Opinion
NO. WR-83,014-01
03-09-2016
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.
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
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