IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-1299-18
LESLEY DIAMOND, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW AFTER OPINION ON REHEARING FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Newell, J., delivered the opinion of the unanimous Court.
Appellant has filed a motion for rehearing in this case. We grant
Appellant’s motion for rehearing and withdraw our previous opinion. We
substitute this opinion in its place.
Andrea Gooden was a laboratory technician who analyzed
Appellant’s blood for alcohol content in this case. After Appellant’s trial,
it was revealed that she had—before the trial—mistakenly certified a
blood alcohol analysis report in an unrelated case where a police officer DIAMOND — 2
had mislabeled the submission form accompanying a blood sample. Due
to her self-report of the erroneous certification to her supervisor, Gooden
had been temporarily removed from casework at the time of Appellant’s
trial so she could research and document this incident. The prosecutors
in this case, unaware of the problem in the unrelated case, failed to
disclose this information to Appellant prior to Gooden’s testimony in
Appellant’s trial. The question before us is whether this evidence is
material. The post-conviction habeas court concluded it was not and
denied Article 11.09 relief. Based upon the record before us, we agree.
We reverse the court of appeals’ holding to the contrary and uphold the
habeas court’s ruling.
BACKGROUND
Appellant was convicted for misdemeanor driving while intoxicated
(DWI).1 She did not appeal her conviction. But after a jury convicted
Appellant, Andrea Gooden, the lab technician who had analyzed
Appellant’s blood, self-reported to the Texas Forensic Science Commission
(TFSC) that the crime lab had violated quality control and documentation
protocols in another, unrelated case. An investigation followed, and
reports by the Houston Office of the Inspector General (OIG) and the
1 See TEX. PENAL CODE § 49.04. DIAMOND — 3
TFSC were given to Appellant after they became available.
In response, Appellant filed an application for a writ of habeas
corpus under Texas Code of Criminal Procedure Article 11.09,2 alleging
that the State had suppressed favorable impeachment evidence in
violation of her right to due process.3 Specifically, she claimed that the
State failed to disclose that, before Gooden testified in her trial: (1)
Gooden certified a mislabeled lab report in an unrelated case; and (2)
Gooden’s supervisor, William Arnold, had temporarily removed Gooden
from her casework. Appellant argued that the undisclosed evidence
would have enabled her to impeach Gooden and either exclude her
testimony entirely or discredit it, resulting in an acquittal or a deadlocked
jury.
The habeas court, presided over by the same judge who presided
over the trial, conducted an evidentiary hearing on Appellant’s claims.
Both Arnold and Gooden testified at the habeas hearing. The habeas
court ultimately denied Appellant’s writ application, finding that the
undisclosed evidence was neither favorable nor material. The court of
2 TEX. CODE CRIM. PRO., art. 11.09 (“ If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.”). 3 Appellant does not argue that the undisclosed evidence was exculpatory. DIAMOND — 4
appeals disagreed and reversed. We granted the State’s petition for
discretionary review to address whether the court of appeals failed to
apply the standard of review correctly in conducting its materiality
analysis.
Facts Developed at Trial
While conducting a traffic stop on another vehicle, Deputy Bounds
saw Appellant speed past him in the lane closest to his patrol car.
Bounds got into his patrol car, turned on his lights, and pursued the
vehicle for a long time before Appellant finally stopped. During the
pursuit, Appellant made several unsafe lane changes without signaling,
which caused other drivers to slam on their brakes.
When Appellant stepped out of her vehicle, she staggered and could
not keep her balance. She appeared disoriented. She said that she was
coming from a golf course at a country club but was unable to identify the
name or location of the club, despite being asked multiple times. She
admitted she had consumed three Bud Light beers that day. There was
one open can of beer and two cold, unopened cans of beer in her vehicle.
She and her car smelled strongly of alcohol. She was visibly intoxicated:
she had red, glassy eyes and slurred speech. She appeared confused,
being unable to identify the medication she was taking. DIAMOND — 5
Bounds requested another deputy to assist him with the traffic stop.
Deputy Francis arrived and administered two standard field sobriety tests:
the Walk and Turn (WAT) and the One-leg Stand (OLS). Although Deputy
Francis made a few mistakes while administering the tests, Appellant
failed both tests. During the WAT test, Appellant exhibited five out of
eight clues of intoxication.4 And during the OLS test, Appellant exhibited
four out of four clues of intoxication.5 Deputy Bounds determined that
Appellant was “intoxicated” because she had lost the normal use of her
mental and physical faculties.6
Deputy Bounds placed Appellant under arrest for DWI. After
Appellant refused to give a sample of her breath or blood for alcohol
analysis, Deputy Bounds secured a warrant to obtain a sample of her
blood. A registered nurse drew Appellant’s blood. Appellant’s blood vials
4 A subject is deemed to be intoxicated if she demonstrates at least two of the eight clues of intoxication during the WAT test: (1) Failure to balance during instructions; (2) Starting too soon; (3) Stopping while walking; (4) Failure to touch heel-to-toe; (5) Stepping off the line; (6) Using arms to balance; (7) Losing balance on the turn or turning incorrectly; and (8) Taking the wrong number of steps. DWI Detection Manual, VII-5. 5 A subject is deemed to be intoxicated if she is unable to perform the test or if she demonstrates at least two of the four clues of intoxication during the OLS test: (1) Swaying while balancing; (2) Using arms to balance; (3) Hopping; and (4) Putting foot down. DWI Detection Manual, VII-6. 6 See TEX. PENAL CODE § 49.01(2)(A) (“Intoxication” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”). DIAMOND — 6
were labeled with Deputy Bound’s initials, Appellant’s name, and the case
number. The vials were placed into an envelope, labeled with Appellant’s
name and the case number, and sealed with tape. Deputy Bounds
delivered the blood vials to a secure lockbox at the Houston Police
Department.
Andrea Gooden, an analyst from the Houston Police Department
Crime Lab, retrieved the sealed envelope containing Appellant’s blood
samples. There did not appear to be any tampering with the envelope.
Prior to testing Appellant’s blood sample, Gooden observed Appellant’s
name on the envelope and Appellant’s name on the blood vials inside that
envelope. The vials contained a manufacturing label that, in addition to
Appellant’s name, had the same case number, initials, and date as the
envelope. Gooden followed all of the lab’s standard operating procedures
that were in place at the time she analyzed Appellant’s blood. Her
analysis revealed a blood alcohol concentration (BAC) of 0.193, which is
above the legal limit of 0.08.
The jury found Appellant guilty of driving while intoxicated.7 Then,
after a special-issue hearing, the jury found that Appellant’s BAC was
7 See TEX. PENAL CODE § 49.04(a) (“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”). DIAMOND — 7
0.15 or more at the time the analysis was performed.8 The jury was
dismissed, and the court proceeded to the punishment phase. The judge
pronounced that Appellant was convicted of a Class A misdemeanor,
sentenced her to five days in jail, and assessed a $2,000 fine.
Post-Conviction Writ Proceedings
Prior to Gooden testifying in Appellant’s case, a police officer in an
unrelated case turned in an evidence envelope containing a blood sample
and a case submission form to the Houston Police Department Crime
Lab. Although the officer labeled the blood vials with the correct name
and incident number, he put the wrong case information on the
submission form.9 The analyst who received the sample noted the
discrepancy in the case folder:
The name of the submission form and LIMS is “Roman-Reyna, Francis Javier.” The name on the envelope & blood tubes is “Hurtado, David.” The tubes have the incident # “124607913”, which is not on LIMS.10
8 See TEX. PENAL CODE § 49.04(d) (“If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.”). 9 While both the habeas court and court of appeals state that the blood vials were mislabeled, the OIG and TFSC reports show that the submission form accompanying the blood vials actually contained the labeling error. The lower courts’ confusion is understandable, especially given the similarity between the incident numbers. 10 LIMS is short for Laboratory Information Management System. Reports in LIMS can be accessed by prosecutors. DIAMOND — 8
This first analyst contacted the submitting officer and requested that he
provide a corrected submission form.
While waiting for the revised form, Gooden worked on the case.
Pursuant to common lab practice, Gooden analyzed the blood sample,
drafted a blood alcohol report, and set the case aside without signing the
report until the officer could resolve the name discrepancy. Like the first
analyst, Gooden noted the discrepancy. First, she labeled the blood
evidence to indicate that the analysis was complete but was being held
pending the revised submission form. Second, she corrected the batch-
technical-review report by crossing out Roman-Reyna’s name and
handwriting Hurtado’s name.
However, about a month later, Gooden mistakenly signed the
“certificate of analysis” on the blood alcohol report she had previously set
aside. She then placed the report in the queue for review. The report
corresponded to the incorrect defendant listed in the case submission
form (Roman-Reyna). But the case folder correctly noted the name of
the defendant who had provided the blood sample (Hurtado). That same
day, William Arnold, the lab’s interim toxicology manager, conducted both
the technical and administrative reviews of the case. Arnold did not catch
that the report had been submitted under the wrong defendant’s name. DIAMOND — 9
And he approved it, causing the erroneous report to be released in LIMS.
A few weeks before Appellant’s trial, Gooden noticed that a blood
sample belonging to Hurtado had been set aside with a note in her
handwriting: “Waiting on Officer Reply already analyzed. —Andrea.”
Right away, Gooden investigated. And after researching in LIMS, she
discovered that the blood alcohol report had been released to prosecutors
handling the case involving Roman-Reyna. Gooden immediately notified
her superiors. The next day, Arnold emailed Gooden telling her to
document what went wrong:
Until further notice you are to focus solely on documenting the issues surround[ing] the [errors] in the case we discussed yesterday. Do not handle any evidence, process any data or generate any reports or documentation that is unrelated to your research on this case.
***
Generate a document with your findings in memo format in as much detail as you can accurately recall and/or demonstrate via existing documentation.
Gooden took this email to mean that she was temporarily removed from
casework to draft the memo and ensure the related case documentation
was placed in the file. Arnold did not otherwise document this action or
disclose it to the District Attorney’s Office.
The following day, Gooden sent Arnold her memo and assumed she DIAMOND — 10
could return to her casework. But a few days later, Arnold told her that
although the issue was resolved, she could not return to casework
because he and others up the chain of command needed to review her
memo. Gooden therefore worked on discovery orders in other cases but
did not analyze blood. At the time, Arnold was aware that Gooden was
due to testify in Appellant’s upcoming case. The following week, Gooden
testified in Appellant’s trial. It was the first time she had testified in a
case. Arnold observed Gooden’s trial testimony but did not testify
himself.
After Appellant’s trial, Arnold made a number of claims related to
Gooden’s work status and competency as an analyst. Specifically, during
his habeas testimony, Arnold claimed that at the time Gooden testified in
Appellant’s trial, she was “suspended” from casework due to the Hurtado
incident and his concerns about her overall knowledge base. But the
habeas court did not believe Arnold. It found that at the time of
Appellant’s trial, Gooden had been temporarily removed from casework
to document the Hurtado error. And Arnold’s use of the term
“suspended” or “under suspension” to describe Gooden’s work status was
“suspect” and “unpersuasive.”
Moreover, the investigations by the OIG and TFSC showed that DIAMOND — 11
Arnold provided inconsistent reasons for removing Gooden from
casework, long before his habeas testimony.11 Before Appellant’s trial,
Arnold told Gooden that it was so she could focus solely on documenting
the issues surrounding the Hurtado incident. Yet after Appellant’s trial,
Arnold told Gooden (twice) that it was due to her trial testimony. Then,
after Gooden had contacted the American Society of Crime Lab Directors
(ASCLD), self-disclosed to the TFSC, and communicated with the lab’s HR
director about returning to casework,12 Arnold said that her “suspension”
was due to the Hurtado incident coupled with his concerns about her
knowledge base.13 But this was the first time that Gooden was labeled as
“suspended.” And despite his claims that he had been having doubts
about her ability to testify, Arnold let Gooden testify in Appellant’s trial
a few weeks after he had allegedly formed these concerns.14
11 Notably, reports by the Texas Forensic Science Commission are inadmissible in a civil or criminal action. TEX. CODE CRIM. PROC., art. 38.01 § 11. However, they were admitted without objection at the hearing on Appellant’s application for a post-conviction writ of habeas corpus. The habeas court relied upon these reports in reaching its conclusion, and neither party challenges the propriety of the admission of the report in this case. 12 After Gooden had met with the lab’s Human Resources (HR) director about returning to casework, Arnold insinuated to the HR director that it was due to concerns related to her ability to testify. Rather than document his concerns, he said that he preferred Gooden be retrained until he was comfortable that she would do well on the stand. 13 This contradicted the HFSC Lab Director’s representation made a few days earlier to the TFSC that Gooden was removed due to concerns about her ability to testify in court, not because of the Hurtado incident. 14 According the TFSC report, while off casework, Gooden testified in three trials and “on subsequent occasions as well.” DIAMOND — 12
The investigation by the TFSC also showed other reasons for
discounting Arnold’s description of events. Among them, Arnold
attempted to blame Gooden for the reporting error in the Hurtado case.
Yet, all interviewees who participated in the TFSC’s investigation believed
Gooden to be a competent analyst who was “unfairly blamed.” The
prevailing view was that Arnold was supposed to catch the errors in the
report, such as the wrong name, during his technical and administrative
reviews of the case.15 He did not. Specifically, Arnold had not reviewed
the case in sufficient detail: he failed to notice that the incident number
on the report did not match the blood vials; that the alleged suspect in
the submitted incident form only had a breath test rather than a blood
draw; that the first analyst had noted the name discrepancy in the case
folder; and that this case was from an earlier batch-technical-review
report from December (on which Gooden had hand-written Hurtado’s
name as a correction). Arnold also failed to make a connection between
previous inquiries about missing evidence in the Hurtado case and the
information noted in the case folder.16
15 As explained in the TFSC report, the purpose of the administrative review is to identify errors exactly like the one that had occurred here. 16 A little over a week before Arnold conducted his reviews, the Harris County ADA assigned to the Hurtado case sent an email to the lab requesting the results associated with the blood alcohol evidence for Hurtado because he could not find the results in LIMS. The lab DIAMOND — 13
Moreover, only days after approving the erroneously certified report,
Arnold received an email from the submitting officer about the missing
blood evidence for Hurtado. In it, the officer explained that “the
[Hurtado] case was mixed up with another case” due to his error on the
submission form.17 This email did not trigger any follow-up or
investigation in LIMS by Arnold. The first analyst said it was her
understanding that Arnold was taking over any necessary follow-up on
the case. About one month before Appellant’s trial, Arnold received
another email from the submitting officer. It stated that the blood
evidence belonged to Hurtado—just as the first analyst and Gooden had
noted in the case folder. Once again, Arnold did nothing about it.
Because of Arnold’s inaction, Hurtado’s blood-alcohol results remained
incorrectly assigned to Roman-Reyna in LIMS.
Then, a few weeks before Appellant’s trial, Gooden told Arnold about
the mistake in the released report. Although he withdrew the report from
LIMS before it had been accessed by the prosecution, Arnold took no
employee who received the ADA’s inquiry forwarded it to Arnold. In his email to the ADA, Arnold confirmed that he was also unable to find the case in LIMS and requested the name of the submitting officer. Five days later, the ADA responded with the submitting officer’s name. That same day, Arnold sent an email to the submitting officer inquiring about the blood evidence for Hurtado, which at the time appeared to be missing since it was in LIMS under the wrong defendant’s name. 17 See supra, note 11. DIAMOND — 14
additional steps to fix the report. The report remained uncorrected for
months.
The trial court considered this evidence and denied Appellant’s
habeas application.
APPEAL
On appeal, Appellant argued that the habeas court erred in
concluding that the undisclosed evidence was neither favorable nor
material.18 In its substitute majority opinion, the court of appeals agreed
and reversed the habeas court’s denial of Appellant’s writ application,
granted habeas relief, and remanded the case for further proceedings.19
The court concluded that the undisclosed evidence was favorable because
Appellant could have used it on cross-examination to impeach portions
of Gooden’s testimony or to get the trial court to exclude her testimony
18 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). 19 Diamond v. State, 561 S.W.3d 288 (Tex. App.—Houston [14th Dist.] Oct. 23, 2018) (substitute op.). Originally, the Fourteenth Court of Appeals issued a published opinion affirming the denial of habeas corpus relief in May 2018. Diamond v. State, 2018 WL 2050392 (Tex. App.—Houston [14th Dist.] May 3, 2018), opinion withdrawn and superseded by Diamond v. State, 2018 WL 4326441 (Tex. App.—Houston [14th Dist.] Sept. 11, 2018) (op. on reh’g). After the court of appeals had issued its opinion, the court of appeals granted rehearing and issued published opinions reversing the denial of habeas corpus relief in September 2018. Diamond, 2018 WL 4326441, opinion withdrawn and superseded by Diamond, 561 S.W.3d 288. The State then moved for rehearing. The court of appeals denied the State’s motion for rehearing, withdrew its September opinions, and issued published substitute opinions reversing the denial of trial corpus relief in October 2018. Id. These October opinions are the subject of the State’s petition. DIAMOND — 15
entirely.
In making this determination, the court of appeals relied heavily on
Arnold’s testimony that he lacked confidence in Gooden’s overall
knowledge base. The court also concluded that the undisclosed evidence
was material because Gooden’s testimony was necessary for the jury to
make an affirmative finding on the special issue of whether Appellant’s
BAC level was 0.15 or more.
Justice Donovan dissented. He concluded that the undisclosed
evidence was not favorable because it would not impeach the evidence
that Appellant’s blood was analyzed correctly and that Appellant had a
BAC level of 0.193. This was especially true given the habeas court’s
findings of fact that the blood samples were labeled as Appellant’s and
that there was no evidence of any errors in Gooden’s analysis of
Appellant’s blood. Moreover, the court was obligated to defer to the
habeas court’s credibility assessment of Arnold—which included the
finding that Arnold’s claims disparaging Gooden were not credible. Thus,
according to the dissent, the undisclosed evidence was not material
because the likelihood of a different result was not great enough to
undermine confidence in the outcome of the trial.
STANDARD OF REVIEW DIAMOND — 16
An appellate court reviewing a habeas judge’s ruling in an article
11.09 application for writ of habeas corpus must view the evidence in the
record in the light most favorable to the judge’s ruling and must uphold
that ruling absent an abuse of discretion.20 An appellate court affords
almost total deference to a habeas court’s factual findings when they are
supported by the record, especially when those findings are based on
credibility and demeanor.21 This degree of deference also applies to any
implied findings and conclusions supported by the record.22 However, if
the resolution of the ultimate question turns only on the application of
legal standards, the appellate court reviews those determinations de
novo.23 The reviewing court will uphold the habeas court’s ruling if it is
20 See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006) (Article 11.072); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (Article 11.08). 21 Ex parte Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011). See also State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (We afford this level of deference “even when no witnesses testify and all of the evidence is submitted through affidavits, depositions, or interrogatories.”). 22 Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). See also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (stating that reviewing courts should grant deference to implicit factual findings that support the trial court’s ultimate ruling, but they cannot do so if they are unable to determine from the record what the trial court’s implied factual findings are), overruled on other grounds by Ex Parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). 23 Ex Parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). DIAMOND — 17
correct under any theory of applicable law.24 Determining whether
particular evidence was “material” as part of a claimed Brady violation is
a mixed question of law and fact.25 We give deference to the habeas
court’s factual findings underlying its decision but review the ultimate
legal conclusion of materiality de novo.26
We have previously addressed a significant distinction between the
posture of article 11.07 habeas cases and other (non-death) habeas cases
when it comes to the standard of review.27 In article 11.07 habeas cases,
the habeas court is the original fact finder but this Court is the ultimate
fact finder.28 The habeas court’s findings are not automatically binding
upon us, although we usually accept them if they are supported by the
24 Ex Parte Beck, 541 S.W.3d at 852 (citing Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015)). 25 Ex parte Weinstein, 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014). See also Summers v. Dretke, 431 F.3d 861, 878 (5th Cir. 2005) (“Whether evidence is material under Brady is a mixed question of law and fact.”); United States v. Sipe, 388 F. 3d 471, 479 (5th Cir. 2004) (“Whereas we typically analyze legal issues de novo, a Brady determination is inevitably a contextual inquiry, involving questions of both law and fact. Moreover, it is intimately intertwined with the trial proceedings: because the court must judge the effect of the evidence on the jury’s verdict, the Brady decision can never be divorced from the narrative of the trial.”); United States v. Severns, 559 F.3d 274, 278 (5th Cir. 2009) (“[W]here the motion for a new trial is based on an alleged Brady violation, the Brady determination is ‘inevitably a contextual inquiry, involving questions of both law and fact.’ While we examine the Brady question de novo, ‘we must proceed with deference to the factual findings underlying the district court’s decision.’”). 26 Ex parte Weinstein, 421 S.W.3d at 664 n.17. 27 See Ex parte Garcia, 353 S.W.3d at 787 (Article 11.072). 28 Id. at 787–88. DIAMOND — 18
record.29 But in other (non-death) habeas cases, the trial judge is the
sole fact finder.30 The court of appeals and this Court are truly appellate
courts.31 We have less leeway in these cases to disregard the habeas
court’s findings.32
BRADY CLAIM
An applicant for a post-conviction writ of habeas corpus bears the
burden of proving her claim by a preponderance of the evidence.33 To
demonstrate that she is entitled to post-conviction relief on the basis of
reversible error under Brady, a habeas applicant must show that (1) the
State failed to disclose evidence, regardless of the prosecution’s good or
bad faith; (2) the withheld evidence is favorable to her; and (3) the
evidence is material.34
As we stated in Ex parte Miles, “Favorable evidence is that which,
if disclosed and used effectively, ‘may make a difference between
29 Id. 30 Id. at 788. 31 Id. 32 Id. 33 Ex parte Torres, 483 S.W.3d 35, 43 (2016); Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App. 2019). 34 Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). DIAMOND — 19
conviction and acquittal.’”35 Favorable evidence includes both exculpatory
evidence and impeachment evidence.36 Exculpatory evidence is that
which may “justify, excuse, or clear the defendant from fault,” while
impeachment evidence is that which “disputes, disparages, denies, or
contradicts other evidence.”37
The nondisclosure of favorable evidence violates due process only
if it is “material” to guilt or punishment.38 Evidence is material only if
there is a reasonable probability that, had it been disclosed, the outcome
of the trial would have been different.39 “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”40
Materiality is determined by examining the alleged error in the context of
the entire record and overall strength of the state’s case.41 The
suppressed evidence is considered collectively, not item-by-item.42
35 Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). 36 Id. 37 Id. (citing Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) and Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)). 38 Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011). 39 Id. at 809. 40 Ex Parte Lalonde, 570 S.W.3d at 724. 41 Id. (citing Harm, 183 S.W.3d at 409). 42 Ex parte Miles, 359 S.W.3d at 666; Pena, 353 S.W.3d at 812. DIAMOND — 20
ANALYSIS
After viewing the evidence in the light most favorable to the habeas
court’s ruling, we hold that the habeas court was within its discretion to
conclude that the undisclosed evidence was not material.43 The writ
record generally supports and confirms this conclusion.44 The undisclosed
evidence Appellant complains about is (1) Gooden’s certification of a
report in another case that contained a labeling error by the submitting
officer; and (2) Gooden’s temporary removal from performing her regular
job duties to provide documentation regarding that error.
Looking at the evidence in the light most favorable to the habeas
court’s ruling, there was overwhelming evidence of Appellant’s
intoxication to support the jury’s finding of guilt regardless of Gooden’s
testimony.45 Appellant was speeding and made several unsafe lane
43 See Ex parte Weinstein, 421 S.W.3d at 664 n.17 (we give deference to the habeas court’s factual findings underlying its decision but review the ultimate legal conclusion of materiality de novo); Kniatt, 206 S.W.3d at 664 (an appellate court reviewing a trial judge's ruling on a habeas claim must uphold that ruling absent an abuse of discretion); Ex parte Garcia, 353 S.W.3d at 787–88 (appellate courts have less leeway in an article 11.072 context to disregard the habeas court's findings because the habeas judge is the sole fact finder). 44 The habeas court found that “Arnold’s representation that Gooden was removed from casework ‘for concerns regarding testimony independent from the case with the name error do not comport with the timeline of facts.’” According to the TFSC Report, the Lab Director, not Arnold, made this representation. This is a distinction without a difference because Arnold made the same representation to Gooden two times after she had testified for the first time in Appellant’s trial. 45 Appellant does not argue that the undisclosed evidence is material to punishment. Instead, she argues that it is material to the conviction —“Without any evidence of Appellant's BAC, the jury probably would have acquitted appellant.” Appellant’s Br. 55. DIAMOND — 21
changes without signaling. Despite the officer’s illuminating lights, she
took a long time to stop her vehicle. When she exited her vehicle,
Appellant was visibly intoxicated: her eyes were red and glassy, her
speech was slurred, and she appeared confused. She and her car smelled
strongly of alcohol. She admitted that she had been drinking. She had
one open can and two cold, unopened cans of beer in her vehicle. She
had lost the normal use of her mental faculties: she was incoherent and
unable to remember where she was coming from or the medicine she had
taken. She had also lost the normal use of her physical faculties: she
staggered, could not keep her balance when she stepped out of her car,
and failed both of the field sobriety tests. Appellant argues that the
testimony from Officer Bounds describing this evidence was weak because
he lacked credibility, but the habeas court rejected that argument. The
undisclosed evidence impeaching Gooden would not have impeached the
testimony describing Appellant’s intoxicated state.
The habeas court’s findings of fact regarding Gooden’s analysis and
testimony also support the conclusion that the undisclosed evidence was
not material to the jury’s special-issue finding that Appellant’s BAC was
0.15 or more. First, the habeas court found that there was no evidence
of any error in the labeling of Appellant’s blood or Gooden’s analysis of DIAMOND — 22
Appellant’s blood. This finding is supported by the record. Appellant’s
blood vials were labeled with the officer’s initials, Appellant’s name, and
the case number. The vials were placed into an envelope labeled with
Appellant’s name and correct case number, sealed with tape, and
delivered to a secure lockbox. Gooden retrieved the envelope, which
showed no signs of tampering. Prior to testing Appellant’s blood, Gooden
verified that the name on the envelope matched the name on the blood
vials inside; it was Appellant’s. Gooden followed all of the lab’s standard
operating procedures when analyzing Appellant’s blood. Her analysis of
Appellant’s blood sample revealed a blood alcohol level of 0.193.
Moreover, Gooden’s error in the Hurtado case was a protocol error
regarding the certification of the report as complete. It was not a
mislabeling or analysis error. The officer, not Gooden, had mislabeled the
submission form accompanying the blood evidence. The correctness of
Gooden’s analysis of that evidence in the Hurtado case was never in
question. Finally, Gooden’s certification only moved the report to the
next stage; the report still had to be administratively and technically
reviewed, and then approved, before it was released.
Furthermore, the habeas court, as the exclusive judge of the
credibility of the witnesses, determined that Arnold’s description of events DIAMOND — 23
and his views regarding Gooden’s performance were not credible.46 The
habeas court rejected Arnold’s purported reasons for removing Gooden
from casework, including his alleged concerns about her knowledge base
and inability to answer basic questions. Instead, it found that at the time
of Appellant’s trial Gooden “had simply been removed to focus solely on
documenting the issues surrounding an unrelated mislabeled blood
case.”47 The habeas court also rejected Arnold’s characterization of
Gooden’s work status. It found Arnold’s use of the term “suspended” or
“under suspension” to describe Gooden’s work status at the time of
Appellant’s trial “suspect and unpersuasive.”
The habeas court’s credibility assessment of Arnold, and the findings
based upon it, are supported by the record.48 In its report introduced at
the hearing on the habeas application, the TFSC found Arnold
46 See Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996) (“Virtually every fact finding involves a credibility determination. We have repeatedly recognized that the fact finder is the exclusive judge of the credibility of the witnesses.”). Because the habeas judge here personally presided over both Appellant’s trial and the habeas proceeding, he was well-positioned to make this credibility decision. See Ex parte Wheeler, 203 S.W.3d at 325–26. 47 This is the only fact finding challenged on appeal. Appellant does not challenge the habeas court’s other findings—including those detailing the events surrounding the Hurtado report, the reports of the OIG and TFSC, and correspondence between Arnold and Gooden. 48 See Ex parte Mowbray, 943 S.W.2d at 465 (“In habeas hearings, the judge determines the credibility of the witnesses and if the habeas judge’s findings of fact are supported by the record, they should be accepted by this Court.”). DIAMOND — 24
professionally negligent, not Gooden.49 All interviewees participating in
the TFSC’s investigation believed Gooden to be a competent analyst who
was unfairly blamed for the reporting error in the Hurtado case. In
contrast, Arnold provided inconsistent explanations regarding why
Gooden was removed from casework.
Given the habeas court’s findings of fact and determinations of
credibility, we agree with the State that the undisclosed evidence would
not have been material impeachment evidence against Gooden sufficient
to undermine her testimony regarding the accuracy of Appellant’s blood
results.50 Gooden’s certification of the Hurtado report was a one-time
incident in an unrelated case.51 Appellant’s blood sample and subsequent
report contained no labeling errors. And Gooden’s temporary removal
from casework at the time of Appellant’s trial does not overcome the fact
that there was no evidence of any error in Gooden’s analysis of
Appellant’s blood. Finally, Arnold’s claims regarding his concerns about
49 Again, Appellant complains about Gooden’s certification error, not Arnold’s, who did not testify at Appellant’s trial. 50 Cf. Ex parte Hobbs, 393 S.W.3d 780, 781 (Tex. Crim. App. 2013) (per curiam) (concluding that the lab technician’s actions were unreliable because he had not followed accepted standards when analyzing the evidence, which resulted in a due process violation). 51 See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) (holding that it is not appropriate to presume falsity and materiality in every case on which a forensic scientist, who has been found to have committed intentional misconduct in more than one case, has worked). DIAMOND — 25
Gooden’s knowledge base were not credible and therefore do not
undermine the reliability of her testimony that Appellant’s BAC was
0.193. Whatever impeachment value this new information had to
undermine Gooden’s testimony, it was nevertheless not material.
We agree with the State that the court of appeals placed too much
weight on Arnold’s testimony in its analysis even though the habeas court
found Arnold lacked credibility. While the court of appeals did not have
to defer to the habeas court’s conclusion regarding the legal
determination of materiality, the factual findings underlying that legal
conclusion support the habeas court’s denial of relief. Viewing the habeas
court’s factual findings with the proper degree of deference, we hold that
the habeas court properly concluded that Appellant failed to carry her
burden to establish that the undisclosed evidence was material.
CONCLUSION
Based upon the habeas court’s factual findings, the undisclosed
evidence at issue in this case was not material. Gooden’s analysis and
testimony in Appellant’s case was proper and reliable. Her error in the
unrelated case had to do with an improper certification of a report rather
than a failure to catch a mislabeling of a blood sample. And there was
overwhelming evidence of Appellant’s intoxication to sustain Appellant’s DIAMOND — 26
conviction for Class A misdemeanor DWI. Consequently, we reverse the
judgment of the court of appeals and affirm the habeas court’s ruling.
Delivered: December 16, 2020
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