Pena v. State

• Decision Date: 28 September 2011
• Docket Number: No. PD–0852–10.,PD–0852–10.
• Citation: 353 S.W.3d 797
• Parties: Jose Luis PENA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

353 S.W.3d 797

Jose Luis PENA, Appellant,

v.The STATE of Texas.

No. PD–0852–10.

Court of Criminal Appeals of Texas.

Sept. 28, 2011.

Scott Ramsey, Houston, for Appellant.

Sue Korioth, Special Prosecutor, Dallas, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion for a unanimous Court.

Appellant was indicted for possession of more than five but less than fifty pounds of marijuana. A jury found him guilty and sentenced him to life imprisonment as a habitual offender. The Waco Court of Appeals affirmed, rejecting Appellant's argument that Brady¹ applied when the State failed to disclose to Appellant the audio portion of a videotape containing exculpatory statements that he made to police. Pena v. State, No. 10–03–00109–CR, 2010 WL 2306699, 2010 Tex.App. LEXIS 4389 (Tex.App.-Waco June 9, 2010) (op. on remand, not designated for publication). We granted Appellant's petition for discretionary review to determine if Brady is applicable to these facts. We will hold that it is, and we will reverse the judgment of the court of appeals.

I. FACTS

On September 27, 1998, Texas Department of Public Safety (DPS) Trooper Mike Asby pulled over a van driven by Appellant for a traffic violation.² When Appellant exited the vehicle upon Asby's request, the trooper noticed that Appellant smelled of what he believed to be marijuana. Then, when he approached the van, Asby saw what he thought was freshly cut marijuana covering the cargo area of the vehicle. Appellant was subsequently arrested and transported to jail. These events were captured by a car-mounted camera that videotaped the stop, detention, and transport to jail. The plant material was seized and removed from the van. It was then sent to the DPS laboratory in Waco for testing.

Appellant was indicted for possession of a usable quantity of marijuana in an amount of more than five pounds but fifty pounds or less, enhanced by three prior felony convictions.³ Pursuant to a Brady motion by the defense, the State, prior to trial, provided Appellant with what purported to be a copy of the videotape from Asby's car-mounted camera. Defense counsel was concerned that the tape had no audio, so he consulted with the State and was advised that there was no sound on the recording. Then, in March 2002, Appellant filed a motion requesting to independently examine and test the evidence. Unfortunately, this request proved to be impossible because the plant material was destroyed in March 2000.

At trial, Asby was the first witness to testify. The State admitted the dash-camera's videotape before the jury as State's Exhibit 1 and played it during Asby's testimony. The jury was told that it contained no audio but was otherwise accurate. Asby explained that the lack of sound had resulted from either a battery malfunction or his failure to activate the recording device that he carried. Asby stated that he was trained to utilize such videotapes in court since they replicate “what happened out there that day.”

Asby testified that, based on his many years of experience, he believed that the plant material in Appellant's van was freshly cut marijuana. Although he had never made another case from the seizure of fresh, green marijuana, Asby had observed the sheriff's department harvest marijuana and had seen growing fields of marijuana on ten or twelve occasions. He asserted that he had never “pulled anybody over that had something that smelled like marijuana that wasn't marijuana.” Still, Asby acknowledged that Appellant vehemently denied that the material was marijuana:

Q. [STATE]: Okay. Have you ever discovered something that looked like marijuana that wasn't marijuana?

A. [ASBY]: I haven't. I have heard there are cases where people sell false narcotics. There was a sheet rock case in Dallas that made a lot of cocaine history, but I haven't personally ever. That's the reason we send it to the lab to have it analyzed to be sure it's what we think it is.

Q. All right. At this point what is the defendant telling you?

A. He told me that it wasn't marijuana.

Q. What did he tell you it was?

A. I don't remember. He said he was going to make some stuff out of it. I can't remember if he told me it was hemp or not, but he told me it wasn't marijuana.

Q. And based on all your experience was it marijuana?

A. Yes, sir.

Asby stated that Appellant tried to convince the officers of the legal nature of the plant material. Appellant told him that he had cut the plants on the side of the highway somewhere in Kansas and that he was going to make “leather goods,” “trinkets,” and “stuff” out of it. Asby testified, and the videotape confirms, that he spent considerable time discussing the plant material with other officers at the scene. Asby admitted that he may have even tried to call a chemist to verify Appellant's story and to ask if the chemist had “ever heard of something like marijuana, just hemp that is legal to have.” Asby's confusion was clear during this line of questioning:

Q. [DEFENSE]: When the other officers come ya'll all go up and stand around the van, right?

A. [ASBY]: Correct.

Q. And ya'll just kind of looking in there? Is that what you're doing? I notice they didn't really climb in the van or do anything. Ya'll are just standing by the door? What are ya'll doing?

A. As I said before, this was an unusual case because normally drug trafficking goes north, not south. And we were pretty amazed that this load of marijuana was coming south. And I again questioned them, I said well, he says it's not marijuana. I said—and I knew that there was a substance called hemp and I was asking them. At some time I may even tried [sic] to call a chemist and say is there any validity to this story. And I asked them you ever heard of something like marijuana, just hemp that is legal to have.

Q. And so ya'll were talking about this, trying to make a decision whether it really was marijuana or not, right?

A. I knew it was marijuana. I didn't know if there was any kind of legal—any kind of legal marijuana you could have according to what Mr. Pena said.

Q. So let me try to clarify a little bit there with you. Then there is legal marijuana and not legal marijuana or there is hemp that is legal and illegal marijuana which is cannabis sativa?

A. I don't know. That's what we were talking about.

Q. Okay. So you really were just—you just didn't know what it was then really did you?

A. I knew it was marijuana. In my experience it smelled like marijuana, it looked like marijuana, it felt like marijuana.

Although Asby remembered Appellant's assertions that the plant material was not marijuana, he could not recall if Appellant had requested testing of the plant material.

Q. [DEFENSE]: And, in fact, he also requested that it be tested didn't he?

A.[ASBY]: Is that in my report? I don't remember that. I knew I was going to have it tested.

Q: And he told you he wanted it tested, too, didn't he? ... He informed you that he wanted not only to have ya'll test it but that he wanted to test it, too, didn't he?

A: That could be correct. I don't remember.

DPS chemist Charles Mott testified next. He stated that he analyzed the plant material submitted by Asby and determined that it was marijuana weighing 23.46 pounds. Mott's lab report, showing the results of his testing, was introduced into evidence as State's Exhibit 14. Mott explained that this conclusion was based on a microscopic visual inspection and the presence of the chemical THC in the plant. He also testified that hemp rope would not necessarily, but could possibly, test positive for THC “but that you would have a rope and you wouldn't be looking at it for marijuana....”

Q. [DEFENSE]: When you test this you only test to see if there is any THC, not any percentile or quantity or anything else, right?

A. [MOTT]: That's right. We do not quantitate the THC in the marijuana.

Q. So if you tested hemp rope it would still test and be positive for THC wouldn't it?

A. Not necessarily, sir. Because hemp rope, whenever the marijuana plant matures you have the central stalk going up. And from this central stalk is where the hemp rope—where you get the hemp rope. And by the time you make the rope, you take that fibrous material to make the rope, well, any of the THC is probably gone in the washing and so forth.

Q. So it would have to be washed out, physically removed, right?

A. I would think so, sir. If—in the stalk it is probably not a whole lot present. It's mainly in the leaves and the flowering top.

Q. But there is some in there isn't there?

A. Yes, sir, it is.

Q. And so if it wasn't washed, well, it could be possible it would test positive wouldn't it?

A. On the stalk it's a possibility, yes, sir.

Q. And what I'm talking about, if the rope material, the fibers weren't washed well enough?

A. You mean the reason? I doubt if you would find it in the rope. But if you had some stalk you could probably find THC in stalk [sic].

Q. And so if the manufacturing process, if it wasn't washed well and removed from it then it's possible it would show up wouldn't it?

A. It's possible. But you would have a rope and you wouldn't be looking at it for marijuana, sir.

Mott testified that the plant material was destroyed in March 2000, about a year after its analysis and before “the defense was interested in testing this and having an independent lab test.” Mott stated that the computer records reflected that a destruction order was received, but he conceded that he did not know who sent the alleged order for destruction. No one could say who authorized its destruction.⁴ Not only was the evidence destroyed, but the file containing the original worksheet, reports, letters, and submission forms was also destroyed or lost. It was discovered that the evidence was destroyed only after a motion was filed to examine and test.

The parties rested after a State's expert testified about the street value and quantity of the amount of marijuana involved here.

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