                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-03-00109-CR

JOSE PENA,
                                                                     Appellant
    v.

THE STATE OF TEXAS,
                                                                     Appellee



                               From the 12th District Court
                                   Leon County, Texas
                                Trial Court No. CM-99-82


                                 OPINION ON REMAND


         A jury convicted Jose Pena of possessing marihuana in the amount of 50 pounds

or less but more than 5 pounds and, after finding enhancement allegations true,

assessed his punishment at life imprisonment. With Chief Justice Gray dissenting, this

Court has issued two opinions reversing the conviction and remanding this cause to the

trial court, and the Court of Criminal Appeals has reversed our decisions both times.1



1
        See Pena v. State, 166 S.W.3d 274 (Tex. App.—Waco 2005), rev’d, 191 S.W.3d 133 (Tex. Crim. App.
2006), 226 S.W.3d 634 (Tex. App.—Waco 2007) (op. on remand), rev’d, 285 S.W.3d 459 (Tex. Crim. App.
2009).
Pena contends in his remaining four points that: (1) he was denied due process by the

State’s failure to disclose Brady evidence; and (2) he received ineffective assistance of

trial counsel because counsel failed to: (a) request a jury instruction on mistake of fact,

(b) move for dismissal because of pretrial delay, and (c) preserve for appellate review

his claim that the Texas Due Course of Law provision provides greater protection than

the federal Due Process Clause with regard to lost or destroyed evidence. We will

affirm.

                                             Brady Evidence

          Pena contends in his first point that he was denied due process by the State’s

failure to disclose the audio portion of the video recording depicting his stop and arrest.

He contends that the audio is exculpatory because it corroborates his defensive theory

that he did not know or believe that the plant material seized was marihuana.

          According to Department of Public Safety Trooper Mike Asby’s testimony, Pena

repeatedly denied that the plant material was marihuana.              The video recording

admitted at trial (with audio) contains Pena’s comments to Asby in which he asserted

that it was not marihuana and insisted that it be tested.2 However, the copy of the

video provided to Pena did not include the audio recording.

          Under Brady v. Maryland, “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of




2
          The jury did not hear the audio portion of the recording.


Pena v. State                                                                        Page 2
the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). Brady

applies only to favorable evidence “known to the prosecution but unknown to the

defense.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342

(1976); Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002).

        The Court of Criminal Appeals has held that Brady does not apply to the State’s

failure to disclose a statement the defendant made to law enforcement officials. See

Havard v. State, 800 S.W.2d 195, 204-05 (Tex. Crim. App. 1989); accord Hayes, 85 S.W.3d at

814-15 (letter defendant wrote to mother-in-law); Badillo v. State, 255 S.W.3d 125, 132

(Tex. App.—San Antonio 2008, no pet.) (letter defendant wrote to complainant’s

mother). As the Court explained in Havard, “[A]ppellant knew of both the existence

and the content of his statement, as a matter of simple logic, because he was there when

it was made.” 800 S.W.2d at 204.

        The same reasoning applies to the audio recording of Pena’s conversation with

Trooper Asby. Thus, we overrule Pena’s first point.

                                 Ineffective Assistance

        Pena contends in the remaining three points that he received ineffective

assistance of trial counsel because counsel failed to: (a) request a jury instruction on

mistake of fact, (b) move for dismissal because of pretrial delay, and (c) preserve his due

course of law claim for appellate review.

        To prevail on an ineffective-assistance claim, an appellant must show by a

preponderance of the evidence that: (1) counsel’s performance was deficient and (2) the




Pena v. State                                                                        Page 3
deficient performance prejudiced the defense. Garza v. State, 213 S.W.3d 338, 347-48

(Tex. Crim. App. 2007). We begin with a “strong presumption” that counsel provided

reasonably professional assistance, and Pena bears the burden of overcoming this

presumption.     See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State,

144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry v. State, 222 S.W.3d 745, 754 (Tex.

App.—Waco 2007, pet. ref’d). If nothing in the record reveals the reason for the act or

omission which is the basis of an ineffective assistance complaint, we may not speculate

on that reason. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Curry,

222 S.W.3d at 754.

                                      Mistake of Fact

        Pena argues in his second point that he received ineffective assistance of counsel

because counsel failed to request an instruction on mistake of fact. Pena’s trial counsel

testified at the hearing on his motion for new trial. However, counsel noted at the

beginning of his testimony that he did not bring his file and did not know that he was

going to be called to testify. Regarding the jury charge, counsel testified that he did not

remember why he chose not to request an instruction on mistake of fact. We may not

speculate on the reason(s) he did not request this instruction. Id. Accordingly, we

overrule Pena’s second point.

                                       Speedy Trial

        Pena claims in his third point that he received ineffective assistance of counsel

because counsel failed to move for dismissal because of pretrial delay. To prevail on an


Pena v. State                                                                         Page 4
ineffective assistance claim premised on counsel’s failure to file a pretrial motion, an

appellant must show that the motion would have been granted. Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam); Edmond v. State, 116 S.W.3d 110,

112 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see Pady v. State, No. 13-07-00075-

CR, 2008 Tex. App. LEXIS 8577, at *4 (Tex. App.—Corpus Christi Nov. 13, 2008, pet.

ref’d) (not designated for publication) (applying this principle to ineffective assistance

claim premised on counsel’s failure to seek speedy trial).

        We consider the four Barker factors when evaluating a speedy-trial claim: 1)

length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to

the accused. See Cantu v. State, 253 S.W.3d 273, 277 (Tex. Crim. App. 2008) (citing Barker

v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972)). The length of

delay is undisputed—more than four years.3 Once a presumptively prejudicial delay

like this is shown, the State bears the initial burden of providing a justification for the

delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994); Blaylock v. State, 259

S.W.3d 202, 209 (Tex. App.—Texarkana 2008, pet. ref’d).

        Pena was arrested on September 27, 1998 and made a $10,000 surety bond the

next day. He was incarcerated in Harris County one month later for “other matters”

and parole violations and was not released until July 1999. During his incarceration, his

surety presented an affidavit for his surrender, and a warrant was issued for Pena’s




3
         The delay is measured from the date of arrest or the presentment of the indictment, whichever
occurs first, to the date of trial. See State v. Manley, 220 S.W.3d 116, 122 (Tex. App.—Waco 2007, no pet.).


Pena v. State                                                                                        Page 5
arrest. He was not arrested on this warrant until June 2001, and counsel was appointed

to represent him shortly thereafter. Pena was released on bond again in October 2001.

        The case was set for trial in July 2002 but postponed after the court granted

Pena’s continuance motion. The parties proceeded to trial in September 2002, but the

venire panel was dismissed after the challenges for cause were granted because an

insufficient number of veniremembers remained. See Goode v. State, 740 S.W.2d 453,

459-60 (Tex. Crim. App. 1987) (reversing conviction where defendant received only 9 of

15 peremptory challenges required by statute in death penalty case); see also TEX. CODE

CRIM. PROC. ANN. art. 35.15(b) (Vernon 2006) (State and defendant each entitled to 10

peremptory challenges in non-capital felony case). Pena’s appointed counsel withdrew

about one month later, and a second attorney was appointed to represent him. He was

tried in early January 2003.

       It appears that the parties share responsibility for the first three years of the delay.

Pena was incarcerated in another county for a year following his arrest and remained at

large after his release without making any inquiry into the status of this case.

Conversely, it does not appear that his address changed at any time before trial, and,

though the authorities had a valid address for him at all times, the record contains no

evidence that the State attempted to arrest him between July 1999 and June 2001. See

Emery, 881 S.W.2d at 708 (State bears burden of justifying presumptively prejudicial

delay); Blaylock, 259 S.W.3d at 209 (same); cf. Smith v. State, No. 05-04-01343-CR, 2005

Tex. App. LEXIS 6820, at *15-16 (Tex. App.—Dallas Aug. 23, 2005, pet. ref’d) (not

designated for publication) (reasons for delay weighed against defendant because


Pena v. State                                                                            Page 6
evidence was presented that efforts to arrest him at last known address were

unsuccessful and he had moved without correcting his driver’s license records).

        In the same way, the parties share responsibility for the remaining months of

delay. During this time period, Pena obtained a continuance and changed attorneys.

Conversely, the inability to secure enough veniremembers for the September 2002 trial

“is not a valid reason for delay and must be counted against the State, although not

heavily.” See Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (addressing

crowded docket as reason for delay).

        Pena obviously did not assert his right to a speedy trial in the trial court. His

trial counsel testified that he did not believe a speedy-trial motion would be meritorious

because of Pena’s previous “trial.”

        Pena argues that he was prejudiced by the delay because the plant material

which formed the basis for his prosecution was destroyed and the Department of Public

Safety lab file was lost. However, those items were lost/destroyed in March 2000, while

Pena was at large. He has not established how the filing of a speedy-trial motion by his

first appointed counsel in July 2001 or by his second counsel in October 2002 would

have prevented the loss/destruction of these items.

        The delay was lengthy, and the parties share responsibility for the delay. Pena

has not established that a speedy-trial motion would have prevented the destruction of

the plant material or the loss of the lab file. Thus, he has failed to establish that he

would have prevailed on a speedy-trial motion. See Jackson, 973 S.W.2d at 957; Edmond,

116 S.W.3d at 112. Because he has failed to establish that he would have prevailed on


Pena v. State                                                                       Page 7
such a motion, he has likewise failed to show a reasonable probability that the result of

his trial would have been different but for trial counsel’s failure to file such a motion.

See Pady, 2008 Tex. App. LEXIS 8577, at *7. Accordingly, we overrule Pena’s third point.

                                    Due Course of Law

        Pena avers in his fourth point that he received ineffective assistance of counsel

because counsel failed to preserve for appellate review his claim that the Texas Due

Course of Law provision provides greater protection than the federal Due Process

Clause with regard to lost or destroyed evidence.

        This Court was the first in Texas to hold that the Due Course of Law provision

provides greater protection than its federal counterpart with regard to preservation of

evidence. See Pena v. State, 166 S.W.3d 274, 281-82 (Tex. App.—Waco 2005), rev’d, 191

S.W.3d 133 (Tex. Crim. App. 2006). In fact, we addressed this issue sua sponte because

the parties briefed the case as if there were no distinction between the state and federal

provisions. See Pena, 191 S.W.3d at 134.

        The deficient attorney performance component of an ineffective assistance claim

cannot be based on alleged errors of counsel “when the caselaw evaluating counsel’s

actions and decisions in that instance was nonexistent or not definitive.”       Ex parte

Young, 213 S.W.3d 327, 330 n.2 (Tex. Crim. App. 2006) (quoting Vaughn v. State, 931

S.W.2d 564, 568 (Tex. Crim. App. 1996)). The proposition that Texas’ Due Course of

Law provision grants greater protection than the federal Due Process Clause with

regard to preservation of evidence is a novel one. Counsel cannot be held to have




Pena v. State                                                                       Page 8
rendered deficient performance for having failed to preserve such an unsettled

proposition. See id. Thus, we overrule Pena’s fourth point.

        We affirm the judgment.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 9, 2010
Do not publish
[CRPM]




Pena v. State                                                            Page 9
