Life in Prison for Hemp

José Peña brought some roadside weeds home from Kansas. Cops decided it was reefer, and a Texas court sentenced him to life in prison – without the evidence. It took a decade for Peña to get back some of the pieces of his life.

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The 10th Court's decision turned heads across the state. "After that first opinion [and when] it goes to the CCA" on an appeal from the state, "that's when it had everyone's full attention," said Hampton, who represented Peña last year. It was the kind of game-changing decision that had the defense bar cheering and the prosecutors' lobby grumbling, so it was not terribly surprising that Leon County appealed to the CCA to revisit and reject the 10th Court's ruling.

And that's what the CCA did – sort of. Although the appellate decision had touched a political nerve at the state's highest criminal court, in reversing the 10th Court the CCA did not overrule the lower court's decision on the Youngblood issue. Instead, in a decision written by Presiding Judge Sharon Keller, the CCA ruled that the 10th Court had decided the case in Peña's favor based on the Texas "due course" protection argument that he had not directly raised on appeal. The Keller court opined that the 10th Court had not given the parties an opportunity to argue for or against the Youngblood standard, and remanded the case to reconsider the matter after briefs from both sides.

After that process, in May 2007, the 10th Court again rejected the Youngblood standard in favor of the Texas Constitution's "due course" protection and overturned Peña's conviction. "Peña had a right to inspect the plant material and it was subject to discovery," the same two-judge panel wrote. "The State had a duty to preserve this evidence, which the State breached. ... [The] importance of the lost evidence and the sufficiency of the remaining evidence, weigh heavily in Peña's favor. Therefore, we hold that Peña was denied due course of law by the State's destruction of the plant material and the DPS lab file documenting its testing and subsequent destruction."

Judicial Ping-Pong

Unfortunately for Peña, that was still not the end of the matter. Again the state appealed to the CCA, and again the CCA weighed in to overrule the 10th Court – still without addressing directly the Young­blood question. This time, led by Judge Michael Keasler, the court reversed its previous finding that Peña's lawyer had preserved the state constitutional claim, and decided that he had not – telling the 10th Court that it could review Peña's appeal, but could not again consider that issue.

Four judges dissented, with Judge Charles Holcomb writing that the majority was essentially changing the rules in the middle of the game. While the court did not address the Youngblood standard directly, it did rule that Peña had preserved the right to raise that issue on appeal, noted Holcomb – "our [earlier] opinion clearly suggests that we did consider the preservation issue and resolved it in [Peña's] favor."

When the case again returned to the 10th Court, it was almost inevitable that Peña's conviction would be upheld. Without the Youngblood issue to consider, the 10th Court did not find that Peña's other issues deserved relief – including an argument that the state had withheld exculpatory material from the defense and had lied about it.

At issue was a soundless videotape of the highway stop. Asby had testified that there was no audio recording of his interaction with Peña – the trooper said he may have forgotten to turn it on. Without that audio, the state argued that Peña knew he was carrying marijuana and had never asked for testing of the plant material until after his defense learned that it had been destroyed. Peña was adamant that was not the case.

As it turns out, audio of the stop existed, though it wasn't rediscovered until the jury had retired to deliberate Peña's fate and was thus never heard by them. In the audio, Peña repeatedly tells Asby that he's certain the plants are not marijuana. Although the 10th Court was not swayed that the failure to disclose the audio evidence had sufficiently tainted Peña's case, in a twist, the CCA – not exactly known for being sympathetic to such defense arguments – took the failure to disclose the audio evidence seriously enough that in September 2011, it reversed Peña's conviction and once again returned the case to Leon County – where the charges were eventually, finally dismissed.

Regionalized Justice

Ironically, the question of whether the Youngblood standard still applies in Texas – or whether the more measured approach to handling evidence destruction issues that was devised by the 10th Court still stands – remains unresolved. Because the CCA has not rejected outright the 10th Court's reasoning in rejecting Youngblood, the 10th Court's decision in the Peña case still stands – at least in the 18 counties covered by the 10th Court. "The [CCA] did not reject it ... so the law still stands," says Hampton. But because only one of the 14 intermediate courts of appeal – the 10th – has specifically rejected Youngblood, the standard of justice in Texas now depends on where a defendant lives. "It's a weird place," says Hampton. "The appellate courts in the state aren't quite sure what to do with it."

Since 2005, when the first opinion was issued, the 10th Court's Peña ruling has been cited an inordinate number of times in other court rulings, Hampton says, though a number of those courts – including the 3rd Court of Appeals, which covers Austin – has rejected the reasoning in favor of the "show malice" standard of Youngblood. He says he does see hopeful signs that other state appeals courts – specifically, the 8th Court in El Paso – might be interested in following the example set by the Waco court in Peña. "You don't see an opinion like that come out very often. It is a very unusual opinion," he said.

For the time being, the state remains split on how to handle the issue – and that means it is likely that the CCA will sooner or later have to settle the matter. For now, Hampton notes, there is a different standard at work for defendants covered by the Waco appeals court. "If I'm in Bell County [covered by the 3rd Court], I have to prove bad faith" on the part of law enforcement for any destruction of evidence, "but if I'm another 40 minutes up the road [in Waco], I don't have to."

As for defendant José Peña, who spent more than a decade fighting the case, he is greatly relieved that he has – at least as far as the courts are concerned – been vindicated. But the case, he says, has cost him everything. He lost his marriage and his home; his relationship with his children has been strained; things just haven't worked out as he had planned before the fateful traffic stop in Leon County. (He now works in a specialized kind of construction for the natural gas industry.) Nonetheless, he insists he always knew he would be getting out of prison – the system had failed, and he knew it had to be set straight. "They destroyed the evidence and everything, and they still railroaded me," he says. "I knew I was getting out – I begged my wife to hang on. I said, 'I know I'm getting out; I don't know when, but I know I'm getting out.'"

She couldn't hang on, he says; she was tired and scared that she would grow old alone. "I know this wasn't right," he says of the state's case against him. "But when I think back" about the weeds growing on the side of the road, he says, "I just should've left that stuff alone.

"It has cost me immensely."

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Jose Pena, José Peña, marijuana, hemp, Mike Asby, Court of Criminal Appeals, 10th Court of Appeals, crime lab, evidence, Youngblood standard

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