








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-79,318-02


EX PARTE LEROY EDWARD COTY, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1264113-B IN THE 180TH DISTRICT COURT

FROM HARRIS COUNTY



 Hervey,  J., delivered the opinion of the Court in which, Keller, P.J.,
Meyers, Womack, Johnson, Keasler, Cochran, and Alcala, JJ., joined. Price,
J., concurred.

O P I N I O N

 
	Applicant, Leroy Edward Coty, seeks relief based on the use of evidence that was
alleged to be sufficiently unreliable so as to render its use at trial to convict him a
violation of due process. The habeas court issued findings of fact and conclusions of law
recommending that we deny relief because the State rebutted the inference of falsity and,
even if the inference of falsity had not been rebutted, the habeas court concluded that the
evidence was not material to Applicant's conviction. After reviewing the record, we
agree. Therefore, we deny relief.
Procedural history
	Applicant was charged with possession with intent to distribute at least 400 grams
of a controlled substance. Tex. Health & Safety Code § 481.112(f). He pled guilty to
the lesser-included offense of possession of at least 400 grams of a controlled substance
pursuant to a plea-bargain agreement. Id. § 481.115(f). After malfeasance of a laboratory
technician that worked on his case was discovered, Applicant filed an application for a
writ of habeas corpus. We granted relief in a per curiam opinion. See Ex parte Coty, No.
WR-79,318-02, 2013 WL 2457280 (Tex. Crim. App. June 5, 2013) (per curiam) (op. on
orig. submission) (not designated for publication). However, before mandate issued, we
withdrew our opinion, granted rehearing, and issued a briefing order to the parties. See Ex
parte Coty, No. WR-79,318-02, 2013 WL 3250776 (Tex. Crim. App. June 26, 2013) (per
curiam) (not designated for publication). On January 15, 2014, this Court issued a second
opinion in which we set forth a new analytical framework to resolve claims of forensic
technician misconduct. See generally Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App.
2014). (1) We then remanded the case to the habeas court to apply the principles laid out in
that opinion. The habeas court has now issued new findings of fact and conclusions of
law recommending that we deny relief.
Analytical framework
	In this Court's prior opinion, we held that when an applicant alleges a due process
violation predicated upon the malfeasance of a forensic laboratory technician, that
applicant's claim should be analyzed using a modified false-evidence analysis. Under that
new analytical framework, the applicant can prevail by establishing an inference of falsity
and that the "false" (2) evidence was material to the applicant's conviction. Ex parte Coty,
418 S.W.3d at 605.
	An applicant can establish an inference of falsity if the applicant can prove five
factors:
(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 misconduct.

Id. If this burden has been met, an inference of falsity has been established, and the
burden then falls to the State to rebut that inference of falsity by showing that the
laboratory technician did not commit intentional misconduct in that applicant's case. Id.
	In addition, although the State can rebut an inference of falsity established by an
applicant, we also explained that for an applicant to ultimately prevail, the burden remains
on the applicant at all times to prove that, even if the evidence in question is false, the
false evidence was also material to the applicant's conviction. Id.
Analysis
	The habeas court concluded, and we agree, that under the facts of this case, the
State rebutted the presumption that the evidence in question should be presumed false.
Specifically, the habeas court stated,
The Court concludes that the State successfully rebuts the presumption of
falsity test and demonstrates that Jonathan Salvador did not commit
intentional misconduct in Applicant's case. [Ex parte Coty, 418 S.W.3d at
605-06.] This conclusion is based on the following evidence from the
record:

(a) The chain of custody report is thoroughly detailed and is consistent with
the worksheets of Jonathan Salvador and Brian Nacu. 

(b) Orlando Jacobs, Jonathan Salvador, and Brian Nacu all make similar
representations regarding the drug exhibit's large bulk weight, appearance,
and "Golden Puffs" container.

(c) The drug exhibit's appearance on video is consistent with the
representations of Orlando Jacobs, Jonathan Salvador, and Brian Nacu as
well as the photographs depicting its current appearance.

(d) Jonathan Salvador and Brian Nacu properly initialed and dated the drug
exhibit and containers in a manner consistent with proper chain of custody
documentation.

(e) Brian Nacu and Jonathan Salvador reached similar conclusions
regarding the presence of cocaine and the weight of the drug exhibit.

(f) Brian Nacu and Jonathan Salvador both satisfied administrative and
technical reviews conducted by different individuals.

(g) Brian Nacu found that Jonathan Salvador cleanly extracted the sample in
L2H-205105.

(h) Samples tested by Jonathan Salvador on the instrument tray immediately
before and after L2H-205105 were from different laboratory cases and were
positive for controlled substances other than cocaine.

(i) None of the other drug exhibits checked out of the drug vault by
Jonathan Salvador on June 14, 2010 contained a bulk cocaine exhibit.

(j) The only large bulk cocaine case for which Jonathan Salvador generated
a report on June 16, 2010, was for Applicant's drug exhibit: L2H-205105.

(k) L2H-205105 field tested positive for the presence of cocaine.

(l) A K-9 positively alerted on the drug exhibit when it was in Applicant's
car.

(m) Brian Nacu found nothing to suggest that Jonathan Salvador
misidentified any substance or failed to exert adequate effort to obtain a
sample in L2H-205105.

The habeas court also concluded that,

Applicant does not prove by a preponderance of the evidence that
intentional misconduct by Jonathan Salvador, if it had existed, would have
been material to his conviction because of the significant amount of
evidence to support his guilt. Id. at 600 n.7; see also Ex parte Chavez, 371
S.W.3d 200, 209-10 (Tex. Crim. App. 2012) (habeas corpus relief denied
for failure to demonstrate materiality of false evidence). This conclusion is
based on all of the evidence in the record to support that the State
successfully rebut[ted] the presumption of falsity. In addition to this
evidence, the Court also bases its conclusion on the videotape of the
dashboard camera from Orlando Jacobs' patrol car that captured the seizure,
weighing, and field testing of Applicant's drug exhibit as well as the
positive K-9 alert on Applicant's car.			
 Conclusion
	After independently reviewing the record after remand, we adopt the findings of
fact and conclusions of law of the habeas court. As a result, we agree with the habeas
court's recommendation, and Applicant is denied relief.
								Hervey, J.
Delivered: June 4, 2014
Publish	
1. For a detailed discussion of the facts of this case, please refer to previous opinion in this
case. 
2. We use the term "false" evidence to generally refer to evidence that has been proven
actually false by direct evidence or evidence that has been proven false by inference via
circumstantial evidence and the analytical framework delineated in our prior opinion.		

