If I had the time, I'd research this, but I'm hoping y'all will pull through with an answer.

Def accepted initial plea offer. Dope was never tested. Now Def claims (amongst a bunch of other things) in a writ that she's actually innocent because she didn't possess a felony amount of dope.

Offense report weight included packaging---a ziploc bag. Total = 4.5 ounces of marijuana.

So do y'all have these tested?
Or how do you respond to them?

Thanks in advance.

Few questions:

(1) Date of offense?
(2) Date of plea?
(3) Date writ was filed?
(4) Did defendant appeal original guilty plea? (If so, when did appellate court issue mandate?)

One possible defense: Laches. Given the probable passage of time, DPS/SO/PD/drug lab likely destroyed the drugs due to plea, thus preventing future testing. See Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999) (14 year delay in waiting to attack convictions prejudiced State's ability to respond); Ex parte Scott, 190 S.W.3d 672, 673-74 (Tex. Crim. App. 2006) (Cochran, J., concurring) (12 year delay in bringing IAC claim supports bar under doctrine of laches).

Note: The relevant time from starts from issuance of the appellate mandate (if any), not date of appellate court opinion.

You need to get an affidavit from the proper agency saying (a) that the drugs were destroyed on X date due to applicant's guilty plea and/or the passage of time, and (b) that testing is now impossible because the agency relied on the passage of time (or applicant's guilty plea) in deciding to destroy the drugs. This will go to prove the applicant's conduct (delay) directly prejudiced the State's ability to respond to the actual innocence claim.

There are probably other merits-based defenses. This is what jumped out at me as quick possibility.

Arrest was 11/5/12
Plea was 11/7/12
marijuna wasn't tested, but the PD still has it. They can send it off to be tested.

I don't think Laches applies, because the dope is still around.