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Click here for the full text of this decision FACTS:Valerie Sue Perales pleaded guilty to a violation of Texas Health & Safety Code �481.122, which criminally prohibits knowingly delivering a controlled substance to a person younger than 18 years of age � in Perales’ case, her unborn child. A trial court sentenced her to seven years of prison pursuant to a plea-bargain agreement in which she waived her right of appeal. In her petition for habeas corpus relief, Perales asserted that no evidence supported her conviction under �481.122. Specifically, Perales alleged that: 1. no evidence or insufficient evidence supported a finding of actual delivery of a controlled substance to her unborn child; 2. her indictment for the offense at issue was invalid or defective; and 3. her sentence was illegal, because no evidence or insufficient evidence supported a finding of delivery of a controlled substance to a minor. Perales also asserted that the facts of her case do not support the charge. She compared 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 the 7th Court of Appeals reversed. In both cases cited by Perales, a pregnant woman pleaded 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 7th Court 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 7th Court concluded that the state had failed to satisfy its burden under �481.122 to prove an actual transfer of possession from the pregnant mother to the child. Therefore, the 7th Court found that insufficient evidence supported both convictions. On that basis, the 7th Court vacated the judgments of the trial courts and rendered judgments of acquittal in each case. The Court of Criminal Appeals (CCA) refused the state’s petitions for discretionary review in both cases. In Perales’ case, the 251st District Court of Potter County entered an order recommending habeas corpus relief. The court also found that, although Perales pled her claim as a “no evidence or insufficient evidence” claim, her real complaint was that her sentence is illegal, because courts determined subsequent to her conviction that a controlled substance that entered 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. HOLDING:The CCA granted the petition for habeas corpus relief. A challenge to the sufficiency of the evidence, the CCA stated, is not cognizable on an application for a post-conviction writ of habeas corpus. But a claim of no evidence, the court stated, 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.” The CCA agreed with the 7th Court of Appeals’ conclusions 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 in law with the transferee.” Because such an actual transfer delivery from a mother to her unborn child is impossible, the CCA concluded as a matter of law that Perales did not deliver by actual transfer drugs to her unborn child. OPINION:Johnson, J., delivered the opinion of the court, in which Meyers, Price, Keasler, Hervey, Holcomb and Cochran, J.J., joined. Womack, J., did not participate. CONCURRENCE:Keller, P.J., concurred without a written opinion.

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