISSENT — 2
First, under Ex parte Broussard, Applicant has not shown that his guilty plea was
involuntary.2 The testing did not disprove Applicant’s guilt of possessing an illegal drug; it just
proved that he possessed a different illegal drug than the one charged.3
Second, Applicant has not shown harm. Under the doctrine of transferred intent, he is still
guilty of culpably possessing the drug that the testing revealed, and the punishment range for that
drug is the same as the one with which he was charged. Consequently, Applicant is not actually
innocent nor has he been subjected to a harsher punishment range than the offense that he actually
committed would support.
The general rule in post-conviction habeas proceedings is that the convicted person has the
burden to show harm.4 To understand how harm could be shown in a case such as this, we begin
with the fact that Applicant’s conviction was the result of a guilty plea. A guilty plea constitutes an
admission of guilt to the charged crime.5 In pleading guilty to possession of methamphetamine,
Applicant admitted to all of the elements of that offense. His claim now is that he is not guilty of
possession of methamphetamine because the testing conclusively establishes that he possessed a
different drug—methylethcathinone. This claim does not satisfy the requirements for showing actual
innocence because Applicant could still be guilty of the lesser-included offense of attempted
2 517 S.W.3d 814, 820 (Tex. Crim. App. 2017). 3 See id. 4 Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013). 5 United States v. Broce, 488 U.S. 563, 570 (1989). SAUCEDO DISSENT — 3
possession of methamphetamine.6
Applicant’s guilty plea to the methamphetamine offense and his habeas pleading and
proceeding necessarily establish all the elements of the methylethcathinone offense. Under those
circumstances, Applicant has effectively admitted his guilt of the methylethcathinone offense.
Base drug-possession offenses7 ordinarily contain four elements: (1) the possession of a
substance, (2) the amount of that substance, (3) the identity of that substance as a particular drug, and
(4) the culpable mental state for possession of the drug.8 The possession of a substance and the
amount of that substance were admitted by Applicant at his guilty plea, and he does not now
challenge those admissions. Instead, the claim is that the substance possessed was a different drug
than the one alleged, namely methylethcathinone, instead of methamphetamine. So Applicant’s
guilty plea to the methamphetamine offense necessarily satisfied elements (1) and (2) of the
methylethcathinone offense.
As for element (3)—the identity of the substance as methylethcathinone—that element was
necessarily satisfied by Applicant’s habeas pleading and this habeas proceeding. To even make his
claim on habeas corpus, Applicant has to concede that the substance he possessed was
methylethcathinone. He cannot claim, for example, that the chemist tested the wrong substance or
that the testing procedure was flawed, because such claims would undermine his contention that the
6 See State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010) (“We hold that the term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser- included offenses.”). 7 A base drug-possession offense would be one that is without enhancing elements such as the possession being in a drug-free zone. See TEX . HEALTH & SAFETY CODE § 481.134 (drug free zone enhancement). 8 See e.g., id. §§ 481.115, 481.116. SAUCEDO DISSENT — 4
testing shows he did not possess methampethamine. Applicant cannot use the identity of that
substance when it operates in his favor but call its identity in question when it operates against him.
And consistent with Applicant’s habeas pleading, the evidence in this habeas proceeding shows the
substance to be methylethcathinone.
That leaves element (4), the culpable mental state. We have said in the past that, for a
possession-of-controlled-substance offense, the State is required to prove that the accused “knew the
matter [possessed] was contraband.”9 If that is literally all the State is required to prove, then
Applicant’s guilty plea to intentionally and knowingly possessing methamphetamine satisfies the
culpable-mental-state element, and all four elements have been established.
But methamphetamine and methylethcathinone fall within different penalty groups,10 and it
could be argued that the culpable mental state applies at least to the penalty group that the substance
is in. If that were so, then the intent or knowledge with respect to a drug in penalty group 2 might
differ from the intent or knowledge with respect to a drug in penalty group 1.11 But this difference
ultimately does not matter because of the law of transferred intent.
The Penal Code contains two “transferred intent” doctrines, but the one applicable here
involves the transfer of intent from one offense to another:
9 Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled on other grounds by, Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Bracketed material absent from Lane but present in Poindexter and Joseph. 10 TEX . HEALTH & SAFETY CODE §§ 481.102(6), 481.103(4). 11 Compare TEX . HEALTH & SAFETY CODE § 481.115 (“if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1”), with id.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,190-02
EX PARTE ANDREW SAUCEDO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1415435-A IN THE 262 ND DISTRICT COURT FROM HARRIS COUNTY
K ELLER, P.J., filed a dissenting opinion in which K EEL, J., joined.
Applicant knowingly possessed a controlled substance. He knew at the time of his plea that
the substance had not yet been tested. But the State was giving him a great deal—six years’ deferred
adjudication—so he pled guilty. Testing on the substance was complete less than two months after
the plea,1 but for almost three years, Applicant did nothing to challenge his conviction. Now that
his guilt has been adjudicated and he has been sentenced to ten years, Applicant wants a do-over, and
the Court gives him one. There are three reasons this is a mistake.
1 Applicant was placed on deferred adjudication on January 27, 2014. According to Applicant’s habeas application and the trial court’s findings of fact, the Houston Police Department Crime Laboratory tested the substance on March 21, 2014. The habeas record contains a laboratory report dated March 21, 2014, which shows methylethcathinone rather than methamphetamine. SAUCEDO DISSENT — 2
First, under Ex parte Broussard, Applicant has not shown that his guilty plea was
involuntary.2 The testing did not disprove Applicant’s guilt of possessing an illegal drug; it just
proved that he possessed a different illegal drug than the one charged.3
Second, Applicant has not shown harm. Under the doctrine of transferred intent, he is still
guilty of culpably possessing the drug that the testing revealed, and the punishment range for that
drug is the same as the one with which he was charged. Consequently, Applicant is not actually
innocent nor has he been subjected to a harsher punishment range than the offense that he actually
committed would support.
The general rule in post-conviction habeas proceedings is that the convicted person has the
burden to show harm.4 To understand how harm could be shown in a case such as this, we begin
with the fact that Applicant’s conviction was the result of a guilty plea. A guilty plea constitutes an
admission of guilt to the charged crime.5 In pleading guilty to possession of methamphetamine,
Applicant admitted to all of the elements of that offense. His claim now is that he is not guilty of
possession of methamphetamine because the testing conclusively establishes that he possessed a
different drug—methylethcathinone. This claim does not satisfy the requirements for showing actual
innocence because Applicant could still be guilty of the lesser-included offense of attempted
2 517 S.W.3d 814, 820 (Tex. Crim. App. 2017). 3 See id. 4 Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013). 5 United States v. Broce, 488 U.S. 563, 570 (1989). SAUCEDO DISSENT — 3
possession of methamphetamine.6
Applicant’s guilty plea to the methamphetamine offense and his habeas pleading and
proceeding necessarily establish all the elements of the methylethcathinone offense. Under those
circumstances, Applicant has effectively admitted his guilt of the methylethcathinone offense.
Base drug-possession offenses7 ordinarily contain four elements: (1) the possession of a
substance, (2) the amount of that substance, (3) the identity of that substance as a particular drug, and
(4) the culpable mental state for possession of the drug.8 The possession of a substance and the
amount of that substance were admitted by Applicant at his guilty plea, and he does not now
challenge those admissions. Instead, the claim is that the substance possessed was a different drug
than the one alleged, namely methylethcathinone, instead of methamphetamine. So Applicant’s
guilty plea to the methamphetamine offense necessarily satisfied elements (1) and (2) of the
methylethcathinone offense.
As for element (3)—the identity of the substance as methylethcathinone—that element was
necessarily satisfied by Applicant’s habeas pleading and this habeas proceeding. To even make his
claim on habeas corpus, Applicant has to concede that the substance he possessed was
methylethcathinone. He cannot claim, for example, that the chemist tested the wrong substance or
that the testing procedure was flawed, because such claims would undermine his contention that the
6 See State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010) (“We hold that the term ‘actual innocence’ shall apply, in Texas state cases, only in circumstances in which an accused did not, in fact, commit the charged offense or any of the lesser- included offenses.”). 7 A base drug-possession offense would be one that is without enhancing elements such as the possession being in a drug-free zone. See TEX . HEALTH & SAFETY CODE § 481.134 (drug free zone enhancement). 8 See e.g., id. §§ 481.115, 481.116. SAUCEDO DISSENT — 4
testing shows he did not possess methampethamine. Applicant cannot use the identity of that
substance when it operates in his favor but call its identity in question when it operates against him.
And consistent with Applicant’s habeas pleading, the evidence in this habeas proceeding shows the
substance to be methylethcathinone.
That leaves element (4), the culpable mental state. We have said in the past that, for a
possession-of-controlled-substance offense, the State is required to prove that the accused “knew the
matter [possessed] was contraband.”9 If that is literally all the State is required to prove, then
Applicant’s guilty plea to intentionally and knowingly possessing methamphetamine satisfies the
culpable-mental-state element, and all four elements have been established.
But methamphetamine and methylethcathinone fall within different penalty groups,10 and it
could be argued that the culpable mental state applies at least to the penalty group that the substance
is in. If that were so, then the intent or knowledge with respect to a drug in penalty group 2 might
differ from the intent or knowledge with respect to a drug in penalty group 1.11 But this difference
ultimately does not matter because of the law of transferred intent.
The Penal Code contains two “transferred intent” doctrines, but the one applicable here
involves the transfer of intent from one offense to another:
9 Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled on other grounds by, Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Bracketed material absent from Lane but present in Poindexter and Joseph. 10 TEX . HEALTH & SAFETY CODE §§ 481.102(6), 481.103(4). 11 Compare TEX . HEALTH & SAFETY CODE § 481.115 (“if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1”), with id. § 481.116 (“if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 2”). SAUCEDO DISSENT — 5
A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that . . . a different offense was committed.12
We have applied this version of the “transferred intent” doctrine to drug offenses.13 Consequently,
Applicant’s culpable mental state with respect to methamphetamine, admitted to by his guilty plea,
transfers to the methylethcathinone offense.
Because Applicant has effectively admitted, through his plea and his current pleadings, to
all the elements of possession of methylethcathinone, and because that offense has the same
punishment range as the methamphetamine offense to which he pled guilty, Applicant has suffered
no harm.
Finally, Applicant should be estopped from challenging his plea because he waited to do so
until his guilt was adjudicated. A person who receives probation as a part of a plea agreement should
be estopped from challenging the validity of his plea when he enjoys the benefits of being on
probation and raises his challenge only after probation is revoked.14 Despite his allegation that he
12 TEX . PENAL CODE § 6.04(b)(1). 13 Mendoza v. State, 636 S.W.2d 198, 200 & n.2 (Tex. Crim. App. 1982). See also Palafox v. State, 949 S.W.2d 48, 49 (Tex. App.—Texarkana 1997, no pet.). Although the language of the transferred intent instruction talks about “causing a result,” at least one court of appeals has concluded that possession of a controlled substance can qualify as a result-oriented offense for the purpose of instructing the jury. Adams v. State, 744 S.W.2d 622, 628-29 (Tex. App.—Fort Worth 1987, pet. ref’d). See also Skillern v. State, 890 S.W.2d 849 (Tex. App.—Austin 1994, no pet.) (citing Adams for the proposition that “an offense may not fit neatly into either a ‘result’ type or a ‘nature of conduct’ offense”). 14 See Rhodes v. State, 240 S.W.3d 882, 890-91, 891 n.52, 892 n.57 (Tex. Crim. App. 2007) (discussing with approval the concurring opinion in Ex parte Williams, 65 S.W.3d 656, 658-60 (Tex. Crim. App. 2001) (Keller, P.J., concurring), which concluded that the plea-bargaining defendant in that case was estopped from challenging the trial court’s judgment on the basis that probation was illegal because he had accepted the benefits of probation). SAUCEDO DISSENT — 6
would not have pled guilty if he had known the relevant circumstances, Applicant enjoyed the
benefit of his plea bargain for almost three years after the substance was tested.15 The habeas court
found that Applicant was never made aware of the lab report after his initial plea or during the
motion to adjudicate. Even so, Applicant could have inquired as to the result of testing, and had he
done so earlier, could have filed a habeas application under Article 11.072, while he was still on
probation.16 Granting relief under such circumstances creates a windfall for defendants who have
nothing to lose by laying behind the log. I would hold that Applicant’s claim is barred by estoppel.17
For these reasons, I would deny relief.
Filed: June 26, 2019 Publish
15 See Rhodes, 240 S.W.3d at 892 (defendant was estopped who had “quietly enjoyed the benefits” of the illegal judgment, challenging it now only because, due to his own subsequent criminal conduct, the judgment could be used to enhance his punishment for a new offense). 16 See TEX . CODE CRIM . PROC. art. 11.072. 17 Maybe the State agreed to relief because it believed the law demanded it. But the State’s concession has no legal effect, so by granting relief here, the Court establishes a right to relief in these circumstances even when the State contests a writ application. The next time an applicant proves that the substance he pled guilty to possessing was in a different penalty group than the substance he actually possessed, he will be entitled to relief under the Court’s opinion.