dissenting.
Applicant makes three claims in her effort to gain relief from her conviction. The trial court found that applicant was not entitled to relief on the basis of any of her three claims, but recommended relief anyway, determining that the State’s suppression of favorable evidence denied applicant due process.
The majority’s decision that applicant’s conviction should be set aside rests upon the determination by the trial court that the State knowingly suppressed MacDonnell’s report, and that if the jury had considered the report, there is a substantial probability applicant would have been acquitted.1
The record does not support the finding of the trial court that the State engaged in a deliberate course of conduct to keep Mac-Donnell’s findings and opinions from defense counsel until the last days before trial. The prosecutor wrote twice to MacDonnell — in March and in April — to request him to forward his written findings. No report was sent. The report in question was not prepared by MacDonnell until May 13, 1988. The State then turned the report over to the defense immediately, ten days before the trial began on May 23,1988.
Neither does the record support the finding that the State misled defense counsel by representing that it would produce MacDon-nell at trial. Although the State retained MacDonnell and issued a subpoena for him, this was not shown to be a subterfuge to mislead counsel: the State did not get the final report until May of 1988 either.
But even if the record did support the trial court’s finding that the State suppressed the report,2 applicant would not be entitled to relief. Her attorney did know of the report before trial; he and his client made a tactical decision not to follow up on the report.
The full reasons for this decision are unknown to us for the sole reason that Applicant would not allow trial counsel to testify to all the reasons he decided not to use Mae-Donnell or the report.3 Regarding the reasons Toscano did not use the report or Mac-Donnell, Toscano stated:
There were a number of other factors. And if the Court will allow me to do so by — I would have to reveal some confidential information that I don’t think is proper unless the Court orders me ... I feel that I should be released of this confidentiality so as to bring forth before this tribunal the facts that we — that we — that you should know, what the bases were why I did not call Mr. — call or talk to him.
(Ellipses added.) The trial court responded that applicant had to waive the privilege. Applicant consulted with her attorney off the record, with the result that the privilege was not waived. Because applicant purposely kept from the trial court the full reasons that she and her attorney decided not to use the report or MacDonnell, we must assume that *468the decision was sound and that the defense did not consider the report to be favorable.4 And if we make that assumption, there is no basis for concluding that the “suppression” of the report denied applicant due process or, indeed, had any deleterious effect on the trial at all.
MacDonnell’s report was not the only matter in dispute at the writ hearing. Testimony at the hearing established that witnesses erroneously believed that a confirmatory test had been done on the nightgown after presumptive tests indicated the presence of blood. In fact, confirmatory tests had been done with negative results. The negative results did not necessarily indicate a lack of blood, but established only that if there was blood, the amount was too small to react or it had been degraded by previous forensic tests.5
Importantly, Hesskew’s testimony that there was high velocity impact spatter was entirely unaffected by the fact that there was no positive confirmation that the substance on the gown was blood. That is, the pattern of the stain was caused by the atomization of the substance — whatever it was — produced when the surface tension of the substance was overcome by very high energy from, for example, a gunshot. There was testimony that high velocity impact spatter is associated ninety-nine times out of one hundred with gunshots, known otherwise to occur in traffic fatalities when a car was traveling at a high rate of speed. The victim’s death was caused by a high energy contact gunshot to the head.
Testing with luminol, with which the presumptive test was done, is relatively specific. That is, there is a limited number of substances with which it will react. There was testimony that luminol will react to blood, copper, iron, nickel, and bleach. There was also testimony that had the stain on the nightgown been a bleach stain it would not have been likely to produce the pattern that was on the gown.
The trial court’s finding that Hesskew recanted his trial testimony as to HVIS is thus unsupported by the record except to the extent that Hesskew believed a confirmatory test for the nature of the substance on the gown had indicated blood. Likewise, the record does not support the finding that Hes-skew disavowed virtually the whole of his trial testimony. Ultimately, the opinions he expressed at trial varied from his opinions at the writ hearing only in that he conceded that he did not prove to a scientific certainty that there was blood on the nightgown.
There was testimony at trial and at the writ hearing that red stains were observed on the nightgown, both microscopically and with the naked eye. There was evidence that the victim was found in his normal sleeping position, with his left hand under his head and a pillow between his knees, and that such a position would not be usual for a man who wished to commit suicide. There was no blood and brain matter on the victim’s hand, as there should have been if he had held the gun.6 There was testimony that the pattern of the stain on the nightgown was caused by high velocity impact spatter.
The trial court concluded that applicant failed to prove her claims of “actual innocence,” ineffective assistance of counsel, or perjured testimony. These findings are supported by the record. The court’s finding that HVIS was the linchpin of the State’s case is not supported by the record. Even conceding that it was important, doubt was east upon only one aspect of the HVIS testimony. Something produced a stain on the gown in a pattern that is associated almost *469exclusively with gunshots. Under the circumstances of this case, the lack of scientific certainty as to what that substance was is not sufficient to establish a denial of due process.
Believing that applicant has failed to establish a right to relief under any of her claims or under due process, I would deny relief.
MANSFIELD, J., joins this dissent.
. The majority’s statement that the trial court found that "an acquittal would have resulted” is inaccurate. Op. at p. 466.
. Ordinarily, a due process claim relating to the suppression of favorable evidence does not apply where the defense obtained the evidence before trial. Havard v. State, 800 S.W.2d 195, 204-205 (Tex.Crim.App.1989)(opinion on original submission).
.Apparently, no one recognized that applicant had waived the attorney/client privilege when she alleged ineffective assistance of counsel. Toscano should have been allowed to testify as to the reasons for his decision regarding MacDon-nell.
. At least one of MacDonnell's conclusions contradicted applicant's statement to the police and her defensive theory: MacDonnell concluded that it was unlikely that the gown was near the wound at the time of the fatal blast. Applicant had admitted, however, that she was wearing the gown and was close to the victim.
. There was, in fact, a considerable amount of testimony that luminol tests and tests for gunshot residue could degrade the sample to the extent that it would not be possible to get a positive confirmation of the presence of blood.
.The trial court found that the absence of blood and brain matter was a wash because there was no blood and brain matter on applicant’s arm . either. The finding that the absence of such matter was a wash is unsupported by the record; there was testimony that applicant’s arm could have been shielded by something like a towel.