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Ex parte Owens

Court of Criminal Appeals of Texas

March 22, 2017

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

          Newell, J., delivered the opinion of the Court, in which, Keller, P.J., Keasler, Hervey, Alcala, Richardson, Yeary, and Walker, J.J., joined. Keel, J., did not participate.

          OPINION

          Newell, J.

         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. 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.

          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, 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 ...


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