## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-82,025-01

EX P ARTE JACOB SCOT T YOUNKER, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 06-DCR- 045589 HC1 IN THE 268T H DISTRICT COURT FROM F ORT BE ND COUNTY

Per curiam . Newell, J., not participating . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d g uilty to possession of less than one g ram of coca ine, and was sentenc ed pursuant to Section 12.44(a) of the Texas Penal Code to seventy -five da

y s in county

jail. He did not appea l his conviction. Although Applicant has discharg ed his sentenc e in this case , he has alleg ed that he is suffe ring collater al conseque nces from this conviction sufficie nt to allow this Court to consider his claims by way of habe as cor

pus. Ex parte Harrington , 310 S.W .3d 452 (Tex. Crim. App. 2010). Applicant contends that he was denied due proce ss beca use the lab tech who tested the2

evidenc e seized in this case was J onathan Salvador, who h as since been discredited based on misconduct. The trial court conducte d a habea s hear ing, and deter mined that the infere nce of falsity in this case has not been sufficie ntly rebutted by the State. See Ex parte Coty , 418 S.W .3d 597 (Tex. Crim. App. 2014). The tria l court re commends that re lief be grante d. I n Ex parte Barnaby , No. WR-80,099-01, ___ S.W .3d ___ (Tex. Crim. App. November 4, 2015), this Court hel d that materia lity of false evidenc e in the context of a guilty plea should be examined unde r the same standard used to a ssess materia lity of counsel' s defic ient perf ormanc e in the context of a g uilty plea: if the applicant had known that the evidenc e was false (i.e., "but for" the false e vidence ), he w ould not have plea ded guilty but would have insisted on g oing to tria l. I n this case , althoug h Applica n t d i d n ot specific ally alleg e that his plea of g uilty was involuntary , he prepa

red and litigated his application for writ of habea s corpus without the benef it of this Court’s opinion in Barnaby. L ikewise, the trial court rec ommends that relief be g rante d without the benef

it of th i s C ourt’s Barnaby opinion. There fore , additional finding s of fac t are

nece ssary in order to r esolve the issue in this case

. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I n the appropr iate case , the trial court may rely on its persona l

rec ollection. Id

. I f the trial court e lects to hold a hea ring , it shall determine whe ther Applica nt is indig ent. I f Applicant is ind i gen t and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t and conclusions of law as to whether Applicant3

would have pleaded guilty in this case ha d he known that the la b repor t contained f

alse e vidence

. The trial court shall also make any oth er fi n d i ng s of fac t and conclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A s u p p l em en t al transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Apr il 6, 2016 Do not publish