Opinion dated May 3, 2018 Withdrawn, Motion for Rehearing Granted,
Reversed and Remanded, and Majority and Dissenting Opinions on Rehearing
filed September 11, 2018




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00005-CR

                   LESLEY ESTHER DIAMOND, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Cause No. 2112570

      MAJORITY OPINION ON REHEARING


      On May 3, 2018, we affirmed the trial court’s denial of Lesley Esther
Diamond’s petition for writ of habeas corpus. Appellant then filed a motion for
rehearing pointing out an error in her original briefing, the trial court’s underlying
judgment, and our opinion. Because appellant is correct, we grant appellant’s motion
for rehearing, withdraw our opinion dated May 3, 2018, and issue this substitute
opinion on rehearing.1

       Appellant Lesley Esther Diamond was convicted of misdemeanor driving
while intoxicated. She filed an application for writ of habeas corpus, in which she
alleged that the State suppressed favorable evidence in violation of her due process
rights. After a hearing, the habeas court denied the application. On appeal, appellant
contends in one issue that the habeas court erred in concluding that the undisclosed
evidence is not favorable to the defense or material to the jury’s guilty verdict under
Brady v. Maryland.2 Concluding that the undisclosed evidence is material to the
jury’s verdict and favorable to appellant, we reverse the trial court’s order.

                                      Background

       Appellant did not appeal her conviction. But after appellant was convicted,
Andrea Gooden, an analyst from the Houston Police Department crime lab who
testified in appellant’s trial, self-reported that the crime lab had violated quality
control and documentation protocols. This report culminated in an investigation and
report by the Texas Forensic Science Commission that was provided to appellant
after her conviction.

       1
         Although the jury found appellant guilty of a Class A misdemeanor, the original
judgment stated that appellant was convicted of a Class B misdemeanor. Furthermore,
appellant’s brief stated that she was charged with a Class B misdemeanor and failed to
disclose that she was convicted of a Class A misdemeanor. In a post-submission letter brief,
appellant’s counsel referred this court to the supplemental reporter’s record where “at
sentencing, the [trial] court pronounced that [appellant] was convicted of a Class A
misdemeanor based on the jury’s affirmative finding on the special issue.” After our
original opinion issued, appellant moved for and the trial court issued a judgment nunc pro
tunc correcting the classification of appellant’s conviction from a Class B to a Class A
misdemeanor.
       2
         In that case, the United States Supreme Court held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).

                                             2
I.    Evidence Adduced at Trial

      Deputy Bounds was conducting a traffic stop in Harris County, Texas, when
he observed appellant driving in excess of the speed limit in the lane closest to
Bounds’s stopped patrol car and the other stopped vehicle. Appellant made several
unsafe lane changes without signaling that caused other drivers to brake suddenly.
Bounds got into his vehicle and pursued appellant until she stopped her vehicle.

      While conducting the stop, Bounds asked appellant to step out of her vehicle.
When she did so, she staggered. Appellant told Bounds she was coming from a golf
course at a country club but did not know the name or location of the country club.
Appellant told Bounds she had consumed three beers that day. She also had an empty
can of beer and two cold, unopened cans of beer in her car.

      Bounds testified that appellant appeared intoxicated, smelled of alcohol, had
red, glassy eyes and incoherent, slurred speech, and appeared confused. Appellant
said she had taken medication but was unable to tell Bounds what kind of medication
it was.

      Bounds requested another deputy to assist him. Deputy Francis arrived and
administered field sobriety tests. Bounds testified that he observed appellant exhibit
five out of eight clues of intoxication on the walk and turn test and four out of four
clues on the one leg stand test.3 Bounds further testified that appellant had poor
balance and staggered during the walk and turn test but conceded that Francis made
some mistakes in administering the field sobriety tests. Bounds opined that appellant
was intoxicated.



      3
        The trial court excluded Francis’s testimony as a sanction at trial because Francis
and Bounds discussed the case with the prosecutor in each other’s presence in violation of
the Rule. See Tex. R. Evid. 614 (the Rule).

                                            3
      Gooden testified that her analysis of appellant’s blood sample revealed a
blood alcohol concentration (BAC) of 0.193, which is above the legal limit of 0.08.

      The prosecutor argued during closing argument that the blood analysis was
“really important” because 0.193 is “multiple times” the legal limit and that “[i]t is
pretty much undisputed that Deputy Bounds is not good at testifying. In fact, he’s
probably not a very good officer” and “[e]ven someone as simple or dumb, however
you want to call it, as Deputy Bounds, it was clear to him that she was intoxicated.”

      The jury found that appellant’s BAC was above 0.15.

II.   Evidence Adduced at Habeas Hearing

      Because of her involvement with an erroneous lab report in an unrelated case,
Gooden had been removed from casework two weeks prior to appellant’s 2014 trial.
In the unrelated case, an officer had mislabeled vials containing blood specimens
with the wrong suspect’s name. Knowing about the error, Gooden analyzed the
blood samples but initially set them aside until the officer could correct the mistake.
Gooden also prepared a draft lab report and certified that it was accurate. The report,
still containing the wrong suspect’s name, erroneously was released into the
Laboratory Information Management System (LIMS) in January 2014. Reports
submitted on LIMS can be accessed by prosecutors.

      On April 15, 2014, Gooden discovered the error and reported it. The next day,
her supervisor, William Arnold, sent her an email stating that she would not be
allowed to work on any other cases: “[u]ntil further notice[,] you are to focus solely
on documenting the issues surround[ing] the [errors] in the case we discussed
yesterday. Do not handle any evidence, process any data or generate any reports or
documentation that is unrelated to your research on this case.” Arnold did not
document or disclose this action to the Harris County District Attorney’s Office


                                          4
because he did not want to damage Gooden’s career or subject her to harsh cross-
examination by a defense lawyer.

      Gooden issued a memorandum regarding the lab error on April 17 and
assumed she would be able to resume her other casework at that time. Instead, she
was told she could not return to casework.

      Gooden testified for the State against appellant on April 29 and 30, 2014. The
erroneous lab report and Gooden’s removal from casework were not disclosed to the
defense. Arnold observed Gooden’s testimony at trial.

      On May 12, 2014, Arnold told Gooden that she still could not commence with
casework because she needed to improve her courtroom testimony. Arnold
subsequently told a human resources director that he preferred retraining Gooden in
lieu of “documenting concerns about [Gooden’s] performance which would make
[Gooden] subject to painful cross examination” and he wanted to avoid damaging
Gooden’s career.

      Gooden filed a self-disclosure with the Commission on June 4, 2014
concerning the erroneous lab report, alleging that the crime lab failed to amend the
report, notify the district attorney’s office of the error, or issue a required corrective
and preventative action report. After a period of retraining, Gooden was allowed to
return to casework in August.

      The Commission opened an investigation on August 1 to review Gooden’s
disclosure. On August 4, Arnold gave Gooden an interoffice memo in which he
noted that in early April, Gooden prepared a PowerPoint presentation for use in court
testimony and during the proposed presentation, Gooden could not answer “basic
questions” about the type of analysis used to analyze blood alcohol content. Arnold
questioned whether Gooden could convey the proper information and whether she


                                            5
understood the concepts associated with the analysis.

       The City of Houston’s Office of Inspector General conducted an investigation
on these matters during the same timeframe and issued its report on December 18,
2014. It found, in relevant part, that (1) lack of attention by Arnold and Gooden
allowed the erroneous report to be submitted to the district attorney’s office; and (2)
Gooden testified in three trials while “off casework” and without disclosing the
erroneous report.

       The Commission issued its report on January 23, 2015. It concluded that
Arnold engaged in professional negligence by, among other things, failing to issue
timely amended reports to the district attorney’s office once the mislabeling mistake
was identified by Gooden and failing to document the reasons for Gooden’s removal
from casework. In doing so, the Commission concluded in relevant part, that Arnold:

       1. Deprived the prosecutor of the opportunity to determine whether any
          action was required to disclose impeachment information to the defense;

       2. Possibly deprived the defense of impeachment information to which it was
          entitled; and
       3. Sent the message that it is acceptable not to document issues that arise in
          the laboratory for fear of a tough cross-examination.

III.   Motion for Rehearing
       The trial court considered this evidence and denied appellant’s habeas
application, issuing written findings and conclusions. On original submission, we
affirmed the trial court’s decision.

       After we issued our opinion, appellant sought to correct an error in the
underlying judgment of conviction. The jury found that an analysis of appellant’s
blood showed an alcohol concentration of more than 0.15. Driving with such a
concentration is a Class A misdemeanor. See Penal Code 49.04(d). The trial court

                                          6
orally pronounced appellant’s conviction of a Class A misdemeanor. The original
judgment, however, reflected that appellant was convicted of a Class B misdemeanor
with a BAC of 0.08. Appellant filed a motion to enter judgment nunc pro tunc to
correct the judgment to reflect her conviction of a Class A misdemeanor. On May
21, 2018, the trial court granted appellant’s motion and entered a judgment nunc pro
tunc showing that she was convicted of a Class A misdemeanor with a BAC of 0.15
or more.

                                       Discussion

       Appellant argues that the habeas court erred in concluding that the undisclosed
evidence is neither favorable nor material.4 We agree with appellant that the
undisclosed evidence is favorable to her and is material.5

       To demonstrate reversible error under Brady, a habeas applicant must show
(1) the State failed to disclose evidence, regardless of the prosecution’s good or bad
faith; (2) the withheld evidence is favorable to her; and (3) the evidence is material—
that is, there is a reasonable probability that, had the favorable evidence been
disclosed, the outcome of the trial would have been different. Ex parte Miles, 359
S.W.3d 647, 665 (Tex. Crim. App. 2012). The evidence central to the Brady claim
must be admissible in court. Id.

       We ordinarily review a habeas court’s ruling on an application for writ of
habeas corpus for an abuse of discretion. Ex parte Navarro, 523 S.W.3d 777, 780
(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). But when the resolution of the

       4
        Appellant is not currently in custody, but the trial court had jurisdiction over her
habeas application and we have jurisdiction over her appeal because she faces “collateral
legal consequences” resulting from her misdemeanor conviction. See Le v. State, 300
S.W.3d 324, 326 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
       5
        In our original opinion, we did not address whether the undisclosed evidence is
favorable to appellant.

                                             7
ultimate issue turns on an application of purely legal standards, our review is de
novo. Id.

I.    Favorability

      The State concedes that it did not disclose the certification of the erroneous
report. Also, the evidence is undisputed in the habeas record that the State did not
disclose that Gooden had been suspended or temporarily removed from her
casework or that Arnold lacked confidence in Gooden’s understanding of the basic
science. Therefore, we turn first to whether the undisclosed evidence is favorable.

      Favorable evidence is that which, if disclosed and used effectively, “may
make the difference between conviction and acquittal.” United States v. Bagley, 473
U.S. 667, 676 (1985). Favorable evidence includes exculpatory evidence and
impeachment evidence. Id. Exculpatory evidence is that which may justify, excuse,
or clear the defendant from fault, and impeachment evidence is that which disputes,
disparages, denies, or contradicts other evidence. Pena v. State, 353 S.W.3d 797,
811–12 (Tex. Crim. App. 2011); Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim.
App. 2006).

      The habeas court found that evidence of (1) a single incident in which Gooden
certified a report with mislabeled blood in an unrelated case, and (2) Gooden’s
temporary removal from casework, would not have been relevant or admissible. The
habeas court made no findings regarding evidence of Arnold’s lack of confidence in
Gooden’s understanding of the basic concepts underlying the performance of her
duties. Before we analyze the favorability of the evidence, we address whether the
evidence is admissible.

      The habeas court relied on Rule of Evidence 608(b) in finding that the
undisclosed evidence is not admissible. “Except for a criminal conviction under Rule


                                         8
609, a party may not inquire into or offer extrinsic evidence to prove specific
instances of the witness’s conduct in order to attack or support the witness’s
character for truthfulness.” Tex. R. Evid. 608(b).

      Appellant asserts that she would not have offered the undisclosed evidence to
attack Gooden’s character for truthfulness, and that the evidence does not
demonstrate that Gooden has a mendacious character. Instead, according to
appellant, the evidence would have been admissible to rebut and undermine
Gooden’s expert qualifications and the reliability of her opinion after the State
presented her as a qualified expert.

      We agree with appellant that Rule 608(b) does not render inadmissible at trial
evidence of the mistakes in an unrelated case or Gooden’s removal from casework.
This evidence has no relation to whether Gooden has a propensity for being
untruthful.

      We also disagree with the habeas court’s finding that the undisclosed evidence
is not relevant. Evidence is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence. Tex. R. Evid. 401. In general,
a witness may be cross-examined on any relevant matter, including credibility. Tex.
R. Evid. 611(b). The undisclosed evidence is relevant because it can be used for
impeachment of Gooden’s qualifications and the reliability of her opinion. In
addition, regardless of its admissibility, the evidence could have been used in
moving under Rule of Evidence 702 to exclude Gooden’s expert testimony entirely
based on lack of qualifications or reliability. See Tex. R. Evid. 104(a); Kelly v. State,
824 S.W.2d 568, 572 & n.10 (Tex. Crim. App. 1992).

      We now address whether the undisclosed evidence is favorable. Appellant
argues that the suppressed evidence is admissible under the Confrontation Clause
and Rule 702 because it relates directly to Gooden’s qualifications and the reliability
                                           9
of her opinion. Had she known about Gooden’s “suspension,” her certification of the
erroneous report in the unrelated case, and Arnold’s lack of confidence in her
understanding of the basic science, appellant claims she would have attempted to
exclude Gooden’s testimony and, if unsuccessful, would have used the evidence to
impeach Gooden. Appellant additionally argues she would have called Arnold to
testify regarding his misgivings about Gooden’s abilities. Thus, appellant asserts,
even if Gooden had been permitted to testify as an expert at trial, the jury would
have had a factual basis to doubt Gooden’s qualifications and the reliability of her
blood alcohol analysis.

      We address each type of undisclosed evidence in turn. Appellant repeatedly
refers to Gooden’s having been “suspended” or being “under suspension.” The
habeas court found, however, that Gooden was not suspended but was “temporarily
removed from casework” to focus on documenting the mislabeled blood sample
report. The court noted that Arnold never used the terms “suspended” or “under
suspension” until he wrote the August 4, 2014 memo, and further found Arnold’s
use of those terms “suspect and unpersuasive” given the TFSC’s finding of “no
professional misconduct” or “negligence” by Gooden; Gooden’s continued
performance of tasks and receipt of compensation; and Arnold’s labeling Gooden’s
work status as “suspended” only after Gooden self-reported to the TFSC and
contacted the human resources director about returning to work.

      The State argues that the failure of the habeas court to find that Gooden was
“suspended” or “under suspension” eviscerates appellant’s theory that she can
impeach Gooden’s credibility by showing evidence that Gooden was “suspended”
or “under suspension” when she testified at appellant’s trial. Irrespective of the terms
used to describe Gooden’s work status (“under suspension” or “off of casework” or
otherwise), Gooden’s testimony would have been “subject to painful cross

                                          10
examination” had the evidence of her removal been disclosed, just as Arnold feared.
We conclude that the undisclosed evidence of Gooden’s work status at the time of
appellant’s trial is favorable impeachment evidence.

      We also conclude that the certification of the mislabeled lab report in another
case is favorable impeachment evidence. At appellant’s trial, Gooden testified to
several issues of State personnel mishandling evidence in this case: the vials
containing appellant’s blood were missing labels containing the nurse’s name, the
officer’s name, the suspect’s name, and the time of the draw; and the labels should
have been placed on the blood vials when the vials were transported from the blood
draw room to the police evidence locker. Moreover, Bounds testified at trial that the
vials containing appellant’s blood were in his custody from immediately after the
draw until he turned them in at the police department. However, Bounds, who was
not trained to transport blood evidence in DWI cases, left the vials unattended twice
for at least 30 minutes at a time.

      There is no evidence that Gooden personally was responsible for the errors in
appellant’s case. However, the undisclosed evidence would have provided appellant
with “painful cross examination” material questioning the integrity of the crime lab’s
processes in analyzing blood samples for BAC at that time.

      In his August 4, 2014 memo, Arnold claimed he had concerns about Gooden’s
level of knowledge and understanding regarding her “knowledge base” and her
inability to answer “basic questions.” This is favorable evidence with which to
impeach Gooden’s qualifications in performing the blood analysis and question the
reliability of her opinion that appellant had a BAC of 0.193.

      We conclude that the undisclosed evidence is favorable. That is, if the
evidence had been disclosed and used effectively by appellant’s counsel for
impeachment, it might have made the difference between appellant’s conviction and
                                         11
a possible verdict of acquittal. See Bagley, 473 U.S. at 676.

II.   Materiality

      The possibility that an item of undisclosed information might have helped the
defense or affected the outcome of the trial does not establish materiality. Miles, 359
S.W.3d at 666. The undisclosed evidence is material only if there is a reasonable
probability that, in light of all the evidence, it is reasonably probable that the
outcome of the trial would have been different had the evidence been disclosed to
the defense. Id. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome. Id.

      Although we defer to the habeas court’s credibility determinations, we review
the question of materiality de novo. See Ex parte Weinstein, 421 S.W.3d 656, 664
n.17 (Tex. Crim. App. 2014) (noting that in addressing habeas claims involving
Brady, materiality of evidence is reviewed de novo). We balance the strength of the
exculpatory evidence against the evidence supporting conviction and consider the
suppressed evidence collectively, not item by item. Miles, 359 S.W.3d at 666.

      The habeas court concluded that appellant failed to establish materiality of the
evidence because Bounds’ testimony regarding appellant’s intoxication was “more
than sufficient” to support a guilty verdict6 and there is no reasonable probability
that the jury would have reached a different result if appellant had been able to cross-
examine Gooden with the undisclosed evidence. The habeas court made the
following fact findings in support of its conclusions on materiality:

      6
         We note that this is not the correct test for materiality. “A defendant need not
demonstrate that after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been [sufficient evidence] to convict.” Kyles v. Whitley,
514 U.S. 419, 434–35 (1995). Instead, the question is whether, considering the whole
record, the undisclosed evidence “could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” Id. at 435.

                                           12
          Bounds observed appellant speeding in the lane closest to Bounds and
           the stopped patrol car and other vehicle. Appellant made several unsafe
           lane changes and caused other drivers to brake suddenly.

          Appellant staggered when she got out of the car. She had red, glassy
           eyes, incoherent, slurred speech, and a very strong odor of alcohol and
           could not identify the name of the golf course she came from or what
           medication she had taken.

          Appellant admitted she drank three beers and had one open, and two
           cold, unopened cans of beer in her car.

          Bounds observed the other officer administer the walk and turn and one
           leg stand field sobriety tests. Bounds testified that appellant exhibited
           five out of eight clues of intoxication on the walk and turn test and four
           out of four clues of intoxication on the one leg stand test.

      Appellant argues that there is a reasonable probability that the jury would not
have convicted her if it had heard the undisclosed evidence because the blood alcohol
evidence was the most important evidence of intoxication adduced at trial and
Bounds was not a good witness. Bounds did not preserve the in-car video of the
incident, lost his notes from the night of the incident, and admitted that the police
report “contains numerous mistakes.” He also conceded that the officer who
administered the field sobriety tests did not give appellant proper instructions. The
prosecutor made handwritten additions to the police report for Bounds to rely on
during his testimony to add observations of clues of intoxication. Bounds was not
trained to transport blood evidence and did not have custody of the blood specimen
for two periods of at least 30 minutes during which the specimen was unattended in
his car and the location was not documented.

      We agree with the State that it provided ample evidence of intoxication;
however, the jury also found that “an analysis of [appellant’s] blood showed an
alcohol concentration of 0.15 or more.” That finding is a required element of a Class
A misdemeanor, of which appellant was convicted. See Tex. Penal Code § 49.04(d).
                                         13
The evidence supporting this answer could only have come from Gooden’s
testimony and related exhibits. Had appellant been convicted of a Class B
misdemeanor, Bounds’ testimony of intoxication would have been sufficient, and
Gooden’s testimony would not have been material. See id. § 49.01(2) (defining
“intoxicated” as having an alcohol concentration of 0.08 or more or “not having the
normal use of mental or physical faculties by reason of the introduction of alcohol”
or other substances or combination thereof). However, because appellant was
convicted of a Class A misdemeanor, evidence was required to establish a BAC of
0.15 or more. See id. § 49.04(d).

      Gooden’s testimony that she analyzed a sample of blood identified as
appellant’s and concluded the BAC was 0.193 was necessary for the jury to make
an affirmative finding on the special issue of whether appellant’s BAC level was
0.15 or more. See Castellanos v. State, 533 S.W.3d 414, 419 (Tex. App.—Corpus
Christi 2016, pet. ref’d). The statutory scheme differentiates between a Class A and
Class B misdemeanor based upon an analysis of blood, breath, or urine showing an
alcohol concentration level of 0.15 or more. See Tex. Pen. Code § 49.04b(b), (d).
There was no testimony regarding appellant’s BAC from any witness other than
Gooden.

      Given the lack of other evidence indicating appellant had a BAC of 0.15 or
more, we conclude that there is a reasonable probability that the jury would have
reached a different result on the Class A misdemeanor charge if Gooden’s testimony
had been excluded. We also conclude that if the habeas court had not excluded
Gooden’s testimony but allowed appellant to cross-examine Gooden with the
undisclosed evidence, there similarly is a reasonable probability that the jury would
have reached a different result.



                                         14
                                     Conclusion

      We reverse the order of the trial court denying appellant’s application for writ
of habeas corpus, grant habeas relief, set aside the nunc pro tunc judgment of
conviction signed May 21, 2018, and remand this case for further proceedings
consistent with this opinion.




                                       /s/    Martha Hill Jamison
                                              Justice



Panel consists of Justices Jamison, Busby, and Donovan (Donovan, J., dissenting).
Publish — TEX. R. APP. P. 47.2(b).




                                         15
