Ex parte Barnaby

• Decision Date: 04 November 2015
• Docket Number: NO. WR–80,099–01,WR–80,099–01
• Citation: 475 S.W.3d 316
• Parties: Ex parte Kemos Marque Barnaby, Applicant
• Court: Texas Court of Criminal Appeals

475 S.W.3d 316

Ex parte Kemos Marque Barnaby, Applicant

NO. WR–80,099–01

Court of Criminal Appeals of Texas.

Delivered: November 4, 2015

Judith Shields, The Woodlands, for Applicant.

Jason Larman, Assistant District Attorney, Conroe, for State.

OPINION

Per curiam.

Applicant Kemos Marque Barnaby plead guilty in a package deal to four separate offenses of possession of a controlled substance with intent to deliver and was sentenced to four concurrent fifty-year sentences. In his application for writ of habeas corpus, applicant challenged only the voluntariness of his plea to the offense charged in Cause No. 09–04–04192–CR. In that case, the forensic technician who was assigned to analyze the seized substance was Jonathan Salvador, who is known to have falsified test results. We remanded to the trial court so that the parties could present argument on what standard of review is appropriate for examining materiality.¹ We hold 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:² if applicant had known that the evidence was false (i.e., "but for" the false evidence), he would not have plead guilty but would have insisted on going to trial. Although we infer that the laboratory report in applicant's case was falsified, we find that its falsity was not material to his decision to plead guilty, and we deny relief.

Facts

On March 13, 2009, Conroe Police Department Officer J. Berry stopped a car for a traffic offense. Fellow Conroe police officer J. Blackwelder was nearby and came to assist. As Officer Blackwelder was approaching the driver's side, applicant exited the car and met with the officer outside. Officer Berry approached the passenger's side of the car and spoke with the passenger through the passenger-side window. Officer Berry smelled a strong odor of marijuana coming from inside the car and asked the passenger to step outside. The passenger told Officer Berry that the car did not belong to the passenger and that he did not know if the car's owner smoked marijuana. Officer Berry searched the passenger but found no contraband.

Meanwhile, Officer Blackwelder directed applicant to the front of Officer Blackwelder's patrol car, where he questioned applicant and then conducted a consensual pat-down search. During the search, Officer Blackwelder found a small plastic bag in the watch pocket of applicant's pants. He handed the bag to Officer Berry, who examined the bag and recognized its contents—several off-white chunks or rocks—as crack cocaine. Officer Berry showed the bag to Officer Blackwelder, who arrested applicant. Applicant denied that he had possessed the small plastic bag. Because it was raining, Officer Berry placed the plastic bag in a separate paper bag to protect it from the elements, locked the paper bag in the front seat of his patrol car, and placed applicant in the back seat.

On the way to the Conroe Police Department, applicant complained to Officer Berry that the substance in the small plastic bag had not been tested. At the police department, Officer Berry was able to find parking in a covered area out of the rain, where he dried off the hood of his patrol car, weighed the substance,³ and performed a field test on the substance. A test wipe produced a positive result for cocaine. Applicant told Officer Berry that he knew the substance would come back positive, but he again denied that he had ever possessed it.

On April 24, 2009, the substance was delivered to the Texas Department of Public Safety (DPS) crime laboratory in Houston for testing. On May 21, 2009, a forensic scientist at the laboratory, Jonathan Salvador, issued a drug-analysis report that concluded that the substance contained cocaine. Salvador certified the analysis on July 9, 2009.

Salvador

On January 26, 2012, DPS laboratory technician Andrew Gardiner was having trouble with his testing instrument and decided to compare results with Salvador's instrument by running in his own instrument a sample that had already been tested in Salvador's instrument. When he went to the sample's noted location, a vial from a different case was there instead. The correct vial was nowhere to be found on the sample tray. Looking at the files for the two samples, Gardiner suspected Salvador may have "dry-labbed" the samples.⁴ Salvador apparently had had trouble obtaining results from the first sample and then substituted the results from the second sample, passing it off as a test of the first. Gardiner consulted another technician, who agreed with his opinion, but they decided to give Salvador the benefit of the doubt and wait to examine Salvador's final reports for the two samples. After the reports were submitted for administrative review, Gardiner saw that the results were identical.

Gardiner notified the crime-laboratory supervisor, Severo Lopez, who discussed the issue with Keith Gibson, the crime-laboratory manager. Gibson instructed Lopez to retest the samples and check their results against those submitted by Salvador. Lopez searched for the missing first sample's location in the laboratory's database, and the system indicated that it was still in Salvador's custody. Lopez approached Salvador and asked him for the evidence, which was in Salvador's bench locker. Salvador asked Lopez why the samples were being retested, and Lopez responded that it was merely for quality-assurance purposes. The retesting results differed from those that Salvador had entered into the file. The first sample contained many more impurities than had been reported, and it appeared that Gardiner's suspicion was correct and that Salvador had used the second sample to generate results for both reports. Salvador was suspended, and his previous cases were retested.

The Texas Rangers conducted an investigation for possible criminal charges of tampering with governmental records. Rangers interviewed the DPS laboratory technicians, including Salvador, and brought the evidence to the Harris County District Attorney's Office, but a grand jury declined to indict. 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, a decision was made to terminate Salvador's employment.

The consequences of Salvador's dry-labbing did not end with his resignation. The investigation called into question the veracity and reliability of many cases handled by Salvador. We granted relief on several applications for writ of habeas corpus, finding that each case involved a presumptive violation of due process. E.g., Ex parte Turner, 394 S.W.3d 513 (Tex.Crim.App.2013) (per curiam); Ex parte Hobbs, 393 S.W.3d 780 (Tex.Crim.App.2013) (per curiam).

Then, in Ex parte Coty, 418 S.W.3d 597 (Tex.Crim.App.2014) (Coty I ), we retreated from a presumption that due process was violated in every Salvador case. Coty, 418 S.W.3d at 605. Finding that the Salvador cases were analogous to false-evidence cases, we required a showing of falsity and materiality. Id. Instead of a presumption of falsity, we implemented a five-part protocol to be used when an applicant or appellant raises an inference of falsity. Id. If an applicant can satisfy his initial burden, the burden shifts to the state to offer evidence demonstrating that the laboratory technician in question committed no such misconduct in that applicant's or appellant's case. Id.⁵

Applicant's Case

In July 2012, after this case had been resolved, the Montgomery County District Attorney's Office informed applicant about the Salvador investigation. In May 2013, applicant filed an application for writ of habeas corpus that sought a new trial based on this newly discovered evidence. The habeas court entered findings of fact and conclusions of law and recommended that we deny relief.

Following our decision in Coty I, we remanded applicant's case to the habeas court to consider his claims in light of that case. Ex parte Barnaby, No. WR–80,099–01, 2014 WL 631073 (Tex.Crim.App. Feb. 12, 2014) (per curiam) (not designated for publication). Initially, the habeas court found that, although applicant was able to raise an inference of falsity, the state was able to overcome that inference, and the court recommended that we deny relief. However, applicant asked the habeas court to take judicial notice that Officer Blackwelder, the officer who performed the pat-down search of applicant, had also come under scrutiny.⁶

With Officer Blackwelder's credibility in doubt, the habeas court reconsidered its recommendation in applicant's case and entered supplemental findings of fact and conclusions of law that determined that applicant met the standard of Coty I and recommended that we grant relief.⁷ Upon submission to this Court, we noted that the state conceded the issue of falsity, and we ordered the parties to discuss the issue of materiality in the context of a plea of guilty. Ex parte Barnaby, No. WR–80,099–01, 2014 WL 2803016 (Tex.Crim.App. June 18, 2014) (per curiam) (not designated for publication).

The dashboard videos from the patrol cars of both Officers Berry and Blackwelder were found, and we ordered the habeas court to examine them to determine whether they would affect that court's recommendation. Ex parte Barnaby, No. WR–80,099–01, 2014 WL 5422014 (Tex.Crim.App. Oct. 15, 2014) (per curiam) (not designated for publication). Based upon the videos, the habeas court entered supplemental findings of fact that determined that, when Officer Blackwelder pulled the small plastic bag from applicant's pocket, applicant immediately stated the bag was not his and had not been on his person. The court also found that applicant had consistently denied that the bag was in his pocket, that he owned the bag, and that the bag had ever been on his person. Fina...