Love, Tony Emil Jr.

In the Court of Criminal
Appeals of Texas
════════════
No. WR-95,475-01
════════════

EX PARTE TONY EMIL LOVE, JR.,
Applicant

═══════════════════════════════════════
On Application for Writ of Habeas Corpus
In Cause No. 1408920-A
In the 232nd District Court
Harris County
═══════════════════════════════════════

YEARY, J., filed a dissenting opinion, in which KELLER, P.J.,
joined.

In November of 2013, Applicant pled guilty to possession of
between four ounces and five pounds of marihuana, a state-jail-felony
offense. TEX. HEALTH & SAFETY CODE § 481.121(b)(3). The trial court
deferred adjudication of Applicant’s guilt and placed him on community
LOVE – 2

supervision for three years. In May of 2015, Applicant pled true to
violating the terms of his community supervision. The trial court found
him guilty. Applicant was then sentenced to confinement for thirteen
months in state jail.
More than six years later, in August of 2021, the Harris County
District Attorney sent a letter to Applicant which included the crime
laboratory’s January 2020 analysis of the substance that was found in
Applicant’s possession. That lab test identified the presence of Cannabis
sativa L., but in an amount less than four ounces—specifically, 3.25
ounces. See id. § 481.002(26) (“‘Marihuana’ means the plant Cannabis
Sativa L.”).
In January of 2023, Applicant, with the assistance of counsel,
filed an application for a writ of habeas corpus in the county of
conviction. TEX. CODE CRIM. PROC. art. 11.07. In his pleading, Applicant
asserts that, “[i]n light of the laboratory report showing that the
evidence contained a lesser amount of marijuana than Applicant was
charged with possessing,” (1) his due process rights were violated, and
(2) his plea was involuntary.
Today, the Court grants Applicant relief on the basis that his plea
was involuntary. I do not foreclose the possibility that Applicant may
ultimately be entitled to relief. But I believe granting relief on the
current record is premature.
The January 2020 lab report indicates that the evidence in this
case had previously been tested on December 17, 2013, and the current
report was a “confirmation analysis” performed at the request of the
Harris County District Attorney’s Office. The 2013 report is not included
LOVE – 3

in the record. Consequently, at this stage, we do not know what amount
of marihuana the first lab report may have identified.
If the 2013 report also indicated that Applicant possessed less
than four ounces of marihuana, then I would agree that Applicant may
be entitled to relief. But if the first analysis indicated the presence of
four or more ounces of marihuana before testing, I would be more
skeptical of Applicant’s claim. So far as I can tell at this point, there still
exists a possibility that there may be a variance between the amount of
the substance found in the 2013 report and the amount found in the
2020 report. I could even speculate that, if there was a variance in
weight, it might be due to some amount of the substance potentially
being destroyed in the process of testing it, or that, in the period of time
between 2013 and 2020, the substance may have dried out some, causing
it to lose weight. But for now, it is far from clear that Applicant is
actually entitled to the relief the Court affords him.
I would remand this case with instructions to the convicting court
to try to obtain for the record a copy of the initial, December 17, 2013,
laboratory report and to make any appropriate supplemental findings of
fact and conclusions of law. In particular, I would instruct the trial court
to determine, if possible, whether the initial laboratory report also
indicated that the evidence contained less than four ounces of
marihuana. Because the Court does otherwise, I respectfully dissent.

FILED: April 3, 2024
DO NOT PUBLISH