              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-81,054-02


                     EX PARTE HENDRICK DWAYNE LYNN, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 10-DCR-054645 HC2 IN THE 268TH DISTRICT COURT
                          FROM FORT BEND COUNTY


        Per curiam.

                                               ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a

controlled substance, and was sentenced to two years’ imprisonment. He did not appeal his

conviction.

        Applicant contends that he was denied due process and that his plea was involuntary because

the lab tech who tested the evidence seized in this case was Jonathan Salvador, who has since been

discredited based on misconduct. The evidence was re-tested by the DPS Houston Regional Crime

Laboratory and the evidence was determined to be as Mr. Salvador described it to be.
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         However, the trial court concludes that the inference of falsity in this case has not been

sufficiently rebutted by the State. See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014). The

trial court also concludes that the false evidence was material to Applicant’s conviction, because it

would have been unlikely that the State could have obtained a conviction without the lab report.

         This Court recently held that materiality of false evidence in the context of a guilty plea

should be examined under the same standard used to assess materiality of counsel’s deficient

performance in the context of a guilty plea: if the applicant had known that the evidence was false

(i.e., “but for” the false evidence), he would not have pleaded guilty but would have insisted on

going to trial. Ex parte Barnaby, No. WR-80,099-01, ___ S.W.3d ___ (Tex. Crim. App. Nov. 4,

2015).

         Given the other charges pending against him and the plea bargain for the minimum sentence

on a lesser offense, Applicant fails to show that had known that the evidence was false (i.e., “but for”

the false evidence), he would not have plead guilty but would have insisted on going to trial. Based

on this Court’s independent review of the record, we find that the original lab report is immaterial

to Applicant’s conviction. Therefore, we deny relief.


Delivered: February 10, 2016

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