            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

       H ERVEY, J., delivered the opinion of the Court in which, K ELLER, P.J.,
M EYERS, W OMACK, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. P RICE,
J., concurred.

                                        OPINION

       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.

                                    P ROCEDURAL HISTORY
                                                                                                  Coty–2

        Applicant was charged with possession with intent to distribute at least 400 grams

of a controlled substance. T EX. H EALTH & S AFETY C ODE § 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.

                                      A NALYTICAL 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




        1
            For a detailed discussion of the facts of this case, please refer to previous opinion in this
case.
                                                                                          Coty–3

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.

                                           A NALYSIS

       The habeas court concluded, and we agree, that under the facts of this case, the

       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.
                                                                                       Coty–4

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
                                                                                       Coty–5

       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.

                                        C ONCLUSION

       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
