            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-83,455-01



                  EX PARTE JAMES WESLEY DUEITT, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      IN CAUSE NO. 07-03-02301-CR(1) IN THE 359TH DISTRICT COURT
                    FROM MONTGOMERY COUNTY

        H ERVEY, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER,
J., joined.

                                 DISSENTING OPINION

       I respectfully dissent and write separately to explain why this Court need not

remand this application because we can resolve Applicant’s claim now.

       James Dueitt was charged in a three-count indictment for possession

methamphetamine, Ecstasy, and LSD. On August 13, 2008, he pled guilty to each count

and true to an enhancement allegation. He was sentenced to eight years’ confinement on

each count to run concurrently. Six years after his conviction, Dueitt was notified that the

laboratory technician who tested the drugs in his case had falsified test results in a
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number of cases so that Dueitt might wish to have his case reviewed for possible

malfeasance. Based on that notification, Dueitt filed a pro se application for a writ of

habeas corpus, claiming that his convictions should be set aside on due process grounds.

       We have held that to prevail, an applicant must show that (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 defendant’s case; (4) the misconduct is the type of misconduct that would have

affected the evidence in the defendant’s case; and (5) the technician handled and

processed the evidence in the defendant’s case within roughly the same period of time as

the other misconduct. Ex parte Coty, 418 S.W.3d 597, 605 (Tex. Crim. App. 2014). If an

applicant meets this burden, an inference of falsity is established that the State must rebut,

and if it fails to do so, an applicant is entitled to relief. Id.

       The convicting court in this case recommended that we deny relief because Dueitt

failed to meet the fourth and fifth prong of the Coty test. That is, he did not show that the

technician in question had a history of misidentifying methamphetamine, Ecstasy, or

LSD, the drugs Dueitt was accused of possessing in this case, nor could he prove that the

laboratory technician falsified test results before 2011.1 Because Dueitt could not

establish an inference of falsity, his claim under Coty fails. But instead of denying relief,

the Court remands this cause, in part, so the convicting court can apply the principles of



       1
           Dueitt was convicted in 2008.
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Ex parte Coty. Because the convicting court’s findings of fact and conclusions of law

show that it has already applied the principles of Coty, and its findings are supported by

the record, I would deny relief.

       I respectfully dissent.

                                                         Hervey, J.

Filed: May 25, 2016

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