*1 (Tex.App.-Waco writ); no accord G.R.W., (Tex. In re (child
App.-Texarkana pet.) no con- Garcia,
servatorship); Gaxiola v. 429 (Tex.App.-El Paso pet.).
The record does contain a no
tice of past-due findings and conclusions.
Ogletree forfeits error the trial filing
court’s not findings and conclusions.
We overrule Ogletree’s fifth issue. Having sustained Ogletree’s
Conclusion.
second, third, issues, and fourth we re-
verse the trial judgment court’s and re-
mand as to Ogletree’s breach-of-contract
claim and claim under Section
otherwise affirm. PENA, Appellant,
Jose Texas, Appellee.
The STATE of
No. 10-03-00109-CR. Texas, Appeals
Court of
Waco.
2,May *2 Blazek,
Frank Background Smither Martin I. PC, Huntsville, Henderson & Blazek R. Department of Public Safety Trooper Houston, Ramsey, Scott appellant. Asby stopped Mike Pena for a traffic viola- Whitney Smith, T. Leon County Dist. *3 Asby van, tion. As approached Pena’s he Centerville, Atty., Korioth, Sue Sue Ko- smelled the odor of raw marihuana. Asby PC, Dallas, rioth appellee. for looked inside Pena’s van and saw what he Dix, Prof. George University of Texas believed to freshly cut marihuana cov- School, Law Hampton, Austin, Keith S. ering the cargo entire area. According to Rolater, Jr., John R. Asst. Atty. Dist. for Asby, Pena repeatedly denied that County, Dallas, Dallas for other. plant material was marihuana. He could Gatesville, Harvey Angel, pro se. not recall whether Pena had informed him that he plants wanted the independently GRAY, Before Chief Justice Justice tested.1 DPS criminalist Charles Mott VANCE, and Justice REYNA. plant tested the material reported and it consisted of pounds 23.46 of marihuana. OPINION ON REMAND Pena filed independent a motion for REYNA, FELIPE Justice. analysis material, plant of the which the juryA convicted possess- Jose Pena of Thereafter, trial granted. court it was ing marihuana in amount pounds of 5 plant discovered that the material and all and, or more but pounds less than 50 after records relating to the material had been finding true, allegations enhancement as- destroyed. All that a remained was lab punishment sessed his at life imprison- report stating that plant material was ment. Pena points contends in six that: marihuana, Mott, signed by and sent from (1) the admission of evidence regarding the to Asby. lab results of DPS lab testing plants of the seized from his van rights violated his In a hearing presence outside the of the under the Due Process Clause of the Unit- jury, Mott personally testified that he test- ed States Constitution and the Due Course ed the material and that it found was 23.46 provision of Law of the Texas Constitution pounds Yet, of marihuana. he was unable plants because the and the file DPS re- to recall the weight material’s from memo- garding plants destroyed were lost or ry, contained, how the material was or how (2) trial; before the court abused its dis- he took samples testing. He also could cretion failing grant motion new not recall when it was tested. trial because of trial counsel’s failure to Based upon computer entry, Mott tes-
raise a speedy trial claim and counsel’s tified he received a notice dispose failure to request mistake-of-fact instruc- destroyed evidence and that it was (two (3) tion in charge points); he However, one month later. Mott conceded received ineffective assistance of counsel (two that he did not know who sent the because of notice points); these failures and (4) only he was stated that not process plant denied due was the course of law material destroyed, because of the State’s but the entire file failure con- Brady to disclose evidence before taining destroy, original trial. the notice to it, suggested 1. Pena's trial counsel in his cross- test it but that he wanted to test too." Asby examination reviewing that Pena had informed Pena’s counsel was the offense re- Asby only "that ya’ll port questioned he wanted not to have Asby. as he letters, worksheet, McGee reports, submission L.Ed.2d (Tex.App.-East He admitted had forms was lost. that this since, never occurred before or but he pet.). land missing cause of the file to attributed the that DPS officials There no evidence building. his move to a lab’s recent new destroyed they acted bad faith when judicial The trial court took notice of the they lost when the ac- plant material or fact that there was no destruction order Thus, Pena cannot companying records. from trial court in the file. The clerk’s claim prevail under the his due attorney district testified that he did Fourteenth Amendment. sign an for the order destruction of *4 Asby, only person evidence. the other I, III. Article Section have requested whom believed could Mott Nevertheless, also Pena contends destruction, the that testified he did not in his first that the Due Course of issue signing such an remember order. I, provision in article section of the Law argued Pena to the trial court that provides greater Texas level Constitution report, testimony all concerning and Process protection than the Due Clause report, suppressed should be because of the Amendment.2 Fourteenth destruction of the marihuana violated his that Pena argues State has right process under to due the United preserved aspect of his first issue for this right States and his to due of law course he did not appellate argue review because under the Texas Constitution. The trial trial that the Texas court Constitu- objection. court Pena’s Pena overruled rights tion than provides greater the fed- instruction, also requested limiting which disagree. ar- eral constitution. We Pena the court denied. gued rights to the that his court under II. Fourteenth Amendment provision Due Course of the Texas of Law by the Constitution were violated admis- Pena contends in his first issue If, as the sion of evidence. this lab report admission Mott’s contends, provisions and state the federal testimony right process violated his to due objection synonymous, Pena’s un- are then under the Fourteenth Amendment to the meaning- der Texas Constitution United Constitution. States less. analysis no independent Because objected to trial specifically Pena done, undisputed
was ever
it is
court that
admission of Mott’s testimo
destroyed plant
only
material was
poten
would
his
ny
report
lab
violate
tially
exculpatory. When
State loses
under
right to
of law
article
due course
which is
destroys
only “poten
or
section 19
Texas Constitution be
tially useful,”
of the
the defendant
show
must
destroyed the
cause the State had
seized
the State acted
bad faith to estab
pre
plant
material. This was sufficient
lish
violation under
appellate
serve this
review. See
Amendment. Arizona
issue
Fourteenth
(Tex.
Votteler,
51, 58, 109
Youngblood,
Sax v.
488 U.S.
S.Ct.
may
sponte
appellate court
address
2. This Court raised this issue sua
on
firmed that an
original
See Pena
unassigned
appeal
submission.
this
so
error but remanded
2005),
(Tex.App.Waco
vacated
parties
opportunity
have an
to brief
could
(Tex.Crim.App.
grounds,
other
of, among
things,
other
“counsel’s failure
A. Historical Context
constitution”).
to cite to the state
(since 1876),
present
its
form
the Due
provision
Course of Law
Provisions
the Texas Constitu
Texas Con-
tion
stitution states:
analogues
which have
in the federal
generally
constitution are
interpreted to
No citizen of this State shall be de-
meaning.
the same
The Texas Con
life,
prived
liberty,
property, privi-
stitution
interpreted
should be
provid
immunities,
leges or
in any
manner
ing
protection
broader
than its federal
disfranchised, except by the due course
*5
counterpart only if such an interpretation
of the law of the land.
“firm support
history
poli
has
in state
or
I, §
Const,
provision
art.
19. This
Tex.
cy.”
Cobb v.
lineage
its
traces
Texas
section 7 of the
(Tex.Crim.App.2002);
parte
accord Ex
Rights
Declaration
in
of
the 1836 Constitu-
Lewis,
PD-0577-05,
No.
passim (Tex.Crim.App. Jan.
Const,
of
Rights,
Tex.
DECLARATIONof
Thus, the Texas Constitution should be
7,§
reprinted in H.P.N.
Gammel,
The
interpreted
providing
rights not found
1822-1897,
Laws of Texas
in the federal constitution “only when
1898).
(Austin, Gammel Book Co.
unique aspects
history,
of Texas
jurispru
genesis
The
for
due
the
course of law
dence,
support
or law
that separate inter
provisions in the
former
current and
Texas
Cobb,
pretation.”
268. And
Sax,
Magna
Constitutions is the
Carta.
it
appropriate
is not
to construe the Texas
664;
I, §
Const,
art.
648 S.W.2d at
differently merely
Constitution
because
interpretive commentary. Chapter 29 of
this Court believes that
precedent
federal
Magna
provided:
the
Carta of 1225
Cobb,
is incorrect. See
For true sense and of Ohio, the same words. of the river used words, these see Statute of 37. Co., Improvement Land & Den v. Hoboken words, cap. by Edw. 8. where the (18 How.) 272, 276, 15 L.Ed. 59 U.S. Land, rendered, law are of the without said, Law, process due for there it of though great independent it be contained an re- When Texas became taken, Charter, impris- man be that no twenty-four there were public oned, put out of his free-hold without or states. The constitutions nineteen Law; is, proces by indict- protection provided them a due presentment good ment of and lawfull Magna found in the Carta similar men, be where such deeds done may general catego- in four placed manner, by original or writ the Com- ries: mon law. (cid:127) person those that a could providing Id. *50. life, liberty, deprived proper- not be relationship these close between ty, by judgment etc. of his unless early recognized terms was the Su- land;4 peers the law of the preme United States. (cid:127) rights an providing those *6 words, law,” process The “due of were stating particular- accused and person undoubtedly convey intended to may ly an accused be de- words, same meaning “by as the the law life, liberty, property, prived of etc. land,” Magna of Charta. Lord peers unless of his by judgment or Coke, commentary in his on those land;5 the law of the (2 words, 50,) they says Inst. due mean (cid:127) courts providing those that all should
process of law. The constitutions which persons open that all should by had adopted been the several States and/or remedy injuries have for done them before the formation of the federal con- stitution, law;6 following by due of and language of course XII; 1820, XIII, 9; § open had art. of art. Some of these states distinct Mo. Const, 3. 1784, I, 15; provisions provisions pt. and N.H. art. Const, courts/remedies of Pa. Const. 1790, 9; I, rights IX, 1786, governing the which § accused of of ch. Const, art. Vt. provided protection XI; 1776, each Rights simi- § of art. 8. Va. Declaration of Magna lar to in the Carta. that found 1819, I, 14; § art. 6. See of Const, Ala. Conn. 1818, 8; VIII, § 4. See of art. Const, III. Md. I, 12; 1818, § of art. of Const, Const, Del. 1776, XXI; Rights art. of N.Y. Declaration of 1816, I, 1831, 9; I, § of art. art. Const, Ind. 1777, XIII; art. N.C. Declaration Const, of of I, 19; 11; 1820, § § of art. Miss. Const, Me. 1776, XII; 1796, Rights of art. of Const, Tenn. I, 14; 1832, § of of art. Const, Const, Ohio XI, 8; § art. Nw. see also Territory Ordinance 1802, VIII, 7; 1790, § of art. art. Const, Pa. 14, 1787, § of II. art. 1835, I, XVII; IX, 11; § § art. of Const, Tenn. Rights 1776, 1831, 7; I, of art. see also Md. Declaration § 5. See of Const, Ky. of art. Del. freeman, 1799, X, 10; injury any (“every § XVII for done of Const, Const, of art. Me. 1820, 1780, I, I, 6; ought person property, § in his to have of him or Const, Mass. art. pt. (cid:127) (1995). 1089, those for the providing rights of an The pro- committee person stating particular- posed following provision
accused in the Decla- ly that may Rights ultimately an accused not be ration of which de- would life, prived liberty, property, guar- of become the due course of etc. Texas law by anty: unless of law.7 due course taken, impris- No citizen shall be or
During eighteenth and nineteenth cen- oned, turies, freehold, or dispossessed of his uniformly the courts in these states liberties, outlawed, privileges, or or or interpretation followed Lord Coke’s exiled, disfranchised, land,” or in manner the terms “the law of “due pro- cess,” life, or his deprived liberty proper- of “due of law” are synony- course ty, but of mous.8 the law the land. Const, Repub. 1886,
The Texians who served the commit- of DRAFT Tex. Declara- (Mar. Rights, appointed 9, 1836), § tee to draft constitution reprint- tion of Gammel, 859, Republic9 their had for consideration ed in at 869. The Conven- the federal proposal constitution “and that of sever- tion made considered Cornyn, al southern states.” John some adopting revisions before the follow- ing Roots Texas Constitution: Settle- as section 7 the Declaration of Statehood, Rights: ment 26 Tex. Tech. L. Rev. * 233, remedy, by (6 Cold.) the course of the law of Tenn. 1869 WL Hazen, (1869); land”). Quimby v. 54 Vt. (1881); WL Commonwealth v. *1 (20 Gratt.) 165, Byrne, 61 Va. 1871 WL I, 10; See § art. Const, 7. Ala. Conn. at *13 9; § art. Miss. Const, Const, I, § art. 10. delegates Washing 9. The who assembled at relatively "had little time ton-on-the-Brazos Dorman v. 34 Ala. 1859 WL refinements; they or subtle deliberation Clark, (1859); re *13 65 Conn. adopted been the Constitution in what has (1894); 31 A. Wilson v. Balt. & ” panic.' Cor described as a 'state John Co., Phila. R.R. WL 5 Del.Ch. nyn, The the Texas Set Roots Constitution: (2 Schuyler, at *8 Rhinehart v. 7 Ill. Statehood, tlement to 26 *7 L. Rev. Tech. Gilm.) 473, 3964, (1845); 1845 WL at *31 1089, 1120 This is evident from 473, Campbell Dwiggins, v. 83 Ind. 1882 WL delegates adopted dec haste with which the a 6936, (1882); at ex *5 Doe dem. Gaines v. independence laration of and a constitution. Dana) 481, 2531, (1 Buford, Ky. 31 1833 WL Convention, 1, day On the first of March (1833); Justices, Opinion at *15 In re of 1836, delegates elected Richard Ellis of 590, 7826, (1871); Regents Me. 1871 WL at *3 of the Pecan Point as President Convention. Williams, 365, the Univ. v. G. & J. of of Md. Free, Journals of the Convention of the Sover 1372, (Md.1838); 1838 WL at *30 Jones v. Texas, People eign Independent of in and Robbins, 329, 342-43, (8 Gray) 74 Mass. Assembled, reprinted in 1 General Convention 5869, Mixon, (1857); WL at *10 1822-1897, Griffin H.P.N. Gammel, Laws of Texas The 3138, (1860); Miss. 1860 WL at *14 (Austin, Co. 824-25 Gammel Book Stein, State v. 2 Mo. 1828 WL at *1 1898). appointed President Ellis a committee Wilson, (1828); Mayo 1 N.H. WL independence. of 5 to draft a declaration of Ford, (1817); Taylor at *3 v. Porter & approved the Id. at 825-26. The Convention Moss, (N.Y.Sup.Ct.1843); Hill 140 State v. by Declaration that committee the drafted (2 Jones) N.C. WL at *2 day. Immediately preceding next Id. at 837. Bushnell, (1854); parte Ex Ohio St. Indepen report on the Declaration of (1859); dence, Appeal, 1859 WL Palairet’s 67 Pa. appointed President Ellis a committee (1871); Zylstra 1871 WL at *5 Id. at This of to draft a constitution. 834. Charleston, (1 Corp. Bay) presented proposed 1 S.C.L. committee their constitu of Staten, Id. at 1794 WL State v. tion one week later. 859. *5 States, during them de- deprived privi- of the United No citizen shall be of citation, frequency of outlawed, exiled, bates. In order of or in manner leges, consti- delegates the state disfranchised, consulted by of except due course Alabama, Louisiana, Ken- of tutions the law land. Tennessee, Virginia, Pennsylva- tucky, Repub. Const, Tex. of DeclaRation of Illinois, Arkansas, nia, Mississippi, Rights, § 7. York, Missouri, Indiana, Ohio, New Republic granted The of Texas was Delaware, Carolina, Connecticut, North As of the annex- part statehood Maine, Michigan, South Georgia, and process, ation constitution had to be new Although state constitutions Carolina. drafted. mentioned with rela- the South were met, delegates they had before As tively greater frequency is not —which them the of other constitutions most surprising light of the dele- where states, States, and of the United hailed and their gates themselves from Republic During of Texas. the Conven- preser- interest common economic tion, examples from other constitutions slavery was remarkable vation —there worthy were addressed as either of emu- from examples by set states openness as examples lation or what should be Indeed, con- parts all of the nation. recently avoided. The but completed Pennsylvania Mississip- stitutions of unratified Constitution of Louisiana was delegates iden- pi were cited with up as a held model so often that frequency, tical as were the constitutions Convention, forty-one President Arkansas, Illinois, Indiana, and Ohio. year old Thomas Jefferson of Nac- Rusk Cornier Charleston reported: The “We ogdoches, exclaimed: say that the instrument is mo- need upon theory of most of our delled sincerely
I that the wish future Con- The New Or- state own constitutions.” stitution Louisiana had remained Picayune leans “that in its concurred up locked until our labors were over. details, outline, it is well as grand its it, haveWe received no benefits from old much the constitutions of the too like have very incorpo- come near to single states to elucidation.” No need rating some articles which would constitution, however, proved to be been to Texas. can re- ruinous We Texas document. template ourselves, flect for capable are forming Constitution ourselves. Cornyn, supra, L. Rev. Tech. (footnotes omitted).10 delegate similarly Another disapproving claimed that disposition he “discovered a joined the while Three states Union make as far everything conformable independent republic. Texas was an *8 possible system to the of Federal provided two of them constitutions of Nevertheless, dele- government.” process protection similar to due by name the consti- in the and the states gates Magna would refer found Carta Const, 1836, states, as cited.11 See of twenty previously tutions of well as Ark. states, Although paid Michigan third of but 10. the Texians attention 11. was the these much 1845, Michigan not 1835 did the Louisiana Constitution of Constitution of process provision. provi- Such a type did not have of due have a constitution appeared provision. adopt Michigan in the Constitu- process did not sion Erst Louisiana 1850, art. provision 1850. of process Const, until its tion of See constitutional due Mich. 1864, VI, virtually the oth- Michigan, § tit. 32. like all See La. of Const, 1864 Constitution. states, VII, terms “the law of the er considered the art. 110. Const, II, 10; 1838, § I, art. of art. ers Texas Constitutions intended to Fla. 8, §§ them, 9. And like the go beyond states before protection afforded (and Arkansas and Florida in courts the nine- federal by implication, Constitution” states). century teenth considered the terms “the the constitutions of the other land,” process,” law of the “due Harrington, and “due James C. The Texas Bill of synonymous. Liberties, course of law” to be Rights See and Civil 17 Tex. Tech. Farr, 161, (1986). 377, 1487, Rison v. However, Ark. early WL L. Rev. (1865); State, 335, at *10 Wooten v. 24 Fla. Texas decisions suggest otherwise. 39, (1888). addition, 5 So. Rhode must people [I]t be held that the intend- Island adopted a new constitution while ed, by provi- [the Due Course of Law an independent republic Texas was which sion], in so far as it is with identical provided process a similar due protection. amendment, place fourteenth thereby Const, 1842, I, § See R.I. of art. 10. And just powers such on the restrictions of Supreme of Court Rhode Island con- legislature in highest as the court strued its constitution the same manner the nation has declared is the true con- Keeran, as these other states. See State v. language part struction of like made a of 2639, *6-7, 497, 505-06, 1858 WL 5 R.I. the constitution of the States United 72, (1858). 1858 R.I. LEXIS at *15-17 purpose placing of a limitation on legislatures the power of the of the sev- background, With this adopted Texas eral states. I, article section 16 in Bill Rights of of Constitution, the 1845 which provided: Houston, 37, Mellinger City 68 Tex. (1887).12 249, No citizen of this State shall be de- S.W. life, prived liberty, property, privi- or law,” “Due as used outlawed, exiled, leges, in any manner amendment, fourteenth and “due course disfranchised, except by due course of land,” of the law of the as used in article the law of the land. Texas, § of the Constitution of Const, I, many § the Constitutions of of her sis- art. 16. The 1861 Tex. states, ter according great weight to the provi- 1866 Constitutions had identical Const, are, I, 16; authority, nearly if all § sions. See Tex. art. Const, respects, practically synonymous. § art. 16. McDonald, At least suggested one commentator has Mabee v. 107 Tex. (1)
that,
(1915),
because of the inclusion of the
S.W.
rev’d on other
phrase
disfranchised,”
Mabee,
in any
“or
manner
grounds,
U.S.
McDonald
(2)
delegates
because the
to the 1836 37
accord
S.Ct.
Accordingly, vindicated this We have may of in article sec- not enter. provision Law Course backdrop, Marriage is mentioned against this historical we before. principle tion of the inter- Rights must conclude that the framers in the Bill of and nowhere it that be con- illegal Texas Constitution intended in most marriage was racial as “practically synonymous” strued with century, 19th but the Court in the States Due Process Clause of the Fourteenth finding to be it was no doubt correct provi- comparable Amendment13 and with liberty protected against aspect an of of other states. sions the constitutions by state interference the substantive v. Pa- Comp. Workers’ Comm’n of the Due Process Clause component Tex., tient Advocates Virginia, U.S. Loving of (Tex.2004). However, this does not 18 L.Ed.2d S.Ct. inquiry.
end our (1967).... Rights the Bill of nor Neither B. of Due Process Evolution of time of specific practices States Jurisprudence Amend- adoption the Fourteenth Supreme The United States Court has limits of sub- ment marks outer that is long recognized not a sphere liberty which the stantive concept. static protects. As Fourteenth Amendment that We have held the Due Process Harlan recognized: Justice second Clause of the Fourteenth Amendment liberty scope guaran- full of the “[T]he incorporates most of Bill of Rights can- by teed the Due Process Clause against tempting, It the States. is by found in or limited not be curbing means of the discretion of feder- precise specific guaran- terms of the judges, liberty suppose al that encom- provided in the elsewhere Consti- tees passes rights no more than those al- This not a ready ‘liberty’ tution. series guaranteed to the individual pricked out terms of against by points isolated federal interference the ex- press taking property; first freedom provisions eight speech, religion; right to the But press, Amendments Constitution. arms; the freedom accepted keep course Court has never bear that view. unreasonable searches and sei- from zures; and so It rational on. tempting,
It is also for the same rea- which, broadly speaking, continuum son, suppose the Due Process from all includes a freedom substan- only practices, de- protects Clause those arbitrary impositions purpose- level, tial fined the most specific restraints, also ... and which less protected against government were in- a reasonable and recognizes, what law terference other rules of when must, judgment that certain sensitive the Fourteenth Amendment rati- require particularly careful interests fied. But such a view would be inconsis- scrutiny of the needs asserted It state promise tent with our law. is a justify abridgment.” a realm of their there is Constitution Fifth precise, Due Clause of the Amendment To the Fourteenth Process be more provision comparable Amendment was not ratified until so federal was the drafting necessarily had no influence on those documents. Rather, earlier constitutions. of Texas’s *10 644 ty,
Planned Pa. v. Casey, presumption surely Parenthood Se. must re- of 833, 847-48,112 2791, 505 buttable. U.S. S.Ct. 2804- (1992)
05,
(quoting
645 literal text. rely heavily on the ago, we Medina, 112 at 2582 U.S. at S.Ct. 505 (some meaning with the under- its (O’Connor, J., citations We seek concurring) rati- was omitted). that the Constitution standing an document organic fied to function has like- Supreme The Court Texas society and institutions as to govern interpre- wise that constitutional observed through time. they evolve prac- solely rest on historical tation cannot J.W.T., (Tex.1989) (emphasis In the tice. In Interest 777 394 S.W.2d added) omitted); the Due (citations whether under Court considered see also Weiner (Tex.1995) Texas Con- provision Wasson, Law Course of v. S.W.2d biological (“Over is not mar- father who (Owen, J., years stitution our dissenting) may the mother of his child be ried to the reach of expanded has gradually pater- opportunity denied the establish provision.”). open [the courts] in court. nity parental rights and claim vein, supreme In our state a similar (Tex.1994). 189,189 analyz- In 872 S.W.2d that due procedural court has observed claim, ing acknowledged the Court this a“is process under the Texas Constitution acceptance of such a contention Marks, concept.” U.S. Gov’t flexible at improbable highly “would have been (Tex.1997); accord S.W.2d time of the ratification of our Texas Con- Than, 901 Tex. Med. Sch. v. Univ. of But stitution 1876.” Id. 191. (Tex.1995). Therefore, S.W.2d “[significant Court also observed con- considering the historical addition century changes twentieth in the resolu- article section text in which affecting family tion of are re- issues more recent de- adopted, we also consider statutes, demographics, flected in altera- jurisdictions in Texas and other cisions illegitimate tion of social attitudes toward relevant, practical other considerations. children, and decisions of the Texas Lewis, *14-26; 57823, at 2007 WL courts.” Id. at 198. 19; J.W.T., & n. 194-97 S.W.2d Dist, In S.W.2d at Edgewood Independent Edgewood Indep. School Dis- Sch. Kirby, trict v. the Court observed: 398. its Texas Constitution derives force C. Recent Decisions people from the This is the Texas. Arizona v. under which the Texas courts have followed people
fundamental law
fairly consistently since it was
gov- Youngblood
state have consented to be
McGee, 210
In
down in 1988. See
construing
language
erned.
of handed
State,
704;
Constitution],
Williams
Texas
we consider S.W.3d
[the
(Tex.App.-Waco
people
adopted
“the intent of the
who
intent,
pet.); Mahaffey v.
determining
it.”
“the
1996, no
grew
[1st Dist.]
it
history
(Tex.App.-Houston
of the times out of which
rationally
may
sup- pet.);
be
Gamboa
and to which
1989, pet.
(Tex.App.-Fort Worth
posed
relationship,
have direct
Brandley,
refd);
parte
but see Ex
be remedied
evils intended to
(re-
(Tex.Crim.App.1989)
good
accomplished,
proper
are
However,
bad-faith standard but
Youngblood’s
inquiry.”
citing
because
subjects
an
process violation without
finding
inherent in determin-
of the difficulties
faith14).
finding
express
of bad
century
intent
voters
ing the
over
finding
pro-
a due
majority
dissenting opinion, Judge Campbell
criticized
aIn
*12
(includ-
And at
something
least seven Texas
Youngblood
courts
other than the
bad-
one)
this
ing
applied
Youngblood
have
faith
apply
standard should
to claims aris-
requirement
arising
bad-faith
to claims
un-
ing under the Texas
Due Course
Law
der the Texas Constitution’s Due Course
provision, and those four courts have
McGee,
provision.
of Law
See
210 S.W.3d
agreed that
the Youngblood standard
705;
State,
at
Alvarado v.
No. 07-06-086-
McGee,
apply.
705;
should
210
at
S.W.3d
CR,
2860973,
2006 WL
at *3 (Tex.App.- Alvarado,
2860973,
*3;
2006 WL
at
Sala-
9,
(not
2006,
pet.)
Amarillo Oct.
no
desig-
zar,
92-93; Rudd,
185
at
S.W.3d
871
State,
for publication);
nated
Salazar v.
at
S.W.2d
in twenty-three
533. Courts
90,
(Tex.App.-San
185 S.W.3d
92-93
Anto-
other states have likewise concluded that
2005,
State,
pet.);
nio
Jackson v.
50
Youngblood
requirement ap-
bad-faith
579,
(Tex.App.-Fort
S.W.3d
588-89
Worth
plies
arising
to claims
respec-
under their
2001,
refd); Williams,
pet.
946 S.W.2d at
tive constitutions.16
893;
53;
Mahaffey, 937
State v.
Rudd,
530,
(Tex.App.-Dal-
871
533
Conversely, courts in twelve states have
1994,
las
no pet.).
considered
issue
this
determined
However, only
that a
apply.17
four15 Texas
different standard should
courts have
specifically
a
addressed
contention that
Fourteen states have not addressed this
1096,
667,
1098,
cess violation
evidentiary
App.3d
because "there is no
607 N.E.2d
1101-03
583,
(1992);
State,
support"
finding
parte
a
for
of bad
Ex
Ochoa v.
963 P.2d
595
faith.
886,
(Tex.Crim.
Brandley,
(Okla.Crim.App.1998);
Commonwealth
v.
781 S.W.2d
914-15
565,
Free,
J.,
(Pa.Super.Ct.2006);
902 A.2d
569
App.1989) (Campbell,
dissenting).
Vanover,
430,
(R.I.
State v.
721 A.2d
433
739,
1998);
Engesser,
State v.
661 N.W.2d
Excluding
prior
15.
this Court’s
decision in
(S.D.2003);
v.
754-56
Mullins
Common
case,
Pena,
this
which has
set
See
been
aside.
wealth,
1250-94-3,
343953,
WL
No.
1996
281-82,
166 S.W.3d
vacated on other
25, 1996) (not
(Va.Ct.App.
designated
*5
June
grounds,
133 (Tex.Crim.App.
191 S.W.3d
publication);
Wittenbarger,
State
124
v.
2006).
467,
517,
(1994);
Wash.2d
880 P.2d
523-24
Greenwold,
59,
v.
State
Wis.2d
189
525
Vickers,
521,
16. See State v.
180 Ariz.
885 P.2d
294,
State,
(1994);
N.W.2d
298
Tortolito v.
1086,
(1994);
State,
692,
1093
Lee v.
Ark.
327
864,
opinion
(Wyo.1994),
885 P.2d
871-72
231,
(1997); People
942 S.W.2d
234-35
v.
withdrawn,
(Wyo.1995).
evidence courts 351.php. Ironically, Larry Youngblood divining face the treacherous task of has exonerated. one of those who been Whitaker, con- import materials whose DNA Inmate Barbara Frees Plea, often, and, very N.Y. Rejected tents are unknown Years Justices After Times, disputed”; Aug. 2000. independent constitutional standard.
18. The states which have not decided this state Colorado, Florida, Heath, See, Georgia, are Louisi- e.g., issue ana, Minnesota, N.W.2d 55-56 State Montana, Mississippi, Ne- (Minn.Ct.App.2004). braska, York, Nevada, Jersey, New New Dakota, Carolina, Oregon, South North eight in noteworthy that the decisions 19. It is At one contends that Utah. least commentator Texas) (including twenty-four states adopted different standard in Minnesota Youngblood which decided to follow Schmid, State v. 487 N.W.2d 541-42 claims were state constitutional Dinger, (Minn.Ct.App.1992). R. See Daniel by by appellate and not intermediate courts Evidence Mean a Lost Chance to Should Lost Con- of last resort in those states. the court Rejections State United Prosecute?: versely, states which have de- twelve Supreme States Court Decision Arizona Youngblood, highest court clined follow Youngblood, 27 J.Crim. L. 356-57 Am. jurisdiction was one that with criminal However, de- more recent Minnesota made the decision. adoption do not reflect the cisions Texas, closely Focusing twenty- more highlight importance ther serve to men six have been post- exonerated preserving notably, evidence. Most conviction DNA testing this state as of Legislature Chapter enacted Carlton, February 2007. Jeff Dallas Code of Criminal Procedure 2001 to County Agrees Growp DA Let Review provide persons convicted a procedural ve- MoRning Testing, Cases DNA Dallas post-conviction hicle for testing. DNA News, Feb. governor par- 2007. The R.S., Apr. Leg., Act of 77th ch. recently. doned even another more Jenni- (codified § 2001 Tex. Gen. Laws Emily, fer Dallas Man Pardoned in 64). at Tex.Code In ch. Ann. Crim. Proc. Conviction, Wrongful Rape Dallas Morn- legislation, Legisla- tandem with this ing News, Mar. ture also requiring enacted a statute to preserve containing bio- response unique problem logical material: wrongful *14 County,20 convictions in Dallas County Attorney the Dallas District “has (1) executed, dies, until the inmate is or agreed Project to allow the Innocence parole, is released if on the defendant Texas to review whether DNA tests should capital felony; was convicted of a or any be done of the cases of people (2) dies, completes until the defendant rapes, convicted of murders and other felo- sentence, the defendant’s or is released nies as far back as 1970.” Steve McGoni- mandatory parole supervision, on or if gle, Project Innocence to Review Dallas the defendant is sentenced to a term of Moening Convictions, County Dallas imprisonment. confinement or 16, News, Feb. In a 2007. similar situation R.S., 3, 2001, Apr. Leg., Act of 77th ch. arising problems from with the crime lab (codified § Tex. Gen. Laws operated by the Houston Police Depart- 38.43). Tex.Code Crim. Proc. Ann. art. ment, 370 cases with DNA evidence were In Legislature sig- also made private referred to labs for retesting.21 nificant providing revisions to the statute McVicker, Roma & Khanna Steve ‘Trace’ compensation for persons wrongfully to Hold, Drug Cases on Chron., July Houston 27, 2001, imprisoned. May Act 77th 3, 2003, at Al. Problems with the HPD R.S., 1,§ Leg., ch. 2001 Tex. Gen. 1,300 crime lab “prompted the review of (codified Laws at 5280-83 Civ. it investigated” par- cases and led to the 103). Ann. ch. Those & Prac. Rem.Code don of least one man who wrongful- was revisions included: ly Khanna, convicted. Roma DA Supports Sutton, (cid:127) Chron., Move to Pardon eliminating requirement Houston Al; 2003, at June see also Roma Khan- pleaded “not defendant must have na, Sutton, Perry Signs Pardon guilty” eligible compensation; to for Hous- for 15, 2004, May Chron., at Al. ton (cid:127) eliminating requirement that a Legislature pardon required Texas has enacted sev- a defendant is before (instead Youngblood eral eligible statutes since which fur- for compensation article, independent 20. At the time of the “DNA evidence 21. An audit of the HPD crime County ranging po- exonerated 12 Dallas men ha[d] since lab uncovered “deficiencies from states, which is more than all but two lack tential contamination of evidence to according Project.” recordkeeping.” Peg- Innocence Jeff basic & Roma Khanna Carlton, O’Hare, County Agrees Group gy Dallas DA Let More Crime Lab Cases Earmarked Review, 7, 2003, Morning Testing, ReviewCases DNA Feb. Chron., for Dallas Houston News, Feb. Al. (Fall Legislative Report, at 3 allowing compensation if the defen- DistRict McVicker, 2005); Watch- Lab if defendant Steve Crime pardoned or dant ChRon., Perry, Houston dog relief the basis Bill Sent granted “has been 31, 2005, innocence”); May at Bl. The Forensic Science actual would created so Texas Commission (cid:127) proce- an providing administrative have: compensation benefits dure for indepen- to conduct place
$25,000 year wrongful impris- per allega- into investigation dent external $500,000; up to onment miscon- negligence or tions of serious (cid:127) cap from increasing damages affecting integrity substantially duct $50,000 $500,000 in a suit filed system, laboratory medi- forensic compensation benefits. office, office, cal examiner’s coroner’s Id. facility, storage law enforcement Legislature In established process- in the facility medical state laboratory process. crime accreditation in crim- science used es criminal forensic R.S., May Leg., See Act of 78th proceedings. inal 4,§ Laws ch. 2003 Tex. Gen. Comm, Analysis, Justice, Bill on CRIM. Sen. (codified at Tex. Gov’t Code Ann. (2005).22 Leg., S.B. 79th R.S. 411.0205). § arti- legislation, that same *15 also acted en- Legislature The 79th Proce- cle the Code of Criminal 38.35 laboratory accreditation hance the crime (which Analysis concerns “Forensic dure 30, 2005, May 79th See Act process. Evidence”) provide was amended to 1224, 3, R.S., § Gen. ch. Tex. Leg., analysis subjected forensic 3952, (amending Laws Tex. Gov’t testimony not regarding evidence is 411.0205). § Ann. Code analysis in a criminal case if the admissible performed laboratory at accred- not involve DNA evi- Pena’s case does Nonetheless, Act of ited under section 411.0205. See there have been at dence. 3, 698, May R.S., § Leg., 78th ch. occasions in the last least three different (codified per- in years Gen. Laws more than eight which 38.35(d), wrongfully at Ann. art. in Texas have been either sons Tex.Code CRIM.Proc. (e)). involving narcotics or accused of crimes question were called into the accusations response In to the difficulties at tainted evidence. because of lab, Legislature HPD crime enacted falsely Forty-six men and women were legislation creating in 2005 Texas Fo- Tulia, Tex- selling for narcotics Commission. See Act arrested rensic Science thirty-eight of them were 30, 2005, R.S., ch. May Leg., 79th as Signs Drosjack, Perry Melissa § Gen. Laws 3952-53 convicted. 2005 Tex. IS, ChRon., (codified art. to Free Tulia at Tex.Code Bill Houston PROC.Ann. Crim. 3, 2003, response to A13. In 38.01); WhitmiRE, at see also John June Senate and, among things, other Act of 2004 also tection The creation of commission testing eligible funding post-conviction un- for federal DNA provides makes Texas All and the Paul der "the Justice for Act grants” which “incentive states for federal Improvement Sciences Coverdell Forensic testing. post-conviction DNA provide Program.” Grant Comm, Justice, 108th Crim. All Act of H.R. Sen. Justice for Leg., Analysis, S.B. 79th R.S. 108-405, 401-432, Bill Cong. §§ Pub.L. No. (2005). All IV of federal Justice for Title 2260, 2278-93. Stat. Pro- known as the Innocence Act of scandal, Tulia Legislature Busts, the Texas 10., unani- Drug Chron., Oct. Houston mously approved an amendment to article “Nearly purported A38. half of all 11.65 of the Code of Criminal Procedure police cocaine Dallas seized [in 2001] was allowing thirteen of those arrested and Sheetrock, finely crushed while one-fourth convicted released on bond pending methamphetamine turned out to be resolution of their applications.23 habeas composed of main gypsum, ingredient Comm, Id.; Sen. on Crim. Bill Justice. Tips Sheetrock.” Cocaine Turn Out to Analysis, S.B.1948, Leg., 77th R.S. Job, Chron., Be a Real Snow Jan. Houston Perry ultimately pardoned Governor thir- 7, 2002, atA19. ty-five of thirty-eight who were con- This review of the last two dem- decades Hughes, victed. Polly Perry Ross Par- import onstrates poten- of preserving Sting, ChROn., dons 35 in Tulia Houston evidence, tially exculpatory particularly in Aug. at Al. involving cases some of laboratory form twenty-eight November men Indeed, analysis. unique problems Hearne, and women were arrested in Tex- during seen in last pro- Texas decade possessing as for or distributing crack co- vide impetus considerable toward a conclu- caine based on alleged transactions with a sion that “fundamental fairness” demands confidential Kimberly, informant. James preservation potentially exculpatory evi- Suit, Alleges ACLU File Racism in (Tex- Cobb, dence.25 See Bust, Drug ChRon., Hearne Nov. Houston interpreted as Constitution should be more 1, 2002, Al; Kelly see also broadly “only unique aspects when of Tex- S.W.3d 683 (Tex.App.-Waco history, jurisprudence, support or law pet.).24 prosecutor ultimately dis- separate interpretation”). charges missed the seventeen these cases because of “tainted evidence.” *16 Summary E. Tainted Evidence 17 Drug Blamed as Dropped, Chron., Cases Apr. Houston backdrop The historical for the Due 2001, atA28. provision Course Law in the Texas Con- stitution demonstrates that the framers in- prosecutors County And in Dallas had to for provision interpreted tended this to be eighty-six dismiss drug cases filed in con- consistent with the Due Process nection with Clause of dating arrests from 2000-2001 However, the after federal constitution. there was discovered that the alleged actually controlled is no clear among substances were com- consensus our sister mostly posed of gypsum. May regarding Youngblood Arrests states whether Cost Faces apply Suits False should to state constitutional Millions/Dallas due regard ly 23. With to other (Tex.App.- the three who were convicted, adjudication one was on deferred pet.). Waco We concluded that we community supervision eligible and not for a jurisdiction did not have to hear an such pardon, eligible while the other two were not appeal. Id. at 686-87. charges. because of convictions on other Pol- ly Hughes, Perry Ross Pardons 35 Tulia already recognizes importance 25.DPS 23, 2003, Sting, Aug. at Al. Chron., Houston Mott, preserving such who had evidence. supervisor been for the DPS lab in Waco Regina Kelly was one those arrested. thirty-seven years, testified that this is the Suit, Kimberly, Alleges James to ACLU File only time in his recollection that the lab has Bust, Drug Racism in Hearne Chron., Houston destroyed type of lost or evidence before 1, 2002, Court, sought Nov. at Al. In this she trial. appeal trial to court’s denial her of motion grand jury proceedings. for disclosure of Kel- Deberry Supreme Court experience in Delaware process claims. The Texas A.2d balancing a test. 457 experience the national or similar the last decade and (Del.1983) (cited approval by con- 744, reinforces the with of the last two decades (Del. expressed by those twelve states 611 A.2d Lolly cerns Young- 1992)). Su determined that Delaware Deberry, which have In adequate is not to address following blood standard that the determined preme Court excul- potentially or loss destruction to decide weighed should be factors three patory evidence. constitutional state whether defendant’s violated rights have been injustice about the that re-
[C]oncern
potentially
preserve
an innocent
to
from the conviction of
failure
sults
State’s
long
at the core of our
person
exculpatory
has
been
evidence:
That
justice system.
concern
criminal
(1)
sub-
the evidence
been
would
reflected,
example, in
“funda-
disclosure;
ject
discovery or
to
soci-
mental value determination
our
(2)
duty
so,
have a
to
if
did the state
it is
to convict an
ety that
far worse
evidence;
preserve
go
man
guilty
innocent man than
let
(3)
duty
preserve,
if
was a
there
free.”
breached,
what conse-
duty
Delo,
298, 325, 115 S.Ct.
Schlup v.
513 U.S.
quences
should flow from
(1995)
(quoting
states and under the Due degree and the of the State’s conduct provision of Law sec Course of article prejudice to accused. The State duty preserve tion the State has police justify must conduct apparent material which has ex must value, prosecutor, and defendant encompassing excul culpatory both impaired by his defense was show how patory po evidence and evidence that terms, general loss the evidence. tentially useful the defense. “(1) degree consider the court should *17 Appropriate F. Standard (2) involved, or bad faith negligence of evidence, importance the lost and the of adopted have a differ The states which (3) sufficiency the of the other evidence Youngblood than vari apply ent standard to the con- at the trial sustain adduced balancing to whether ous tests determine Hawk, v. viction.” United States Loud potentially loss or destruction of excul the (9th Cir.1979) (Ken- 1139, 1152 628 F.2d patory violates a defendant’s evidence J., nedy, concurring) (quoting United right to due under those states’ 17, 21 Higginbotham, v. 539 F.2d States constitutions. See Daniel R. respective Cir.1976)). (9th a Dinger, Should Lost Evidence Mean Rejec to Prosecute?: State Lost Chance Id. at Four other states have Supreme the United States tions of virtually balancing a identical test. adopted Youngblood, 27 Am. Decision in Arizona v. 557, Gurley 566-67 v. So.2d (2000). L. 356-61 J.Crim. Ferguson, State v. (Ala.Crim.App.1993); (Tenn.1999); State v. Deli of em S.W.3d largest number these states The sle, 648 A.2d 642-43 by the 162 Vt. ploys balancing the test enunciated Osakalumi, State v. form to duty preserve W.Va. its evidence (1995). 461 S.E.2d against degree the of prejudice thereby by sustained the defendant. The balancing by various employed tests the other seven rejected states which have Fain, 116 Idaho 774 P.2d Youngblood the standard substantially are (1989). similar. potentially When exculpatory evidence is The good state’s in failing or bad faith to lost destroyed, balancing test preserve videotape the is relevant to to employed determine the appropriate- determining appropriate the sanction. ness of and extent remedial action. The We degree look to culpability on weigh courts must culpability state, part of the importance Commonwealth, materiality of the lost, prejudice suffered potential prejudice evidence and the to by accused, guilt and the evidence of the defendant. hearing.
adduced at the trial or Dep’t Thorne Safety, Pub. 774 P.2d Phoenix, Commonwealth v. 409 Mass. 1326, 1331(Alaska 1989). (1991). 193, 196 567 N.E.2d weigh [W]e the reasons for the unavaila- Once a defendant demonstrates that bility evidence, materiality the State has preserve appar- failed to evidence, missing the likelihood of ently evidence, relevant the State has interpretation by mistaken itof wit- showing burden of that it acted in nesses or the jury prejudice and the faith, good that it had the sense the defendant. The first factor scruti- defendant, prejudice intent involvement, nizes the state’s and the culpable negli- that it also acted without remaining three impact examine the gence, which we have defined as “less the trial. than gross negligence more than but Estrella, State v. 277 Conn. A.2d ordinary negligence.” If State car- (2006) (citation omitted). burden, ries its claim relief the defen- The balancing test in Hawaii focuses on: dant must that the ] lost “demonstrate[ (1) whether the state acted in bad faith material, degree evidence was to the (2) losing evidence; or destroying the “the its introduction probably would (3) evidence”; favorableness guilty, have led to a verdict of not prejudice “the suffered the defendant loss prejudiced its [the defendant] Matafeo, result its loss.” State by precluding the introduction of evi- 71 Haw. 787 P.2d probably dence that would led Supreme Court of Idaho endorsed verdict in his favor. approach an which is: *18 Smagula, v. A.2d State N.H. cognizant of degree the and weight of 1215, 1217(1990) (citations omitted). the evidence against accumulated the three-part New a adopted Mexico has
defendant as degree culpa- well as the deprivation test to determine whether bility of the State to failing preserve a Indeed, evidence criminal defendant’s material a violates strong evidence. line right requires sup- to due just recognize of cases do more than and pression regard strengths relative and the evidence. With weaknesses of variables, evidence, those to actively but balance the each item of the district magnitude of the failure per- State’s to court must determine whether: 1) 27 Am. L. Dinger, supra, The State either breached some J.Crim. Arizona, v. 384 U.S. duty intentionally (quoting de- Miranda deprived or 1602, 1624, 16 evidence; L.Ed.2d 86 S.Ct. fendant of Perry, United States 2) evi- improperly “suppressed” The (D.C.Cir.1972)). 1057,1063 agree We F.2d material; dence and [was] Dela- analysis adopt with this 3) suppression of The [the] above, stated as approach, ware/Tennessee prejudiced defendant. arti- arising under for claims standard Hill, State N.M. P.3d Constitution. cle section Texas (citing (Ct.App.2005) 750-52; Choui A.2d see also Deberry, 457 nard, 680, 683 96 N.M. 634 P.2d 566-67; Gurley, Ferguson, So.2d at (1981)); Ware, accord State v. 118 N.M. Delisle, 642-43; 917; 648 A.2d at S.W.3d at 881 P.2d Osakalumi, 461 at 511-12. S.E.2d that One commentator concludes Application G. repre- approach “Delaware/Tennessee” Discovery Subject to 1. Was Evidence to uphold sents best means defen- or Disclosure? right a fundamentally dant’s to fair trial placing without an inordinate burden on has a criminal defendant “[A] the State. indispensable to to right inspect evidence case that evidence is the State’s because balancing adopted by approach
[T]he necessarily to the defense of the material Delaware, Tennessee, is and others State, McBride v. accused.” clearly approach. the better The bal- (Tex.Crim.App.1992); accord ancing approach is the better approach 182, 185 Nowling v. fundamentally is because unfair trial 1990, pet. Dist.] (Tex.App.-Houston [14th likely to under approach less occur d); also Tex.Code ref see Youngblood Cmm. PROC. Ann. than under bad faith 39.14(a) (Vernon (defen Supp.2006) art. Further, balancing ap- test. under the right discovery “tangible dant has proach, flexibility courts have more or things privileged, which constitute upholding reversing convictions any matter contain evidence material to justice require when the interests in the action and which are involved flexibility missing it do so. That is [sic] custody or of the State possession, control Youngblood approach. Finally, from the In a marihuana agencies”). of its balancing more “effec- approach —a case, alleged necessarily marihuana way[ protecting rights tive ] case,” and “indispensable to the State’s promoting individual while efficient en- right inspect has “a that evi defendant forcement of our criminal laws”—is su- McBride, 251; S.W.2d at dence.” See perior because it is fair to defen- more at 185. Nowling, 801 S.W.2d dants, but not fair than less just Youngblood approach, Did Have a the State easy apply. balancing Under the Duty to Preserve? Young- approach, more so than under blood, de plant material which was permitted engage court is [to] evi truth, adversary stroyed in Pena’s case was material “a not an search *19 alone, was not inde Id. Yet because it game.” For this reason the bal- dence. tested, merely the evidence was ancing superior ap- pendently is approach the may be Nothing useful. more potentially proach. missing stroyed tested, said of the plant plant material than material was and it that it subjected by could have been to an stands unsupported documentation and Fisher, independent by test. human memory. See Illinois v. unverified 1200, 1202,157 540 U.S. 124 S.Ct. (2004) (c)Sufficiency of Other Evidence (unpreserved
L.Ed.2d 1060
evidence
potentially
was
useful because the defense
factor,
Regarding the third
the sufficien-
test).
subjected
could have
it to a fifth
evidence,
cy
the
photographic
other
the
Also, given
complete
the material’s
de
plant
Ashy’s
evidence
the
material and
struction, it is clear that Pena was unable
testimony
support
finding
would
a
that
to
comparable
obtain
by
evidence
other
possessed
Pena
marihuana on the occasion
reasonably available means. See Trombet
question.
See Ward v.
ta,
3. What Should material seized from mari- Pena’s van was Flow from this Breach? huana, quantity important evidence of is to (a)Degree Negligence punished determine whether he should felony for the of a jail commission state now turn the consequences We degree felony. a third See Health & of this breach. It evident from the (4) (Ver- Safety 481.121(b)(3), § Code Ann. record that material plant was not 2003). Photographs non and officer testi- with destroyed Pena deprive intent mony probative are far less this ele- destroyed it. plant access to The mate ment the State’s case. rial accompanying missing files were likely negli most result of two acts of Summary gence. Mott testified were files likely during most lost the lab’s relocation right inspect plant had a Pena plant destroyed and that the material was subject discovery. material and it was because a destruction order was received. duty State to preserve had a this evidence, which Re- breached.
(b)Importance of Lost Evidence garding consequences which should plant breach, Because the negli- material was the sole flow from State’s basis prosecution, However, for Pena’s arrest and gence arguably slight. paramount factors, was of importance importance and became of the lost other documenting more so sufficiency after the files its evidence and the of the remain- testing evidence, Consequently, ing heavily were lost. the lab in Pena’s favor. weigh trial, Therefore, report, exclusively upon relied we was denied hold Pena the only recording that the de- course of law the State’s destruc-
655
destroyed
evidence
when it
material and the DPS lab in bad faith
plant
tion of
In New
Gurley,
dy without
if ...
tried
H. Harm
deprived
be
of a fair trial
“will
” Hill,
missing evidence.’
125
without the
vio
Having found a constitutional
Bartlett, 109
(quoting
at
State v.
P.3d
lation,
whether
we must next determine
(Ct.App.1990)).
789 P.2d
N.M.
Rule
requires
this error
reversal. Under
of Massachu-
Judicial Court
Supreme
44.2(a),
such an
Appellate Procedure
similarly
may
held that dismissal
setts has
the court
requires
error
reversal “unless
even
remedy,
an
when
appropriate
beyond doubt
determines
reasonable
faith,
not
if the loss
state does
act
bad
the error did not contribute to the
potentially exculpato-
or destruction of the
Tex.R.App.
punishment.”
or
P.
conviction
so
ry
“is nonetheless
critical to
evidence
State,
44.2(a);
Pope
see
161 S.W.3d
a criminal trial
the defense
to make
2004),
(Tex.App.-Fort
aff'd,
Worth
fundamentally unfair.”
Commonwealth
352 (Tex.Crim.App.2006);
Moore v.
Henderson,
411 Mass.
582 N.E.2d
(Tex.App.-Waco
(1991) (quoting Youngblood, 488 U.S.
refd);
pet.
Fox v.
(Stevens,
J., concur-
at
By right violated Supreme Ten- course lawof under article section 19 of nessee endorsed following instruction Therefore, the Texas in Constitution. we police a case which the inadvertently sustain Pena’s first issue and do reach not videotape recorded over a depicting de- remaining his issues. performing sobriety fendant field tests. duty
The State gather, pre- has judgment We reverse and remand serve, and produce at trial evidence this cause to the court trial for further may possess which exculpatory value. proceedings opinion. consistent with this must Such evidence be of a nature that
the defendant would be unable to obtain
Chief
dissenting27.
Justice GRAY
reading
dissenting opinion’s
Kennedy
particularly ap-
selec-
are
Court Justice
from
Scriptures,
propriate
tion
we
reminded
are
here:
the recent
of the
collegiality
judiciary
observation
Court Crimi-
can be
Appeals:
destroyed
nal
adopt
if we
and man-
habits
modern,
First,
nerisms
fractious discourse.
unnecessary;
the statement
it
public
private
nothing
Neither
nor
must we
legal
contributes
to the
issue before
Second,
disrespect
judges.
our
importantly,
show
fellow
us.
and most
it is
failings,
highly unprofessional.
judge
embody
we
Whatever our
When a
chas-
judiciary
authority. Disrespect
tises other members of the
law and its
for the
manner,
only
person
disrespect
poorly
it
leads
reflects
for the cause.
judge,
integrity
respect
public
judiciary
undermines the
If
is to be
maintained,
justice system.
Supreme
begin
The words of
it must
from within.
should in-
GRAY,
We
dissenting.
Texas Constitution.
Chief Justice
*22
those two
case on one of
stead decide the
vomit,
a
dog
returns to its
so fool
“As
bases,
is one doc-
proper
since
there
“[i]f
folly.”
As the
repeats his
Proverbs 26:11.
in
deeply
any
rooted than
other
trine more
State,
majority did in
see
166
Pena
adjudication,
the
of
constitutional
(“Pena
2005)
(Tex.App.-Waco
274
S.W.3d
pass
questions
to
ought
it is
we
not
on
(Tex.Crim.
I”), vacated,
nal
and
Appeals
vacating
directed
re
manding
majority’s
judgment.
earlier
I. PRESERVATION
OF ERROR
Pena,
138;
Pena v.
S.W.3d
majority’s analysis
preserva-
The
(Tex.App.-Waco
S.W.3d
follows,
entirety:
tion
is as
in its
of error
order)
curiam),
merits,
(per
disp.
argues
The
that Pena has not
State
II,
Pena
The
opinion conflicts with the
greater
rights
provides
Constitution
applicable decisions of the
of Crimi
the federal constitution. We dis-
than
Court,
Appeals,
nal
Texas Supreme
agree.
court that
argued
Pena
The
appeals.
the other courts of
ma
of Law
rights
his
under
Due Course
jority
unjusti
again
improperly
seeks
provision of the Texas Constitution were
fiably to
re
“extend” the
See In
law.
of this evi-
violated
the admission
B.L.D.,
203, 211 (Tex.App.-Waco
If,
contends,
dence.
State
rev’d,
(Tex.2003)
2001),
MR. CAHILL: do need to ad- We the motion the confrontation issue under dress the motion to suppress get the Sixth Amendment and Fourteenth the record to do going what Court Amendment States United Consti- objections with that. The in the —I One, tution and Article Section 9 objections Constitution, would add to those Section con- Texas that offends the Safety 481.160 of the Health and Code in the that frontation clause. And case dealing distinguish with destruction of evidence the State relies on I would wherein under the new law in this sec- Court in that a— that for the that was tion that was enacted that the is in file. I would be my and the cite which, limine, State, may only Crim.App.2003); It a motion v. in Norman course, preserve appellate does not error for (Tex.Crim.App.1975) (plural State, State, review. See Manns v. ity op.); v. 481 S.W.2d Brazzell State, (Tex.Crim.App.2003); Geuder v. State, (Tex.Crim.App.1972); Thomas v. (Tex.Crim.App.2003); 115 S.W.3d (Tex.Crim.App.1972) 477 S.W.2d State, (Tex. v. Martinez that must show lost evidence he glad provide that to the Court. The and fa- lost is both material provided copy has been that my going That ease are understanding. to him.We case vorable along of blood evi- with the was about destruction this notion carry hospital, by a procured dence that was case.... not of Tex- representative the State 9-12) added); (3 (ellipses see R.R. [sic] It as an arm of the State of Texas. VI, XIV; Const, amends. U.S. California gathered preparation not in liti-
was
Trombetta,
104 S.Ct.
v.
467 U.S.
not
gation such
this was.
It was
as
(1984);
States
United
81 L.Ed.2d
preparation
and tested in
examined
Valenzuela-Bemal,
858,102
458 U.S.
S.Ct.
such as in the case
hand
litigation
versarial of the I on fact—and that he tested based it litigation. ration for And then Amendment object will under the Sixth destroyed something happened lost or and States Constitution the United to byit the State direct contravention One, the Consti- Article Nine of Section they Rules keep that evi- Texas, under the tution of dence. there is no of confrontation that right adequately I cross examine
way that can THE COURT: I need to hear the expert alleged mar- confront this on and I rule on this. But evidence before ijuana longer that no exists. cases, citing these States United objection would be Additionally, Valenzuela, Bemaul and the versus rights under case, Mahaffey that the lost showing law, which accused due course might have favorable been the Fifth and Four- would be Sixth meet not the—does not does have Amendments. teenth materiality standard. And then Cali- you saying Are that Trombarro, THE COURT: again versus Mahaf- fornia under of confrontation fey. complains right When an accused State, 788 (Tex.Crim.App.1997); Stoker v. “custody objections,” I understand Pena By 3. (Tex.Crim.App.1989). I see objections custody. to to the chain of mean objections in the record. such Lagrone object Constitution would to an apply they going get are to him ask here. marijuana? such guess as I you’re going to have the results of a report? lab Yes, CAHILL: Judge, MR. I am. way MR. right,
Because there is no that I SMITH: That’s Your Hon- can adequately or. across— THE
THE COURT: Is that all we are your go- COURT: Let me see case ing that. have? MR. right, SMITH: That’s Your Hon- MR. I Judge, CAHILL: don’t have a or. And we would like to also— specific case on the actual issue. out, THE get COURT: Get it it THE COURT: The always Court has marked so we are talking know what we been opinion right under the about here. applies confrontation to witnesses person. against a Yes, MR. SMITH: sir. correct,
MR. CAHILL: That’s Your (3 95-98) (bracketed R.R. at [sic] alteration Honor. Const, added); see U.S. V-VI, amends. Const, XIV;
THE object. § And an art. COURT: not exhibit marked report. was Mott’s lab problem here, MR. CAHILL: The Honor, it, Your if I could address is this After the State examined Mott on the going testify witness is about an ob- testing of Pena’s marihuana Mott’s ject. thereof, report Pena stated:
THE Okay. COURT: I Judge, MR. don’t CAHILL: have objection. anything. re-urge my I would object MR. CAHILL: That is no If the Court would like to allow me the longer of, in existence because we be- opportunity put clearly on the rec- lieve, witness, which would like to ord because—or make a decision wheth- get into next. And so that itself does er going they this is to come in when adequately allow me to confront and any dope don’t have test. for to us cross him I examine could because never about, Now, see what he’s touch talking what THE All right. COURT: about, talking he’s independent an have understands we lost talking lab test what he is about. He and in type evidence here these cases might say well gun prose- murdered the defendant must show that the *27 fellow, it, I gun, looked at the I saw cution bad faith when it acted failed to well, I got and, I fingerprints preserve don’t have the evidence to show violation any of that stuff but I tell you will all of due due course law. about it now. prove And the defendant also to that has the lost evidence would material be to
THE I right COURT: don’t believe question case. And there is no here confrontation reaches that far and it would material case. be to the It is you’re overruled on that point. the essence the case. And that the MR. I CAHILL: would address the be to evidence would favorable the de- process rights of the accused and guess my I duty fendant. So that’s to law, additionally, due course of Judge. rule on kind of questions. those But if you’re going to allow that in and (3 113-14) added). R.R. (ellipsis [sic] allow— THE I know COURT: don’t what I’m After further examination and cross-ex- Mott, going to allow in. I don’t know what amination of the trial court found: I Right, understand. finds THE COURT: Then the Court is—the Court jury, though, really is to the goes lost That then that the evidence that was I an oath find how me because took material but the Courts fails to more than to if follow going be to the defendant and I’m to it could favorable follow this law to I’m says into Court. brought had here a case that you got it been If it. that does find follow also the Court not it and I will And let me have wrong part faith there was bad that case. on the wilful misconduct the State or made I would have CAHILL: MR. losing part the State I already, if did. copies Judge, you ten insofar as this witness concerned. Okay. THE COURT: 124-25.) (3 R.R. at [sic] the purposes For MR. CAHILL: colloquy on the source After further jury, bring back the this. And when we marihuana, Pena
authority destroy to at this time to be Judge, I would like continued, and the trial court ruled: objec- my previous re-urge to allowed again MR. CAHILL: And I would tion, clear. And make sure it’s when I to just going understand —if I just Judge, say, in if I can jury comes in, that tested testimony let this this was ap- something protect re-urge or marijuana, marijuana that it was and record. pellate marijuana, when weight I Right. you want THE COURT: pur- that it done the Court found wasn’t record. appellate protect laboratory, be it the posefully by the I think know we MR. CAHILL: Texas, counsel puts State of that defense going. it’s where where forced posture, Judge, in a we are need to THE Whatever we COURT: nega- prove to assume the burden it. let’s do regard do in that tive. that,
THE I know Mr. Ca- re-urge COURT: I ev- MR. CAHILL: would know, hill. But I you didn’t write motion erything as set out law. re- that I suppress. Along with would 481.10 or 160 of that, urge under Section I
MR. CAHILL: understand Code, Safety Texas Con- Health Judge. I re- Act. would also trolled Substance just trying THE I’m to fol- COURT: motion, along in the with urge that’s these cases low law and what —it’s anything under 38.22 in a say. puts I realize it the defendant been de- out of this after has came just you’re doing And predicament. Judge. stroyed suppressed, your I if I was in shoes. what would do got law. clause, think, But I didn’t write the I have I The confrontation follow law that courts write from the defense stand- big issue here I’m do and *28 trying me and what object that’s under So I would point. me so I’m they that’s what told to do and Amendments Fourteenth Sixth One, doing it. and Article the U.S. Constitution that, the Texas Judge, Nine of Constitution I think Section MR. CAHILL: One, process. Article Section under due substan- when there is other evidence or Nineteen of the Texas Constitution that an was com- tial evidence offense Amendments Fifth and Fourteenth why think that we don’t mitted —and I rights under the insults to the U.S. Constitution just it in law see because One, accused, and Article Section much, of the justice Judge. so Safety 2005), 38.22; Ten the Texas Constitution and the art. Tex. Health & 481.160; § Sixth Amendment of the U.S. Constitu- Code Ann. Evid. Tex.R. tion. jury, objected: Before the Pena Judge, my course previous objec- object
I would under due course of urged tion that was I prior just to this 1.04,1.051 object law and under and 1.06 again re-urge urged it now and that I of the Code of Criminal Procedure. If beginning testimony. is going to allow—those would address the issue of (3 146.) this nonexistent evi- R.R. at The trial court admitted being presented. dence report. Mott’s
Although Pena used words “due course of law” cited Texas Constitu my objections ... Those are to that. I, although tion Section Article not in 19— only And the one I would add would be proximity to each other —nowhere does might court, that I ask the trial since he Pena apprise the trial court that due coming expert as an testifying course of law under the Texas Constitution although says until he he actual- about — different had bearing on his case than ly something did now no longer that did of law under the United 705(a) (d), believe, exists under I frankly States Constitution. Pena ac under the Rules Evidence. I knowledged to the trial court that he had would like the Court to take into consid- authority no case for propositions balancing eration that and do a test and advocating.4 say Pena was To that an put give jury on record and appellant have presented authority must limiting instruction that’s it’s to be arguments say for “is not to [an] any purpose used for than say other appellant may argument not make a novel well, at one it may time have existed but directly authority which there is no on not for the facts asserted on the under- However, point. in making argu an such lying test that we cannot—we can’t ment, appellant ground must his con [an] on, Judge. cross him analogous tention in or provide case law THE COURT: I jurispruden wouldn’t know how the [c]ourt with relevant you’re asking do what me to do. tial his evaluating framework claim.” (Tex. Tong right. MR. CAHILL: All That’s all I submission). Crim.App.2000) (op. orig. have on the issue of the nonexistent so; nothing Pena did not do he did more evidence. than recite the words of law.” “due course you clearly THE COURT: Then have In holding preserved that Pena a com objection your stated and the Court has plaint, majority’s decision conflicts you heard them and stated them with applicable decisions of the Court However, well. the Court overrules Appeals. of Criminal objections. those Pena his com- holding preserved (3 126-30) added); (ellipses plaint, majority, [sic] R.R. as it did in Loredo v. Const, V-VI, XIV; Texas, “ignore[s] principle see U.S. a fundamental amends. Const, §§ trial preservation: Tex.Code CRiM. of error that the court 9-10, 19; art. 1.051, (Vernon 1.04, complaint arts. 1.06 must aware of a be made PROC.Ann. *29 (Br. Indeed, argues provisions.” [on 4. Pena the trial court state re- that was constitutional 3.) independently interpret mand] “unauthorized to at
Q65 merely is mentioned authority which in a manner so that it can be on time and State, Loredo, at Webbv. S.W.2d the trial court.” corrected.” See S.W.3d refd); 1995, pet. 814, (Tex.App.-Waco complaining A party error bears 178, State, v. the attention accord Holmes “burden to draw trial court’s 2004, pet.); no may (Tex.App.-Waco to the so the trial court error that McCullough v. No. 05-97-00950- make an free opportunity have to error *3, Tex.App. CR, that at ruling.” corollary at 924. A WL Id. (Tex.App.-Dallas Jan. LEXIS at *7 complaining party that principle is (not designated publi for pet.) on must erroneous statements correct Sullivan, cation); No. 05-98- parte In ruling which trial court’s based. Ex (the 00016-CR, *1, Loredo, at 1998 WL Appeals” the “Court of same here) (Tex.App. *3 Tex.App. fact LEXIS at majority “disregarded refd) (not 6, 1998, pet. desig Apr. ... ruling that the trial court’s was based -Dallas recollection, parte Peyser, for Ex judge’s publication); on erroneous nated 05-97-01606-CR, 775612, at 1997 WL explicitly which was stated on the record No. (Tex. correct, *3, necessary.” at parties Tex.App. for the to if LEXIS *9 (not refd) 17, 1997, pet. App.-Dallas Id. at “the defendant to Dec. fail[s] 923. Where designated publication); Morgan correct trial court’s erroneous state- ment,” 05-94-01135-CR, WL defendant “therefore to fail[s] No. *4, Tex.App. LEXIS meet his burden to show trial court 30, 1996, Apr. pet. his” objection (Tex.App.-Dallas “should have sus- at *13 been” ref'd) (not Loredo, Lo designated publication); tained. at 924. where Id. As (Tex. State, 651 “appellant dispute pez failed to the court’s so,” refd); pet. even invited see App.-San recollection when to do Antonio CV, Martinez, here No. 2006 WL dispute Pena failed the trial court’s re 09-05-493 2439752, *2, law, Tex.App. statement of the which Pena now LEXIS erroneous, Aug. (Tex.App.-Beaumont contends was even when the at *5 (mental (mem. commitment); op.) trial expressly pet.) court invited Pena to do so no (Tex. Thus, Loredo, Rector, Knipe least three times.5 as in writ). 1971, no Civ.App.-Fort Pena’s in his “silence resulted failure Worth objection shotgun objec a typical inform trial court his at a Pena’s complaint objection pre In holding time in a be tion. that Pena’s manner could corrected, majority’s require- complaint, served a decision violation basic appeals’ courts of deci Appellate ments of Texas Rule of Proce- conflicts with other dure 33.1.” See id. sions. holds, “If,
Moreover, objections, as the State citing majority The “‘shotgun’ contends, objection provisions federal state many grounds for the without objection un- synonymous, then Pena’s argument, points will not based are preserve your judg- anything Pena there would there 5. The trial court warned Pena that put lost defen- would evidence that the ment would be favorable favorable, and evidence would have been dant? sir, only attempt opinion, to do my Pena did so. if THE WITNESS: In regard testimony evidence in that was Mott’s they reanalyzed, were have it if it would on examination the trial court: sitting reanalyzed per- and had it there Now, up doing with it’s mari- son it would come right. you had COURT: All if THE juana, and it here in sir. not lost material (3 119.) sitting Montgomery’s table R.R. at court on Mr. *30 666
der meaning- Having the Texas Constitution was found constitutional viola II, tion, (majori- less.” Pena 226 S.W.3d 637 we must next determine whether ty op.). objection may requires Pena’s been this error reversal. Under above, 44.2(a), for the meaningless, Appellate reasons stated Rule Procedure but an requires would have been for the reason such error reversal “unless by majority. stated court majority’s beyond The determines a reason fallacious, statement, being besides con- doubt able that error did not con applicable flicts with the tribute to punishment.” decisions the conviction or Tex.R.App. 44.2(a); State, Court of Criminal Appeals. Pope That Court P. see v. has held that the 121 argument (Tex.App.-Fort conflation 161 S.W.3d (Tex. 2004), aff'd, under the United States and 352 Texas Consti- Worth S.W.3d State, signify argument Crim.App.2006); tutions does not an that v. Moore provides degree the one a higher protec- (Tex.App.-Waco S.W.3d State, State, refd); tion Luquis pet. than the other. v. S.W.3d Fox 72 S.W.3d 364 (Tex.Crim.App.2002). (Tex.App.-Houston [14th Dist.] refd). majority’s argüment sequitur, The is a non pet.
moreover, in that
citing
of both the
Here,
impacted
the error
the determi-
United
and Texas
States
Constitutions
guilt
nation of
Pena’s
because
affected
signify
great-
does not
that
provides
either
ability
prove
his
his contention that
other,
protection
er
than the
more
plant
something
material was
other
than
citing
Pena’s also
Texas
statutes
or
than marihuana
that it amounted to a
signifies
rules
that the statutes
rules
quantity
charged
less than
in the indict-
greater
cited provide
protections than the
],
Nowling
ment.
[v.
Cf.
constitutions,
By
either
them.
[182,]
(Tex.App.-Hous-
S.W.2d
184-85 [
majority’s reasoning,
possi-
it would not be
refd)
1990, pet.
[14th
].
ton
There-
Dist.]
ble to
two
for a
co-equal
cite
authorities
fore,
say beyond
we cannot
a reasonable
legal proposition;
necessarily
would
one
doubt
the error
not affect
did
trump
argued
the other.
Pena
punishment.
conviction or
Pena’s
Constitution,
United
as
States
well as
II,
(majority
Pena
at 654-55
Constitution,
Texas
barred
evidence of op.).
complains.
which
he
this he was incor-
analysis,
“In
a harm
conducting
rect,
interpretation
under the authoritative
an
appeals
opin
court
must hand down
of the United States Constitution
brief,
although
every
ion that
‘addresses
Court;
Supreme
United States
but
necessary
disposi
issue raised and
to final
signify
does not
that the Texas Constitu-
”
State,
Long
of the appeal.’
tion
provides greater
tion
protection than
(Tex.Crim.App.2006)
United States Constitution.
Tex.R.App.
47.1).
general
P.
The
(quoting
is that “an
must exam
appellate
rule
court
reasons,
For these
we should overrule
engaged
record
a whole when
ine the
Pena’s issues
remand.
a harmless-error review.” Miles v.
(Tex.Crim.App.2006),
II. Hakm
—
denied,
U.S.-,
127 S.Ct.
cert.
Further,
(2007);
effec-
majority
conducts no
667
(Tex.
State,
707,
might
how
be consid-
alleged error and
v.
165
714
chez
S.W.3d
State,
with other evidence
Crim.App.2005); Rich v.
160 S.W.Sd ered in connection
575,
instructions,
(Tex.Crim.App.2005);
case,
Schutz
jury
577-78
the State’s
(Tex.Crim.
State,
442,
theories,
v.
S.W.3d
444-45
closing
63
theory
defensive
State,
App.2001); Llamas v.
12 S.W.3d
dire, and whether
argument, voir
“Indeed,
469,
(Tex.Crim.App.2000).
471
Rich,
emphasized the
160
error.”
hardly
of an
impact
‘one can
evaluate
Motilla,
(citing
at
78
577-78
S.W.3d
jury
error
decision without consid
upon
355-56).
example,
at
For
in the
S.W.3d
ering
totality
of the case before
evaluating
harm from the con-
context
”
jury.’
(quoting
Miles
828
W.
stitutionally
admission of evi-
erroneous
LaFave
27.6(b),
§
dence,
has
Appeals
of Criminal
AL.,
ET
PROCEDURE
CRIMINAL
(2d ed.1999)). Moreover,
evi
943
“the
reviewing courts “should consid-
held that
guilt
dence of
is a factor to
the defendant’s
er”:
any thorough
analy
be considered in
harm
(1)
“to
importance
“The
of the” evidence
State,
352,
sis.”
v.
78
358
Motilla
S.W.3d
case;”
the State’s
State,
(Tex.Crim.App.2002); accord
v.Wall
(2)
the ...
cu-
“Whether
evidence was
730,
184
(Tex.Crim.App.2006).
S.W.3d
746
evidence;”
mulative of other
‘judge
magnitude
must
of the
“[W]e
(3) “The
presence or absence
evi-
of the
light
error in
evidence
a whole
contradicting
corroborating
dence
or
degree
prejudice
determine
to the
”
points;”
the”
“on material
evidence
resulting
defendant
from that error.’
(Tex.
State,
766,
119
Jones v.
777
S.W.3d
(4)
of’
“The extent
similar evidence
v.
Crim.App.2003) (quoting United States
permitted;” and
“otherwise
Polanco,
(9th
555,
93 F.3d
562-63
Cir.
(5)
strength
prosecu-
“The
of the
overall
1996))
error).
(Miranda
Moreover,
tion’s case.”
evaluating harm from
error
constitutional
Davis,
(citing
203
at 850
S.W.3d
Delaware
material,
evidence,
involving
exculpatory
684,106
Arsdall,
673,
475 U.S.
v. Van
S.Ct.
the “constitutional standard materiali
(1986)) (Confronta
1431,
The majority conducts no effective 1970); State, Miller 168 Tex.Crim. In failing, harmless-error review. so 330 S.W.2d 468 (Tex.Crim.App. majority’s decision conflicts with those of 1959); State, Walker v. No. 05-01-00904- Appeals. Court of I briefly Criminal CR, *1, *2, at WL 2003 Tex. analysis note that a harm proper would *3, App. LEXIS at *5 (Tex.App.-Dal probably any find beyond error harmless a refd) (not las Jan. pet. designat reasonable At several points doubt. in the publication). ed for The officer testified majority’s opinion, majority writes as on unequivocally experience his based though there were no evidence of Pena’s the marihuana was marihuana. The offi guilt other than the marihuana seized and cer at weight, testified to the marihuana’s report. majority Mott’s The states that fifty over pounds, possession of which exclusion testimony of report Mott’s is a felony.7 second-degree See “would be tantamount to a an acquittal.” Safety 481.121(b)(5) § Health & Ann. Code II, Pena at 655 n. (majority (Vernon 2003). charged The State Pena However, op.). disregarding the evidence with the posses lesser included offense of exclude, that the majority would the other sion of pounds, 23.46 based on re Mott’s evidence is sufficient and damning. port weight dry the marihuana. particular, a harm proper analysis would The other evidence of the marihuana and arresting consider the expert officer’s tes weight its probably would render er timony marihuana, identifying the and his testimony ror in the admission Mott’s photographs of marihuana.6 police “A report beyond a harmless reasonable testimony, officer’s on experi based his reason, doubt. For that we should over ence and the characteristics of the sub rule Pena’s issues on remand. stance, that marijuana the substance is is sufficient to establish the substance is
marijuana
as that term defined in the
III. ErRor
Texas Controlled
Act.” Capua
Substances
Although
many parts
are
there
of the
State,
05-04-01832-CR,
no v.
No.
majority’s
analysis
error
with which I dis-
*4,
WL
Tex.App.
LEXIS
I
agree,
myself
limit
following
few
*12 (Tex.App.-Dallas
Feb.
brief comments.
(not
pet.)
designated
no
publica
tion)
State,
(citing Carmouche v.
The majority’s opinion again contradicts
5.W.2d
(Tex.Crim.App.1976));
ac
the holdings
Ap-
of the Court of Criminal
cord Schillings
peals.
No.
12-03-00069-
Texas law
the effect that
Although reversing
ground
possession
6.
on the
I
note that Pena’s
of more than
marihuana,
fifty pounds
majority
probably
marihuana was not
of marihuana could
photographic
successfully prosecuted
delivery
concedes that "the
evidence
been
marihuana,
plant
first-degree
felony.
material and” the officer’s
"testimo-
See Tex
481.120(a), (b)(5)
ny
support
finding
§
pos-
would
Pena
Safety
&
Ann.
Health
Code
(Vernon 2003).
ques-
sessed
put
expert
marihuana on
occasion in
testi-
II,
tion.”
(majority
mony
Pena
that the bulk value of marihuana is as
(3
op.) (citing
per pound.
Ward v.
much as one thousand dollars
1983)).
169.)
(Tex.Crim.App.
R.R. at
arrest
who make the
inadmissibility
potentially
of lost
were the officers
favorable
testify
on a
to the
showing
conditioned
and seizure and who could
long predates
faith
the United
course,
bad
States
custody.
chain
Of
the state
Supreme
interpretation
Court’s
purposefully
must
be allowed to
United
Constitution to that
States
effect
eye
destroy
an
carelessly
evidence with
Youngblood
and affirmed as re
defendant,
there was
harming
but
Youngblood,
cently as 2004. Arizona v.
showing
of bad faith on the state’s
51, 57-58,
109 S.Ct.
U.S.
part in
case.
*33
Fisher,
(1988);
v.
L.Ed.2d 281
see Illinois
Lake,
in orig.)
at 246 (emphasis
577 S.W.2d
544,
1200,
124
540
157 L.Ed.2d
U.S.
S.Ct.
omitted).
(some
Here, as in
citations
917;
Turpin,
Besides
with the Court of
the dried
flowering tops
leaves and
of a
Criminal
Appeals’
Supreme Court’s
decisions,
plant commonly
hemp.”
majority’s opinion
Capua
conflicts
known
no,
*3,
with the
of the
321964,
decisions
other courts of
at
2006 WL
2006 Tex.App.
appeals.
Every
appeals
State,
court
1151,
*9;
has LEXIS
at
see Few v.
588
considered
majority’s
the matter since the
578,
(Tex.Crim.App.
S.W.2d
[Panel
581-83
opinion
disapproved
vacated
has
of that
1979);
State,
Op.]
Baker v.
123 Tex.Crim.
State,
analysis.
v.
See Alvarado
No. 07- 209,
534,
210,
534
Ca
06-0086-CR,
2860973, *3,
at
WL
321964,
*3,
puano, 2006
at
2006 Tex.
WL
8696,
Tex.App.
at
(Tex.App.
LEXIS
*8-*9
App.
1151,
*10. Pena did
LEXIS
at
not
(not
9, 2006,
pet.)
Amarillo
no
desig
Oct.
court,
suggest
to the trial
and does not
(mem.
publication)
op.);
nated for
In re
suggest
appeal,
proof
how
that his mar
Bowman,
03-06-00183-CR,
No.
2006 WL ihuana was
have affected
“hemp” would
his
2852495,
*1-*2,
at
2006 Tex.App. LEXIS
guilt.
8902,
(Tex.App.-Austin
at *3-*4
Oct.
parte
Ex
recent case in
Lewis is a
which
d) (not
2006, pet.
designated
publi
ref
for
Appeals
the Court of
decided that
Criminal
cation) (mem.
State,
Gutierrez v.
op.);
No.
not “impose[
the Texas Constitution does
]
04-04-00790-CR,
*2,
2006 WL
at
a
than its ...
different standard
counter
(Tex.
at
Tex.App. LEXIS
*5-*6
part” in
States Constitution.
8, 2006,
the United
App.-San
pet.)
Antonio Mar.
no
(Tex.
(not
(mem.
Lewis,
parte
Ex
designated
publication)
op.);
for
State,
04-05-00163-CR,
proceeding);
Crim.App.2007) (orig.
v.
see id.
Garcia
No.
Tex.App.
WL
at *2
LEX
at
treats
as a
majority
n.
371. The
Lewis
914, 916;
917-18;
State,
(Tex.App.-Corpus
App.
Stone
LEXIS
at *8
see id. at
v.
ref'd) (not
(Tex.Crim.App.
Op.]
pet.
designat
[Panel
pear to be at all what the Court Crimi- orig- issues on and reach issues on remand Appeals nal has in mind term. inal Because the Court does submission. II, Pena Compare 647-51 otherwise, I dissent. (majority op.) with Lewis 360-71. Moreover, that, expect I as the Court of Appeals
Criminal finds in sometimes Lew-
is, “supporting simply that here majority’s not exist” as to
does some
factors. See at 354. To whatever Lewis expanded, law
extent due course of expansion step because the was in expansion law.
with the of due D. BRaden et al„
See GeoRGE Consti- An
tution of the State of Texas: Annotat- Comparative Analysis
ed