Opinion
WR-93,347-02 WR-93,347-03
08-21-2024
EX PARTE GREGORY SCOTT SIPPEL, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1430076-A & 1430077-A IN THE 180TH DISTRICT COURT FROM HARRIS COUNTY
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined. Yeary, J., filed a dissenting opinion. Keel, J., dissented.
OPINION
PER CURIAM
Applicant pleaded guilty, was convicted of possession with intent to deliver controlled substances, and was sentenced to six years' imprisonment in these causes. Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that his pleas were involuntary and that he is actually innocent of the offenses of conviction. Specifically, Applicant states that when he pleaded guilty to possession with intent to deliver hydrocodone, he was not aware that the tablets he possessed did not contain hydrocodone. However, a lab report he received in 2022 shows that the tablets did not contain hydrocodone, though they contained approximately .44 grams of Alprazolam. Further, when Applicant pleaded guilty to possession with intent to deliver 4 to 200 grams of heroin, he was not aware that the substance he possessed constituted less than 1 gram of heroin. But the lab report he received in 2022 establishes that he possessed less than 1 gram of heroin. Therefore, each possession with intent to deliver offense should have been a state jail felony. The State agrees. Based on the record, the trial court has determined that Applicant's convictions violate due process.
Relief is granted. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014), Brady v. United States, 397 U.S. 742 (1970). The judgments in cause numbers 1430076 and 1430077 in the 180thDistrict Court of Harris County are set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charges as set out in the indictments. The trial court shall issue any necessary bench warrants within ten days from the date of this Court's mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Keller, P.J. filed a dissenting opinion in which Slaughter, J., joined.
There are two cases here, and at least one of them, the - 02 case- is odd. Because I think we need more information, I would remand these cases for further evidence and for findings.
A. The -02: Hydrocodone
In the -02, Applicant was charged with possessing at least 28 (and less than 200) grams of hydrocodone. A variety of pills were found in Applicant's possession:
• Two yellow oval pills with a scratched off imprint
• Two white oval pills with a scratched off imprint
• Two green oval pills with a scratched off imprint
• A Ziploc bag containing 63 blue oval pills labeled "Watson 540".
The individual pills did not weigh much. One of the yellow pills weighed 0.302 grams and the remaining yellow, white, and green pills weighed around 0.15 grams each. But the 63 blue pills in the Ziploc bag together weighed just under 41 grams. It is obvious that the bag of blue pills is the subject of the State's indictment in the -02 case.
The Court seems to suggest that the -02 is a "different drugs" case (one where testing reveals the substance to be a different controlled substance than the one charged) or a "lesser amount" case (where the amount of controlled substance is less than what was charged) but an examination of the report negates both of those possible conclusions. One each of the yellow, white, and green pills was tested and found to contain Alprazolam. But that does not matter because only the bag of blue pills weighed enough to meet the 28 gram threshold, and it was not found to contain a controlled substance.
See Ex parte Broussard, 517 S.W.3d 814, 820 (Tex. Crim. App. 2017) (Plea not necessarily involuntary when testing showed substance to be a different controlled substance than the one charged.).
And here is where the case gets odd. According to the laboratory report, the blue pills are labeled "Watson 540." That is a manufacturer's label. A search of www.drugs.com indicates that a blue oval pill with that label describes a combination of acetaminophen and hydrocodone bitartrate supplied by Watson Laboratories, Inc. If these pills are genuine, they satisfied the indictment. If they are counterfeit, then the -02 is like Ex parte Mable, where drug testing revealed that the substance was not an illicit substance.
443 S.W.3d 129, 130 (Tex. Crim. App. 2014).
The laboratory report says, "No Compounds Confirmed by Standard Procedures." I am not entirely sure if "confirmed" means the same as "detected." Like Judge Yeary, I am also concerned that the "sampling plan" for this test provides a 95% confidence for "at least 75%" of the pills, leaving the apparent possibility of 25% of the pills containing a controlled substance (though 25% of 41 would be around 10 grams, which would fall below the 28 gram threshold for the grade of this offense). I am also concerned about the statement, "One or more compounds were identified, but not confirmed." That sentence follows with a listing of "examples" that include but are not limited to fillers, flavoring agents, additives, and botanical or fungal extracts. That qualifying sentence suggests that the "identified" compounds are inactive ingredients, but I think we need a more explicit explanation of what these sentences mean.
All of this is to say I think we need some expert testimony explaining the various statements made by the laboratory report in connection with the testing of the blue pills. And I think we need to get evidence and findings on whether the testing shows the blue pills to be counterfeit or whether we need more testing to arrive at such a conclusion.
B. The -03: Heroin
In the -03, Applicant was charged with possessing at least four grams (and less than 200 grams) of heroin. The laboratory report says that a syringe containing a brown liquid tested positive for heroin with a weight of 0.268 grams. That weight is only slightly more than one-fifteenth of the minimum weight of four grams needed to meet the grade of the offense charged. That seems like a significant discrepancy, and like Judge Yeary, I think we need to know how such a discrepancy occurred. Perhaps the weights involved are small enough that a mis-estimate of even this magnitude is not unusual, but if that is the case, we need to hear from an expert how much of a discrepancy can be expected and why. I have suggested that Mable should not necessarily control when the laboratory testing merely shows a lesser amount of the controlled substance charged, but an explanation for the discrepancy here might factor into how this sort of case should be treated.
The charging instrument says "more than 4 grams" but the statute says "four grams or more but less than 200 grams." Tex. Health & Safety Code § 481.112(d).
Ex parte Hooper, 685 S.W.3d 152, 153-54 (Tex. Crim. App. 2024) (Keller, P.J., dissenting).
I would remand this case for further proceedings. Because the Court grants relief without doing so, I respectfully dissent.
Yeary, J., filed a dissenting opinion.
In July of 2014, Applicant pled guilty to two second-degree felony drug offenses: (1) possession with intent to deliver "a material, compound, mixture, [or] preparation containing not more than 15 milligrams of dihydrocodeinone (hydrocodone) per dosage unit, with one or more active nonnarcotic ingredients in recognized therapeutic amounts, weighing at least 28 grams but less than 200 by aggregate weight, including any adulterants and dilutants"; and (2) possession with intent to deliver 4-200 grams of heroin. In accordance with his plea agreements, the convicting court sentenced Applicant to six years' imprisonment for both offenses, to run concurrently. At the time of his plea, no laboratory testing of the substances in Applicant's possession had occurred.
See Tex. Health & Safety Code §§ 481.104(a)(4) (designating as a Penalty Group 3 controlled substance "a material, compound, mixture, or preparation containing limited quantities of the following narcotic drugs or any of their salts: . . . not more than 15 milligrams [of dihydrocodeinone (hydrocodone)] per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts"), 481.114(c) (establishing possession with intent to deliver "28 grams or more but less than 200 grams" of a Penalty Group 3 or 4 controlled substance as a second-degree felony); Tex. Health & Safety Code §§ 481.102(2) (designating heroin as a Penalty Group 1 controlled substance), 481.112(d) (establishing possession with intent to deliver "four grams or more but less than 200 grams" of a Penalty Group 1 controlled substance as a first-degree felony).
A month after Applicant's plea, in August of 2014, the Harris County Institute of Forensic Sciences (HCIFS) issued its laboratory analysis of the evidence in Applicant's cases. The report indicates the presence of no hydrocodone but approximately 0.44 grams of Alprazolam, a different Penalty Group 3 controlled substance, and less than one gram of heroin. These results were not shared with Applicant until nearly eight years after his plea, when the Harris County District Attorney sent Applicant a notice of the variance between his charges and the lab results.
See Tex. Health & Safety Code § 481.104(a)(2) (designating Alprazolam as a Penalty Group 3 controlled substance).
With the assistance of counsel, Applicant filed the instant applications for writs of habeas corpus in September of 2023. In his -02 writ application, challenging his possession with intent to deliver the hydrocodone conviction, Applicant alleges: (1) that his plea was involuntary because "lab reports disclosed after his plea indicate [that] Applicant did not possess the controlled substance hydrocodone"; and (2) for the same reason, that he is actually innocent. In his -03 writ application, challenging his possession with intent to deliver heroin conviction, Applicant argues that his plea was involuntary because "Applicant could not have made a voluntary and intelligent choice among alternative courses of action because he did not know that he only possessed a trace amount of [heroin], not 4 grams or more." The Court agrees that Applicant's pleas were involuntary, and grants him relief from both of his convictions under Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). Majority Opinion at 2.
I. Involuntary Plea
For reasons I have often explained, I would not grant any applicant relief under Mable, because Mable was wrongly decided and should be overruled. Applicant waived indictment and pled guilty when neither he nor the State knew what testing of the evidence in his cases might reveal. This “ignorance of facts he ‘knew . . . he did not know'” does not now, retroactively, render his pleas involuntary. Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, J., concurring) (quoting Ex parte Palmberg, 491 S.W.3d 804, 810 (Tex. Crim. App. 2016)). Moreover, there is no evidence that Applicant's pleas were involuntary at the time he made them-i.e., there is no evidence that he was “fraudulently misled or coerced into pleading guilty or that his plea counsel was ineffective.” Id. at 721 (Keasler, J., concurring). I would not grant Applicant relief from either of his convictions on the ground of involuntary plea.
See Ex parte Warfield, 618 S.W.3d 69, 72-73 (Tex. Crim. App. 2021) (Yeary, J., concurring) ("Mable should be overruled. As Judge Keasler aptly explained in his concurring opinion in Saucedo, so long as an accused enters a guilty plea with an awareness of what he does not know, it cannot be said that he pled involuntarily.") (citing Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, J., concurring)); Ex parte Hooper, 685 S.W.3d 152, 155 (Tex. Crim. App. 2024) (Yeary, J., dissenting) ("I reaffirm my belief today that this Court should overrule Mable because it stands for the erroneous proposition that subsequent factual developments, without any 'suggestion that [the applicant] was fraudulently misled or coerced into pleading guilty or that [her] plea counsel was ineffective[,]' may retroactively render an applicant's plea of guilty involuntary") (quoting Saucedo, 576 S.W.3d at 721 (Keasler, J., concurring)).
Nor was Applicant's plea with respect to his hydrocodone charge involuntary simply because he possessed a different Penalty Group 3 controlled substance than the one that he pled guilty to possessing. Ex parte Broussard, 517 S.W.3d 814, 820 (Tex. Crim. App. 2017) ("[G]uilty pleas that are otherwise valid do not become invalid merely because laboratory tests determine the defendant was carrying a different illicit substance.").
II. Due Process and Due Course of Law
My quarrel with Mable aside, I have sometimes agreed that applicants in similar cases may be entitled to post-conviction relief on grounds of due process and due course of law. As I wrote in Ex parte Ohlemacher:
When undisputed new facts that were inaccessible to both parties at the time of a trial or plea irrefutably demonstrate that an Applicant is not guilty of the offense for which a judgment of conviction has been entered, the right to due
process and due course of law are implicated. But for the inaccessibility of those newly discovered facts, a rational jury or judge would not have entered either a finding or a judgment of guilt.666 S.W.3d 528, 528 (Tex. Crim. App. 2023) (Yeary, J., concurring). Thus, when subsequent analysis of the evidence in a controlled substance case proves that the applicant should have been convicted only of a different offense, due process demands that the applicant's false judgment be corrected. I would not rule out that Applicant may ultimately be entitled to this form of relief in either of these cases. But I believe remand to develop the record is necessary before the Court can confidently determine whether Applicant is entitled to any relief.
III. Remand
The current state of the record in these cases give me pause. I am particularly disturbed by the fact that Applicant pled guilty to possessing a minimum of 28 grams of hydrocodone when the laboratory testing apparently shows that he possessed less than one gram of a different Penalty Group 3 controlled substance. Almost as disturbing is the fact that Applicant pled guilty to possessing at least four grams of heroin when the lab testing now shows he possessed less than one gram of that substance. As the ultimate fact-finder in these circumstances, the Court should be extremely interested in determining how these kinds of mistakes, if they were truly mistakes, happened. To do that, I would remand this application to the habeas court with instructions to make supplemental findings and conclusions with respect to the following questions:
• How, and by whom, was the substance in cause number
1430076 initially determined to be hydrocodone? How was that substance initially determined to weigh "at least 28 grams but less than 200 grams" by aggregate weight?
• How, and by whom, was the substance in cause number 1430077 initially determined to be heroin? How was that substance initially determined to weigh "four grams or more but less than 200 grams" by aggregate weight?
• Was all of the evidence that was suspected to be, or suspected to contain, illicit substances in these cases delivered to the HCIFS for analysis, or was any portion of the evidence retained by the arresting agency?
• The HCIFS laboratory report indicates that Items 1A1, 1AA, and 1B1 were not analyzed. Why were these items not analyzed? What assurance is there that these items do not contain any controlled substances?
• The HCIFS laboratory report indicates that Item 2 was a "Ziplock bag containing (63) blue" tablets. The report states that "A hypergeometric sampling plan was used for the analysis of Item 2. The sampling plan provides a 95% confidence that at least 75% of the 63 tablets showed no compound confirmed by standard procedures." What assurance does this result provide that the remaining 25%, (or sixteen) of the 63 tablets do not contain any controlled substances?
• According to the current record, HCIFS issued its laboratory report on August 6, 2014, but the results of that report were not disclosed to Applicant until the Harris County District Attorney's letter, dated April 7, 2022. What, if any, reason justifies the nearly eight-year delay in disclosing this, at least, apparently exculpatory evidence to Applicant?
Answers to these questions must be sought and must be obtained. Without them, how can we have confidence that what we are presented with today is accurate? The distinctions between what Applicant was charged with and convicted of, on his own plea, versus what we are now told was the case are enormous. If the original charges were mistaken, we must know how and why such errors could have occurred. Also, it should go without saying that someone should be held accountable for errors of this magnitude. On the other hand, because the distinctions are so great, and in light of the fact that this is now ten years after Applicant entered his pleas, I am left with questions about whether there might exist some reasonable explanation for the discrepancies we are today presented with that might ultimately justify the Court denying relief on Applicant's claims.
Without answers to these questions, the record, in my view, is insufficiently complete to determine whether Applicant is or is not entitled to relief.
I respectfully dissent.