OPINIONAppellant Lesley Esther Diamond was convicted of misdemeanor driving while intoxicated. She filed an application for writ of habeas corpus, in which she alleged that the State suppressed favorable evidence in violation of her due process rights. After a hearing, the habeas court denied the application. On appeal, appellant contends in one issue that the habeas court erred in concluding that the undisclosed evidence was not favorable to the defense or material to the jury’s guilty verdict under Brady v. Maryland[1] Concluding that the undisclosed evidence was not material to the jury’s verdict, we affirm.BackgroundAppellant did not appeal her conviction. But after appellant was convicted, Andrea Gooden, an analyst from the Houston Police Department crime lab who testified in appellant’s trial, self-reported that the crime lab had violated quality control and documentation protocols. This report culminated in an investigation and report by the Texas Forensic Science Commission that was provided to appellant after her conviction.I. Evidence Adduced at TrialDeputy Bounds was conducting a traffic stop in Harris County, Texas, when he observed appellant driving in excess of the speed limit in the lane closest to Bounds’s stopped patrol car and the other stopped vehicle. Appellant made several unsafe lane changes without signaling that caused other drivers to brake suddenly. Bounds got into his vehicle and pursued appellant until she stopped her vehicle.While conducting the stop, Bounds asked appellant to step out of her vehicle. When she did so, she staggered. Appellant told Bounds she was coming from a golf course at a country club but did not know the name or location of the country club. Appellant told Bounds she had consumed three beers that day. She also had an empty can of beer and two cold, unopened cans of beer in her car.Bounds testified that appellant appeared intoxicated, smelled of alcohol, had red, glassy eyes and incoherent, slurred speech, and appeared confused. Appellant said she had taken medication but was unable to tell Bounds what kind of medication it was.Bounds requested another deputy to assist him. Deputy Francis arrived and administered field sobriety tests. Bounds testified that he observed appellant exhibit five out of eight clues of intoxication on the walk and turn test and four out of four clues on the one leg stand test.[2] Bounds further testified that appellant had poor balance and staggered during the walk and turn test but conceded that Francis made some mistakes in administering the field sobriety tests. Bounds opined that appellant was intoxicated.Gooden testified that her analysis of appellant’s blood sample revealed a blood alcohol concentration (BAC) of 0.193, which is above the legal limit of 0.08.The prosecutor argued during closing argument that the blood analysis was “really important” because 0.193 is “multiple times” the legal limit and that “[i]t is pretty much undisputed that Deputy Bounds is not good at testifying. In fact, he’s probably not a very good officer” and “[e]ven someone as simple or dumb, however you want to call it, as Deputy Bounds, it was clear to him that she was intoxicated.”The jury found that appellant’s BAC was above 0.15.II. Evidence Adduced at Habeas HearingGooden had been removed from casework two weeks prior to trial because of her involvement with an erroneous lab report in another case. In that case, an officer had mislabeled vials containing blood specimens with the wrong suspect’s name. Knowing about the error, Gooden analyzed the blood samples but initially set them aside until the officer could correct the mistake. Gooden also prepared a draft lab report and certified that it was accurate. The report, still containing the wrong suspect’s name, erroneously was released into the Laboratory Information Management System (LIMS) in January 2014. Reports submitted on LIMS can be accessed by prosecutors.On April 15, 2014, Gooden discovered the error and reported it. The next day, her supervisor, William Arnold, sent her an email stating that she would not be allowed to work on any other cases: “[u]ntil further notice[,] you are to focus solely on documenting the issues surround[ing] the [errors] in the case we discussed yesterday. Do not handle any evidence, process any data or generate any reports or documentation that is unrelated to your research on this case.” Arnold did not document or disclose this action to the Harris County District Attorney because he did not want to damage Gooden’s career or subject her to harsh cross-examination by a defense lawyer.Gooden issued a memorandum regarding the lab error on April 17 and assumed she would be able to resume her other casework at that time. Instead, she was told she could not return to casework.Gooden testified for the State against appellant on April 29 and 30, 2014. The erroneous lab report and Gooden’s removal from casework were not disclosed to the defense. Arnold observed Gooden’s testimony at trial.On May 12, 2014, Arnold told Gooden that she still could not commence with casework because she needed to improve her courtroom testimony. Arnold subsequently told a human resources director that he preferred retraining Gooden in lieu of “documenting concerns about [Gooden's] performance which would make [Gooden] subject to painful cross examination” and he wanted to avoid damaging Gooden’s career.Gooden filed a self-disclosure with the Commission on June 4, 2014 concerning the erroneous lab report, alleging that the crime lab failed to amend the report, notify the district attorney’s office of the error, or issue a required corrective and preventative action report. After a period of retraining, Gooden was allowed to return to casework in August.The Commission opened an investigation on August 1 to review Gooden’s disclosure. On August 4, Arnold gave Gooden an interoffice memo in which he noted that in early April, Gooden prepared a PowerPoint presentation for use in court testimony and during the proposed presentation, Gooden could not answer “basic questions” about the type of analysis used to analyze blood alcohol content. Arnold questioned whether Gooden could convey the proper information and whether she understood the concepts associated with the analysis.The City of Houston’s Office of Inspector General conducted an investigation on these matters during the same timeframe and issued its report on December 18, 2014. It found, in relevant part, that (1) lack of attention by Arnold and Gooden allowed the erroneous report to be submitted to the district attorney’s office; and (2) Gooden testified in three trials while “off casework” and without disclosing the erroneous report.The Commission issued its report on January 23, 2015. It concluded that Arnold engaged in professional negligence by, among other things, failing to issue timely amended reports to the district attorney’s office once the mislabeling mistake was identified by Gooden and failing to document the reasons for Gooden’s removal from casework. In doing so, the Commission concluded in relevant part, that Arnold: Deprived the prosecutor of the opportunity to determine whether any action was required to disclose impeachment information to the defense; Possibly deprived the defense of impeachment information to which it was entitled; and Sent the message that it is acceptable not to document issues that arise in the laboratory for fear of a tough cross-examination. DiscussionAppellant argues, among other things, that the habeas court erred in concluding that the undisclosed evidence was not material.[3] We agree with the habeas court that the undisclosed evidence was not material.[4]To demonstrate reversible error under Brady, a habeas applicant must show (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to her; and (3) the evidence is material—that is, there is a reasonable probability that, had the favorable evidence been disclosed, the outcome of the trial would have been different.[5] Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). The evidence central to the Brady claim must be admissible in court. Id.We ordinarily review a habeas court’s ruling on an application for writ of habeas corpus for an abuse of discretion. Ex Parte Navarro, 523 S.W.3d 777, 780 (Tex. App.—Houston [14th Dist.] 2017, pet. refd). But when the resolution of the ultimate issue turns on an application of purely legal standards, our review is de novo. Id.We turn to whether the undisclosed evidence was material. The possibility that an item of undisclosed information might have helped the defense or affected the outcome of the trial does not establish materiality. Miles, 359 S.W.3d at 666. The evidence is material only if there is a reasonable probability that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed to the defense. Id. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id.Although we defer to the habeas court’s credibility determinations, we review the question of materiality de novo. See Ex Parte Weinstein, 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014) (noting that in addressing habeas claims involving Brady, materiality of evidence is reviewed de novo). We balance the strength of the exculpatory evidence against the evidence supporting conviction and consider the suppressed evidence collectively, not item by item. Miles, 359 S.W.3d at 666.Appellant argues that had she known about the undisclosed evidence, she would have attempted to exclude Gooden’s testimony and, if unsuccessful, would have used the evidence to impeach Gooden. Appellant additionally argues she would have called Arnold to testify regarding his misgivings about Gooden’s abilities. Thus, even if Gooden’s testimony had been admitted at trial, appellant asserts that the jury would have had a factual basis to doubt Gooden’s qualifications and the reliability of her blood alcohol analysis.The habeas court concluded that appellant failed to establish materiality of the evidence because Bounds’ testimony regarding appellant’s intoxication was “more than sufficient” to support a guilty verdict and there is no reasonable probability that the jury would have reached a different result if appellant had been able to cross- examine Gooden with the undisclosed evidence. The habeas court made the following fact findings in support of its conclusions on materiality:• Bounds observed appellant speeding in the lane closest to Bounds and the stopped patrol car and other vehicle. Appellant made several unsafe lane changes and caused other drivers brake suddenly. Appellant staggered when she got out of the car. She had red, glassy eyes, incoherent, slurred speech, and a very strong odor of alcohol and could not identify the name of the golf course she came from or what medication she had taken. Appellant admitted she drank three beers and had one open, and two cold, unopened cans of beer in her car. Bounds observed the other officer administer the walk and turn and one leg stand field sobriety tests. Bounds testified that appellant exhibited five out of eight clues of intoxication on the walk and turn test and four out of four clues of intoxication on the one leg stand test. Balancing the strength of the undisclosed evidence against the evidence supporting appellant’s conviction, we conclude that the undisclosed evidence was not material. The State’s evidence of intoxication was strong, even without any evidence of appellant’s BAC.We note that the jury found that “an analysis of [appellant's] blood showed an alcohol concentration of .15 or more.” That finding is a required element of a Class A misdemeanor. Tex. Penal Code § 49.04(d). The evidence supporting this answer could only have come from Gooden’s testimony and related exhibits. Had appellant been convicted of a Class A misdemeanor, Gooden’s testimony would have been material. However, appellant was convicted of a Class B misdemeanor, which does not require evidence of an analysis showing a BAC of .15 or more. See id. § 49.04(a)-(b); see also Meza v. State, 497 S.W.3d 574, 587 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding jury’s finding of .15 BAC for a Class A misdemeanor DWI was not supported by legally sufficient evidence and acknowledging that jury can convict for a Class B misdemeanor DWI “without finding a particular BAC”). Therefore, Gooden’s testimony was cumulative of evidence of appellant’s intoxication.Many of the “usual indicia of intoxication” were present here, including “erratic driving, post-driving behavior such as stumbling, swaying, . . . inability to perform field sobriety tests . . . , bloodshot eyes, [and] admissions . . . concerning what, when, and how much [the defendant] had been drinking.” Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010); see also Tex. Pen. Code § 49.01(2) (defining “intoxicated” as having an alcohol concentration of 0.08 or more or “not having the normal use of mental or physical faculties by reason of the introduction of alcohol” or other substances or combination thereof); Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (identifying characteristics that may constitute evidence of intoxication). These signs of intoxication raise an inference that appellant was intoxicated at the time of driving even without evidence of her BAC. See Kirsch, 306 S.W.3d at 745.Appellant’s admission that she consumed three beers, along with the open container of beer in her car and her inability to answer basic questions about where she came from or what medication she had taken, were also significant indicators of intoxication. See Thom v. State, 437 S.W.3d 556, 563 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that trial court did not err in determining probable cause existed to support warrant for defendant’s blood sample when the defendant “displayed many classic signs of intoxication and admitted to having consumed six beers” in spite of a breath test that registered his BAC at 0.00). Similarly, a defendant’s poor performance on standardized field sobriety tests is further evidence of intoxication. Zill v. State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.).Appellant argues, however, that there is a reasonable probability that the jury would not have convicted her if it heard the undisclosed evidence because the blood alcohol evidence was the most important evidence of intoxication adduced at trial and Bounds was not a good witness. Bounds did not preserve the in-car video of the incident, lost his notes from the night of the incident, and admitted that the police report “contains numerous mistakes.” He also conceded that the officer who administered the field sobriety tests did not give appellant proper instructions. The prosecutor made handwritten additions to the police report for Bounds to rely on during his testimony to add observations of clues of intoxication. Bounds was not trained to transport blood evidence and did not have custody of the blood specimen for two extended periods of time during which time the specimen was unattended in his car and the location was not documented. Despite these failures, Bounds still identified many significant factors indicating appellant was intoxicated.Given the strength of the evidence indicating appellant was intoxicated, we cannot conclude that there is a reasonable probability that the jury would have reached a different result if Gooden’s testimony had been excluded. We also conclude that if the habeas court had not excluded Gooden’s testimony but allowed appellant to cross- examine Gooden with the undisclosed evidence, there similarly is not a reasonable probability that the jury would have reached a different result.ConclusionBecause appellant did not establish that the undisclosed evidence is material to her case, the habeas court did not err in denying appellant’s writ application. We affirm the judgment of the habeas court./s/ Martha Hill JamisonJusticePanel consists of Justices Jamison, Busby, and Donovan.Publish — Tex. R. App. P. 47.2(b).
