Sippel, Gregory Scott

In the Court of Criminal
Appeals of Texas
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Nos. WR-93,347-02, WR-93,347-03
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EX PARTE GREGORY SCOTT SIPPEL,
Applicant

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On Applications for Writs of Habeas Corpus
In Cause Nos. 1430076-A and 1430077-A
In the 180th District Court
Harris County
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YEARY, J., filed a dissenting opinion.

In July of 2014, Applicant pled guilty to two second-degree felony
drug offenses: (1) possession with intent to deliver “a material,
compound, mixture, [or] preparation containing not more than 15
milligrams of dihydrocodeinone (hydrocodone) per dosage unit, with one
or more active nonnarcotic ingredients in recognized therapeutic
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amounts, weighing at least 28 grams but less than 200 by aggregate
weight, including any adulterants and dilutants”; and (2) possession
with intent to deliver 4-200 grams of heroin. 1 In accordance with his plea
agreements, the convicting court sentenced Applicant to six years’
imprisonment for both offenses, to run concurrently. At the time of his
plea, no laboratory testing of the substances in Applicant’s possession
had occurred.
A month after Applicant’s plea, in August of 2014, the Harris
County Institute of Forensic Sciences (HCIFS) issued its laboratory
analysis of the evidence in Applicant’s cases. The report indicates the
presence of no hydrocodone but approximately 0.44 grams of
Alprazolam, a different Penalty Group 3 controlled substance, 2 and less
than one gram of heroin. These results were not shared with Applicant
until nearly eight years after his plea, when the Harris County District
Attorney sent Applicant a notice of the variance between his charges
and the lab results.

1 See TEX. HEALTH & SAFETY CODE §§ 481.104(a)(4) (designating as a

Penalty Group 3 controlled substance “a material, compound, mixture, or
preparation containing limited quantities of the following narcotic drugs or any
of their salts: . . . not more than 15 milligrams [of dihydrocodeinone
(hydrocodone)] per dosage unit, with one or more active, nonnarcotic
ingredients in recognized therapeutic amounts”), 481.114(c) (establishing
possession with intent to deliver “28 grams or more but less than 200 grams”
of a Penalty Group 3 or 4 controlled substance as a second-degree felony); TEX.
HEALTH & SAFETY CODE §§ 481.102(2) (designating heroin as a Penalty Group
1 controlled substance), 481.112(d) (establishing possession with intent to
deliver “four grams or more but less than 200 grams” of a Penalty Group 1
controlled substance as a first-degree felony).

2 See TEX. HEALTH & SAFETY CODE § 481.104(a)(2) (designating
Alprazolam as a Penalty Group 3 controlled substance).
SIPPEL – 3

With the assistance of counsel, Applicant filed the instant
applications for writs of habeas corpus in September of 2023. In his -02
writ application, challenging his possession with intent to deliver the
hydrocodone conviction, Applicant alleges: (1) that his plea was
involuntary because “lab reports disclosed after his plea indicate [that]
Applicant did not possess the controlled substance hydrocodone”; and (2)
for the same reason, that he is actually innocent. In his -03 writ
application, challenging his possession with intent to deliver heroin
conviction, Applicant argues that his plea was involuntary because
“Applicant could not have made a voluntary and intelligent choice
among alternative courses of action because he did not know that he
only possessed a trace amount of [heroin], not 4 grams or more.” The
Court agrees that Applicant’s pleas were involuntary, and grants him
relief from both of his convictions under Ex parte Mable, 443 S.W.3d 129
(Tex. Crim. App. 2014). Majority Opinion at 2.
I. INVOLUNTARY PLEA
For reasons I have often explained, I would not grant any
applicant relief under Mable, because Mable was wrongly decided and
should be overruled. 3 Applicant waived indictment and pled guilty when

3 See Ex parte Warfield, 618 S.W.3d 69, 72–73 (Tex. Crim. App. 2021)

(Yeary, J., concurring) (“Mable should be overruled. As Judge Keasler aptly
explained in his concurring opinion in Saucedo, so long as an accused enters a
guilty plea with an awareness of what he does not know, it cannot be said that
he pled involuntarily.”) (citing Ex parte Saucedo, 576 S.W.3d 712, 719 (Tex.
Crim. App. 2019) (Keasler, J., concurring)); Ex parte Hooper, 685 S.W.3d 152,
155 (Tex. Crim. App. 2024) (Yeary, J., dissenting) (“I reaffirm my belief today
that this Court should overrule Mable because it stands for the erroneous
proposition that subsequent factual developments, without any ‘suggestion
that [the applicant] was fraudulently misled or coerced into pleading guilty or
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neither he nor the State knew what testing of the evidence in his cases
might reveal. This “ignorance of facts he ‘knew . . . he did not know’”
does not now, retroactively, render his pleas involuntary. Ex parte
Saucedo, 576 S.W.3d 712, 719 (Tex. Crim. App. 2019) (Keasler, J.,
concurring) (quoting Ex parte Palmberg, 491 S.W.3d 804, 810 (Tex.
Crim. App. 2016)). Moreover, there is no evidence that Applicant’s pleas
were involuntary at the time he made them—i.e., there is no evidence
that he was “fraudulently misled or coerced into pleading guilty or that
his plea counsel was ineffective.” Id. at 721 (Keasler, J., concurring). I
would not grant Applicant relief from either of his convictions on the
ground of involuntary plea. 4
II. DUE PROCESS AND DUE COURSE OF LAW
My quarrel with Mable aside, I have sometimes agreed that
applicants in similar cases may be entitled to post-conviction relief on
grounds of due process and due course of law. As I wrote in Ex parte
Ohlemacher:
When undisputed new facts that were inaccessible to both
parties at the time of a trial or plea irrefutably demonstrate
that an Applicant is not guilty of the offense for which a
judgment of conviction has been entered, the right to due

that [her] plea counsel was ineffective[,]’ may retroactively render an
applicant’s plea of guilty involuntary”) (quoting Saucedo, 576 S.W.3d at 721
(Keasler, J., concurring)).

4 Nor was Applicant’s plea with respect to his hydrocodone charge
involuntary simply because he possessed a different Penalty Group 3
controlled substance than the one that he pled guilty to possessing. Ex parte
Broussard, 517 S.W.3d 814, 820 (Tex. Crim. App. 2017) (“[G]uilty pleas that
are otherwise valid do not become invalid merely because laboratory tests
determine the defendant was carrying a different illicit substance.”).
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process and due course of law are implicated. But for the
inaccessibility of those newly discovered facts, a rational
jury or judge would not have entered either a finding or a
judgment of guilt.

666 S.W.3d 528, 528 (Tex. Crim. App. 2023) (Yeary, J., concurring).
Thus, when subsequent analysis of the evidence in a controlled
substance case proves that the applicant should have been convicted
only of a different offense, due process demands that the applicant’s
false judgment be corrected. I would not rule out that Applicant may
ultimately be entitled to this form of relief in either of these cases. But
I believe remand to develop the record is necessary before the Court can
confidently determine whether Applicant is entitled to any relief.
III. REMAND
The current state of the record in these cases give me pause. I am
particularly disturbed by the fact that Applicant pled guilty to
possessing a minimum of 28 grams of hydrocodone when the laboratory
testing apparently shows that he possessed less than one gram of a
different Penalty Group 3 controlled substance. Almost as disturbing is
the fact that Applicant pled guilty to possessing at least four grams of
heroin when the lab testing now shows he possessed less than one gram
of that substance. As the ultimate fact-finder in these circumstances,
the Court should be extremely interested in determining how these
kinds of mistakes, if they were truly mistakes, happened. To do that, I
would remand this application to the habeas court with instructions to
make supplemental findings and conclusions with respect to the
following questions:
• How, and by whom, was the substance in cause number
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1430076 initially determined to be hydrocodone? How was
that substance initially determined to weigh “at least 28
grams but less than 200 grams” by aggregate weight?

• How, and by whom, was the substance in cause number
1430077 initially determined to be heroin? How was that
substance initially determined to weigh “four grams or more
but less than 200 grams” by aggregate weight?

• Was all of the evidence that was suspected to be, or suspected
to contain, illicit substances in these cases delivered to the
HCIFS for analysis, or was any portion of the evidence
retained by the arresting agency?

• The HCIFS laboratory report indicates that Items 1A1, 1AA,
and 1B1 were not analyzed. Why were these items not
analyzed? What assurance is there that these items do not
contain any controlled substances?

• The HCIFS laboratory report indicates that Item 2 was a
“Ziplock bag containing (63) blue” tablets. The report states
that “A hypergeometric sampling plan was used for the
analysis of Item 2. The sampling plan provides a 95%
confidence that at least 75% of the 63 tablets showed no
compound confirmed by standard procedures.” What
assurance does this result provide that the remaining 25%,
(or sixteen) of the 63 tablets do not contain any controlled
substances?

• According to the current record, HCIFS issued its laboratory
report on August 6, 2014, but the results of that report were
not disclosed to Applicant until the Harris County District
Attorney’s letter, dated April 7, 2022. What, if any, reason
justifies the nearly eight-year delay in disclosing this, at
least, apparently exculpatory evidence to Applicant?

Answers to these questions must be sought and must be obtained.
Without them, how can we have confidence that what we are presented
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with today is accurate? The distinctions between what Applicant was
charged with and convicted of, on his own plea, versus what we are now
told was the case are enormous. If the original charges were mistaken,
we must know how and why such errors could have occurred. Also, it
should go without saying that someone should be held accountable for
errors of this magnitude. On the other hand, because the distinctions
are so great, and in light of the fact that this is now ten years after
Applicant entered his pleas, I am left with questions about whether
there might exist some reasonable explanation for the discrepancies we
are today presented with that might ultimately justify the Court
denying relief on Applicant’s claims.
Without answers to these questions, the record, in my view, is
insufficiently complete to determine whether Applicant is or is not
entitled to relief.
I respectfully dissent.

FILED: August 21, 2024
PUBLISH