             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-82,025-01


                      EX PARTE JACOB SCOTT YOUNKER, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                          CAUSE NO. 06-DCR-045589 HC1
            IN THE 268TH DISTRICT COURT FROM FORT BEND COUNTY


        Per curiam. Newell, J., not participating.

                                              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 less

than one gram of cocaine, and was sentenced pursuant to Section 12.44(a) of the Texas Penal Code

to seventy-five days in county jail. He did not appeal his conviction.

        Although Applicant has discharged his sentence in this case, he has alleged that he is

suffering collateral consequences from this conviction sufficient to allow this Court to consider his

claims by way of habeas corpus. Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).

        Applicant contends that he was denied due process because the lab tech who tested the
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evidence seized in this case was Jonathan Salvador, who has since been discredited based on

misconduct. The trial court conducted a habeas hearing, and determined 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 recommends that relief be granted.

        In Ex parte Barnaby, No. WR-80,099-01, ___ S.W.3d ___ (Tex. Crim. App. November 4,

2015), this Court 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.

        In this case, although Applicant did not specifically allege that his plea of guilty was

involuntary, he prepared and litigated his application for writ of habeas corpus without the benefit

of this Court’s opinion in Barnaby. Likewise, the trial court recommends that relief be granted

without the benefit of this Court’s Barnaby opinion. Therefore, additional findings of fact are

necessary in order to resolve the issue in this case.

        As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial

court is the appropriate forum for findings of fact. The trial court may use any means set out in TEX .

CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal

recollection. Id.

        If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

         The trial court shall make findings of fact and conclusions of law as to whether Applicant
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would have pleaded guilty in this case had he known that the lab report contained false evidence.

The trial court shall also make any other findings of fact and conclusions of law that it deems

relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

       This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.



Filed: April 6, 2016
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