IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,551-01
EX PARTE JAMES EDWARD OWENS III, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1069785-A IN THE 232ND DISTRICT COURT
FROM HARRIS COUNTY
N EWELL, J., delivered the opinion of the Court, in which,
K ELLER, P.J., K EASLER, H ERVEY, A LCALA, R ICHARDSON, Y EARY, and
W ALKER, J.J., joined. K EEL, J., did not participate.
O P I N I O N
In this case, the misconduct by Jonathan Salvador–a former Texas
DPS analyst–has, yet again, required us to consider falsity and materiality
of the evidence tested to support a possession of a controlled substance
charge. See, e.g., Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App.
2015). In this case, the State initially agreed that relief should be
granted based upon Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App.
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2014). The trial court did not. The trial court rejected the State and
Applicant’s proposed findings and recommends to this Court that relief be
denied.1 Based on an independent review of the record, we agree with
the habeas court and deny relief.
Applicant’s Arrest
On May 21, 2006, Officers Shane Granelli and Orlando Jacobs,
troopers from the Texas Department of Public Safety, pulled over a
vehicle after the driver impeded traffic and made an unsafe lane change.
After approaching the car, Officer Granelli noticed the nervous behavior
of both the driver, Amanda Reid, as well as Applicant and another
passenger. Officer Granelli also smelled a strong odor of burnt marihuana
inside the vehicle. Based on these observations, as well as the conflicting
stories given to him by Reid, Applicant and the other passenger, Officer
Granelli conducted a search of the vehicle, including the trunk. Inside the
trunk in a speaker box, Officer Granelli recovered three pounds of
marihuana as well as a pistol.2 Applicant admitted to Officer Granelli that
the marihuana was his and that he had paid $1,000 for it.
1
The State now asserts that Applicant cannot m eet his burden under either the
falsity or m ateriality prong of our analysis. W e address these argum ents below.
2
The m arihuana was weighed by Officer Granelli at the DPS office after the arrest of
Applicant and before turning the substance over to the DPS crim e lab for analysis.
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Lab Tests
Jonathan Salvador worked as a laboratory technician at the Houston
Police Department's Crime Lab Division from 2006 to 2012. On January
26, 2012, DPS laboratory technician Andrew Gardiner discovered that
Salvador had used a gas chromatograph-mass spectrometer (GC-MS) test
result in one alprazolam case to support a finding of alprazolam in
another case. Thereafter, Gardiner reported his findings to the Texas
Rangers and the Office of Inspector General, which then proceeded to
conduct an extensive investigation into the cases handled by Salvador
during his six-year tenure.
The Texas Forensic Science Commission (“TFSC”) published a full
report in January 2013 detailing the problems that Salvador had
throughout his employment with DPS. The problems included:
(1) failing to maintain adequate case output;
(2) having more than 1 in 3 of his case folders returned for
corrections; usually administrative in nature;
(3) receiving evaluations instructing him to “avoid short cuts;”and
(4) requiring remedial training as well as coaching and counseling.
Additionally, investigation revealed two instances where Salvador had
used the test results from one case to justify the results in another case,
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otherwise known as “dry-labbing.” The first instance occurred in April
2009 when Salvador was tasked with testing a cocaine sample. A
re-analysis of the drug exhibit indicated that, while it did contain cocaine,
there was a difference in quantity and type of adulterants between the
two exhibits. Ex Parte Coty, 418 S.W.3d 597, 598 n. 2 (Tex. Crim. App.
2014). The second incident was the misconduct involving alprazolam that
was discovered by Gardiner in 2012.
The investigation also uncovered that there were two cases in which
Salvador had made errors in the testing of substances involving
marihuana, though those errors did not involve dry-labbing. Several
progress reports on Salvador’s work indicated that Salvador’s tenure at
DPS began with testing and reporting on marihuana substances. In a
number of these reports, all dated in 2006, Salvador’s superiors state
that some of the improvements he can make are to “[c]omplete
examination of drugs other than marihuana” and “[b]egin extraction and
analysis techniques for drugs other than marihuana.”
The Rangers reported their findings to the Harris County District
Attorney's office. On May 5, 2012, the Harris County District Attorney's
office presented the case to a Harris County grand jury seeking criminal
charges of tampering with governmental records. The grand jury
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returned a no-bill. The DPS Office of Inspector General issued a report
concluding that Salvador failed to properly follow laboratory protocols and
procedures, misidentified substances, and dry-labbed samples. In June
of 2012, after receiving the Inspector General's report, Salvador was
terminated from his position at the Houston Police Department's Crime
Lab Division.
Applicant’s Case
The marihuana recovered from the trunk of the vehicle was
submitted for testing to the DPS-Houston crime laboratory on June 27,
2006 and Salvador performed an analysis on the drugs on July 26, 2006.
Applicant was later indicted in the 232nd District Court of Harris County,
Texas, for possession of marihuana between four ounces and five pounds,
a state jail felony carrying a sentence of 180 days to two years
incarceration. T EX. H EALTH & S AFETY C ODE § 481.121(a),(b)(3); T EX. P EN.
C ODE § 12.35(a). On November 10, 2006, Applicant pleaded guilty to the
charge. Pursuant to a plea agreement with the State, Applicant waived
his right of appeal and was sentenced to two years community
supervision.
Two months later, Applicant was arrested in North Carolina and
charged with possession with intent to sell and deliver a controlled
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substance - marihuana - in violation of the North Carolina Controlled
Substances Act. Upon learning of this offense, the Harris County District
Attorney’s office filed a motion to adjudicate guilt alleging that Applicant
had violated the terms of his community supervision by committing an
offense against the laws of another State. Applicant pleaded “true” to the
allegation and, on November 4, 2009, his community supervision was
revoked and he was sentenced to 180 days in state jail. The marihuana
tested by Salvador was destroyed in July 2008.
After Salvador’s transgressions came to light in 2013, Applicant filed
this application alleging that his sentence should be overturned because
his plea of guilty was made involuntarily and unknowingly. Specifically,
Applicant claims that Salvador’s misconduct creates an inference that the
testing of the marihuana in his case resulted in false evidence and that,
without that false evidence, he would not have pled guilty to the
possession charge. Although Applicant has completed his sentence, he
is currently facing several controlled dangerous substance charges in
Maryland. Because this conviction is being used for enhancement
purposes in those cases, this habeas application is properly before this
Court. After a hearing was held, the habeas court filed findings of facts
and conclusions of law and recommended that relief be denied.
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Standard of Review
The trial judge on habeas is the “original fact-finder.” Ex parte
Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). The role of the trial
judge on habeas is to collect evidence, organize materials, decide what
live testimony is necessary, resolve disputed fact issues, enter specific
findings of fact and conclusions of law and make a specific
recommendation to grant or deny relief. Ex parte Simpson, 136 S.W.3d
660, 668 (Tex. Crim. App. 2004). Because the trial judge is in the best
position to assess the credibility of witnesses, in most circumstances, we
defer to and accept a trial judge's findings of fact and conclusions of law
when they are supported by the record. Reed, 271 S.W.3d at 727.
However, this Court is the “ultimate fact-finder.” Ex parte Navarijo, 433
S.W.3d 558, 567 (Tex. Crim. App. 2014). When our independent review
of the record reveals that the trial judge’s findings and conclusions are
not supported by the record, we may exercise our authority to make
contrary or alternative findings and conclusions. Ex parte Flores, 387
S.W.3d 626, 634, 635 n. 40 (Tex. Crim. App. 2012).
The Salvador Cases
Originally, after Salvador’s misconduct came to light, this Court
granted relief in several cases on the basis that Salvador was the lab
Owens - 8
technician who was solely responsible for testing the evidence. We
granted relief in cases where evidence still existed that could be retested
as well as in those cases where the evidence had been destroyed and
could not be retested. Ex parte Turner, 394 S.W.3d 513, 514 (Tex. Crim.
App. 2013) (per curiam); Ex parte Hobbs, 393 S.W.3d 780 (Tex. Crim.
App. 2013) (per curiam); Ex parte Smith, No. AP–76,988, 2013 WL
831359, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (not
designated for publication); Ex parte Hinson, No. AP–76,983, 2013 WL
831183, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (not
designated for publication). These “Salvador cases” all shared a common
finding by this Court that there had been a presumptive due-process
violation in each case in which Salvador was the laboratory technician.
But, in Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), we
re-evaluated whether there should be a presumptive due-process
violation in cases in which Salvador had performed drug testing. We
analogized the claims regarding Salvador’s misconduct to false-evidence
claims and determined that a better analysis of these cases would require
a showing of both falsity and materiality. We announced, in Coty, a five-
factor test to be used when an applicant raises an inference of falsity. Id.
at 605. We held that, if an applicant can satisfy his initial burden to raise
Owens - 9
an inference of falsity, the burden shifts to the State to offer evidence
demonstrating that the laboratory technician in question committed no
such misconduct in that applicant's case. Id.
If the State fails to meet that burden, the applicant is still required
to prove that the false evidence was material to his or her conviction. Id.
In Ex Parte Barnaby, we stated that the proper way to make this showing
was to examine materiality “in a manner similar to that used to the
analysis of the materiality of ineffective assistance of counsel to a
decision to plead guilty.” 475 S.W.3d at 324. As a result, we held that,
in the context of these Salvador cases, “the materiality of false evidence
is measured by what impact that false evidence had on the defendant's
decision to plead guilty.” Id. at 325. When gauging that impact, the
proper inquiry is “Would the defendant, knowing of the falsity of the
evidence, still have plead guilty or would he have insisted on going to
trial?” Id. If he would have chosen to go to trial, the false evidence was
material. Id. at 326.
Falsity
In order to meet his first burden, Applicant must demonstrate the
evidence’s falsity through the use of Coty’s five-factor test. These factors
include:
Owens - 10
(1) the technician in question is a state actor, (2) the technician has
committed multiple instances of intentional misconduct in another
case or cases, (3) the technician is the same technician that worked
on the applicant's case, (4) the misconduct is the type of
misconduct that would have affected the evidence in the applicant's
case, and (5) the technician handled and processed the evidence in
the applicant's case within roughly the same period of time as the
other misconduct.
Coty, 418 S.W.3d at 605. In making this showing, Applicant is required
to “establish the extent of the pattern of misconduct the technician is
accused of.” Id.
The habeas court made findings of fact and conclusions of law
regarding Applicant’s ability to raise an inference of falsity. Although the
habeas court found that Applicant had met the first three factors given
Salvador’s handling of the evidence in this case, the habeas court
ultimately determined that the fourth and fifth factors could not be
shown. As to the fourth factor, the habeas court found that Applicant had
not directly cited to a pattern of misconduct and inferred from the
pleadings that he meant to rely on the 2009 and 2012 dry-labbing
incidents.
Given that the trial court’s findings of fact are based on evidence of
the record, we defer and agree with its findings that falsity has not been
shown. See Reed, 271 S.W.3d at 727. Although the first three Coty
Owens - 11
factors can be met, the problems lie with the fourth and fifth factors. In
terms of the fourth factor, we agree with the trial court that Salvador’s
misconduct in dry-labbing alprazolam and cocaine is not of the type “that
would have affected the evidence in applicant’s case[.]” Coty, 418
S.W.3d at 605. Salvador tested the cocaine in 2009 and alprazolam in
2012 by using a Gas Chromotograph Mass Spectrometer (“GCMS”)
confirmatory test. Id. at 601.
In contrast, the record establishes that in this case, the marihuana,
a plant material, is subjected to weighing, and microscopic examination
of unique plant features, and a chemical color test. Thus, testing
marihuana versus testing cocaine and alprazolam involve starkly different
methods. Moreover, early on in his work at DPS, Salvador tested only
marihuana, so much so that reviews by his superiors urged him to start
learning how to test controlled substances other than marihuana. One
can infer from these reports that, not only were the substances tested
differently, but also Salvador had much more experience performing the
tests that pertain to marihuana than those tests for substances such as
cocaine or alprazolam.
Applicant urges us to disregard the habeas court’s findings on the
basis that it focused on the nature of the testing rather than, what
Owens - 12
Applicant asserts is, the true nature of Salvador’s misconduct - “the
misrepresentation of data to support his lab reports.” The problem is,
however, that the only evidence in the record of a misrepresentation of
data comes from the 2009 cocaine and 2012 alprazolam testing.
Although there were two incidents of misconduct by Salvador in 2011 that
involved marihuana, neither was an instance in which Salvador
intentionally misrepresented data. See Coty, 418 S.W.3d at 605, n. 11
(noting that we consider the “intentional laboratory misconduct” of the
technician).
In the first instance, Salvador tested a substance found in a pipe
and issued a report that the substance was THC. Retesting by another
chemist revealed that the substance was actually marihuana and an
affidavit from that chemist’s supervisor contained in the record notes that
Salvador did not make the proper finding because he failed to “exert
enough effort to obtain the plant material” from the pipe. In the second
instance, Salvador mistakenly reported that a substance he had analyzed
was marihuana when, in fact, further testing by another chemist revealed
that it was not. This was an “unexplainable” result according to the
assessment of the chemist who had helped in the retesting. Because
nothing in the record before us suggests that these two instances were
Owens - 13
anything other than the result of carelessness or general incompetence,
this is not the type of intentional misconduct that gives rise to a
presumption of falsity under Coty. Thus, when Applicant asks us to
consider Salvador’s overall pattern of misrepresenting data, we are left
where we started: only the 2009 and 2011 intentional incidents of dry-
labbing are relevant to our analysis.
Even if the two instances of mis-identifying marihuana satisfied the
fourth Coty factor, we still have a fifth factor to consider. Salvador’s
misrepresentation of data, including, for the sake of argument, those
instances involving marihuana, occurred three or more years after the
testing done in this case. In his brief, Applicant does not point us to any
misconduct involving the intentional misrepresentation of data that
occurred closer to 2006, when Salvador was testing the evidence in
Applicant’s case. Applicant has failed to show that Salvador “handled and
processed the evidence in the applicant's case within roughly the same
period of time as the other misconduct.” Coty, 418 S.W.3d at 605.
Materiality
Even if we were to assume that Applicant has demonstrated falsity,
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he nevertheless fails to show that the evidence was material.3 To prove
materiality, Applicant has the burden of showing that the value of
knowing the falsity of the laboratory report outweighed the benefit of
accepting the plea offer. Barnaby, 475 S.W.3d at 326. Because neither
Applicant nor our own independent review of the record reveals that the
alleged false evidence was material to Applicant’s decision to plead guilty,
we agree with the habeas court’s findings of fact and conclusion of law
that Applicant has not met his burden.
The evidence on the record shows that Applicant’s guilty plea was
minimally, if at all, impacted by the results of Salvador’s lab testing.
There was evidence, other than Salvador’s analysis, that was at the
State’s disposal to prove that the bundles recovered from the vehicle
were marihuana weighing four ounces to five pounds. Troopers Granelli
and Jacobs, who conducted the traffic stop, submitted affidavits as to
their training and observations at the time surrounding Applicant’s arrest.
Both troopers were able to readily identify the look, feel and smell of the
marihuana that was recovered from the trunk of the vehicle. Based on
3
As addressed above, m arihuana and cocaine have different m ethods for testing.
They are also substantially different in term s of how easily identifiable they are without the
help of drug analysis testing. For these reasons, we find the following discussion necessary
to our jurisprudence and any future cases called into question as a result of Salvador’s
m isconduct.
Owens - 15
their experience at the time of the traffic stop, it is reasonable to believe
they would have been able to testify that the substance found was
marihuana. 4
Of course, the officers need not have been experts in identifying
marihuana to testify that the substance found was marihuana. See
Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).
Marihuana, unlike the cocaine found in Barnaby, is easily identifiable; “it
does not take an expert to identify the smell of marihuana smoke.” Id.
In fact, the odor or sight of marihuana requires limited, if any, expertise
to identify. See, e.g., Kemner v. State, 589 S.W.2d 403, 407 (Tex. Crim.
App. 1979) (airline employee recognized odor of marihuana emanating
from appellant's suitcase and informed DEA); Chaires v. State, 480
S.W.2d 196, 197 (Tex. Crim. App. 1972) (airline baggage agent smelled
odor of marihuana in appellant's suitcase, opened the suitcase and
identified the grassy substance it contained as marihuana); Sorensen v.
State, 478 S.W.2d 532, 533 (Tex. Crim. App. 1972) (appellant's mother
testified that she recognized the odor of marihuana when she found it in
4
At the tim e of the traffic stop, Trooper Granelli had m ade m ultiple arrests and
convictions for possession of m arihuana and was also trained by the Texas Departm ent of
Public Safety on the look, feel, and sm ell of m arihuana. Trooper Jacobs had m ade m ultiple
arrests involving m arihuana, and attended several schools that trained on identifying
m arihuana including the Federal Bureau Investigations, Drug Enforcem ent Agency and
EPIC/DIAP Program s.
Owens - 16
her son's room); Mumphrey v. State, 774 S.W.2d 75, 77 (Tex.
App.-Beaumont 1989, pet. ref'd) (13-year-old rape victim testified that
she smelled the odor of marihuana on appellant’s clothes). While cocaine
or pills take additional efforts and experience to identify, marihuana is a
substance that both officers and the common lay witness can identify
through simple use of his senses. Thus, not only could Troopers Granelli
and Jacobs have testified as to what the recovered substance was, their
testimony would have been sufficient for the State to prove that the
substance Applicant had possessed was marihuana. See, e.g., Deshong
v. State, 625 S.W.2d 327, 329-30 (Tex. Crim. App. 1981) (testimony of
police officer was sufficient to prove that the substance within the
defendant's car was marijuana.)
In addition to two troopers that could have readily identified the
substance found in Applicant’s possession, there are other indications that
Applicant’s decision to plead guilty was not based on the results of the lab
work. Without a plea, Applicant was facing incarceration of at least 180
days and up to two years. T EX. P EN. C ODE § 12.35(a). In exchange for his
plea, however, he received deferred adjudication. We find this benefit
that Applicant received a compelling one. See Barnaby, 475 S.W.3d at
326 (“applicant's assertion that he would not have plead guilty had he
Owens - 17
known of the falsity of the laboratory report is unpersuasive in light of the
benefit he received from the plea bargain”). There is no indication that
Applicant turned down plea offers from the State while awaiting the lab
results and the fact that a plea agreement was not reached until three
months after the lab results came in further suggests they were of low
importance to Applicant.
Moreover, when faced with the decision to plead guilty, Applicant
was also aware that, in addition to the aforementioned testimony that the
two troopers at the scene of the arrest would be able to provide, the
State could present evidence that Applicant had told the Trooper Granelli
at the scene that the substance was marihuana, that the marihuana was
his, and that he had paid $1,000 for it. Applicant hid the marihuana in
a speaker box with his gun and tried to take it across the country.
Applicant posits that, without the lab report, he would have been
guilty of attempted possession of marihuana, a class A misdemeanor, at
the most. But, possession of marihuana in a particular quantity need not
be proven solely through the use of lab analysis. See, e.g., Marroquin v.
State, 746 S.W.2d 747, 748-50 (Tex. Crim. App. 1988) (State sustained
its burden of proving possession of marihuana over 50 pounds where
officers, who testified at trial, weighed the recovered marihuana at the
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time of the arrest and at the police station and a photograph of the bags
and their contents were introduced into evidence before the jury);
Osbourn, 92 S.W.3d at 539. The testimony of the officers, the
admissions by Applicant and the fact that Trooper Granelli personally
weighed the recovered marihuana at three pounds demonstrate that the
State had more than enough evidence to convict Applicant under T EX.
H EALTH & S AFETY C ODE § 481.121(a),(b)(3) even without the help of lab
results.5
Conclusion
Based on the evidence in the record, we conclude that Applicant
failed to present sufficient evidence to warrant a presumption of falsity
regarding Salvador’s lab testing in this case. Even if we assume a
presumption of falsity, Applicant has failed to demonstrate that test
results would have been material in this case. Barnaby, 475 S.W.3d at
325. Thus, we agree with the habeas court that Applicant has not met
his burden of showing either falsity or materiality. We deny relief.
Filed: March 22, 2017
5
Applicant also asserts that the adm issions could not have been relied upon at trial
because they were m ade under custodial interrogation and would have been suppressed.
Applicant does not point us to any place in the record that indicates defense counsel filed or
intended to file a m otion to suppress his statem ents to police and we cannot speculate that
a m otion to suppress would have succeeded, especially given that the offense report
indicates that Applicant m ade the statem ents after being read his Miranda rights.
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Publish