Opinion
NO. WR-18,932-06
01-13-2016
EX PARTE PHILLIP WAYNE KERSH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10-11-11960-CR(1) IN THE 410TH DISTRICT COURT FROM MONTGOMERY COUNTY
Per curiam. OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a controlled substance, enhanced by a single prior felony conviction, and was sentenced to twenty years' imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that he was denied due process and that his plea was involuntary because the lab tech who tested the evidence seized in this case was Jonathan Salvador, who has since been discredited based on misconduct. In response to an order from the trial court, an affidavit was provided by the manager of the DPS Houston regional crime laboratory. That affidavit indicates that there are some anomalies in Salvador's test results, and that his testing "may have been flawed." The physical evidence in this case is not available for re-testing, because leakage from one or more of the containers in which the exhibits were stored destroyed the evidence.
The trial court concludes that the inference of falsity in this case has not been sufficiently rebutted by the State. See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014). The trial court also concludes that the false evidence was material to Applicant's conviction, because it would have been unlikely that the State could have obtained a conviction without the lab report.
This Court recently held 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: if the applicant had known that the evidence was false (i.e., "but for" the false evidence), he would not have pleaded guilty but would have insisted on going to trial. Ex parte Barnaby, No. 09-04-04192-CR (Tex. Crim. App. Nov. 4, 2015). In this case, the evidence does not indicate that Applicant would have pleaded guilty to the offense had he known that the lab report contained false evidence.
Relief is granted. The judgment in Cause No. 10-11-11960-CR in the 410th District Court of Montgomery County is set aside, and Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. Delivered: January 13, 2016
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