Pena v. State

their view the pros- charge. allowable unit of judgment We affirm the ecution statutory appeals. under the court of change to be Throughout enacted H.B. 8. House and HERVEY, J., not participate.

Senate floor did debates and committee hear- ings, the rhetoric of H.B. 8’s co-authors supporters belies an understanding

that the statute would allow for more than capital

one charge per murder criminal

transaction, regardless of the number of

victims killed. example, For during a Sen- debate,

ate floor an unidentified Senator characterized the bill as an “attempt PENA, Appellant, Jose punish very serious multiple offense of killings.” See Senate Floor Debate on Texas, Appellee. The STATE of April H.B. then, Clearly 1985.6 H.B. supporters 8’s understood the statute to No. 10-03-00109-CR. single capital allow for a prosecu- murder Texas, Appeals Court of tion when the allowable unit of prosecution Waco. of “more than one” murder was met.

April 2005. Holding

The most reasonable interpretation of legislative

the statute that, and its intent is presented here,

under the circumstances

the statute a single capital allows

murder conviction. Accordingly, we hold Jeopardy the Double Clause of the when,

Fifth Amendment was violated charged appellant sepa- with three capital

rate counts of murder under Sec- 19.03(a)(7)(A)

tion charges because the

rely on the same three murders for each Representatives, Leg., of the House of torney, 69th spoke of a case in Houston in which (March 1985) ("All simply R.S. do family four members were murdered say any person House Bill 8 is during According that's the same to Lam- incident. multiple committed of bright, [sic] a murder such as "that murder does not fit within one of eligible mass ... murders should at least the enumerated sections within our current penalty.”) (speech Rep. Tony for the death capital murder that would elevate that statute Polumbo). capital Hearing on Tex. murder.” offense Comm., H.B. 8 before the House Crim. Jur. Similarly, (Feb. 11, 1985) testifying Leg., (testimony before the House Crimi- 69th R.S. Committee, Jurisprudence George Attorney nal County Lam- Harris Assistant District bright, County George Lambright). a Harris Assistant District At-

respect to lost or evidence than Constitution, does the United States remand, will reverse though even record contains evidence of bad faith on of the law enforcement officials involved in Pena’s case. (1) argues

Pena the trial court by denying suppress erred his motion to (2) report; the lab trial by court erred denying his motion for new trial based upon his to a counsel’s failure assert (3) claim; speedy trial trial his counsel provided by ineffective failing assistance (4) claim; speedy assert a trial the trial by court denying erred his motion for new upon trial based his counsel’s failure to request jury a instruction on mistake of (5) fact; his provided trial counsel ineffec- by failing request tive assistance a jury (6) of'fact; instruction he mistake was denied due process because the State provide failed accurate copy a Blazek, Smither, Frank Martin & videotape depicting the circumstances of Henderson, Huntsville, appellant. for stop his and arrest. Ray Montgomery, County Leon Dist. Destruction of Evidence

Atty., Centerville, for appellee. Missing Files GRAY, Before Chief Justice Justice argues Pena in his first issue that he VANCE, and Justice REYNA. denied due and due course of

law by deny- because the trial court erred OPINION ing his suppress. motion to September 1998, Trooper Mike REYNA, FELIPE Justice. Asby stopped traffic violation. Pena charged possession Jose Pena was with vehicle, Asby When approached the of marihuana. Before Pena request- Asby smelled the odor of raw marihuana. ed an independent analysis of the evidence. freshly looked inside van Pena’s and saw Thereafter, it was discovered al- cut covering cargo marihuana the entire leged marihuana had been Though repeatedly Asby area. Pena told all documenting testing records marihuana, plant that the material was not excepting report. evidence were lost laba ear, Asby patrol arrested Pena. In the The trial court denied Pena’s motion to again plants Pena claimed that the were suppress report, the lab and Pena was Asby not marihuana and asked to make convicted. plants sure that the mari- were tested for Because conclude Asby that the due huana in a took plants lab. Mott, course clause the Texas report- Constitution Charles who them and tested provides greater protection February level of ed in materi- plant 1999 that the that the to the trial court argued marihua- Pena of usable yielded pounds al 28.46 concerning the testimony all report, and na. suppressed because report, should be In March Pena filed a motion violated of the marihuana destruction material, plant independently examine Unit- guaranteed rights granted. which trial court Thereafter The Texas Constitutions. ed States plant material it was discovered that the Pena’s motion. trial court denied relating had and all to material records destroyed. All that remained was been Standard plant material report stating lab of excul The loss or destruction Mott, marihuana, sent signed deny a criminal defen can patory evidence Asby. from the lab to Four of law under the process due dant Pena filed a motion Subsequently, Const, amend. teenth Amendment. U.S. At a suppress report. pre-trial Mott’s Therefore, duty the State has XIV. motion, testified hearing on Pena’s Mott preserve exculpatory evidence. California and personally that he tested material 488-89, 479, Trombetta, 104 467 v. U.S. it of marihua- pounds found that was 23.46 (1984); 2528, 2534, 413 S.Ct. 81 L.Ed.2d Yet, to recall the mate- na. he was unable State, 579, 50 v. Jackson memory, mate- weight rial’s from how the refd). 2001, pet. (Tex.App.-Fort Worth contained, he took samples rial was or how However, duty to evidence is limited testing. He also could not recall when (1) value exculpatory that an- possesses it was tested. before the evidence was apparent that was entry, upon computer Based Mott tes- (2) nature that destroyed and is of such a dispose he tified that received a notice to to obtain the defendant would be unable February of the evidence reasonably other comparable entirely destroyed in Trombetta, that it was March of at U.S. available means. However, year. 2534; Mott conceded 488-89, v. McDonald 104 S.Ct. at he did not know who sent notice 541, (Tex.App. only plant 1993, stated that not was material pet.). no Dist.] [1st Houston containing destroyed, but the entire file established, duty preserve Once the destroy, original the notice to work- to the standard articulated we then turn letters, sheet, reports, and submission Supreme Court by States United had forms was lost. He admitted 51, Youngblood. 488 U.S. Arizona since, but he never occurred before or (1988). 333, 102 L.Ed.2d S.Ct. missing the cause of the files attributed 1985, year boy was abducted and old ten building. his a new lab’s recent move to at at 334. molested. Id. S.Ct. samples judicial and semen were notice of the of blood The trial court took Swabs boy’s clothing which preserved, but fact there was destruction order at samples not. Id. trial file. The also contained from the court the clerk’s boy at 335. The identified attorney, Ray Montgomery, testi- S.Ct. district attacker, and he was Youngblood sign not order or an order fied that did preserved on the Asby, Id. tests of the evidence. arrested. for the destruction inconclusive, Young- person samples proved that Mott believed other destruction, boy’s on the identifica- testi- blood was convicted requested could at 335. at 109 S.Ct. signing tion alone. Id. that he not remember such fied did Arizona Court argued to the Youngblood an order. Appeals that he was denied damental proceedings fairness of the because the police preserve reject did not soon echoed choosing states evidence on the boy’s interpret- standard when clothing. Id. The respective their agreed, conviction, Court clauses. reversed his Likewise, will decide whether the Arizona Court denied the Youngblood analysis applies to the due petition. State’s Id. at S.Ct. course clause the Texas Constitution. 336. The United States Supreme Court re- The Due Course Clause of the versed Arizona Appeals, Court of hold- Texas Constitution ing that a defendant must show bad faith The Texas constitution in must be order for a terpreted independently of the U.S. Con court to find of poten- destruction stitution. Hulit tially useful evidence is a denial of due so, (Tex.Crim.App.1998). In doing process. Id. at 109 S.Ct. at Fol- may be found that the Texas Constitution’s lowing Brady, the Court reasoned that if protections lesser, greater, are or the same evidence is material ex- by those offered the federal constitu culpatory, then whether the evidence was State, tion. See Heitman v. destroyed in good or faith is bad irrele- 681, 690 (Tex.Crim.App.1991) (stating Tex 57, vant. Id. at (citing 109 S.Ct. at 337 dependent as constitution is not on federal 87, Brady 83, v. Maryland, 373 U.S. constitution for of purposes search and 1194, (1963)). 1196, S.Ct. 10 L.Ed.2d 215 protections); seizure Sanchez v. n However, if destroyed evidence is 575, (con 580 (Tex.Crim.App.1986) useful,” merely “potentially the accused struing right against the Texas self-incrim must show that the in State acted bad faith broadly ination more than correlative .the it preserve when failed to the evidence in provision, federal but restricting this hold order to show a violation process of due court). specific to the issues before the 58, Jackson, 337; law. at Id. at S.Ct. Indeed, language “the of the Texas [due Furthermore, 50 S.W.3d at 588-589. if constitutional provision course] is different destroyed is in good faith and in from, arguably significantly broader police procedures, accord with normal than, language of the corresponding process there is no due violation. See provisions.” City federal Mesquite v. Trombetta, at 467 U.S. at S.Ct. Castle, Inc., 283, 293, Aladdin’s 455 U.S. 1070, 1077, 102 S.Ct. L.Ed.2d (1982); contra, see Univ. Tex. Med. Sch. Justice concurring opinion Stevens Than, (Tex.1995). stated that agreed Young- while he blood was not denied due process, he disa- In interpreting protections of the greed with the rule of by law set forth the Texas due course clause when the State majority as Youngblood, too broad. evidence, or destroys loses at look oth- 60-61, at my U.S. 109 S.Ct. at 339. “In- jurisdictions er interpreted that have their opinion, may there well be cases in which broadly state constitutions more than its prove the defendant is unable to that the counterpart. federal faith, State acted in bad but which the Rejection Youngblood or loss destruction of evidence is nonethe- by Other Jurisdictions less so critical to the defense as make a fundamentally criminal trial decision, unfair.” Id. Shortly Youngblood after rejected Justice Stevens’s concerns about the fun- applying number states evidence, and thus many of useful Youngblood,standard.1 One of the struction effect, encour- rejection deterrent but for a loses its promulgated reasons Alaska loss of evidence. ages designed practical impossibility Youngblood the Youngblood standard found that has police. on proving bad faith de- an incentive to give could has specifically While bad faith not been in order stroy useful evidence potentially Court, many by defined at “The State’s case trial. to bolster the states have used the dicta in Trombetta the unfor- Youngblood could have decision working definition. Bad formulating encouraging the destruc- tunate effect of faith is found when an officer demon- that evidence of evidence the extent tion the ac- strates “official animus” towards use- merely potentially becomes cused, suppress or “a effort to conscious unprova- ful since its contents would be Rodriguez exculpatory evidence.” Safety, Dept, Thome v. Public ble.” 03-97-00180-CR, No. 1998 WL (Alaska 1989 n .- n. 9 774 P.2d at *10 Tex.App. Lexis 3602 11, 1998, pet.) June (Tex.App.-Austin re- Another reason touted the states (not publication) (citing designated requirement jecting Youngblood is Trombetta, 104 S.Ct. at U.S. test man- operates faith as a litmus of bad 2533). standard, why it is clear Given this even when dating no due violation Youngblood despaired rejecting the states fun- concerning the questions exist serious finding ever a due violation. the trial. damental fairness of police, “Short of admission no consideration of the materiali- “permits unlikely that a defendant would ever be evidence, ty missing or its effect necessary showing to make the substantially able the defendant’s case.... [It] prov- required burden, establish the for elements re- the defendant’s while increases State, ing Lolly bad faith.” v. 611 A.2d prosecution’s at the ex- ducing the burden 956, (Del.1992); 2 960 Ferguson, right State v. fundamental of the defendant’s pense (Tenn.1999) 912, 2 (finding 917 at Ferguson, a fair trial.” difficult). extremely proving faith is bad 916-17.

Also, difficulty approaches a case proving Even if defendant’s because faith, faith, adequate proof gross Young- bad some states found that bad such disregard, a due being negligence reckless blood has immediate result of or Delga- cannot found. intentional violation preventing ineffective de- 1237, 680, test); (1981) (Ala. (three-part State v. Bar- Gingo, 683 Ex Parte 605 So.2d 1241 nett, 774, (N.D.1996) 1992) (adopting Youngblood 543 N.W.2d 777-778 with a “Stevens” a ex- exception: showing required (adopting if with “Stevens” no of bad faith "system- ception exception-if there is is so and an the loss or destruction the evidence preserve disregard” duty to of the State's critical to the defense as to make a criminal ic 1200, 245, unfair); evidence); Or.App. P.2d fundamentally Dept, 966 Thome v. 156 trial Cheeseboro, 1326, (Alaska (1998); S.C. v. 346 Safety, 1204 State 774 P.2d 1330-31 Public 300, Morales, 526, (2001) (adopting 1989) test); S.E.2d 307 (balancing v. 232 552 State 707, 585, (1995) (bal- exception the defen- Youngblood with an if Conn. 657 A.2d 591-92 State, 956, test); compa- ancing Lolly dant cannot obtain other evidence v. A.2d 960 611 912, value); test); Ferguson, (Del.1992) v. (three-part balancing v. rable State State 671, 183, (Tenn.1999) (adopting the "Delaware” Matafeo, 673 917 71 Haw. 787 P.2d 180, test); A.2d (1990) Gibney, Vt. 825 State v. (adopting Youngblood with a “Ste- 32, (2003) State, (adopting the "Delaware” exception); 42-43 v. 118 Nev. vens” 536, Williams 758, Osakalumi, 1116, (defendant test); (2002) 194 W.Va. State 50 P.3d 504, (1999) (adopting the "Dela- prejudice); S.E.2d prove bad faith or undue must test). Chouinard, 658, 634 P.2d ware” 96 N.M. State State, 08-01-00455-CR, dillo v. No. faith, defendant can bad demonstrate 1375404, 5455, WL Tex.App. negligent LEXIS though even loss of evi- Paso, 2004, *11 (Tex.App.-El 17, prejudice may critically June dence pet. defen- refd) (not designated dant.2 publication) for (finding “clearly actions were 32, v. Gibney, 175 Vt. 825 A.2d faith); negligent,” but no bad Hebert v. (2003). 254 (Tex.App. find reasoning jurisdic- We of these refd) (hold 1992, pet. Houston [1st Dist.] persuasive. tions Our research has found

ing proof of negligence does not only two finding cases bad faith. faith). amount to bad parte Ex Brandley, 781 S.W.2d (Tex.Crim.App.1989) (finding the cumula- Delaware Court found tive investigative procedure effect of the place such scenario would the court deprived the defendant of in a position. difficult law); 13-98-154-CR, Robles v. No. The court must either find bad faith and 1999 WL LEXIS Tex.App. charges, despite dismiss the facts which -, 15-17 (Tex.App.-Corpus support only a finding gross negli- Christi, (not Oct.7, 1999, pet.) designat- gence, or deny find no bad faith and publication) ed (finding bad faith on the defendant the benefit aof favorable in- prosecution withholding po- ference, despite the loss of evi- material evidence). tentially useful dence due to the negligence. State’s researching Other scholars federal case situation, such a court left with an law have also found post-Youngblood few all leading or nothing proposition to two finding A. cases bad faith. See Elizabeth equally unsatisfactory results. Bawden, Today, Here Gone Tomorrow— Lolly, 611 A.2d at 960. Three Common Mistakes Courts Make It was this reasoning that led the Dela- When Police Lose or Destroy Evidence ware Supreme employ Court to a balanc- Value, Apparent Exculpatory 48 Clev. factors, test of certain the implementa- (2002) St. L.Rev. n. (citing tion of preservation which both the assures Bohl, (10th U.S. v. 25 F.3d for the convictions State and addresses Cir.1994) (finding faith because the bad those borderline situations otherwise with- case, “in facts and in the the evidence out a remedy. In agreeing See id. 'with - any explanation absence of innocent of- state, its sister held: Vermont by [gave] government, fered the rise to both

Youngblood is too broad and faith”); too logical conclusion bad U.S. (9th Cir.1993) narrow. It is too broad because would 983 F.2d Cooper, require imposition of sanctions even (finding government bad faith because the though defendant has demonstrated no unchallenged “[left] the district court’s prejudice from the lost evidence. It is conclusion acted in bad too narrow because it limits by faith allowing the de- [evidence] be violations to cases in stroyed assuring those which a while [the defendant] Nothing assailant, point Youngblood demonstrates this more than was not and he was Whitaker, Youngblood case Mr. After himself. set free. See Barbara DNA Frees Plea, Youngblood Reject Court denied the relief Inmate Justices N.Y. Years After 11, 2000) sought, years (Aug. he (quoting waited until A12 seventeen his Times forensics Blake, request granted unpreserved to have the Dr. now scientist Edward "We using clothing boy legal of the precedent abducted tested new before us a flawed that stands man_”). serological techniques. proved tests The on the shoulders of an innocent adopt police departments for attorney being held as incentive it was evidence”)). that ensure procedures operating standard preservation of proper collection in Also, findings negligence the recent evidence.”). by crime labs handling of evidence country, resulting in hesitation across involving in contraband cases Whether and concern for those individuals whose evidence, it is containing DNA or those with the work convictions were connected becoming increasingly clear that science labs, demands that courts exercise those ques- answering or death life capable analyzing when lost or caution alacrity thumb. of Caesar’s tions with Gershman, L. Fo- See Bennett evidence. consid- result, imperative it is that we As a The Use and Misuse Symposium: rensics of evidence care- or destruction er loss Evidence; Misuse Forensic Scientific Therefore, increasing fully. because Prosecutors, City by Okla. Evidence upon the ad- reliance of law enforcement (2003) (detailing problems U.L.Rev. science, and of the rea- vances of because labs). in the nation’s uncovered crime jurisdictions cited sons articulated in regard, problems In this several above, rejecting in join our sister states Syl- ignored. Texas crime labs cannot be interpret- persuasive as when Grow, Moreno, via Police Lab’s Troubles course clause the Texas in Problems Houston Lead to Moratorium Constitution. Executions, (Octo- Washington Post A3 2, 2004); Boyd, Experts ber Deanna Cite Analysis Balancing Test Lab, Fort Problems Crime Police Today, we hold that under the 2003). Telegram 1 (April Worth Star clause of the Texas Constitu due course recounting problems with crime labs preserve evi duty has a tion Florida, Phoenix, Kansas, York, New value, exculpatory has apparent dence that Houston, Baton Rouge quot- Advocate exculpatory evidence Melson, encompassing both ed attorney Ken U.S. eastern potentially useful Virginia, stating, “No wants a and evidence one case, Tanner, In either the evidence Houston their state.” Robert the defense. Lab Crime Problems Fuel More must of such a nature that the defen Call Regulation, The Rouge comparable Baton Advocate dant would be unable obtain 2003). (July A1 also reasonably It is clear that available other in crime negligence Trombetta, found labs means. See U.S. has in the of inno- Fisher, resulted incarceration 2534; Ill. 104 S.Ct. at see also cent citizens and convictions based 1200, 1202, 544, 548, 157 540 U.S. S.Ct. faulty Tilghman, evidence. See Andrew (2004). loss The or destruc L.Ed.2d Says Rape DA Labwork Led to Flawed of of evidence results a breach tion such (2004).3 Conviction, Houston Chronicle duty. more, entirely it is that possible What is of loss or destruc In the case the Youngblood may

the con- standard have evidence, exculpatory tion of of negligent tributed to the actions these a of such requires consequences Lembke, H. crime labs. See Matthew the State’s case. of breach be dismissal Culpability Role Police in Leon at at 1196. Brady, 373 U.S. S.Ct. 76 Va. See Youngblood, L.Rev. (“The (1990) potentially loss of useful Conversely, the provides test ry.mpl/special/crimelab/ 2823261. http://www.chron.com/cs/CDA/ssisto- evidence requires consideration of sever the State’s against conduct balanced the al factors consequences, to determine what degree of prejudice the defendant. any, if should flow from such Hammond, breach. Further, 569 A.2d at 87. while Ferguson, 2 S.W.3d at 917. agents the conduct of the State’s is a rele- consideration, vant it is not determinative. Keeping in mind the central ob Id. “Equally relevant is a consideration of jective protecting right the defendant’s evidence, the importance missing the fundamentally to a fair a trial court evidence, availability secondary the (1) degree should consider: of negli sufficiency pre- of the- other evidence (2) involved; gence significance sented at trial.” Id. light evidence considered in probative reliability value and of sec We now examine Pena’s case ondary available; evidence that remains parameters. under these A defendant has (3) sufficiency the other evi to an right independent absolute chemi dence support used at trial to the convic analysis cal alleged pos contraband in Id.; tion. Hammond A.2d session cases. (Del.1989). Terrell v. If after considering (Tex.Crim.App.1975). factors, Yet be these the trial court concludes that plant indepen a trial cause the material was not missing without the evidence would unfair, tested, fundamentally be dently merely po may the court evidence determine appropriate then tentially may measures useful. Nothing more protect needed to rights. the defendants missing said of the marihuana than that it example, For the trial court could instruct subjected indepen could have to an been jury they may infer miss Fisher, dent test. 540 U.S. at ing evidence would have been favorable to (finding unpreserved S.Ct. at 1202 evi defense,4 or the charges. dismiss Fer potentially dence useful because the de guson, 2 (finding either subjected fense could fifth to a jury dismissal of a appropri instruction test). Also, given complete the material’s ate). destruction, it is clear that Pena un comparable able to obtain oth

This test evidence adequately balances the defen- reasonably dant’s er due course concerns with the available means. Trombet State’s ta, interests because the fundamental 467 U.S. at 104 S.Ct. at 2534. fairness Therefore, proceedings a duty is evaluated in the con- had to pre material, text the entire plant record the nature of serve the as it necessarily 4. The Delaware Court found this establish the inno- defendant's cence, appropriate: instruction however. If there is other evidence presented In this case court has the fact or re- determined which establishes collect/preserve the State failed to certain missing solves issue which evi- evidence which is material, material the defense. you weight dence was must collect/preserve The failure of the State to along with the inference. Never- such evidence to an entitles defendant theless, despite concerning the inference inference that if evidence were such avail- evidence, missing you if conclude after exculpatory. able at trial it would be This examining all the evidence that the State that, deciding purposes means of proven beyond a has reasonable all doubt case, you missing are assume that the offense(s) charged, you elements of the evidence, collected/preserved, had it been justified returning would be a verdict of would not have incriminated the defendant guilty. prove have would tended to the defen- Lolly, 611 A.2d at 961-62 n. 6. guilty. dant not The inference does not has this See Ward preserved, the State breached (finding despite that duty. (Tex.Crim.App.1988) testimony analysis, officer’s no chemical consequences turn to We now the marihuana was was leafy substance It from record that breach. is evident the factors, sufficient). the the other However destroyed not plant the material was with and the the significance evidence deprive Pena of due course. the intent involved, weigh negligence amount destroyed plant The material and accom- - heavily in Pena’s favor. likely files most the panying missing were simple negligence. acts result of two Therefore, mind funda- the keeping most Mott testified files were we find the proceeding, mental fairness of relocation, likely during lab’s lost of law was denied due course that Pena plant destroyed material was because State v. Constitution. See under the Texas destruction order sent. Yet it is odd 758,461 194 W.Va. S.E.2d Osakalumi that while the evidence could been (1995); Deberry v. 457 A.2d destroyed within boundaries (Del.1983). Accordingly, we sustain all with the procedure, persons connected Pena’s first issue. authority to possessing legal- evidence ly they its order destruction testified that Conclusion negligence compounded not. did This dispositive Pena’s first issue Because acceptance the lack of of responsibility not address his appeal, we need liberty troubling light of Pena’s concerns is Therefore, we reverse the other issues. gross negligence. and borders on further judgment of the trial court for being material sole cause plant The opinion. with this proceedings consistent paramount signifi- for Pena’s arrest was of cance, and became more so after the files dissenting. Chief Justice GRAY documenting testing of the material GRAY, Justice, dissenting. TOM Chief Consequently, became lost. the lab re- port, exclusively upon at is the relied Appeals As Court of Criminal recording now, majority has by accustomed tested, plant material stands- a conviction on theo- decided to reverse unsupported by documentation unveri- is, appellant; ry argued not memory. plant fied human Had the provision course of law that the Texas due destroyed, missing material been protection than the federal offers more significance files would have because It no useful clause. will serve Yet, again. the material could be tested on the simi- pontificate for me to purpose this is not the case. the due larities or distinctions between Con- factor, process clause of United States the sufficien- Regarding third provi- evidence, and the due course of law stitution cy pictures of the other my col- Ashy’s sion of the Texas Constitution material in the van and plant requisite opinion has the testimony leagues conviction. do.1 might support Pena’s note, equivalent. provisions See notwithstanding to be I it arises in held the two do context, Comp. v. Patient Advo- Tex. Comm’n that the due course of law Workers’ different Tex., (Tex.2004) provision and the cates of the Texas Constitution ("[W]e the due course generally process clause the United States Con- construe way past as its federal counter- compared clause in the same stitution have been Marks, consistently part.”); United States Gov’t Court has two votes become the law of dis of violation the United States Consti- trict, I tution delay disposition so will not the of or the Texas Constitution. appeal. Pena’s See In the Interest argue Pena of Did the due course of law S.A.P., 177. (Tex.App.- S.W.3d clause in Clearly, that motion? no. Did 2004) C.J., rev’d, Waco (Gray, dissenting), argue any distinction between the Unit- (Tex.2005); Bi Jacobo v. ed States and Texas Constitutions mar, (Tex.App. Clearly, motion? no. 2002) J., rev’d, (Gray, dissenting),

Waco then, Okay, heariñg was there a (Tex.2004). 135 S.W.3d 646 happened what there? Counsel for Pena brought up the motion at a pre-trial hear- must, nevertheless, IBut comment ing, but the carry trial court decided to things several that struck me as I went time, with the trial. At that at the pre- briefs, the through majority’s opinion, the hearing, trial the trial court still did not majority and the record. The opinion making argument know Pena was un- argues states that in his “Pena first issue provision der due course of law of the that he was denied due and due Texas Constitution. of course law trial because the court erred During the when the court decided by denying motion suppress.” Pena qualifications of expert testifying argue did deny- that the court erred in marijuana, about the seized outside the to suppress argued his motion —he presence jury, of the brought up Pena that the trial court evi- admitting erred in objections additional about the admissibili- dence. There is a difference. ty of testimony marijuana. about the suppress Was there a motion to filed? stated, “Additionally, objec- Counsel Sort of—it motion canned included rights tion would under due process be within requests. various other The whole law, accused and due course “motion,” record, in this is as follows which- be would the Fifth and Sixth and requests hearing Defendant Fourteenth Amendments.” Note counsel’s jury’s presence outside determine specifically referenced amendments are all federal, admissibility of any physical evi- constitutional references. After dence during investigation recovered the trial court next a confronta- overruled of this At- stated, cause and which the District objection, tion clause counsel “I torney intends to offer here- as evidence process rights would address due in, request law, and would the Court the accused due course addi- suppress tionally, this evidence if the Court de- Judge.” not an Note objection, ruling termines that the evidence was obtained so no At was made. (Tex.1997) ("[W]e (Vernon 1997) (Interpretive § tra Commen- ditionally contemporary ("It followed tary) federal pgat been has held pro process interpretations procedural clause the Texas Constitu- courts applying cess issues in our state constitutional tion, to the extent that it identical with the law.’’); guarantee University of due course of amendment, upon placed fourteenth has Than, Tex.Medical Sch. powers legislature state same re- 1995) ("While (Tex. the Texas Constitution as those which have been held strictions textually 'due different in that it refers to imposed by language that amendment regard process’, rather 'due course’ than Mellinger City Federal Constitution. meaningful terms these as without distinc Houston, (1887).”). Tex. S.W. of I find no tion.”). commentary interpretive Even the interpre- depart from that reason provi from the Texas Constitution views the tation. I, sions as same. Tex Const. Ann. art. objec- Pena’s overruled The trial court parties began questioning point, that specifically did not rule The court tions. weighed expert who tested suppress. on motion to marijuana. of law” and “due course So the words testimony, the trial expert’s After the were 19 of the Texas Constitution section “the must show court noted that defendant any- notify the court of It did not used. prosecution in bad faith that acted ground of the general more than thing preserve

when it failed evidence It did not nothing specific. complaint; process or due show violation [a] more than that ei- anything me of notify testimony Further course law.” put certainly it would not have ther. But taken, arguments were made. No but no anyone on notice the Texas Constitu- had of the standard under discussion was provision provided of law tion’s due course provision the due of law and wheth- course the United States protection broader than any stringent more the due er it was than process clause. Constitution’s process provision. trial court ruled in his that his brief counsel Pena claims the lost was material but evidence rights objections on due “based his or that there was no bad faith willful mis- and Texas guaranteed under both the U.S. in losing on the of the State conduct Constitutions, ...”. both in He mentioned the evidence. argue objection, his but he did “re-urge[d] then set everything Pena out any two different. He did not make were record, In suppress.” the motion to this trial, and he did not make argument course, much. Of there was no that wasn’t in his brief. argument “physical was be- evidence recovered” that Although appeal Pena claims on he introduced, nothing so there was process and due course of was denied due motion, suppress. re-urging After provide mate- law the State’s failure to then counsel added during rial evidence before clause, think, I The confrontation any argument or authori- present does not big issue here from the defense stand- Consti- ty protection to the of the Texas point. object ISo would under protection any tution or how that differs Sixth and Fourteenth Amendments way by the United from that offered One, and Article U.S. Constitution Only Texas Constitution. three States Texas Section Nine Constitution cited Pena his brief cases are One, process. under due Section Article provi- the due course law none discuss Nineteen of the Texas Constitution fact, specifically argues Pena sion. Fifth and' Fourteenth Amendments parameters of his case falls within the rights to the U.S. Constitution under a federal due stan- Youngblood, accused, One, and Article Section briefing, argument any or dard. Without and the Ten of the Texas Constitution majority upon takes itself raise of the U.S. Constitu- Sixth Amendment level of of a difference possibility tion. Texas and United protection between the proceeds de- States Constitutions and object due course of I would under of the due expansiveness termine the 1.04,1.051 and 1.06 object under law in the Con- provision course law of Criminal Proce- Code stitution. [Tjhose .... would address is- dure told doing? are we We’ve been being What sue of this nonexistent on theories not presented. not to reverse convictions on appeal raised or in the court below. (Tex.Crim. State,

Hailey v. S.W.3d The UNIVERSITY MED OF TEXAS State, App.2002); v. Gerron 97 S.W.3d 597 ICAL BRANCH AT GALVES (Tex.Crim.App.2003). Yet we continue to TON, Appellant, State, do so. See v. Hackett 2005 Tex.App. 10, LEXIS 1116 (Tex.App.-Waco March v. h.) pet. (Gray, C.J., no concurring, BLACKMON, The ESTATE OF Darla 9, 2005); State, Feb. Olivas By Beneficiary its Sheila SHULTZ (Tex.App.-Waco pet.) (Gray, no Individually, Appel and Sheila Shultz C.J., State, dissenting); Conde v. lees. (Tex.App.-Waco no pet.) No. 10-03-00093-CV. C.J.,

(Gray, concurring). Texas, And, Appeals Court party argue where a fails Waco. distinction between United Constitutions, States Court Criminal 27, 2005. April Appeals routinely declines to make the argument party for that situation. (Tex. State,

Luquis 72 S.W.3d

Crim.App.2002) (“Appellant makes no dis rights tinction between his under the Tex Deckard, Harry Atty. Asst. General- as and federal constitutions. Therefore we Div., Austin, Litigation Tort appellant. for will treat them being same context.”); Smith v. Stephen Dallas, A. Khoury, appel- for 847 (Tex.Crim.App.1995) (“Appellant prof lees. argument authority fers or of how the protection offered the Texas Constitu protection guaranteed tion differs from the GRAY, Justice, dissenting TOM Chief Constitution,

by the U.S. omit [citations opinion granting to order rehearing. We are appel ted]. not inclined to make him.”); arguments for frequently lant’s Johnson v. It is said the shortest route (Tex.Crim.App. points straight between two is a line. (“We 1992) pursue appellant’s completed decline to We journey in that him.”). arguments Texas Constitutional case. we ago, opin- Six months issued an fully So should we. ion disposed of this appeal. The rehearing timely motion for filed I dissent. response which not requested until disposition five after months extraordinarily I case. am reluctant opinion judgment withdraw provided nothing Court I when have been this, upon By decision. which base that I do not mean that have not received argument rehearing, in a but motion for normally rather that we do not withdraw an opinion without simultaneously substi- tuting opinion place. another in its

Case Details

Case Name: Pena v. State

Court Name: Court of Appeals of Texas

Date Published: Apr 27, 2005

Citation: 166 S.W.3d 274

Docket Number: 10-03-00109-CR

Court Abbreviation: Tex. App.