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 v. State Page 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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]