Pena v. State

• Decision Date: 02 May 2007
• Docket Number: No. 10-03-00109-CR.,10-03-00109-CR.
• Citation: 226 S.W.3d 634
• Parties: Jose PENA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

226 S.W.3d 634

Jose PENA, Appellant, v. The STATE of Texas, Appellee.

No. 10-03-00109-CR.

Court of Appeals of Texas, Waco.

May 2, 2007.

Frank Blazek, Smither Martin Henderson & Blazek PC, Huntsville, R. Scott Ramsey, Houston, for appellant.

Whitney T. Smith, Leon County Dist. Atty., Centerville, Sue Korioth, Sue Korioth PC, Dallas, for appellee.

Prof. George Dix, University of Texas Law School, Keith S. Hampton, Austin, John R. Rolater, Jr., Asst. Dist. Atty. for Dallas County, Dallas, for other.

Harvey Angel, Gatesville, pro se.

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

OPINION ON REMAND

FELIPE REYNA, Justice.

A jury convicted Jose Pena of possessing marihuana in the amount of 5 pounds or more but less than 50 pounds and, after finding enhancement allegations true, assessed his punishment at life imprisonment. Pena contends in six points that: (1) the admission of evidence regarding the results of DPS lab testing of the plants seized from his van violated his rights under the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Texas Constitution because the plants and the DPS file regarding the plants were lost or destroyed before trial; (2) the court abused its discretion by failing to grant a motion for new trial because of trial counsel's failure to raise a speedy trial claim and counsel's failure to request a mistake-of-fact instruction in the charge (two points); (3) he received ineffective assistance of counsel because of these failures (two points); and (4) he was denied due process and due course of law because of the State's failure to disclose Brady evidence before trial.

I. Background

Department of Public Safety Trooper Mike Asby stopped Pena for a traffic violation. As Asby approached Pena's van, he smelled the odor of raw marihuana. Asby looked inside Pena's van and saw what he believed to be freshly cut marihuana covering the entire cargo area. According to Asby, Pena repeatedly denied that the plant material was marihuana. He could not recall whether Pena had informed him that he wanted the plants independently tested.¹ DPS criminalist Charles Mott tested the plant material and reported that it consisted of 23.46 pounds of marihuana.

Pena filed a motion for independent analysis of 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.

In a hearing outside the presence of the jury, 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 and that it was destroyed one month later. 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 file 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 testified that he did not sign an order for the destruction of the evidence. Asby, the only other person whom 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 right to due process under the United States and his right to due course of law under the Texas Constitution. The trial court overruled Pena's objection. Pena also requested a limiting instruction, which the court denied.

II. Fourteenth Amendment

Pena contends in his first issue that the admission of Mott's lab report and testimony violated his right to due process under the Fourteenth Amendment to the United States Constitution.

Because no independent analysis was ever done, it is undisputed that the destroyed plant material was only potentially exculpatory. When the State loses or destroys evidence which is only "potentially useful," the defendant must show that the State acted in bad faith to establish a due process violation under the Fourteenth Amendment. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); McGee v. State, 210 S.W.3d 702, 704 (Tex.App.-Eastland 2006, no pet.).

There is no evidence that DPS officials acted in bad faith when they destroyed the plant material or when they lost the accompanying records. Thus, Pena cannot prevail on his due process claim under the Fourteenth Amendment.

III. Article I, Section 19

Nevertheless, Pena also contends in his first issue that the Due Course of Law provision in article I, section 19 of the Texas Constitution provides a greater level of protection than the Due Process Clause of the Fourteenth Amendment.²

The State argues that Pena has not preserved this aspect of his first issue for appellate review because he did not argue in the trial court that the Texas Constitution provides greater rights than the federal constitution. We disagree. Pena argued to the court that his rights under the Due Course of Law provision of the Texas Constitution were violated by the admission of this evidence. If, as the State contends, the federal and state provisions are synonymous, then Pena's objection under the Texas Constitution was meaningless.

Pena specifically objected to the trial court that the admission of Mott's testimony and the lab report would violate his right to due course of law under article I, section 19 of the Texas Constitution because the State had destroyed the seized plant material. This was sufficient to preserve this issue for appellate review. See Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983) (rejecting court of appeal's holding that "open courts" complaint was not preserved by plaintiff's objection that statute violated the "due process provisions of the United States and Texas Constitutions"); cf. Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App.2004) (holding state constitutional issue not preserved because of, among other things, "counsel's failure to cite to the state constitution").

Provisions of the Texas Constitution which have analogues in the federal constitution are generally interpreted to have the same meaning. The Texas Constitution should be interpreted as providing broader protection than its federal counterpart only if such an interpretation has "firm support in state history or policy." Cobb v. State, 85 S.W.3d 258, 267-68 (Tex.Crim.App.2002); accord Ex parte Lewis, No. PD-0577-05, 2007 WL 57823 passim (Tex.Crim.App. Jan. 10, 2007). Thus, the Texas Constitution should be interpreted as providing rights not found in the federal constitution "only when unique aspects of Texas history, jurisprudence, or law support that separate interpretation." Cobb, 85 S.W.3d at 268. And it is not appropriate to construe the Texas Constitution differently merely because this Court believes that federal precedent is incorrect. See Cobb, 85 S.W.3d at 267.

In Lewis, the Court of Criminal Appeals overturned its prior holding in Bauder v. State that the Double Jeopardy provision (article I, section 14) of the Texas Constitution provides more expansive protection in a case involving a prosecutor-induced mistrial than the Double Jeopardy Clause of the federal constitution. Lewis, 2007 WL 57823, at *1 (overruling Bauder, 921 S.W.2d 696 (Tex.Crim.App.1996)). The Court in so doing considered: (1) the historical context in which article I, section 14 of the Texas Constitution was framed, including: English common law, nineteenth century decisions in other states, prior versions of the Texas Constitution, and nineteenth century decisions in Texas cases; (2) more recent decisions in Texas and other jurisdictions; and (3) practical considerations. Id., 2007 WL 57823, at *14-26.

A. Historical Context

In its present form (since 1876), the Due Course of Law provision of the Texas Constitution states:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

TEX. CONST. art. I, § 19. This provision traces its Texas lineage to section 7 of the Declaration of Rights in the 1836 Constitution of the Republic of Texas. See REPUB. TEX. CONST. of 1836, DECLARATION OF RIGHTS, § 7, reprinted in 1 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 1069, 1083 (Austin, Gammel Book Co. 1898).

The genesis for the due course of law provisions in the current and former Texas Constitutions is the Magna Carta. Sax, 648 S.W.2d at 664; TEX. CONST. art. I, § 19 interpretive commentary. Chapter 29 of the Magna Carta of 1225 provided:

No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

EDWARD COKE, 2 INSTITUTES, *45.

Thus, according to the Magna Carta, a "Freeman" could not be "taken," "imprisoned," or "condemned" except by the "lawful judgment of his Peers, or by the Law of the Land." As Lord Coke explained, the term "the Law of the Land (that is, to speak it once for all) [me...