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Pregnant Woman’s Ingestion of Cocaine Not Delivery to Her Baby in Texas
Pregnant Woman's Ingestion of Cocaine Not Delivery to Her Baby in Texas
by Matthew T. Clarke
On February 14, 2007, the Texas Court of Criminal Appeals (CCA) held that a pregnant woman who ingested cocaine did not commit the crime of delivery of a controlled substance by actual transfer to her unborn child in violation of § 481.122(a), THSC, and was sentenced to seven years in prison. Perales did not appeal the conviction and probably could not have done so under the stringent Texas rules regarding appeals of plea bargains. However, Perales filed a pro se petition for a writ of habeas corpus in the district court, based upon two unpublished cases decided by the Amarillo court of appeals in which that court held that convictions under § 481.122(a) require that the person receiving the drugs actually handle, touch, manipulate, or otherwise exercise physical possession over the drugs. In those cases, the alleged transfer of drugs to the unborn baby was caused by the mother ingesting the drugs and the drugs eventually passing into the unborn baby via the umbilical cord. There was no evidence that the unborn baby possessed the drugs. The Amarillo court of appeals reversed those cases and entered an order of acquittal. Perales requested the same disposition for her case.
The district court entered an order recommending that relief be granted. It noted that, although Perales termed her claim as "no evidence to support the conviction," it was actually one that "her sentence was illegal because it has been subsequently 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), concluding 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...."
The CCA first decided that Perales could raise a claim of "no evidence" to support her conviction in a post-conviction petition for a writ of habeas corpus. It noted that, "[i]f the record is devoid of evidentiary support for a conviction, an evidentiary challenge is cognizable on a writ of habeas corpus." It then agreed with the Amarillo court of appeals "that an allegation of delivery of a controlled substance by actual transfer to an unborn child cannot constitute delivery" which "contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified with the transferee." Such a transfer also requires that "the defendant transfers or surrenders actual possession and control of a controlled substance to another." The CCA then held that, "[s]ince 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." Relief was granted, the judgment of conviction was vacated and a judgment of acquittal rendered. See: Ex. parte Perales, 215 S.W.3d 418 (Tex.Crim.App. 2007).
by Matthew T. Clarke
On February 14, 2007, the Texas Court of Criminal Appeals (CCA) held that a pregnant woman who ingested cocaine did not commit the crime of delivery of a controlled substance by actual transfer to her unborn child in violation of § 481.122(a), THSC, and was sentenced to seven years in prison. Perales did not appeal the conviction and probably could not have done so under the stringent Texas rules regarding appeals of plea bargains. However, Perales filed a pro se petition for a writ of habeas corpus in the district court, based upon two unpublished cases decided by the Amarillo court of appeals in which that court held that convictions under § 481.122(a) require that the person receiving the drugs actually handle, touch, manipulate, or otherwise exercise physical possession over the drugs. In those cases, the alleged transfer of drugs to the unborn baby was caused by the mother ingesting the drugs and the drugs eventually passing into the unborn baby via the umbilical cord. There was no evidence that the unborn baby possessed the drugs. The Amarillo court of appeals reversed those cases and entered an order of acquittal. Perales requested the same disposition for her case.
The district court entered an order recommending that relief be granted. It noted that, although Perales termed her claim as "no evidence to support the conviction," it was actually one that "her sentence was illegal because it has been subsequently 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), concluding 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...."
The CCA first decided that Perales could raise a claim of "no evidence" to support her conviction in a post-conviction petition for a writ of habeas corpus. It noted that, "[i]f the record is devoid of evidentiary support for a conviction, an evidentiary challenge is cognizable on a writ of habeas corpus." It then agreed with the Amarillo court of appeals "that an allegation of delivery of a controlled substance by actual transfer to an unborn child cannot constitute delivery" which "contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified with the transferee." Such a transfer also requires that "the defendant transfers or surrenders actual possession and control of a controlled substance to another." The CCA then held that, "[s]ince 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." Relief was granted, the judgment of conviction was vacated and a judgment of acquittal rendered. See: Ex. parte Perales, 215 S.W.3d 418 (Tex.Crim.App. 2007).
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Related legal case
Ex. parte Perales
| Year | 2007 |
|---|---|
| Cite | 215 S.W.3d 418 (Tex.Crim.App. 2007) |
| Level | State Supreme Court |
| Injunction Status | N/A |