Martha Hill Jamison, Justice
After we issued our opinion on rehearing, the State filed a motion for rehearing. We withdraw our majority opinion on rehearing issued on September 11, 2018, issue this substitute majority opinion, and deny the States motion for rehearing.
Appellant Lesley Esther Diamond was convicted of misdemeanor driving while intoxicated. She filed an application for writ of habeas corpus, in which she alleged that the State suppressed favorable evidence in violation of her due process rights. After a hearing, the habeas court denied the application. On appeal, appellant contends in one issue that the habeas court erred in concluding that the undisclosed evidence is not favorable to the defense or material to the jurys guilty verdict under Brady v. Maryland . Concluding that the undisclosed evidence is material to the jurys verdict and favorable to appellant, we reverse the trial courts order.
Background
Appellant did not appeal her conviction. But after appellant was convicted, Andrea Gooden, an analyst from the Houston Police Department crime lab who testified in appellants trial, self-reported that the crime lab had violated quality control and documentation protocols. This report culminated in an investigation and report by the Texas Forensic Science Commission that was provided to appellant after her conviction.
I. Evidence Adduced at Trial
Deputy Bounds was conducting a traffic stop in Harris County, Texas, when he observed appellant driving in excess of the speed limit in the lane closest to Boundss stopped patrol car and the other stopped vehicle. Appellant made several unsafe lane changes without signaling that caused other drivers to brake suddenly. Bounds got into his vehicle and pursued appellant until she stopped her vehicle.
While conducting the stop, Bounds asked appellant to step out of her vehicle. When she did so, she staggered. Appellant told Bounds she was coming from a golf course at a country club but did not know the name or location of the country club. Appellant told Bounds she had consumed three beers that day. She also had an empty can of beer and two cold, unopened cans of beer in her car.
Bounds testified that appellant appeared intoxicated, smelled of alcohol, had red, glassy eyes and incoherent, slurred speech, and appeared confused. Appellant said she had taken medication but was unable to tell Bounds what kind of medication it was.
Bounds requested another deputy to assist him. Deputy Francis arrived and administered field sobriety tests. Bounds testified that he observed appellant exhibit five out of eight clues of intoxication on the walk and turn test and four out of four clues on the one leg stand test. Bounds further testified that appellant had poor balance and staggered during the walk and turn test but conceded that Francis made some mistakes in administering the field sobriety tests. Bounds opined that appellant was intoxicated.
Gooden testified that her analysis of appellants blood sample revealed a blood alcohol concentration (BAC) of 0.193, which is above the legal limit of 0.08.
The prosecutor argued during closing argument that the blood analysis was really important because 0.193 is multiple times the legal limit and that [i]t is pretty much undisputed that Deputy Bounds is not good at testifying. In fact, hes probably not a very good officer and [e]ven someone as simple or dumb, however you want to call it, as Deputy Bounds, it was clear to him that she was intoxicated.
The jury found that appellants BAC was above 0.15.
II. Evidence Adduced at Habeas Hearing
Because of her involvement with an erroneous lab report in an unrelated case, Gooden had been removed from casework two weeks prior to appellants 2014 trial. In the unrelated case, an officer had mislabeled vials containing blood specimens with the wrong suspects name. Knowing about the error, Gooden analyzed the blood samples but initially set them aside until the officer could correct the mistake. Gooden also prepared a draft lab report and certified that it was accurate. The report, still containing the wrong suspects name, erroneously was released into the Laboratory Information Management System (LIMS) in January 2014. Reports submitted on LIMS can be accessed by prosecutors.
On April 15, 2014, Gooden discovered the error and reported it. The next day, her supervisor, William Arnold, sent her an email stating that she would not be allowed to work on any other cases: 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. Arnold did not document or disclose this action to the Harris County District Attorneys Office because he did not want to damage Goodens career or subject her to harsh cross-examination by a defense lawyer.
Gooden issued a memorandum regarding the lab error on April 17 and assumed she would be able to resume her other casework at that time. Instead, she was told she could not return to casework.
Gooden testified for the State against appellant on April 29 and 30, 2014. The erroneous lab report and Goodens removal from casework were not disclosed to the defense. Arnold observed Goodens testimony at trial.
On May 12, 2014, Arnold told Gooden that she still could not commence with casework because she needed to improve her courtroom testimony. Arnold subsequently told a human resources director that he preferred retraining Gooden in lieu of documenting concerns about [Goodens] performance which would make [Gooden] subject to painful cross examination and he wanted to avoid damaging Goodens career.
Gooden filed a self-disclosure with the Commission on June 4, 2014 concerning the erroneous lab report, alleging that the crime lab failed to amend the report, notify the district attorneys office of the error, or issue a required corrective and preventative action report. After a period of retraining, Gooden was allowed to return to casework in August.
The Commission opened an investigation on August 1 to review Goodens disclosure. On August 4, Arnold gave Gooden an interoffice memo in which he noted that in early April, Gooden prepared a PowerPoint presentation for use in court testimony and during the proposed presentation, Gooden could not answer basic questions about the type of analysis used to analyze blood alcohol content. Arnold questioned whether Gooden could convey the proper information and whether she understood the concepts associated with the analysis.
The City of Houstons Office of Inspector General conducted an investigation on these matters during the same timeframe and issued its report on December 18, 2014. It found, in relevant part, that (1) lack of attention by Arnold and Gooden allowed the erroneous report to be submitted to the district attorneys office; and (2) Gooden testified in three trials while off casework and without disclosing the erroneous report.
The Commission issued its report on January 23, 2015. It concluded that Arnold engaged in professional negligence by, among other things, failing to issue timely amended reports to the district attorneys office once the mislabeling mistake was identified by Gooden and failing to document the reasons for Goodens removal from casework. In doing so, the Commission concluded in relevant part, that Arnold:
1. Deprived the prosecutor of the opportunity to determine whether any action was required to disclose impeachment information to the defense;
2. Possibly deprived the defense of impeachment information to which it was entitled; and
3. Sent the message that it is acceptable not to document issues that arise in the laboratory for fear of a tough cross-examination.
The trial court considered this evidence and denied appellants habeas application, issuing written findings and conclusions. On original submission, we affirmed the trial courts decision.
III. Appellants Motion for Rehearing
After we issued our opinion, appellant sought to correct an error in the underlying judgment of conviction. The jury found that an analysis of appellants blood showed an alcohol concentration of more than 0.15. Driving with such a concentration is a Class A misdemeanor. See Penal Code 49.04(d). The trial court orally pronounced appellants conviction of a Class A misdemeanor. The original judgment, however, reflected that appellant was convicted of a Class B misdemeanor with a BAC of 0.08. Appellant filed a motion to enter judgment nunc pro tunc to correct the judgment to reflect her conviction of a Class A misdemeanor. On May 21, 2018, the trial court granted appellants motion and entered a judgment nunc pro tunc showing that she was convicted of a Class A misdemeanor with a BAC of 0.15 or more.
Discussion
Appellant argues that the habeas court erred in concluding that the undisclosed evidence is neither favorable nor material. We agree with appellant that the undisclosed evidence is favorable to her and is material.
To demonstrate reversible error under Brady , a habeas applicant must show (1) the State failed to disclose evidence, regardless of the prosecutions good or bad faith; (2) the withheld evidence is favorable to her; and (3) the evidence is material-that is, there is a reasonable probability that, had the favorable evidence been disclosed, the outcome of the trial would have been different. Ex parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The evidence central to the Brady claim must be admissible in court. Id.
We ordinarily review a habeas courts ruling on an application for writ of habeas corpus for an abuse of discretion. Ex parte Navarro , 523 S.W.3d 777, 780 (Tex. App.-Houston [14th Dist.] 2017, pet. refd). But when the resolution of the ultimate issue turns on an application of purely legal standards, our review is de novo. Id.
I. Favorability
The State concedes that it did not disclose the certification of the erroneous report. Also, the evidence is undisputed in the habeas record that the State did not disclose that Gooden had been suspended or temporarily removed from her casework or that Arnold lacked confidence in Goodens understanding of the basic science. Therefore, we turn first to whether the undisclosed evidence is favorable.
Favorable evidence is that which, if disclosed and used effectively, may make the difference between conviction and acquittal. United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Favorable evidence includes exculpatory evidence and impeachment evidence. Id. Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. Pena v. State , 353 S.W.3d 797, 811-12 (Tex. Crim. App. 2011) ; Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006).
The habeas court found that evidence of (1) a single incident in which Gooden certified a report with mislabeled blood in an unrelated case; and (2) Goodens temporary removal from casework, would not have been relevant or admissible. The habeas court made no findings regarding evidence of Arnolds lack of confidence in Goodens understanding of the basic concepts underlying the performance of her duties. Before we analyze the favorability of the evidence, we address whether the evidence is admissible.
The habeas court relied on Rule of Evidence 608(b) in finding that the undisclosed evidence is not admissible. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witnesss conduct in order to attack or support the witnesss character for truthfulness. Tex. R. Evid. 608(b).
Appellant asserts that she would not have offered the undisclosed evidence to attack Goodens character for truthfulness and that the evidence does not demonstrate that Gooden has a mendacious character. Instead, according to appellant, the evidence would have been admissible to rebut and undermine Goodens expert qualifications and the reliability of her opinion after the State presented her as a qualified expert.
We agree with appellant that Rule 608(b) does not render inadmissible at trial evidence of the mistakes in an unrelated case or Goodens removal from casework. This evidence has no relation to whether Gooden has a propensity for being untruthful.
We also disagree with the habeas courts finding that the undisclosed evidence is not relevant. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. In general, a witness may be cross-examined on any relevant matter, including credibility. Tex. R. Evid. 611(b). The undisclosed evidence is relevant because it can be used for impeachment of Goodens qualifications and the reliability of her opinion. In addition, regardless of its admissibility, the evidence could have been used in moving under Rule of Evidence 702 to exclude Goodens expert testimony entirely based on lack of qualifications or reliability. See Tex. R. Evid. 104(a) ; Kelly v. State , 824 S.W.2d 568, 572 & n.10 (Tex. Crim. App. 1992).
We now address whether the undisclosed evidence is favorable. Appellant argues that the suppressed evidence is admissible under the Confrontation Clause and Rule 702 because it relates directly to Goodens qualifications and the reliability of her opinion. Had she known about Goodens suspension, her certification of the erroneous report in the unrelated case, and Arnolds lack of confidence in her understanding of the basic science, appellant claims she would have attempted to exclude Goodens testimony and, if unsuccessful, would have used the evidence to impeach Gooden. Appellant additionally argues she would have called Arnold to testify regarding his misgivings about Goodens abilities. Thus, appellant asserts, even if Gooden had been permitted to testify as an expert at trial, the jury would have had a factual basis to doubt Goodens qualifications and the reliability of her blood alcohol analysis.
We address each type of undisclosed evidence in turn. Appellant repeatedly refers to Goodens having been suspended or being under suspension. The habeas court found, however, that Gooden was not suspended but was temporarily removed from casework to focus on documenting the mislabeled blood sample report. The court noted that Arnold never used the terms suspended or under suspension until he wrote the August 4, 2014 memo, and further found Arnolds use of those terms suspect and unpersuasive given the TFSCs finding of no professional misconduct or negligence by Gooden; Goodens continued performance of tasks and receipt of compensation; and Arnolds labeling Goodens work status as suspended only after Gooden self-reported to the TFSC and contacted the human resources director about returning to work.
The State argues that the failure of the habeas court to find that Gooden was suspended or under suspension eviscerates appellants theory that she can impeach Goodens credibility by showing evidence that Gooden was suspended or under suspension when she testified at appellants trial. Irrespective of the terms used to describe Goodens work status (under suspension or off of casework or otherwise), Goodens testimony would have been subject to painful cross examination had the evidence of her removal been disclosed, just as Arnold feared. We conclude that the undisclosed evidence of Goodens work status at the time of appellants trial is favorable impeachment evidence.
We also conclude that the certification of the mislabeled lab report in another case is favorable impeachment evidence. At appellants trial, Gooden testified to several issues of State personnel mishandling evidence in this case: the vials containing appellants blood were missing labels containing the nurses name, the officers name, the suspects name, and the time of the draw; and the labels should have been placed on the blood vials when the vials were transported from the blood draw room to the police evidence locker. Moreover, Bounds testified at trial that the vials containing appellants blood were in his custody from immediately after the draw until he turned them in at the police department. However, Bounds, who was not trained to transport blood evidence in DWI cases, left the vials unattended twice for at least 30 minutes at a time.
There is no evidence that Gooden personally was responsible for the errors in appellants case. However, the undisclosed evidence would have provided appellant with painful cross examination material questioning the integrity of the crime labs processes in analyzing blood samples for BAC at that time.
In his August 4, 2014 memo, Arnold claimed he had concerns about Goodens level of knowledge and understanding regarding her knowledge base and her inability to answer basic questions. This is favorable evidence with which to impeach Goodens qualifications in performing the blood analysis and question the reliability of her opinion that appellant had a BAC of 0.193.
We conclude that the undisclosed evidence is favorable. That is, if the evidence had been disclosed and used effectively by appellants counsel for impeachment, it might have made the difference between appellants conviction and a possible verdict of acquittal. See Bagley , 473 U.S. at 676, 105 S.Ct. 3375.
II. Materiality
The possibility that an item of undisclosed information might have helped the defense or affected the outcome of the trial does not establish materiality. Miles , 359 S.W.3d at 666. The undisclosed evidence is material only if there is a reasonable probability that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed to the defense. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Although we defer to the habeas courts credibility determinations, we review the question of materiality de novo. See Ex parte Weinstein , 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014) (noting that in addressing habeas claims involving Brady , materiality of evidence is reviewed de novo). We balance the strength of the exculpatory evidence against the evidence supporting conviction and consider the suppressed evidence collectively, not item by item. Miles , 359 S.W.3d at 666.
The habeas court concluded that appellant failed to establish materiality of the evidence because Bounds testimony regarding appellants intoxication was more than sufficient to support a guilty verdict and there is no reasonable probability that the jury would have reached a different result if appellant had been able to cross-examine Gooden with the undisclosed evidence. The habeas court made the following fact findings in support of its conclusions on materiality:
• Bounds observed appellant speeding in the lane closest to Bounds and the stopped patrol car and other vehicle. Appellant made several unsafe lane changes and caused other drivers to brake suddenly.
• Appellant staggered when she got out of the car. She had red, glassy eyes, incoherent, slurred speech, and a very strong odor of alcohol and could not identify the name of the golf course she came from or what medication she had taken.
• Appellant admitted she drank three beers and had one open, and two cold, unopened cans of beer in her car.
• Bounds observed the other officer administer the walk and turn and one leg stand field sobriety tests. Bounds testified that appellant exhibited five out of eight clues of intoxication on the walk and turn test and four out of four clues of intoxication on the one leg stand test.
Appellant argues that there is a reasonable probability that the jury would not have convicted her if it had heard the undisclosed evidence because the blood alcohol evidence was the most important evidence of intoxication adduced at trial and Bounds was not a good witness. Bounds did not preserve the in-car video of the incident, lost his notes from the night of the incident, and admitted that the police report contains numerous mistakes. He also conceded that the officer who administered the field sobriety tests did not give appellant proper instructions. The prosecutor made handwritten additions to the police report for Bounds to rely on during his testimony to add observations of clues of intoxication. Bounds was not trained to transport blood evidence and did not have custody of the blood specimen for two periods of at least 30 minutes during which the specimen was unattended in his car and the location was not documented.
We agree with the State that it provided ample evidence of intoxication; however, the jury also found that an analysis of [appellants] blood showed an alcohol concentration of 0.15 or more. That finding is a required element of a Class A misdemeanor, of which appellant was convicted. See Tex. Penal Code § 49.04(d). The evidence supporting this answer could only have come from Goodens testimony and related exhibits. Had appellant been convicted of a Class B misdemeanor, Boundss testimony of intoxication would have been sufficient, and Goodens testimony would not have been material. See id. § 49.01(2) (defining intoxicated as having an alcohol concentration of 0.08 or more or not having the normal use of mental or physical faculties by reason of the introduction of alcohol or other substances or combination thereof). However, because appellant was convicted of a Class A misdemeanor, evidence was required to establish a BAC of 0.15 or more. See id. § 49.04(d).
Goodens testimony that she analyzed a sample of blood identified as appellants and concluded the BAC was 0.193 was necessary for the jury to make an affirmative finding on the special issue of whether appellants BAC level was 0.15 or more. See Castellanos v. State , 533 S.W.3d 414, 419 (Tex. App.-Corpus Christi 2016, pet. refd). The statutory scheme differentiates between a Class A and Class B misdemeanor based upon an analysis of blood, breath, or urine showing an alcohol concentration level of 0.15 or more. See Tex. Pen. Code § 49.04b(b), (d). There was no testimony regarding appellants BAC from any witness other than Gooden.
Given the lack of other evidence indicating appellant had a BAC of 0.15 or more, we conclude that there is a reasonable probability that the jury would have reached a different result on the Class A misdemeanor charge if Goodens testimony had been excluded. We also conclude that if the habeas court had not excluded Goodens testimony but allowed appellant to cross-examine Gooden with the undisclosed evidence, there similarly is a reasonable probability that the jury would have reached a different result.
III. The States Motion for Rehearing
The State filed a motion for rehearing, in which it asserts that we erred by not addressing, in our September 11, 2018 majority opinion on rehearing, all the arguments it raised in response to appellants motion for rehearing in accordance with Texas Rule of Appellate Procedure 47.1. Tex. R. App. P. 47.1 (The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issued raised and necessary to final disposition of the appeal.). Although we considered the States additional arguments and concluded that addressing them in the opinion was not necessary to the disposition of this appeal, we address them here for clarity.
The State urged in its response to appellants motion for rehearing that appellant was presenting new arguments that she did not present to the trial court. Appellants habeas petition stated that she was charged with [a] Class B misdemeanor, and the trial judge made the same recitation in the procedural history of his findings of fact. However, in the same procedural section of his findings of fact, the trial judge also stated, the jury convicted Applicant and found that her blood alcohol concentration was above 0.15. Because appellant moved for rehearing asking this court to consider the Brady issue in light of the nunc pro tunc judgment for a Class A misdemeanor, the State contends that this court-as an intermediate appellate court with no original habeas corpus jurisdiction in criminal cases-does not have the authority to address appellants request.
We disagree. A review of appellants application for writ of habeas corpus, the habeas corpus hearing record, her appellate brief, and her motion for rehearing reflect that the ground on which appellant seeks habeas corpus relief has remained consistent in the trial court and on appeal: that the State violated Brady by not disclosing evidence concerning Goodens qualifications and the reliability of her opinions. As explained above, appellants conviction of a Class A rather than a Class B misdemeanor shows that the withheld evidence was material. But the nature of appellants conviction has not changed: even if appellant and the habeas judge later made clerical errors, the trial court orally pronounced that appellant was convicted of a Class A misdemeanor. Indeed, the State notes that the .15 enhancement was plain on the face of the record, and the appellants habeas counsel was also her trial counsel. We also note that the habeas court was the trial court. Accordingly, we find no merit in the States arguments and deny its motion for rehearing.
Conclusion
We reverse the order of the trial court denying appellants application for writ of habeas corpus, grant habeas relief, set aside the nunc pro tunc judgment of conviction signed May 21, 2018, and remand this case for further proceedings consistent with this opinion.
( Donovan, J., dissenting).
SUBSTITUTE DISSENTING OPINION
John Donovan, Justice
After I issued a dissenting opinion on rehearing, the Sate filed a motion for rehearing. I withdraw my dissenting opinion on rehearing issued on September 11, 2018, and issue this substitute dissenting opinion. I note that I agree and do not dissent to the substitute majority opinions denial of the States motion for rehearing.
To demonstrate reversible error under Brady , appellant was required to show the State failed to disclose material evidence that was favorable to her.
Ex Parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The evidence in question is (1) Goodens certification of the Hurtado report when it contained a labeling error; and (2) Goodens removal or suspension from performing her regular job duties before she testified at appellants trial. The record reflects the trial court found the evidence was not favorable to appellants defense. The trial court then found that even if the evidence had been disclosed, it would not have been relevant or admissible, citing Rule 608(b). Further, the trial court concluded the evidence was not material. I respectfully dissent from the majoritys conclusion that the undisclosed evidence was material.
We review the trial courts denial of habeas corpus relief under an abuse of discretion standard and consider the facts in the light most favorable to the trial courts ruling. Ex parte Wheeler , 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). We afford almost complete deference to the trial courts determination of historical facts supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Ex parte Tarlton , 105 S.W.3d 295, 297 (Tex. App.-Houston [14th Dist.] 2003, no pet.). We apply the same deference to review the trial courts application of law to fact questions, if the resolution of those determinations rests upon an evaluation of credibility and demeanor. Id. Only if the outcome of those ultimate questions turns upon an application of legal standards do we review the trial courts determination de novo . Id.
The trial court made the following findings of fact:
A. THE TRIAL
17. The State presented the following evidence of Applicants guilt for the charged offense:
a. On March 23, 2013, Harris County Constable Precinct 5 Deputy Justin Bounds was conducting a traffic stop in an unrelated case on the Westpark Tollway in Harris County, Texas, when he first observed Applicant, who was the sole operator and occupant of her vehicle, driving in excess of the speed limit in the lane closest to the stopped patrol car and the other stopped vehicle.
b. Bounds observed Applicant make several unsafe lane changes without signaling that caused other drivers to slam on their brakes.
c. Bounds illuminated his overhead lights, but Applicant took a long time to stop her vehicle.
d. Bounds asked Applicant to step out of her car; when she did so, Applicant was staggering and could not keep her balance.
e. During this traffic stop Applicant told Bounds 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.
f. Applicant admitted she had been drinking, and told Bounds that she had consumed three Bud Light beers that day.
g. Bounds recovered one open can of beer and two cold, unopened cans of beer from Applicants vehicle.
h. Bounds testified that Applicant appeared intoxicated; that there was a very strong odor of alcohol coming from Applicants vehicle and breath; Applicant had red, glassy eyes, incoherent, slurred speech, and appeared confused; and Applicant indicated she was taking medication, but she was unable to identify the medication.
i. Bounds testified that he requested another deputy to assist him with Applicants traffic stop, and Bounds, who was also certified to administer standardized field sobriety tests, observed Deputy J. Francis administer the walk-and-turn and one-leg-stand field sobriety tests to the applicant.
j. Bounds testified that he observed Applicant exhibit five clues of intoxication on the walk-and-turn test and four clues of intoxication on the one-leg-stand test, and that he formed the opinion that Applicant had lost the normal use of her mental and physical faculties.
k. Bounds testified that Applicant had poor balance and was staggering during the walk-and-turn test.
l. Bounds testified that Applicants poor performance on the walk-and-turn test was not due to nervousness, and she stated that she suffered no handicaps or disabilities that would have affected her performance.
m. Applicant was then placed under arrest for driving while intoxicated.
n. Bounds arrested Applicant and requested a sample of her breath or blood for alcohol analysis, and Applicant refused to give a sample.
o. Bounds secured a search warrant to obtain a sample of Applicants blood.
p. Bounds testified that over the course of 3 or 4 hours he had an opportunity to observe Applicant and concluded that she was highly intoxicated.
q. Finally, Bounds testified that:
i. he observed Nurse Curran draw Applicants blood;
ii. Applicants blood vials were labeled with his initials, Applicants name, and the case number;
iii. the case number in the primary case was 035791513M; and
iv. Bounds delivered the blood vials to a secure lockbox at the Houston Police Department.
r. This Court excluded Franciss testimony following a violation of TEX. R. EVID. 614.
s. Regarding her analysis of Applicants blood, Gooden testified that:
i. she retrieved Applicants blood samples in the primary case from a cooler;
ii. prior to testing Applicants blood sample, Gooden verified that the name on the blood vial labels matched the name on the sealed evidence envelope;
iii. Applicants name was on the blood vial labels;
iv. the instrument used to analyze Applicants blood sample was validated at the time of the analysis;
v. Gooden followed all the labs standard operating procedures that were in place at the time of her analysis of Applicants blood in the primary case;
vi. Gooden used the PerkinElmer instrument in analyzing Applicants blood sample;
vii. the Standard Operating Procedures specify the use of the Agilent instrument;
viii. the use of the PerkinElmer instrument was authorized in a memo;
ix. the PerkinElmer memo was an addendum to the Standard Operating Procedures; and,
x. the PerkinElmer instrument was validated.
t. Gooden further testified regarding her qualifications, namely that she had completed two to three thousand exercises and passed a competency test prior to engaging in blood alcohol analysis casework.
u. Finally, Gooden testified that alcohol did not affect everyone in the same way, and alcoholics may exhibit no symptoms of intoxication due to tolerance.
v. Gooden then testified that her analysis of Applicants blood sample revealed a blood alcohol level of .193 grams per 100 milliliters.
w. Gooden testified over a period of two days, April 29 and 30, 2014, and the defense conducted a thorough cross-examination of Gooden.
Appellants brief does not argue, and the majority opinion does not conclude, that any of the above findings are not supported by the record. Instead, appellant hypothesizes that Bounds testimony was so destroyed by cross-examination that the jury could not have believed any part of his testimony. Discounting Bounds evidence entirely, making Goodens testimony the most important evidence at trial, appellant then theorizes that the undisclosed evidence would have enabled her to impeach Gooden and either exclude her testimony or discredit it, resulting in a mistrial or an acquittal. At its core, appellants argument is that if we ignore Bounds testimony the undisclosed evidence would have formed the basis for a successful attack on the blood evidence that she was intoxicated and her BAC level was over 0.15.
Evidence is material if there is a reasonable probability that, had it been disclosed, the outcome of the trial would have been different. Ex Parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The United States Supreme Court has defined reasonable probability to mean the likelihood of a different result is great enough to undermine confidence in the outcome of the trial. Smith v. Cain , 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) (citing Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ). Thus the outcome is not a hypothetical result that a jury could have reached, such as a mistrial, but is the result of the trial in question. In this case, then, the question is whether there is a reasonable probability that, had the evidence been disclosed, the jury would have found appellant not guilty or answered no on the special issue.
Impeachment evidence may not be material if the States other evidence is strong enough to sustain confidence in the verdict. Cain, 565 U.S. at 76, 132 S.Ct. 627. According to the unchallenged findings of fact, the jury heard evidence that appellant was driving over the speed limit, made unsafe lane changes without signaling, staggered when she exited her vehicle, did not know the name or location of the country club she claimed to have left, admitted to having consumed three beers, and had an empty can of beer and two cold, unopened cans of beer in her vehicle.
Further, appellant appeared intoxicated, smelled of alcohol, had red, glassy eyes, her speech was incoherent and slurred, and she appeared confused. In addition, appellant failed the field sobriety tests, had poor balance and was staggering during the walk-and-turn test.
Appellants blood was drawn, the blood vials were labeled with appellants initials, name, and case number and delivered to a secure lockbox. Gooden retrieved appellants blood samples and prior to testing verified the name on the blood vials matched the name on the sealed evidence envelope; it was appellants name. Gooden followed all the labs standard operating procedures which included, by addendum, use of the PerkinElmer instrument. Gooden had completed two to three thousand exercises and passed a competency test. Appellants blood revealed a BAC of .193. Furthermore, from the evidence developed external to appellants trial and adduced at the hearing on her petition, the trial court found, and appellant does not challenge, that there was no evidence of any error in the labeling of appellants blood or Goodens analysis of it.
The majority concludes the evidence set forth above is sufficient to sustain confidence in the jurys finding of guilty but not its answer of yes to the special issue. The majority reaches this conclusion by disregarding the trial courts findings of fact and reweighing the evidence presented. It is not for this court to reweigh the evidence and invade the jurys role as the sole judge of the credibility of the witnesses and the evidence presented. See Villani v. State , 116 S.W.3d 297, 301 (Tex. App.-Houston [14th Dist.] 2003, pet. refd.).
There is no logical connection between the undisclosed evidence-that Gooden certified a report in another case that contained a labeling error by the officer or was removed or suspended from her regular job duties to provide documentation regarding that error-and the testimony describing appellants intoxicated state or the accuracy of the blood test results. In her reply brief, appellant attacks the trial courts finding that Goodens removal or suspension was for the purpose of documenting the Hurtado error. But the trial court expressly found the claim of Goodens supervisor, William Arnold, that it was for another reason was not credible in light of the surrounding circumstances. In an article 11.072 post-conviction habeas corpus proceeding, the trial judge is the sole finder of fact. See Ex parte Garcia , 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). We afford almost total deference to a trial courts determination of the historical facts that the record supports especially when the trial courts fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ; see also Ex parte Peterson , 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). We are obligated to defer to the trial courts assessment of Arnolds credibility because the trial court heard his testimony while we must rely on the cold record. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Moreover, the trial courts findings detail the events surrounding the Hurtado report, the reports of the City of Houston Officer of Inspector General and the Texas Forensic Science Commission, and correspondence between Arnold and Gooden. Those findings, but for the one noted above, are not challenged on appeal. It is the trial court that is charged with finding the facts and applying the law. Hester v. State , 535 S.W.2d 354, 356 (Tex. Crim. App. 1976). On appeal challenges to the trial courts ruling generally should be directed to whether the trial court abused its discretion in one of its findings of fact or to whether the trial court properly applied the law to those facts found by it. Id. We should restrict our review of the facts to any issues raised in challenge to the trial courts findings. See id.
[I]mpeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. Ex Parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (citing Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) ). Given the unchallenged findings of fact by the trial court that the blood samples were labeled as appellants and there was no evidence of any errors in Goodens analysis of appellants blood, the undisclosed evidence in this case would not impeach the evidence that appellants blood was analyzed and had a BAC level of .193. Thus, the likelihood of a different result is not great enough to undermine confidence in the outcome of the trial. I would therefore conclude the alleged Brady evidence is not material and affirm the trial courts ruling.
In that case, the United States Supreme Court held 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. Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The trial court excluded Franciss testimony as a sanction at trial because Francis and Bounds discussed the case with the prosecutor in each others presence in violation of the Rule. See Tex. R. Evid. 614 (the Rule).
Appellants brief stated that she was charged with a Class B misdemeanor and failed to disclose that she was convicted of a Class A misdemeanor. In a post-submission letter brief, appellants counsel referred this court to the supplemental reporters record where at sentencing, the [trial] court pronounced that [appellant] was convicted of a Class A misdemeanor based on the jurys affirmative finding on the special issue. It was after our original opinion had issued that appellant moved for and the trial court issued a judgment nunc pro tunc correcting the classification of appellants conviction from a Class B to a Class A misdemeanor.
Appellant is not currently in custody, but the trial court had jurisdiction over her habeas application and we have jurisdiction over her appeal because she faces collateral legal consequences resulting from her misdemeanor conviction. See Le v. State , 300 S.W.3d 324, 326 (Tex. App.-Houston [14th Dist.] 2009, no pet.).
In our original opinion, we did not address whether the undisclosed evidence is favorable to appellant.
We note that this is not the correct test for materiality. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been [sufficient evidence] to convict. Kyles v. Whitley , 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Instead, the question is whether, considering the whole record, the undisclosed evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Id. at 435, 115 S.Ct. 1555.
See also State v. Cortez , 501 S.W.3d 606, 609 (Tex. Crim. App. 2016) (vacating the judgment of the court of appeals and remanding the case to that court to consider an opinion, which the court of appeals failed to address and which the State claimed resolved the case); Ikner v. State , 848 S.W.2d 161, 162 (Tex. Crim. App. 1993) (vacating the judgments of the court of appeals and remanding the causes to the that court because it sustained appellants points of error without addressing the States argument that appellant had not preserved error for appellate review).
See Ex parte Evans , 410 S.W.3d 481, 485 (Tex. App.-Fort Worth 2013, pet. refd) (refusing to consider on appeal from the denial of an application for writ of habeas corpus an argument not raised in the application); Greenville v. State , 798 S.W.2d 361, 362-63 (Tex. App.-Beaumont 1990, no pet.) (holding that the court of appeals could not rule on issues on appeal from the denial of an application for writ of habeas corpus that were not raised in the application).
Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The Hurtado report is the erroneous lab report in an unrelated case discussed in Section II of the majority opinion.
I would note that the oral pronouncement controls over the written judgment, see Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004), and our record included the reporters record wherein the trial stated that appellant was convicted of a Class A misdemeanor.
Because I would find the evidence sufficient to sustain both the guilty finding and yes answer, I do not address whether the majoritys reversal of the conviction is the appropriate remedy.
The majority goes so far as to quote the States disparaging remarks about Officer Bounds to no discernible purpose.