So - do you seek an indictment for POCS on your probationers who fail a urinalysis and admit that they used? Do your violation reports indicate both that the probationer violated by failing / testing positive for a controlled substance, AND that he/she violated by committing a new offense, to-wit POCS?

quote:

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Urinalysis

So - do you seek an indictment for POCS on your probationers who fail a urinalysis and admit that they used? Do your violation reports indicate both that the probationer violated by failing / testing positive for a controlled substance, AND that he/she violated by committing a new offense, to-wit POCS?

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Nope. Usually by that time they have other problems besides just a positive UA.

We allege both in our motions to revoke. Occasionally a defense attorney will get nervous about a client/probationer pleading true to the PCS less than gram allegation, and we will amend and leave it out. We don't seek indictment for new charge, however.

In the case we are prosecuting, the defendant, admitted to the EMT, to the nurse and the doctor that she has just smoked crack in the hour before being taken to the hospital to deliver. She entered stiplated facts at her plea, that she did smoke crack cocaine in the hour before admission. And she testified in punishment phase that she had smoked crack all through the pregnancy, knew it would be delivered to the baby (since it had in her prior 6 kids) and that she had smoked an hour before admission. Now the baby did not testify that he acquired any dope from mom just prior to delivery so I guess you could say that the possession of the baby is based solely in blood tests but them to be a rather strange standard to apply.

I don't have a dog in this fight, but this press release header was so entertaining, I had to share it:

"ACLU Applauds Court Decision Reversing Conviction Denying Pregnant Women in Texas Their Rights"

Which "rights" are those? Enter your guess (with tongue planted firmly in cheek) in a reply to this post, then click on the link below to see if you are right:

The press release

I have something of a dog in the fight (perhaps a dingo) since my office represents CPS. And I'll be the first to admit that sometimes I don't see the forest for the trees. Whatever side of the prosecutorial debate on the Ward case you come down on, though, I think we can thank the ACLU for crystallizing the issue into one on which we all should agree. The overarching position taken by the ACLU is insupportable from a policy standpoint. While I suspect this is no more than a two-headed monster that belches the flames of the "need" to loosen our drug laws and the inclination to vociferously attack anything that could be interpreted as infringing on reproductive rights, it is in reality an argument that a pregnant woman should be exempt from laws (at least PCS prohibitions) that bind the rest of us. And to what purpose? To encourage responsible women to seek and follow a prenatal health care regimen? Next, let's exempt alcoholics from DWI penalties because punishing drunk drivers will discourage those who might seek treatment from doing so. These kinds of sweeping generalizations founded, as they often are, in quicksand tend to take debate on an issue from the reasoned to the inane. Wow! I used a generalization to attack a generalization.

In sum, prosecuting a pregnant woman who uses drugs under a delivery theory is debatable. Prosecuting a pregnant woman for simple possession, and possibly subjecting her to CPS proceedings based on that conscious course of conduct, are not.

We have a pregnant woman (about 5 months along) on probation. She was brought before the court during docket after her third dirty UA (like a walk in). The judge summarily ordered her to stay in jail until baby is born. We had not filed a MTR. She had no defense attorney with her. How long can judge keep her locked up like this? (I'm not talking morally what's right and wrong, I'm asking legally, what can be done?) I thought we had to file a MTR & Def got right to hearing before being confined for more than 4 months.

Maybe he's holding her in contempt. Otherwise, I'm not sure what his authority would be for that unless he revoked her bond, but he'd have to hold a hearing for that too.

A judge may amend the conditions of probation without a hearing. He, arguably, also may amend the conditions without the defendant having a lawyer, at least as far as the code of criminal procedure is concerned.

Many judges are uneasy making a change to confinement without a hearing and lawyer. But most of the time the change is accomplished by the defendant's agreement, following a waiver of the right to counsel, if it exists.

For a felony, a defendant can be confined in county jail for up to 6 months as a condition of probation. Presumably, that would cover gestation in your case.

For additional discussion and case law, see Chapter 9 (Adjudication/Revocation) in The Perfect Plea, particularly pages 139-40.

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. AP-75,574

EX PARTE VALERIE SUE PERALES, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. W-49452-01-C

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY


Johnson, J., delivered the opinion of the Court, in which Meyers, Price, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Keller, P.J., concurred. Womack, J., did not participate.

O P I N I O N



Applicant was accused by indictment of delivery of a controlled substance, namely cocaine, "by actual transfer to her unborn child, a person who is 18 years of age or younger." After pleading guilty to the trial court, applicant was sentenced to seven years' incarceration. No direct appeal was taken. Applicant now seeks habeas corpus relief.

Applicant asserts that there is no evidence to support her conviction for delivering cocaine to her unborn child and that her conviction and sentence are therefore illegal. Specifically, she alleges: 1) no evidence or insufficient evidence to support a finding of actual delivery of a controlled substance to her unborn child; 2) invalid or defective indictment, as there was no evidence or insufficient evidence to legally indict her; and 3) illegal sentence because there was no evidence or insufficient evidence to support a finding of delivery of a controlled substance to a minor, thus "the sentence is illegal since the conviction is unjustified." Applicant also asserts that the facts of the case do not support the charge, and in the discussion in her "Point of Error," she compares her case to two recent cases, each of which involved the conviction of a woman for delivery of drugs to her unborn child and both of which were reversed by the Amarillo Court of Appeals.

In both Ward v. State, 188 S.W.3d 874 (Tex. App. - Amarillo 2006, pet. ref'd), and Smith v. State, 2006 Tex. App. LEXIS 2370, 07-04-0490-CR (Tex. App. - Amarillo 2006, pet. ref'd)(unpublished), a pregnant woman plead guilty to a charge based upon allegations of using a controlled substance while pregnant and thereby delivering the substance to the unborn child. In each case, the court of appeals found that the alleged transfer consisted of the ingestion by the mother of a controlled substance, which eventually entered the unborn child's body through the umbilical cord. No evidence suggested that the unborn child actually handled, touched, manipulated, or otherwise exercised physical possession over the drug. The court of appeals concluded that, based upon Tex. Health & Safety Code Ann. � 481.122, the statute that criminalized knowingly delivering a controlled substance to a person younger than 18 years of age, the state had failed to satisfy its burden to prove an actual transfer of possession from the pregnant mother to the child. Ward and Smith, supra. Therefore, the evidence that was introduced in support of each woman's conviction for the crime alleged in the indictment was legally insufficient. On that basis, the court of appeals vacated the judgments of the trial courts and rendered judgments of acquittal in each case. Id. This Court refused the state's petitions for discretionary review in both Ward and Smith.

The state's answer points out that applicant in this case entered a plea of guilty pursuant to a plea-bargain agreement and was sentenced accordingly. It argues that convictions based on knowing, intelligent, and voluntary pleas of guilty "ought to be afforded the highest level of respect." It also suggests that a challenge to the sufficiency of the evidence is not cognizable by way of post-conviction habeas corpus.

The habeas court in this case entered an order recommending relief. In that order, it found that applicant plead guilty, was sentenced pursuant to a plea-bargain agreement, and waived any right of appeal. It also found that, although plead as "no evidence or insufficient evidence" claims, applicant's "real complaint is that her sentence is illegal because it has subsequently been determined that a controlled substance that eventually entered into an unborn child's body via conveyance through the umbilical cord is not a 'delivery' for purposes of � 481.122(a) of the Texas Health and Safety Code." It concluded that "[o]ne cannot be convicted of something that is not a crime; therefore, it is of no consequence that the Applicant failed to preserve error regarding the factual or legal sufficiency of the evidence . . .."

It is well settled that a challenge to the sufficiency of the evidence is not cognizable on an application for a post-conviction writ of habeas corpus. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). However, a claim of no evidence is cognizable because "[w]here there has been no evidence upon which to base a conviction, a violation of due process has occurred and the conviction may be attacked collaterally in a habeas corpus proceeding." Ex parte Coleman, 599 S.W.2d 305, 307 (Tex. Crim. App. 1978). If the record is devoid of evidentiary support for a conviction, an evidentiary challenge is cognizable on a writ of habeas corpus. See Ex parte Brown, 757 S.W.2d 367, 368-69 (Tex. Crim. App. 1988); Ex parte Williams, 703 S.W.2d 674, 679-80 (Tex. Crim. App. 1986).

We agree with the Amarillo Court of Appeals' conclusions that an allegation of delivery of a controlled substance by actual transfer to an unborn child cannot constitute delivery, which we have held "contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified in law with the transferee." Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992). We have also held that such a transfer occurs when the defendant transfers or surrenders actual possession and control of a controlled substance to another. See Thomas v. State, 832 S.W.2d 47, 51 (Tex. Crim. App. 1992); Nevarez v. State, 767 S.W.2d 766, 768 (Tex. Crim. App. 1989); Daniels v. State, 754 S.W.2d 214, 220 (Tex. Crim. App. 1988). Since such an actual transfer delivery from a mother to her unborn child is not possible, we conclude that, as a matter of law, delivery by actual transfer as alleged did not occur.

The habeas court's findings are supported by the record. Accordingly, we grant relief. The judgment in this cause is vacated and a judgment of acquittal rendered. A copy of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division.



Delivered: February 14, 2007

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