On September 27, 1998, 35-year-old Jose Luis Pena was driving a rented van from Kansas to his home in Houston when a Texas state trooper pulled him over in Leon County for a traffic violation. The officer looked into the back of the van and saw what he believed were freshly harvested marijuana plants.
Pena told the officer, Mike Asby, a veteran officer in the Texas Department of Public Safety, that he rented the van to take a relative to Manhattan, Kansas. On the return trip, Pena said he saw what he believed were hemp plants in a ditch along the highway, so he collected them. Pena said he made a variety of trinkets that he sold at a flea market, and that he intended to use the leaves to decorate purses and other items. Pena told Asby he believed the plants were legal.
Asby had never made an arrest for fresh marijuana before, and he would later admit that he was surprised to find what he believed was fresh cut marijuana in the van because the vehicle was traveling south. In his experience, marijuana was usually smuggled in a northerly direction after it had been dried out and was ready to be used.
Pena’s claim that the plants were hemp gave Asby enough pause that he summoned other troopers to view the plants, and he discussed the possibility of calling a chemist to see if Pena’s claim that the plants were not illegal was correct. However, Asby did not call a chemist and instead arrested Pena on a charge of possessing more than five pounds and less than 50 pounds of marijuana. The plants, which when weighed totaled more than 23 pounds, were stuffed into a plastic storage tub and put in the trunk of Asby’s squad car.
In March 2002, prior to trial, Pena’s lawyer requested that the plants be made available for independent testing. However, lab officials said the plants had been destroyed. The lab reports relating to the testing had been destroyed as well, except for a single sheet of paper that said the plants tested positive for THC, the mind-altering ingredient in marijuana. No destruction order was ever found and the trial judge, the prosecutor and Asby all denied sending any destruction order to the lab.
Pena went on trial in January 2003 in Leon County Criminal District Court. Asby testified that he believed the plants were marijuana. He denied that Pena had ever asked that the plants be tested. The prosecution played a video from a camera in Asby’s squad car that showed Asby looking into the van and having discussions with other officers he summoned to the scene. There was no audio, Asby said, apparently due to a camera malfunction.
A lab analyst testified that the plants were marijuana and tested positive for the presence of THC. The analyst admitted there was no record of the amount of THC that was detected. Hemp grown for industrial purpose has some THC, but in low amounts—usually no more than 1.5 percent. Marijuana sold for drug consumption may contain from 5 to 10 percent THC.
The defense argued that Pena’s belief that the plants were legal showed that he lacked intent to transport marijuana. The defense contended that Pena was so confident of his belief that the plants were not marijuana that he had asked Asby that the plants be tested.
However, in closing argument, the prosecution told the jury that Asby testified that Pena never asked that the plants be tested and argued that Pena’s decision not to request testing was evidence that he knew the plants were marijuana.
After the jury left the courtroom to begin deliberating, the prosecution and Pena’s attorney discovered that there was in fact audio on the tape from Asby’s camera. The audio began at the point where Pena was placed in handcuffs and put in Asby’s squad car and lasted throughout the trip to the police station. The audio portion of the recording was not played for the jury since it had begun deliberating.
In January 2003, the jury convicted Pena of possession of marijuana. Because he had three prior felonies, Pena was sentenced to life in prison as a habitual offender and fined $10,000.
After the conviction, Pena’s lawyer filed a motion for a new trial, arguing that the audio portion of the tape revealed that Pena had, indeed, asked Asby that tests be performed on the plants. The motion was denied.
In 2005, the Tenth Circuit Texas state appeals court reversed the conviction and ordered a new trial on the ground that the evidence had been destroyed before Pena had an opportunity to conduct independent testing.
The Texas Court of Criminal Appeals overruled the appellate decision and remanded the case for further hearings. The Tenth Circuit again reversed the conviction, but the Texas Court of Criminal Appeals again overruled the reversal and sent the case back to the Tenth Circuit, holding that the case could not be decided on the evidence destruction issue because Pena’s trial attorney had failed to properly object at the trial and therefore had forfeited the opportunity to argue the issue on appeal.
When the case came back to the Tenth Circuit, the remaining claim by the defense concerned the failure of the prosecution to disclose the audio portion of the tape from Asby’s squad car camera. The Tenth Circuit rejected that claim and upheld Pena’s conviction.
Pena’s lawyer appealed that ruling to the Texas Court of Criminal Appeals. In September 2011, the Court of Criminal Appeals held that the prosecution’s failure to disclose the audio portion of the tape violated Pena’s constitutional rights. The court noted that the prosecution had to prove that Pena “intentionally and knowingly” possessed marijuana. The court said that the tape revealed Pena’s “continual denials” that the plants were marijuana.
“The audio portion communicated Pena’s apparent belief that the testing of the plant material would reveal that it was hemp (i.e., from the part of the plant of which possession is legal) and thereby exonerate him from any culpability,” the court held. “Therefore, the defense could logically argue that (Pena’s) belief, though erroneous, was reasonable and negated the culpability required.”
The court reversed Pena’s conviction and ordered a new trial. On December 5, 2011, the prosecution dismissed the charge and Pena was released.
– Maurice Possley