           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS

                         NO. WR-83,551-01


      EX PARTE JAMES EDWARD OWENS III, Applicant


    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
   CAUSE NO. 1069785-A IN THE 232ND DISTRICT COURT
                FROM HARRIS COUNTY


      N EWELL, J., delivered the opinion of the Court, in which,
K ELLER, P.J., K EASLER, H ERVEY, A LCALA, R ICHARDSON, Y EARY, and
W ALKER, J.J., joined. K EEL, J., did not participate.

                              O P I N I O N

     In this case, the misconduct by Jonathan Salvador–a former Texas

DPS analyst–has, yet again, required us to consider falsity and materiality

of the evidence tested to support a possession of a controlled substance

charge. See, e.g., Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App.

2015).   In this case, the State initially agreed that relief should be

granted based upon Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App.
                                                                                 Owens - 2

2014). The trial court did not. The trial court rejected the State and

Applicant’s proposed findings and recommends to this Court that relief be

denied.1 Based on an independent review of the record, we agree with

the habeas court and deny relief.

                                 Applicant’s Arrest

       On May 21, 2006, Officers Shane Granelli and Orlando Jacobs,

troopers from the Texas Department of Public Safety, pulled over a

vehicle after the driver impeded traffic and made an unsafe lane change.

After approaching the car, Officer Granelli noticed the nervous behavior

of both the driver, Amanda Reid, as well as Applicant and another

passenger. Officer Granelli also smelled a strong odor of burnt marihuana

inside the vehicle. Based on these observations, as well as the conflicting

stories given to him by Reid, Applicant and the other passenger, Officer

Granelli conducted a search of the vehicle, including the trunk. Inside the

trunk in a speaker box, Officer Granelli recovered three pounds of

marihuana as well as a pistol.2 Applicant admitted to Officer Granelli that

the marihuana was his and that he had paid $1,000 for it.


       1
          The State now asserts that Applicant cannot m eet his burden under either the
falsity or m ateriality prong of our analysis. W e address these argum ents below.

       2
        The m arihuana was weighed by Officer Granelli at the DPS office after the arrest of
Applicant and before turning the substance over to the DPS crim e lab for analysis.
                                                                 Owens - 3

                                Lab Tests

     Jonathan Salvador worked as a laboratory technician at the Houston

Police Department's Crime Lab Division from 2006 to 2012. On January

26, 2012, DPS laboratory technician Andrew Gardiner discovered that

Salvador had used a gas chromatograph-mass spectrometer (GC-MS) test

result in one alprazolam case to support a finding of alprazolam in

another case. Thereafter, Gardiner reported his findings to the Texas

Rangers and the Office of Inspector General, which then proceeded to

conduct an extensive investigation into the cases handled by Salvador

during his six-year tenure.

     The Texas Forensic Science Commission (“TFSC”) published a full

report in January 2013 detailing the problems that Salvador had

throughout his employment with DPS. The problems included:

     (1)   failing to maintain adequate case output;

     (2)   having more than 1 in 3 of his case folders returned for
           corrections; usually administrative in nature;

     (3)   receiving evaluations instructing him to “avoid short cuts;”and

     (4)   requiring remedial training as well as coaching and counseling.

Additionally, investigation revealed two instances where Salvador had

used the test results from one case to justify the results in another case,
                                                                  Owens - 4

otherwise known as “dry-labbing.” The first instance occurred in April

2009 when Salvador was tasked with testing a cocaine sample.               A

re-analysis of the drug exhibit indicated that, while it did contain cocaine,

there was a difference in quantity and type of adulterants between the

two exhibits. Ex Parte Coty, 418 S.W.3d 597, 598 n. 2 (Tex. Crim. App.

2014). The second incident was the misconduct involving alprazolam that

was discovered by Gardiner in 2012.

     The investigation also uncovered that there were two cases in which

Salvador had made errors in the testing of substances involving

marihuana, though those errors did not involve dry-labbing.          Several

progress reports on Salvador’s work indicated that Salvador’s tenure at

DPS began with testing and reporting on marihuana substances. In a

number of these reports, all dated in 2006, Salvador’s superiors state

that some of the improvements he can make are to “[c]omplete

examination of drugs other than marihuana” and “[b]egin extraction and

analysis techniques for drugs other than marihuana.”

     The Rangers reported their findings to the Harris County District

Attorney's office. On May 5, 2012, the Harris County District Attorney's

office presented the case to a Harris County grand jury seeking criminal

charges of tampering with governmental records.            The grand jury
                                                                  Owens - 5

returned a no-bill. The DPS Office of Inspector General issued a report

concluding that Salvador failed to properly follow laboratory protocols and

procedures, misidentified substances, and dry-labbed samples. In June

of 2012, after receiving the Inspector General's report, Salvador was

terminated from his position at the Houston Police Department's Crime

Lab Division.

                            Applicant’s Case

     The marihuana recovered from the trunk of the vehicle was

submitted for testing to the DPS-Houston crime laboratory on June 27,

2006 and Salvador performed an analysis on the drugs on July 26, 2006.

Applicant was later indicted in the 232nd District Court of Harris County,

Texas, for possession of marihuana between four ounces and five pounds,

a state jail felony carrying a sentence of 180 days to two years

incarceration. T EX. H EALTH & S AFETY C ODE § 481.121(a),(b)(3); T EX. P EN.

C ODE § 12.35(a). On November 10, 2006, Applicant pleaded guilty to the

charge. Pursuant to a plea agreement with the State, Applicant waived

his right of appeal and was sentenced to two years community

supervision.

     Two months later, Applicant was arrested in North Carolina and

charged with possession with intent to sell and deliver a controlled
                                                                  Owens - 6

substance - marihuana - in violation of the North Carolina Controlled

Substances Act. Upon learning of this offense, the Harris County District

Attorney’s office filed a motion to adjudicate guilt alleging that Applicant

had violated the terms of his community supervision by committing an

offense against the laws of another State. Applicant pleaded “true” to the

allegation and, on November 4, 2009, his community supervision was

revoked and he was sentenced to 180 days in state jail. The marihuana

tested by Salvador was destroyed in July 2008.

     After Salvador’s transgressions came to light in 2013, Applicant filed

this application alleging that his sentence should be overturned because

his plea of guilty was made involuntarily and unknowingly. Specifically,

Applicant claims that Salvador’s misconduct creates an inference that the

testing of the marihuana in his case resulted in false evidence and that,

without that false evidence, he would not have pled guilty to the

possession charge. Although Applicant has completed his sentence, he

is currently facing several controlled dangerous substance charges in

Maryland. Because this conviction is being used for enhancement

purposes in those cases, this habeas application is properly before this

Court. After a hearing was held, the habeas court filed findings of facts

and conclusions of law and recommended that relief be denied.
                                                                   Owens - 7

                             Standard of Review

     The trial judge on habeas is the “original fact-finder.”          Ex parte

Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). The role of the trial

judge on habeas is to collect evidence, organize materials, decide what

live testimony is necessary, resolve disputed fact issues, enter specific

findings   of   fact   and   conclusions   of   law   and   make   a    specific

recommendation to grant or deny relief. Ex parte Simpson, 136 S.W.3d

660, 668 (Tex. Crim. App. 2004). Because the trial judge is in the best

position to assess the credibility of witnesses, in most circumstances, we

defer to and accept a trial judge's findings of fact and conclusions of law

when they are supported by the record.          Reed, 271 S.W.3d at 727.

However, this Court is the “ultimate fact-finder.” Ex parte Navarijo, 433

S.W.3d 558, 567 (Tex. Crim. App. 2014). When our independent review

of the record reveals that the trial judge’s findings and conclusions are

not supported by the record, we may exercise our authority to make

contrary or alternative findings and conclusions. Ex parte Flores, 387

S.W.3d 626, 634, 635 n. 40 (Tex. Crim. App. 2012).

                             The Salvador Cases

     Originally, after Salvador’s misconduct came to light, this Court

granted relief in several cases on the basis that Salvador was the lab
                                                                  Owens - 8

technician who was solely responsible for testing the evidence.          We

granted relief in cases where evidence still existed that could be retested

as well as in those cases where the evidence had been destroyed and

could not be retested. Ex parte Turner, 394 S.W.3d 513, 514 (Tex. Crim.

App. 2013) (per curiam); Ex parte Hobbs, 393 S.W.3d 780 (Tex. Crim.

App. 2013) (per curiam); Ex parte Smith, No. AP–76,988, 2013 WL

831359, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (not

designated for publication); Ex parte Hinson, No. AP–76,983, 2013 WL

831183, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (not

designated for publication). These “Salvador cases” all shared a common

finding by this Court that there had been a presumptive due-process

violation in each case in which Salvador was the laboratory technician.

     But, in Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014), we

re-evaluated whether there should be a presumptive due-process

violation in cases in which Salvador had performed drug testing.         We

analogized the claims regarding Salvador’s misconduct to false-evidence

claims and determined that a better analysis of these cases would require

a showing of both falsity and materiality. We announced, in Coty, a five-

factor test to be used when an applicant raises an inference of falsity. Id.

at 605. We held that, if an applicant can satisfy his initial burden to raise
                                                                  Owens - 9

an inference of falsity, the burden shifts to the State to offer evidence

demonstrating that the laboratory technician in question committed no

such misconduct in that applicant's case. Id.

     If the State fails to meet that burden, the applicant is still required

to prove that the false evidence was material to his or her conviction. Id.

In Ex Parte Barnaby, we stated that the proper way to make this showing

was to examine materiality “in a manner similar to that used to the

analysis of the materiality of ineffective assistance of counsel to a

decision to plead guilty.” 475 S.W.3d at 324. As a result, we held that,

in the context of these Salvador cases, “the materiality of false evidence

is measured by what impact that false evidence had on the defendant's

decision to plead guilty.”   Id. at 325. When gauging that impact, the

proper inquiry is “Would the defendant, knowing of the falsity of the

evidence, still have plead guilty or would he have insisted on going to

trial?” Id. If he would have chosen to go to trial, the false evidence was

material. Id. at 326.

                                  Falsity

     In order to meet his first burden, Applicant must demonstrate the

evidence’s falsity through the use of Coty’s five-factor test. These factors

include:
                                                                Owens - 10

     (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
     other misconduct.

Coty, 418 S.W.3d at 605. In making this showing, Applicant is required

to “establish the extent of the pattern of misconduct the technician is

accused of.” Id.

     The habeas court made findings of fact and conclusions of law

regarding Applicant’s ability to raise an inference of falsity. Although the

habeas court found that Applicant had met the first three factors given

Salvador’s handling of the evidence in this case, the habeas court

ultimately determined that the fourth and fifth factors could not be

shown. As to the fourth factor, the habeas court found that Applicant had

not directly cited to a pattern of misconduct and inferred from the

pleadings that he meant to rely on the 2009 and 2012 dry-labbing

incidents.

     Given that the trial court’s findings of fact are based on evidence of

the record, we defer and agree with its findings that falsity has not been

shown.   See Reed, 271 S.W.3d at 727.       Although the first three Coty
                                                               Owens - 11

factors can be met, the problems lie with the fourth and fifth factors. In

terms of the fourth factor, we agree with the trial court that Salvador’s

misconduct in dry-labbing alprazolam and cocaine is not of the type “that

would have affected the evidence in applicant’s case[.]”       Coty, 418

S.W.3d at 605. Salvador tested the cocaine in 2009 and alprazolam in

2012 by using a Gas Chromotograph Mass Spectrometer (“GCMS”)

confirmatory test. Id. at 601.

     In contrast, the record establishes that in this case, the marihuana,

a plant material, is subjected to weighing, and microscopic examination

of unique plant features, and a chemical color test.        Thus, testing

marihuana versus testing cocaine and alprazolam involve starkly different

methods. Moreover, early on in his work at DPS, Salvador tested only

marihuana, so much so that reviews by his superiors urged him to start

learning how to test controlled substances other than marihuana. One

can infer from these reports that, not only were the substances tested

differently, but also Salvador had much more experience performing the

tests that pertain to marihuana than those tests for substances such as

cocaine or alprazolam.

     Applicant urges us to disregard the habeas court’s findings on the

basis that it focused on the nature of the testing rather than, what
                                                                   Owens - 12

Applicant asserts is, the true nature of Salvador’s misconduct - “the

misrepresentation of data to support his lab reports.” The problem is,

however, that the only evidence in the record of a misrepresentation of

data comes from the 2009 cocaine and 2012 alprazolam testing.

Although there were two incidents of misconduct by Salvador in 2011 that

involved   marihuana, neither was an       instance   in   which    Salvador

intentionally misrepresented data. See Coty, 418 S.W.3d at 605, n. 11

(noting that we consider the “intentional laboratory misconduct” of the

technician).

     In the first instance, Salvador tested a substance found in a pipe

and issued a report that the substance was THC. Retesting by another

chemist revealed that the substance was actually marihuana and an

affidavit from that chemist’s supervisor contained in the record notes that

Salvador did not make the proper finding because he failed to “exert

enough effort to obtain the plant material” from the pipe. In the second

instance, Salvador mistakenly reported that a substance he had analyzed

was marihuana when, in fact, further testing by another chemist revealed

that it was not.   This was an “unexplainable” result according to the

assessment of the chemist who had helped in the retesting. Because

nothing in the record before us suggests that these two instances were
                                                                Owens - 13

anything other than the result of carelessness or general incompetence,

this is not the type of intentional misconduct that gives rise to a

presumption of falsity under Coty.      Thus, when Applicant asks us to

consider Salvador’s overall pattern of misrepresenting data, we are left

where we started: only the 2009 and 2011 intentional incidents of dry-

labbing are relevant to our analysis.

     Even if the two instances of mis-identifying marihuana satisfied the

fourth Coty factor, we still have a fifth factor to consider.   Salvador’s

misrepresentation of data, including, for the sake of argument, those

instances involving marihuana, occurred three or more years after the

testing done in this case. In his brief, Applicant does not point us to any

misconduct involving the intentional misrepresentation of data that

occurred closer to 2006, when Salvador was testing the evidence in

Applicant’s case. Applicant has failed to show that Salvador “handled and

processed the evidence in the applicant's case within roughly the same

period of time as the other misconduct.” Coty, 418 S.W.3d at 605.

                               Materiality

     Even if we were to assume that Applicant has demonstrated falsity,
                                                                                  Owens - 14

he nevertheless fails to show that the evidence was material.3 To prove

materiality, Applicant has the burden of showing that the value of

knowing the falsity of the laboratory report outweighed the benefit of

accepting the plea offer. Barnaby, 475 S.W.3d at 326. Because neither

Applicant nor our own independent review of the record reveals that the

alleged false evidence was material to Applicant’s decision to plead guilty,

we agree with the habeas court’s findings of fact and conclusion of law

that Applicant has not met his burden.

       The evidence on the record shows that Applicant’s guilty plea was

minimally, if at all, impacted by the results of Salvador’s lab testing.

There was evidence, other than Salvador’s analysis, that was at the

State’s disposal to prove that the bundles recovered from the vehicle

were marihuana weighing four ounces to five pounds. Troopers Granelli

and Jacobs, who conducted the traffic stop, submitted affidavits as to

their training and observations at the time surrounding Applicant’s arrest.

Both troopers were able to readily identify the look, feel and smell of the

marihuana that was recovered from the trunk of the vehicle. Based on


       3
         As addressed above, m arihuana and cocaine have different m ethods for testing.
They are also substantially different in term s of how easily identifiable they are without the
help of drug analysis testing. For these reasons, we find the following discussion necessary
to our jurisprudence and any future cases called into question as a result of Salvador’s
m isconduct.
                                                                                 Owens - 15

their experience at the time of the traffic stop, it is reasonable to believe

they would have been able to testify that the substance found was

marihuana. 4

       Of course, the officers need not have been experts in identifying

marihuana to testify that the substance found was marihuana.                              See

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).

Marihuana, unlike the cocaine found in Barnaby, is easily identifiable; “it

does not take an expert to identify the smell of marihuana smoke.” Id.

In fact, the odor or sight of marihuana requires limited, if any, expertise

to identify. See, e.g., Kemner v. State, 589 S.W.2d 403, 407 (Tex. Crim.

App. 1979) (airline employee recognized odor of marihuana emanating

from appellant's suitcase and informed DEA); Chaires v. State, 480

S.W.2d 196, 197 (Tex. Crim. App. 1972) (airline baggage agent smelled

odor of marihuana in appellant's suitcase, opened the suitcase and

identified the grassy substance it contained as marihuana); Sorensen v.

State, 478 S.W.2d 532, 533 (Tex. Crim. App. 1972) (appellant's mother

testified that she recognized the odor of marihuana when she found it in

       4
         At the tim e of the traffic stop, Trooper Granelli had m ade m ultiple arrests and
convictions for possession of m arihuana and was also trained by the Texas Departm ent of
Public Safety on the look, feel, and sm ell of m arihuana. Trooper Jacobs had m ade m ultiple
arrests involving m arihuana, and attended several schools that trained on identifying
m arihuana including the Federal Bureau Investigations, Drug Enforcem ent Agency and
EPIC/DIAP Program s.
                                                                Owens - 16

her son's room); Mumphrey v. State, 774 S.W.2d 75, 77 (Tex.

App.-Beaumont 1989, pet. ref'd) (13-year-old rape victim testified that

she smelled the odor of marihuana on appellant’s clothes). While cocaine

or pills take additional efforts and experience to identify, marihuana is a

substance that both officers and the common lay witness can identify

through simple use of his senses. Thus, not only could Troopers Granelli

and Jacobs have testified as to what the recovered substance was, their

testimony would have been sufficient for the State to prove that the

substance Applicant had possessed was marihuana. See, e.g., Deshong

v. State, 625 S.W.2d 327, 329-30 (Tex. Crim. App. 1981) (testimony of

police officer was sufficient to prove that the substance within the

defendant's car was marijuana.)

     In addition to two troopers that could have readily identified the

substance found in Applicant’s possession, there are other indications that

Applicant’s decision to plead guilty was not based on the results of the lab

work. Without a plea, Applicant was facing incarceration of at least 180

days and up to two years. T EX. P EN. C ODE § 12.35(a). In exchange for his

plea, however, he received deferred adjudication. We find this benefit

that Applicant received a compelling one. See Barnaby, 475 S.W.3d at

326 (“applicant's assertion that he would not have plead guilty had he
                                                                 Owens - 17

known of the falsity of the laboratory report is unpersuasive in light of the

benefit he received from the plea bargain”). There is no indication that

Applicant turned down plea offers from the State while awaiting the lab

results and the fact that a plea agreement was not reached until three

months after the lab results came in further suggests they were of low

importance to Applicant.

     Moreover, when faced with the decision to plead guilty, Applicant

was also aware that, in addition to the aforementioned testimony that the

two troopers at the scene of the arrest would be able to provide, the

State could present evidence that Applicant had told the Trooper Granelli

at the scene that the substance was marihuana, that the marihuana was

his, and that he had paid $1,000 for it. Applicant hid the marihuana in

a speaker box with his gun and tried to take it across the country.

     Applicant posits that, without the lab report, he would have been

guilty of attempted possession of marihuana, a class A misdemeanor, at

the most. But, possession of marihuana in a particular quantity need not

be proven solely through the use of lab analysis. See, e.g., Marroquin v.

State, 746 S.W.2d 747, 748-50 (Tex. Crim. App. 1988) (State sustained

its burden of proving possession of marihuana over 50 pounds where

officers, who testified at trial, weighed the recovered marihuana at the
                                                                                 Owens - 18

time of the arrest and at the police station and a photograph of the bags

and their contents were introduced into evidence before the jury);

Osbourn, 92 S.W.3d at 539.                   The testimony of the officers, the

admissions by Applicant and the fact that Trooper Granelli personally

weighed the recovered marihuana at three pounds demonstrate that the

State had more than enough evidence to convict Applicant under T EX.

H EALTH & S AFETY C ODE § 481.121(a),(b)(3) even without the help of lab

results.5

                                       Conclusion

       Based on the evidence in the record, we conclude that Applicant

failed to present sufficient evidence to warrant a presumption of falsity

regarding Salvador’s lab testing in this case.                   Even if we assume a

presumption of falsity, Applicant has failed to demonstrate that test

results would have been material in this case. Barnaby, 475 S.W.3d at

325. Thus, we agree with the habeas court that Applicant has not met

his burden of showing either falsity or materiality. We deny relief.

Filed: March 22, 2017

       5
         Applicant also asserts that the adm issions could not have been relied upon at trial
because they were m ade under custodial interrogation and would have been suppressed.
Applicant does not point us to any place in the record that indicates defense counsel filed or
intended to file a m otion to suppress his statem ents to police and we cannot speculate that
a m otion to suppress would have succeeded, especially given that the offense report
indicates that Applicant m ade the statem ents after being read his Miranda rights.
          Owens - 19

Publish
