Pena v. State

• Decision Date: 27 April 2005
• Docket Number: No. 10-03-00109-CR.,10-03-00109-CR.
• Citation: 166 S.W.3d 274
• Parties: JOSE PENA, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

166 S.W.3d 274

JOSE PENA, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-03-00109-CR.

Court of Appeals of Texas, Waco.

April 27, 2005.

COPYRIGHT MATERIAL OMITTED

Frank Blazek, Smither, Martin & Henderson, Huntsville, for appellant.

Ray Montgomery, Leon County Dist. Atty., Centerville, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Jose Pena was charged with possession of marihuana. Before trial, Pena requested an independent analysis of the evidence. Thereafter, it was discovered that the alleged marihuana had been destroyed and all records documenting the testing of the evidence were lost excepting a lab report. The trial court denied Pena's motion to suppress the lab report, and Pena was convicted.

Because we conclude that the due course clause of the Texas Constitution provides a greater level of protection with respect to lost or destroyed evidence than does the United States Constitution, we will reverse and remand, even though the record contains no evidence of bad faith on the part of the law enforcement officials involved in Pena's case.

Pena argues that (1) the trial court erred by denying his motion to suppress the lab report; (2) the trial court erred by denying his motion for new trial based upon his counsel's failure to assert a speedy trial claim; (3) his trial counsel provided ineffective assistance by failing to assert a speedy trial claim; (4) the trial court erred by denying his motion for new trial based upon his counsel's failure to request a jury instruction on mistake of fact; (5) his trial counsel provided ineffective assistance by failing to request a jury instruction on mistake of fact; and (6) he was denied due process because the State failed to provide an accurate copy of a videotape depicting the circumstances of his stop and arrest.

Destruction of Evidence and Missing Files

Pena argues in his first issue that he was denied due process and due course of law because the trial court erred by denying his motion to suppress.

In September 1998, State Trooper Mike Asby stopped Pena for a traffic violation. When Asby approached the vehicle, he smelled the odor of raw marihuana. Asby looked inside Pena's van and saw freshly cut marihuana covering the entire cargo area. Though Pena repeatedly told Asby that the plant material was not marihuana, Asby arrested Pena. In the patrol car, Pena again claimed that the plants were not marihuana and asked Asby to make sure that the plants were tested for marihuana in a lab. Asby took the plants to Charles Mott, who tested them and reported in February 1999 that the plant material yielded 23.46 pounds of usable marihuana.

In March 2002, Pena filed a motion to independently examine the plant material, which the trial court granted. Thereafter it was discovered that the plant material and all records relating to the material had been destroyed. All that remained was a lab report stating that the plant material was marihuana, signed by Mott, and sent from the lab to Asby.

Subsequently, Pena filed a motion to suppress Mott's report. At a pre-trial hearing on Pena's motion, Mott testified that he personally tested the material and found that it was 23.46 pounds of marihuana. Yet, he was unable to recall the material's weight from memory, how the material was contained, or how he took samples for testing. He also could not recall when it was tested.

Based upon a computer entry, Mott testified that he received a notice to dispose of the evidence in February of 2000 and that it was entirely destroyed in March of that year. However, Mott conceded that he did not know who sent the notice and stated that not only was the plant material destroyed, but the entire file containing the notice to destroy, the original worksheet, reports, letters, and submission forms was lost. He admitted that this had never occurred before or since, but he attributed the cause of the missing files to his lab's recent move to a new building.

The trial court took judicial notice of the fact that there was no destruction order from the trial court in the clerk's file. The district attorney, Ray Montgomery, testified that he did not order or sign an order for the destruction of the evidence. Asby, the only other person that Mott believed could have requested the destruction, testified that he did not remember signing such an order.

Pena argued to the trial court that the report, and all testimony concerning the report, should be suppressed because the destruction of the marihuana violated his due process rights guaranteed by the United States and Texas Constitutions. The trial court denied Pena's motion.

The Youngblood Standard

The loss or destruction of exculpatory evidence can deny a criminal defendant due process of law under the Fourteenth Amendment. U.S. Const. amend. XIV. Therefore, the State has a duty to preserve exculpatory evidence. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984); Jackson v. State, 50 S.W.3d 579, 588-589 (Tex.App.-Fort Worth 2001, pet. ref'd). However, this duty is limited to evidence that (1) possesses an exculpatory value that was apparent before the evidence was destroyed and (2) is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2534; McDonald v. State, 863 S.W.2d 541, 543 (Tex.App.-Houston [1st Dist.] 1993, no pet.).

Once the duty to preserve is established, we then turn to the standard articulated by the United States Supreme Court in Arizona v. Youngblood. 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In 1985, a ten year old boy was abducted and molested. Id. at 52, 109 S.Ct. at 334. Swabs of blood and semen samples were preserved, but the boy's clothing which also contained samples was not. Id. at 53, 109 S.Ct. at 335. The boy identified Youngblood as his attacker, and he was arrested. Id. The tests on the preserved samples proved inconclusive, and Youngblood was convicted on the boy's identification alone. Id. at 54, 109 S.Ct. at 335. Youngblood argued to the Arizona Court of Appeals that he was denied due process because the police did not preserve the evidence on the boy's clothing. Id. The Court agreed, reversed his conviction, and the Arizona Supreme Court denied the State's petition. Id. at 55, 109 S.Ct. at 336.

The United States Supreme Court reversed the Arizona Court of Appeals, holding that a defendant must show bad faith on the part of the police in order for a court to find that the destruction of potentially useful evidence is a denial of due process. Id. at 58, 109 S.Ct. at 337. Following Brady, the Court reasoned that if the destroyed evidence is material and exculpatory, then whether the evidence was destroyed in good or bad faith is irrelevant. Id. at 57, 109 S.Ct. at 337 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963)). However, if the destroyed evidence is merely "potentially useful," the accused must show that the State acted in bad faith when it failed to preserve the evidence in order to show a violation of due process of law. Id. at 58, 109 S.Ct. at 337; Jackson, 50 S.W.3d at 588-589. Furthermore, if evidence is destroyed in good faith and in accord with normal police procedures, there is no due process violation. See Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533.

Justice Stevens in his concurring opinion stated that while he agreed that Youngblood was not denied due process, he disagreed with the rule of law set forth by the majority as too broad. Youngblood, 488 U.S. at 60-61, 109 S.Ct. at 339. "In my opinion, there may well be cases in which the defendant is unable to prove that the State acted in bad faith, but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Id. Justice Stevens's concerns about the fundamental fairness of the proceedings was soon echoed by states choosing to reject the Youngblood standard when interpreting their respective due process clauses. Likewise, we will decide whether the Youngblood analysis applies to the due course clause of the Texas Constitution.

The Due Course Clause of the Texas Constitution

The Texas constitution must be interpreted independently of the U.S. Constitution. Hulit v. State, 982 S.W.2d 431, 437 (Tex.Crim.App.1998). In doing so, it may be found that the Texas Constitution's protections are greater, lesser, or the same as those offered by the federal constitution. See Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991) (stating Texas constitution is not dependent on federal constitution for purposes of search and seizure protections); Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Crim.App.1986) (construing the Texas right against self-incrimination more broadly than the correlative federal provision, but restricting this holding to the specific issues before the court). Indeed, "the language of the Texas [due course] constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982); see contra, Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995).

In interpreting the protections of the Texas due course clause when the State loses or destroys evidence, we look at other jurisdictions that have interpreted their state constitutions more broadly than its federal counterpart.

The Rejection of Youngblood by Other Jurisdictions

Shortly after the Youngblood decision, a number of states rejected applying the Youngblood standard.¹ One of the many reasons promulgated for a rejection of Youngblood is the practical impossibility of proving bad faith on the part of the police. While bad faith has not been specifically defined by...