IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1299-18

LESLEY DIAMOND, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

AFTER OPINION ON REHEARING

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

Newell, J., delivered the opinion of the unanimous Court.

Appellant has filed a motion for rehearing in this case. We grant

Appellant’s motion for rehearing and withdraw our previous opinion. We

substitute this opinion in its place.

Andrea Gooden was a laboratory technician who analyzed

Appellant’s blood for alcohol content in this case. After Appellant’s trial,

it was revealed that she had—before the trial—mistakenly certified a

blood alcohol analysis report in an unrelated case where a police officer
DIAMOND — 2

had mislabeled the submission form accompanying a blood sample. Due

to her self-report of the erroneous certification to her supervisor, Gooden

had been temporarily removed from casework at the time of Appellant’s

trial so she could research and document this incident. The prosecutors

in this case, unaware of the problem in the unrelated case, failed to

disclose this information to Appellant prior to Gooden’s testimony in

Appellant’s trial. The question before us is whether this evidence is

material. The post-conviction habeas court concluded it was not and

denied Article 11.09 relief. Based upon the record before us, we agree. 

We reverse the court of appeals’ holding to the contrary and uphold the

habeas court’s ruling.

BACKGROUND

Appellant was convicted for misdemeanor driving while intoxicated

(DWI).1 She did not appeal her conviction. But after a jury convicted

Appellant, Andrea Gooden, the lab technician who had analyzed

Appellant’s blood, self-reported to the Texas Forensic Science Commission

(TFSC) that the crime lab had violated quality control and documentation

protocols in another, unrelated case. An investigation followed, and

reports by the Houston Office of the Inspector General (OIG) and the

1 See TEX. PENAL CODE § 49.04.
DIAMOND — 3

TFSC were given to Appellant after they became available.

In response, Appellant filed an application for a writ of habeas

corpus under Texas Code of Criminal Procedure Article 11.09,2 alleging

that the State had suppressed favorable impeachment evidence in

violation of her right to due process.3 Specifically, she claimed that the

State failed to disclose that, before Gooden testified in her trial: (1)

Gooden certified a mislabeled lab report in an unrelated case; and (2)

Gooden’s supervisor, William Arnold, had temporarily removed Gooden

from her casework. Appellant argued that the undisclosed evidence

would have enabled her to impeach Gooden and either exclude her

testimony entirely or discredit it, resulting in an acquittal or a deadlocked

jury.

The habeas court, presided over by the same judge who presided

over the trial, conducted an evidentiary hearing on Appellant’s claims. 

Both Arnold and Gooden testified at the habeas hearing. The habeas

court ultimately denied Appellant’s writ application, finding that the

undisclosed evidence was neither favorable nor material. The court of

2 TEX. CODE CRIM. PRO., art. 11.09 (“ If a person is confined on a charge of misdemeanor,

he may apply to the county judge of the county in which the misdemeanor is charged to have

been committed, or if there be no county judge in said county, then to the county judge whose

residence is nearest to the courthouse of the county in which the applicant is held in custody.”).

3 Appellant does not argue that the undisclosed evidence was exculpatory.
DIAMOND — 4

appeals disagreed and reversed. We granted the State’s petition for

discretionary review to address whether the court of appeals failed to

apply the standard of review correctly in conducting its materiality

analysis.

Facts Developed at Trial

While conducting a traffic stop on another vehicle, Deputy Bounds

saw Appellant speed past him in the lane closest to his patrol car. 

Bounds got into his patrol car, turned on his lights, and pursued the

vehicle for a long time before Appellant finally stopped. During the

pursuit, Appellant made several unsafe lane changes without signaling,

which caused other drivers to slam on their brakes. 

When Appellant stepped out of her vehicle, she staggered and could

not keep her balance. She appeared disoriented. She said that she was

coming from a golf course at a country club but was unable to identify the

name or location of the club, despite being asked multiple times. She

admitted she had consumed three Bud Light beers that day. There was

one open can of beer and two cold, unopened cans of beer in her vehicle. 

She and her car smelled strongly of alcohol. She was visibly intoxicated:

she had red, glassy eyes and slurred speech. She appeared confused,

being unable to identify the medication she was taking.
DIAMOND — 5

Bounds requested another deputy to assist him with the traffic stop. 

Deputy Francis arrived and administered two standard field sobriety tests:

the Walk and Turn (WAT) and the One-leg Stand (OLS). Although Deputy

Francis made a few mistakes while administering the tests, Appellant

failed both tests. During the WAT test, Appellant exhibited five out of

eight clues of intoxication.4 And during the OLS test, Appellant exhibited

four out of four clues of intoxication.

5 Deputy Bounds determined that

Appellant was “intoxicated” because she had lost the normal use of her

mental and physical faculties.6

Deputy Bounds placed Appellant under arrest for DWI. After

Appellant refused to give a sample of her breath or blood for alcohol

analysis, Deputy Bounds secured a warrant to obtain a sample of her

blood. A registered nurse drew Appellant’s blood. Appellant’s blood vials

4 A subject is deemed to be intoxicated if she demonstrates at least two of the eight

clues of intoxication during the WAT test: (1) Failure to balance during instructions; (2) Starting

too soon; (3) Stopping while walking; (4) Failure to touch heel-to-toe; (5) Stepping off the line;

(6) Using arms to balance; (7) Losing balance on the turn or turning incorrectly; and (8) Taking

the wrong number of steps. DWI Detection Manual, VII-5.

5 A subject is deemed to be intoxicated if she is unable to perform the test or if she

demonstrates at least two of the four clues of intoxication during the OLS test: (1) Swaying

while balancing; (2) Using arms to balance; (3) Hopping; and (4) Putting foot down. DWI

Detection Manual, VII-6.

6 See TEX. PENAL CODE § 49.01(2)(A) (“Intoxication” means not having the normal use

of mental or physical faculties by reason of the introduction of alcohol, a controlled substance,

a drug, a dangerous drug, a combination of two or more of those substances, or any other

substance into the body.”).
DIAMOND — 6

were labeled with Deputy Bound’s initials, Appellant’s name, and the case

number. The vials were placed into an envelope, labeled with Appellant’s

name and the case number, and sealed with tape. Deputy Bounds

delivered the blood vials to a secure lockbox at the Houston Police

Department. 

Andrea Gooden, an analyst from the Houston Police Department

Crime Lab, retrieved the sealed envelope containing Appellant’s blood

samples. There did not appear to be any tampering with the envelope. 

Prior to testing Appellant’s blood sample, Gooden observed Appellant’s

name on the envelope and Appellant’s name on the blood vials inside that

envelope. The vials contained a manufacturing label that, in addition to

Appellant’s name, had the same case number, initials, and date as the

envelope. Gooden followed all of the lab’s standard operating procedures

that were in place at the time she analyzed Appellant’s blood. Her

analysis revealed a blood alcohol concentration (BAC) of 0.193, which is

above the legal limit of 0.08.

The jury found Appellant guilty of driving while intoxicated.

7 Then,

after a special-issue hearing, the jury found that Appellant’s BAC was

7 See TEX. PENAL CODE § 49.04(a) (“A person commits an offense if the person is

intoxicated while operating a motor vehicle in a public place.”).
DIAMOND — 7

0.15 or more at the time the analysis was performed.8 The jury was

dismissed, and the court proceeded to the punishment phase. The judge

pronounced that Appellant was convicted of a Class A misdemeanor,

sentenced her to five days in jail, and assessed a $2,000 fine. 

Post-Conviction Writ Proceedings

Prior to Gooden testifying in Appellant’s case, a police officer in an

unrelated case turned in an evidence envelope containing a blood sample

and a case submission form to the Houston Police Department Crime 

Lab. Although the officer labeled the blood vials with the correct name

and incident number, he put the wrong case information on the

submission form.9 The analyst who received the sample noted the

discrepancy in the case folder:

The name of the submission form and LIMS is “Roman-Reyna,

Francis Javier.” The name on the envelope & blood tubes is

“Hurtado, David.” The tubes have the incident #

“124607913”, which is not on LIMS.10

8 See TEX. PENAL CODE § 49.04(d) (“If it is shown on the trial of an offense under this

section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol

concentration level of 0.15 or more at the time the analysis was performed, the offense is a

Class A misdemeanor.”).

9 While both the habeas court and court of appeals state that the blood vials were

mislabeled, the OIG and TFSC reports show that the submission form accompanying the blood

vials actually contained the labeling error. The lower courts’ confusion is understandable,

especially given the similarity between the incident numbers.

10 LIMS is short for Laboratory Information Management System. Reports in LIMS can

be accessed by prosecutors.
DIAMOND — 8

This first analyst contacted the submitting officer and requested that he

provide a corrected submission form. 

While waiting for the revised form, Gooden worked on the case. 

Pursuant to common lab practice, Gooden analyzed the blood sample,

drafted a blood alcohol report, and set the case aside without signing the

report until the officer could resolve the name discrepancy. Like the first

analyst, Gooden noted the discrepancy. First, she labeled the blood

evidence to indicate that the analysis was complete but was being held

pending the revised submission form. Second, she corrected the batchtechnical-review report by crossing out Roman-Reyna’s name and

handwriting Hurtado’s name.

However, about a month later, Gooden mistakenly signed the

“certificate of analysis” on the blood alcohol report she had previously set

aside. She then placed the report in the queue for review. The report

corresponded to the incorrect defendant listed in the case submission

form (Roman-Reyna). But the case folder correctly noted the name of

the defendant who had provided the blood sample (Hurtado). That same

day, William Arnold, the lab’s interim toxicology manager, conducted both

the technical and administrative reviews of the case. Arnold did not catch

that the report had been submitted under the wrong defendant’s name. 
DIAMOND — 9

And he approved it, causing the erroneous report to be released in LIMS.

A few weeks before Appellant’s trial, Gooden noticed that a blood

sample belonging to Hurtado had been set aside with a note in her

handwriting: “Waiting on Officer Reply already analyzed. —Andrea.”

Right away, Gooden investigated. And after researching in LIMS, she

discovered that the blood alcohol report had been released to prosecutors

handling the case involving Roman-Reyna. Gooden immediately notified

her superiors. The next day, Arnold emailed Gooden telling her to

document what went wrong: 

Until 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.

***

Generate a document with your findings in memo format in as

much detail as you can accurately recall and/or demonstrate

via existing documentation.

Gooden took this email to mean that she was temporarily removed from

casework to draft the memo and ensure the related case documentation

was placed in the file. Arnold did not otherwise document this action or

disclose it to the District Attorney’s Office. 

The following day, Gooden sent Arnold her memo and assumed she
DIAMOND — 10

could return to her casework. But a few days later, Arnold told her that

although the issue was resolved, she could not return to casework

because he and others up the chain of command needed to review her

memo. Gooden therefore worked on discovery orders in other cases but

did not analyze blood. At the time, Arnold was aware that Gooden was

due to testify in Appellant’s upcoming case. The following week, Gooden

testified in Appellant’s trial. It was the first time she had testified in a

case. Arnold observed Gooden’s trial testimony but did not testify

himself.

After Appellant’s trial, Arnold made a number of claims related to

Gooden’s work status and competency as an analyst. Specifically, during

his habeas testimony, Arnold claimed that at the time Gooden testified in

Appellant’s trial, she was “suspended” from casework due to the Hurtado

incident and his concerns about her overall knowledge base. But the

habeas court did not believe Arnold. It found that at the time of

Appellant’s trial, Gooden had been temporarily removed from casework

to document the Hurtado error. And Arnold’s use of the term

“suspended” or “under suspension” to describe Gooden’s work status was

“suspect” and “unpersuasive.”

Moreover, the investigations by the OIG and TFSC showed that
DIAMOND — 11

Arnold provided inconsistent reasons for removing Gooden from

casework, long before his habeas testimony.11 Before Appellant’s trial,

Arnold told Gooden that it was so she could focus solely on documenting

the issues surrounding the Hurtado incident. Yet after Appellant’s trial,

Arnold told Gooden (twice) that it was due to her trial testimony. Then,

after Gooden had contacted the American Society of Crime Lab Directors

(ASCLD), self-disclosed to the TFSC, and communicated with the lab’s HR

director about returning to casework,12 Arnold said that her “suspension”

was due to the Hurtado incident coupled with his concerns about her

knowledge base.13 But this was the first time that Gooden was labeled as

“suspended.” And despite his claims that he had been having doubts

about her ability to testify, Arnold let Gooden testify in Appellant’s trial

a few weeks after he had allegedly formed these concerns.14

11 Notably, reports by the Texas Forensic Science Commission are inadmissible in a civil

or criminal action. TEX. CODE CRIM. PROC., art. 38.01 § 11. However, they were admitted

without objection at the hearing on Appellant’s application for a post-conviction writ of habeas

corpus. The habeas court relied upon these reports in reaching its conclusion, and neither party

challenges the propriety of the admission of the report in this case.

12 After Gooden had met with the lab’s Human Resources (HR) director about returning

to casework, Arnold insinuated to the HR director that it was due to concerns related to her

ability to testify. Rather than document his concerns, he said that he preferred Gooden be

retrained until he was comfortable that she would do well on the stand.

13 This contradicted the HFSC Lab Director’s representation made a few days earlier to

the TFSC that Gooden was removed due to concerns about her ability to testify in court, not

because of the Hurtado incident. 

14 According the TFSC report, while off casework, Gooden testified in three trials and “on

subsequent occasions as well.”
DIAMOND — 12

The investigation by the TFSC also showed other reasons for

discounting Arnold’s description of events. Among them, Arnold

attempted to blame Gooden for the reporting error in the Hurtado case. 

Yet, all interviewees who participated in the TFSC’s investigation believed

Gooden to be a competent analyst who was “unfairly blamed.” The

prevailing view was that Arnold was supposed to catch the errors in the

report, such as the wrong name, during his technical and administrative

reviews of the case.15 He did not. Specifically, Arnold had not reviewed

the case in sufficient detail: he failed to notice that the incident number

on the report did not match the blood vials; that the alleged suspect in

the submitted incident form only had a breath test rather than a blood

draw; that the first analyst had noted the name discrepancy in the case

folder; and that this case was from an earlier batch-technical-review

report from December (on which Gooden had hand-written Hurtado’s

name as a correction). Arnold also failed to make a connection between

previous inquiries about missing evidence in the Hurtado case and the

information noted in the case folder.16

 

15 As explained in the TFSC report, the purpose of the administrative review is to identify

errors exactly like the one that had occurred here. 

16 A little over a week before Arnold conducted his reviews, the Harris County ADA

assigned to the Hurtado case sent an email to the lab requesting the results associated with the

blood alcohol evidence for Hurtado because he could not find the results in LIMS. The lab
DIAMOND — 13

Moreover, only days after approving the erroneously certified report,

Arnold received an email from the submitting officer about the missing

blood evidence for Hurtado. In it, the officer explained that “the

[Hurtado] case was mixed up with another case” due to his error on the

submission form.17 This email did not trigger any follow-up or

investigation in LIMS by Arnold. The first analyst said it was her

understanding that Arnold was taking over any necessary follow-up on

the case. About one month before Appellant’s trial, Arnold received

another email from the submitting officer. It stated that the blood

evidence belonged to Hurtado—just as the first analyst and Gooden had

noted in the case folder. Once again, Arnold did nothing about it. 

Because of Arnold’s inaction, Hurtado’s blood-alcohol results remained

incorrectly assigned to Roman-Reyna in LIMS. 

Then, a few weeks before Appellant’s trial, Gooden told Arnold about

the mistake in the released report. Although he withdrew the report from

LIMS before it had been accessed by the prosecution, Arnold took no

employee who received the ADA’s inquiry forwarded it to Arnold. In his email to the ADA,

Arnold confirmed that he was also unable to find the case in LIMS and requested the name of

the submitting officer. Five days later, the ADA responded with the submitting officer’s name. 

That same day, Arnold sent an email to the submitting officer inquiring about the blood

evidence for Hurtado, which at the time appeared to be missing since it was in LIMS under the

wrong defendant’s name.

17 See supra, note 11.
DIAMOND — 14

additional steps to fix the report. The report remained uncorrected for

months.

The trial court considered this evidence and denied Appellant’s

habeas application.

APPEAL

On appeal, Appellant argued that the habeas court erred in

concluding that the undisclosed evidence was neither favorable nor

material.18In its substitute majority opinion, the court of appeals agreed

and reversed the habeas court’s denial of Appellant’s writ application,

granted habeas relief, and remanded the case for further proceedings.19

The court concluded that the undisclosed evidence was favorable because

Appellant could have used it on cross-examination to impeach portions

of Gooden’s testimony or to get the trial court to exclude her testimony

18 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith

of the prosecution”).

19 Diamond v. State, 561 S.W.3d 288 (Tex. App.—Houston [14th Dist.] Oct. 23, 2018)

(substitute op.). Originally, the Fourteenth Court of Appeals issued a published opinion

affirming the denial of habeas corpus relief in May 2018. Diamond v. State, 2018 WL 2050392

(Tex. App.—Houston [14th Dist.] May 3, 2018), opinion withdrawn and superseded by Diamond

v. State, 2018 WL 4326441 (Tex. App.—Houston [14th Dist.] Sept. 11, 2018) (op. on reh’g). 

After the court of appeals had issued its opinion, the court of appeals granted rehearing and

issued published opinions reversing the denial of habeas corpus relief in September 2018. 

Diamond, 2018 WL 4326441, opinion withdrawn and superseded by Diamond, 561 S.W.3d 288. 

The State then moved for rehearing. The court of appeals denied the State’s motion for

rehearing, withdrew its September opinions, and issued published substitute opinions reversing

the denial of trial corpus relief in October 2018. Id. These October opinions are the subject of

the State’s petition.
DIAMOND — 15

entirely. 

In making this determination, the court of appeals relied heavily on

Arnold’s testimony that he lacked confidence in Gooden’s overall

knowledge base. The court also concluded that the undisclosed evidence

was material because Gooden’s testimony was necessary for the jury to

make an affirmative finding on the special issue of whether Appellant’s

BAC level was 0.15 or more. 

Justice Donovan dissented. He concluded that the undisclosed

evidence was not favorable because it would not impeach the evidence

that Appellant’s blood was analyzed correctly and that Appellant had a

BAC level of 0.193. This was especially true given the habeas court’s

findings of fact that the blood samples were labeled as Appellant’s and

that there was no evidence of any errors in Gooden’s analysis of

Appellant’s blood. Moreover, the court was obligated to defer to the

habeas court’s credibility assessment of Arnold—which included the

finding that Arnold’s claims disparaging Gooden were not credible. Thus,

according to the dissent, the undisclosed evidence was not material

because the likelihood of a different result was not great enough to

undermine confidence in the outcome of the trial.

STANDARD OF REVIEW
DIAMOND — 16

An appellate court reviewing a habeas judge’s ruling in an article

11.09 application for writ of habeas corpus must view the evidence in the

record in the light most favorable to the judge’s ruling and must uphold

that ruling absent an abuse of discretion.20 An appellate court affords

almost total deference to a habeas court’s factual findings when they are

supported by the record, especially when those findings are based on

credibility and demeanor.21 This degree of deference also applies to any

implied findings and conclusions supported by the record.22 However, if

the resolution of the ultimate question turns only on the application of

legal standards, the appellate court reviews those determinations de

novo.

23 The reviewing court will uphold the habeas court’s ruling if it is

20 See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006) (Article 11.072);

Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (Article 11.08).

21 Ex parte Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011). See also State v.

Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (We afford this level of deference “even

when no witnesses testify and all of the evidence is submitted through affidavits, depositions,

or interrogatories.”).

22 Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). See also Ex parte

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (stating that reviewing courts should

grant deference to implicit factual findings that support the trial court’s ultimate ruling, but they

cannot do so if they are unable to determine from the record what the trial court’s implied

factual findings are), overruled on other grounds by Ex Parte Lewis, 219 S.W.3d 335 (Tex. Crim.

App. 2007).

23 Ex Parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997).
DIAMOND — 17

correct under any theory of applicable law.24 Determining whether

particular evidence was “material” as part of a claimed Brady violation is

a mixed question of law and fact.

25 We give deference to the habeas

court’s factual findings underlying its decision but review the ultimate

legal conclusion of materiality de novo.

26

We have previously addressed a significant distinction between the

posture of article 11.07 habeas cases and other (non-death) habeas cases

when it comes to the standard of review.27In article 11.07 habeas cases,

the habeas court is the original fact finder but this Court is the ultimate

fact finder.28 The habeas court’s findings are not automatically binding

upon us, although we usually accept them if they are supported by the

24 Ex Parte Beck, 541 S.W.3d at 852 (citing Absalon v. State, 460 S.W.3d 158, 162 (Tex.

Crim. App. 2015)).

25 Ex parte Weinstein, 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014). See also

Summers v. Dretke, 431 F.3d 861, 878 (5th Cir. 2005) (“Whether evidence is material under

Brady is a mixed question of law and fact.”); United States v. Sipe, 388 F. 3d 471, 479 (5th Cir.

2004) (“Whereas we typically analyze legal issues de novo, a Brady determination is inevitably

a contextual inquiry, involving questions of both law and fact. Moreover, it is intimately

intertwined with the trial proceedings: because the court must judge the effect of the evidence

on the jury’s verdict, the Brady decision can never be divorced from the narrative of the trial.”);

United States v. Severns, 559 F.3d 274, 278 (5th Cir. 2009) (“[W]here the motion for a new

trial is based on an alleged Brady violation, the Brady determination is ‘inevitably a contextual

inquiry, involving questions of both law and fact.’ While we examine the Brady question de

novo, ‘we must proceed with deference to the factual findings underlying the district court’s

decision.’”).

26 Ex parte Weinstein, 421 S.W.3d at 664 n.17. 

27 See Ex parte Garcia, 353 S.W.3d at 787 (Article 11.072).

28 Id. at 787–88.
DIAMOND — 18

record.29 But in other (non-death) habeas cases, the trial judge is the

sole fact finder.30 The court of appeals and this Court are truly appellate

courts.31 We have less leeway in these cases to disregard the habeas

court’s findings.32

BRADY CLAIM

An applicant for a post-conviction writ of habeas corpus bears the

burden of proving her claim by a preponderance of the evidence.33 To

demonstrate that she is entitled to post-conviction relief on the basis of

reversible error under Brady, a habeas applicant must show that (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.34

As we stated in Ex parte Miles, “Favorable evidence is that which,

if disclosed and used effectively, ‘may make a difference between

29 Id.

30 Id. at 788.

31 Id. 

32 Id.

33 Ex parte Torres, 483 S.W.3d 35, 43 (2016); Ex parte Lalonde, 570 S.W.3d 716, 725

(Tex. Crim. App. 2019).

34 Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012).
DIAMOND — 19

conviction and acquittal.’”

35

Favorable evidence includes both exculpatory

evidence and impeachment evidence.36 Exculpatory evidence is that

which may “justify, excuse, or clear the defendant from fault,” while

impeachment evidence is that which “disputes, disparages, denies, or

contradicts other evidence.”37 

The nondisclosure of favorable evidence violates due process only

if it is “material” to guilt or punishment.

38 Evidence is material only if

there is a reasonable probability that, had it been disclosed, the outcome

of the trial would have been different.

39

“A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.”40

Materiality is determined by examining the alleged error in the context of

the entire record and overall strength of the state’s case.41 The

suppressed evidence is considered collectively, not item-by-item.42

35 Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)).

36 Id. 

37 Id. (citing Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) and Thomas

v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)).

38 Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011).

39 Id. at 809.

40 Ex Parte Lalonde, 570 S.W.3d at 724.

41 Id. (citing Harm, 183 S.W.3d at 409).

42 Ex parte Miles, 359 S.W.3d at 666; Pena, 353 S.W.3d at 812.
DIAMOND — 20

ANALYSIS

After viewing the evidence in the light most favorable to the habeas

court’s ruling, we hold that the habeas court was within its discretion to

conclude that the undisclosed evidence was not material.

43 The writ

record generally supports and confirms this conclusion.44 The undisclosed

evidence Appellant complains about is (1) Gooden’s certification of a

report in another case that contained a labeling error by the submitting

officer; and (2) Gooden’s temporary removal from performing her regular

job duties to provide documentation regarding that error.

Looking at the evidence in the light most favorable to the habeas

court’s ruling, there was overwhelming evidence of Appellant’s

intoxication to support the jury’s finding of guilt regardless of Gooden’s

testimony.45 Appellant was speeding and made several unsafe lane

43 See Ex parte Weinstein, 421 S.W.3d at 664 n.17 (we give deference to the habeas

court’s factual findings underlying its decision but review the ultimate legal conclusion of

materiality de novo); Kniatt, 206 S.W.3d at 664 (an appellate court reviewing a trial judge's

ruling on a habeas claim must uphold that ruling absent an abuse of discretion); Ex parte

Garcia, 353 S.W.3d at 787–88 (appellate courts have less leeway in an article 11.072 context

to disregard the habeas court's findings because the habeas judge is the sole fact finder). 

44 The habeas court found that “Arnold’s representation that Gooden was removed from

casework ‘for concerns regarding testimony independent from the case with the name error do

not comport with the timeline of facts.’” According to the TFSC Report, the Lab Director, not

Arnold, made this representation. This is a distinction without a difference because Arnold

made the same representation to Gooden two times after she had testified for the first time in

Appellant’s trial. 

45 Appellant does not argue that the undisclosed evidence is material to punishment. 

Instead, she argues that it is material to the conviction —“Without any evidence of Appellant's

BAC, the jury probably would have acquitted appellant.” Appellant’s Br. 55.
DIAMOND — 21

changes without signaling. Despite the officer’s illuminating lights, she

took a long time to stop her vehicle. When she exited her vehicle,

Appellant was visibly intoxicated: her eyes were red and glassy, her

speech was slurred, and she appeared confused. She and her car smelled

strongly of alcohol. She admitted that she had been drinking. She had

one open can and two cold, unopened cans of beer in her vehicle. She

had lost the normal use of her mental faculties: she was incoherent and

unable to remember where she was coming from or the medicine she had

taken. She had also lost the normal use of her physical faculties: she

staggered, could not keep her balance when she stepped out of her car,

and failed both of the field sobriety tests. Appellant argues that the

testimony from Officer Bounds describing this evidence was weak because

he lacked credibility, but the habeas court rejected that argument. The

undisclosed evidence impeaching Gooden would not have impeached the

testimony describing Appellant’s intoxicated state.

The habeas court’s findings of fact regarding Gooden’s analysis and

testimony also support the conclusion that the undisclosed evidence was

not material to the jury’s special-issue finding that Appellant’s BAC was

0.15 or more. First, the habeas court found that there was no evidence

of any error in the labeling of Appellant’s blood or Gooden’s analysis of
DIAMOND — 22

Appellant’s blood. This finding is supported by the record. Appellant’s

blood vials were labeled with the officer’s initials, Appellant’s name, and

the case number. The vials were placed into an envelope labeled with

Appellant’s name and correct case number, sealed with tape, and

delivered to a secure lockbox. Gooden retrieved the envelope, which

showed no signs of tampering. Prior to testing Appellant’s blood, Gooden

verified that the name on the envelope matched the name on the blood

vials inside; it was Appellant’s. Gooden followed all of the lab’s standard

operating procedures when analyzing Appellant’s blood. Her analysis of

Appellant’s blood sample revealed a blood alcohol level of 0.193.

Moreover, Gooden’s error in the Hurtado case was a protocol error

regarding the certification of the report as complete. It was not a

mislabeling or analysis error. The officer, not Gooden, had mislabeled the

submission form accompanying the blood evidence. The correctness of

Gooden’s analysis of that evidence in the Hurtado case was never in

question. Finally, Gooden’s certification only moved the report to the

next stage; the report still had to be administratively and technically

reviewed, and then approved, before it was released.

Furthermore, the habeas court, as the exclusive judge of the

credibility of the witnesses, determined that Arnold’s description of events
DIAMOND — 23

and his views regarding Gooden’s performance were not credible.46 The

habeas court rejected Arnold’s purported reasons for removing Gooden

from casework, including his alleged concerns about her knowledge base

and inability to answer basic questions. Instead, it found that at the time

of Appellant’s trial Gooden “had simply been removed to focus solely on

documenting the issues surrounding an unrelated mislabeled blood

case.”47 The habeas court also rejected Arnold’s characterization of

Gooden’s work status. It found Arnold’s use of the term “suspended” or

“under suspension” to describe Gooden’s work status at the time of

Appellant’s trial “suspect and unpersuasive.”

The habeas court’s credibility assessment of Arnold, and the findings

based upon it, are supported by the record.48In its report introduced at

the hearing on the habeas application, the TFSC found Arnold

46 See Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996) (“Virtually every

fact finding involves a credibility determination. We have repeatedly recognized that the fact

finder is the exclusive judge of the credibility of the witnesses.”). Because the habeas judge

here personally presided over both Appellant’s trial and the habeas proceeding, he was

well-positioned to make this credibility decision. See Ex parte Wheeler, 203 S.W.3d at 325–26.

47 This is the only fact finding challenged on appeal. Appellant does not challenge the

habeas court’s other findings—including those detailing the events surrounding the Hurtado

report, the reports of the OIG and TFSC, and correspondence between Arnold and Gooden.

48 See Ex parte Mowbray, 943 S.W.2d at 465 (“In habeas hearings, the judge determines

the credibility of the witnesses and if the habeas judge’s findings of fact are supported by the

record, they should be accepted by this Court.”).
DIAMOND — 24

professionally negligent, not Gooden.49 All interviewees participating in

the TFSC’s investigation believed Gooden to be a competent analyst who

was unfairly blamed for the reporting error in the Hurtado case. In

contrast, Arnold provided inconsistent explanations regarding why

Gooden was removed from casework.

Given the habeas court’s findings of fact and determinations of

credibility, we agree with the State that the undisclosed evidence would

not have been material impeachment evidence against Gooden sufficient

to undermine her testimony regarding the accuracy of Appellant’s blood

results.50 Gooden’s certification of the Hurtado report was a one-time

incident in an unrelated case.51 Appellant’s blood sample and subsequent

report contained no labeling errors. And Gooden’s temporary removal

from casework at the time of Appellant’s trial does not overcome the fact

that there was no evidence of any error in Gooden’s analysis of

Appellant’s blood. Finally, Arnold’s claims regarding his concerns about

49 Again, Appellant complains about Gooden’s certification error, not Arnold’s, who did

not testify at Appellant’s trial.

50 Cf. Ex parte Hobbs, 393 S.W.3d 780, 781 (Tex. Crim. App. 2013) (per curiam)

(concluding that the lab technician’s actions were unreliable because he had not followed

accepted standards when analyzing the evidence, which resulted in a due process violation).

51 See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) (holding that it is not

appropriate to presume falsity and materiality in every case on which a forensic scientist, who

has been found to have committed intentional misconduct in more than one case, has worked). 
DIAMOND — 25

Gooden’s knowledge base were not credible and therefore do not

undermine the reliability of her testimony that Appellant’s BAC was

0.193. Whatever impeachment value this new information had to

undermine Gooden’s testimony, it was nevertheless not material.

We agree with the State that the court of appeals placed too much

weight on Arnold’s testimony in its analysis even though the habeas court

found Arnold lacked credibility. While the court of appeals did not have

to defer to the habeas court’s conclusion regarding the legal

determination of materiality, the factual findings underlying that legal

conclusion support the habeas court’s denial of relief. Viewing the habeas

court’s factual findings with the proper degree of deference, we hold that

the habeas court properly concluded that Appellant failed to carry her

burden to establish that the undisclosed evidence was material.

CONCLUSION

Based upon the habeas court’s factual findings, the undisclosed

evidence at issue in this case was not material. Gooden’s analysis and

testimony in Appellant’s case was proper and reliable. Her error in the

unrelated case had to do with an improper certification of a report rather

than a failure to catch a mislabeling of a blood sample. And there was

overwhelming evidence of Appellant’s intoxication to sustain Appellant’s
DIAMOND — 26

conviction for Class A misdemeanor DWI. Consequently, we reverse the

judgment of the court of appeals and affirm the habeas court’s ruling.

Delivered: December 16, 2020

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