Broussard, Kenneth ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,014-01
EX PARTE KENNETH BROUSSARD, Applicant
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.
2
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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