The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-87,190-02
EX PARTE ANDREW MELCHOR SAUCEDO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1415435-A IN THE 262ND DISTRICT COURT
FROM HARRIS COUNTY
N EWELL, J. filed a concurring opinion in which R ICHARDSON,
W ALKER and S LAUGHTER, JJ., joined.
This is another case where an applicant pleaded guilty to possession
of a controlled substance before laboratory testing on the substance was
completed. I agree with the Court that Applicant is entitled to relief
because the testing now shows he did not possess the controlled
substance the State alleged he had possessed. In these types of
situations, it should be enough that the State, the applicant, and the
habeas court all agree that the applicant is entitled to relief. I write
Saucedo Concurring — 2
separately to address the suggestion of overruling Ex parte Mable.1
In Mable, we 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.2 We reasoned that this
“fact [wa]s crucial to th[e] case, and while operating under such a
misunderstanding, the applicant cannot be said to have entered his plea
knowingly and intelligently.” 3
We have previously said that the Court should not frivolously
overrule established precedent.4 “We follow the doctrine of stare decisis
to promote judicial efficiency and consistency, encourage reliance on
judicial decisions, and contribute to the integrity of the judicial process.” 5
Overruling precedent, however, is acceptable under certain circumstances
when the goals of stare decisis would not be achieved.6 But those special
1
Ex parte Mable, 443 S.W .3d 129 (Tex. Crim . App. 2014). See Keasler, J.,
Concurring Opinion at 8-24.
2
Ex parte Mable, 443 S.W .3d at 131.
3
Id.
4
Paulson v. State, 28 S.W .3d 570, 571 (Tex. Crim . App. 2000).
5
Id.
6
Id.; Jordan v. State, 54 S.W .3d 783, 786 (Tex. Crim . App. 2001) (“Som e factors
supporting the overruling of precedent are: (1) when the original rule is flawed from the
outset, (2) when the reasons underlying the precedent have been undercut with the passage
of tim e, and (3) when the rule consistently creates unjust results or places unnecessary
burdens upon the system .”).
Saucedo Concurring — 3
circumstances are not present in the aftermath of Mable, and there is no
reason to believe that adhering to Mable fails to achieve the goals of stare
decisis.
The suggestion for overruling Mable seems to flow from Ex parte
Broussard, where we held that, in a possession-of-a-controlled-substance
case, the identity of the controlled substance isn’t a crucial fact.7 But we
ignored our prior cases Watson v. State and Mable, both of which held
that the identity of the controlled substance is an essential element of the
offense of possession of a controlled substance.8 We are better served
by following that precedent than by jerry-rigging a different test that will
ultimately result in the same relief as a straight-up application of Mable.9
To that end, I see no reason to overrule Mable. It is not enough to
simply say that Applicant “knew that he did not know” the identity of the
substance he possessed because that is not the whole picture. In these
types of cases, both the applicant and the State are operating on the
7
Ex parte Broussard, 517 S.W .3d 814, 820 (Tex. Crim . App. 2017).
8
W atson v. State, 900 S.W.2d 60, 62 (Tex. Crim . App. 1995); Ex parte Mable, 443
S.W .3d at 131. See also Nichols v. State, 52 S.W .3d 501, 503 (Tex. App.— Dallas 2001, no
pet.) (“If possession of each individual substance within a penalty group was the sam e
statutory offense, the State could am end an indictm ent over objection, interchanging am ong
any one of the nine subsections and over one hundred com plex chem ical structures
individually com posing Penalty Group 1, at will.”).
9
See Keasler, J., Concurring Opinion at 22.
Saucedo Concurring — 4
assumption that the identity of the substance possessed is exactly what
the State has alleged. This situation is distinguishable from that in Ex
parte Palmberg.10 In Palmberg, the fact that there was no substance left
to be tested did not undermine both parties’ assumption that Palmberg
had possessed cocaine. In that sense, the lack of remaining evidence
was not a crucial fact. But in Mable, the affirmative evidence showing
that the substance possessed was not a controlled substance at all made
it clear that both Mable and the State had wrongly assumed that Mable
had actually possessed a certain controlled substance.11
The same holds true in this case. Applicant and the State both
operated under the assumption at the time of the plea that Applicant had
possessed methamphetamine, but later testing made it clear that both
parties were mistaken. Applicant had actually possessed
methylethcathinone.
The outlier, therefore, is not Mable—it’s Broussard.12 There is no
meaningful distinction between the facts of this case and those in
10
Ex parte Palm berg, 491 S.W .3d 804 (Tex. Crim . App. 2016).
11
Ex parte Mable, 443 S.W .3d at 131.
12
Cf. Ex parte Johnson, 541 S.W .3d 827, 830 (Tex. Crim . App. 2017) (overruling Ex
parte Sepeda, 506 S.W .3d 25 (Tex. Crim . App. 2016) because it was “an anom aly in our
habeas jurisprudence”).
Saucedo Concurring — 5
Broussard.13 In Broussard, both the State and Broussard operated under
the assumption at the time of the plea that Broussard had delivered
cocaine, but subsequent testing revealed that he had actually delivered
methamphetamine.14 And yet, we distinguished Broussard from Mable by
holding that the parties’ mistake about the identity of the controlled
substance did not render the plea involuntary.15 If we are going to get rid
of one of these cases, it should be Broussard rather than Mable.
Discovering new information crucial to the plea bargain can
retroactively invalidate the underlying agreement. Under the well-
established doctrine of mutual mistake, a contract can be rescinded
“[w]here a mistake of both parties at the time the contract was made as
to a basic assumption on which the contract was made has a material
effect on the agreed exchange of performances.” 16 When both parties
enter into a plea bargain while awaiting lab results, both parties operate
13
Keasler, J., Concurring Opinion at 1, 7.
14
Ex parte Broussard, 517 S.W .3d at 820.
15
Id.
16
See William s v. Glash, 789 S.W .2d 261, 263-64 (Tex. 1990) (citing Restatem ent
(Second) of Contracts § 152 (1981)); see also United States v. Cook, 406 F.3d 485, 487
(7th Cir. 2005) (“There are other grounds for rescinding a plea agreem ent besides
ineffective assistance of counsel, such as m utual m istake. A plea agreem ent is a contract,
and like any contract can be rescinded on the basis of such a m istake. . . . A defendant who
has signed a plea agreem ent has all the defenses he would have under contract law, plus
som e.”).
Saucedo Concurring — 6
on the assumption that the testing will confirm what the State has
alleged. Even if the parties are “rolling the dice,” they are both betting
on the same outcome based upon that assumption. If affirmative
evidence reveals that they were both mistaken about the underlying
assumption of the identity of the controlled substance, the plea bargain
may be involuntary because of that mutual mistake. Given the inability
to rely on sight alone to accurately identify most controlled substances 17
and the State’s control of the investigation, analysis, and charging
processes, it is appropriate to treat the plea as involuntary based on the
mutual mistake about the identity of the controlled substance at issue.
I also disagree that Mable is unworkable. It provides a clear ruling
that is easy to follow: when laboratory testing subsequent to a plea
establishes that a defendant did not possess the drug he was alleged to
have possessed, he gets his plea back. We are the ones who have
continued to file and set these cases even though the State and the
applicants repeatedly agree (and make their agreements clear to the
habeas courts and this Court) that relief is warranted under Mable. We
17
See, e.g., Curtis v. State, 548 S.W .2d 57, 59 (Tex. Crim . App. 1977) (“[W ]e are
unwilling to say that an experienced officer can look at a white or brown powdered
substance and testify that it is heroin since m orphine, codeine, paregoric, other opiates,
other controlled substances, and noncontrolled substances also appear in white or brown
powdered form .”).
Saucedo Concurring — 7
can quite easily apply Mable here to determine the outcome.18 Just
because some don’t want to doesn’t make Mable unworkable.
What will be unworkable is holding that the identity of the controlled
substance is not an essential element of a possession-of-a-controlled-
substance offense. If that were so, a defendant who possesses multiple
different controlled substances that fall within the same penalty group
would be guilty of only one offense. Would the State have to prove that
the defendant knew which penalty group the possessed substance
belongs to? And would the State ever even need to allege the specific
controlled substance? I see nothing wrong with holding the State to the
burden of proving the specific identity of the controlled substance it
alleges in the indictment.
In this case, the State and Applicant agree that relief is warranted
under Mable. The trial court agrees and recommends that we grant relief.
Rather than overrule Mable and apply a due-process framework that will
nevertheless invariably lead to the same results as Mable, I would hold
that the identity of the controlled substance at issue is a material or
“crucial” fact underlying the plea bargain and give the parties what they
18
See Carson v. State, 559 S.W .3d 489, 495 (Tex. Crim . App. 2018).
Saucedo Concurring — 8
ask for. In light of this understanding, I believe Applicant’s plea was
involuntary because both parties in this case were mistaken at the time
of the plea about a material fact—the identity of the controlled substance
possessed. With these thoughts, I concur.
Filed: June 26, 2019
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