Tuesday, November 21, 2017

The amazing lengths to which the Texas CCA will go to ignore police misconduct and uphold dubious convictions

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.

The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena  intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.

The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.

That Mr. Pena admitted transporting cocaine is undeniable. That, in light of equally undeniable police misconduct, the state could prove he transported more than 400 grams of cocaine - which is what earned him the 15-year sentence - borders on laughable. Regardless, the GAW faction on the Court of Criminal Appeals demonstrated once again they will tolerate even the most egregious government misconduct to uphold a conviction.

In this case they only needed to convince Judge David Newell to join them for the win, though even he wasn't completely enamored of the main opinion: "[T]here is a palpable sense of injustice from allowing a conviction to stand when it is infected by such misconduct from a member of law enforcement," he opined, before doing precisely that.

Remarkably, three dissents - from Richardson, Walker, and Yeary - captured five of the nine CCA judges in opposition. But no more than three could agree on a single opposition theory they supported.

So the GAW faction prevailed over a splintered court, upholding the 15-year sentence even though, as Judge Richardson wrote, "the substance was actually less than one gram of cocaine sprinkled on top of 26,000 grams of sheetrock when Applicant was charged with possession of over 400 grams of cocaine." Their theory? The sheetrock should be considered the same as "adulterants or dillutants" used to cut cocaine and the full amount should be charged, even though a police officer planted it there!

In other words, the CCA plurality said it's fine if cops add adulterants to drugs and then charge the defendant for the larger amount. This jarring conclusion led to an excellent observation from the reader who brought this case to Grits' attention: "The courts already allow cops to lie. They don’t allow the creation of false documents. But now they are saying cops can fabricate the weight of the evidence. Who is to say all drug busts from now on won’t be subject to this weight adjustment scam?"

Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:
there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.
Got that? Pena left his car and there were no drugs. Drug dealers put drugs in there, then a police officer stole them and replaced them with fake drugs laced with cocaine. But based on that, it cannot be proven that the officer "tampered with or fabricated the drugs in Pena's car." To this non-attorney observer, that's exactly what that proves!

This is yet another example of outcome-oriented judging by the Government Always Wins faction on the Court of Criminal Appeals - Keller, Hervey, and Keasler - and their occasional abettors. They tend to get away with it because no one is watching. But for those of us paying attention, some of these opinions are pretty hard to square.


Steven Michael Seys said...

As far as I can tell, Scott, this kind of illogic is what the Texas voters really want. They have reports of these unjust decisions in the press all the time, but reelect the perpetrators each election year. Until the voters of Texas desire for their CCA justices to hand down rulings that resemble fair and impartial justice, the GAW groop will always have control.

Anonymous said...

We survived the Charlie Baird era on the CCA where the Criminals Always Won (CAW--a philosophy not unlike that embraced by the author of this blog), we're good now thank you very much.

Gritsforbreakfast said...

What are you talking about, 5:34? Charlie Baird's tenure on the court coincided with the most massive increase in incarceration in the state's history. But by all means, don't let reality get in the way of climbing onto your ideological soapbox.

Gritsforbreakfast said...

At Steven, they don't really have "control," there's only three of them in the GAW faction, and they don't always win. Even here, they couldn't reach a majority. The CCA isn't a monolith, at all, on these questions, as evidenced by all these disparate opinions.

Anonymous said...

All of the misconduct, the brutality, the murders, and yes, even the framing could have been nipped early on had we just lynched those cops who murdered Joe Torres. But now the cops have gotten away with so much for so long and have been allowed to become so corrupt that nothing we do can stop or even slow down the police state.

It's every man for himself now.


Jefe said...

Grits, this has been going on in the federal courts for at least 30 years. At one point, the defense was attacking this kind of manipulation under a theory called "sentencing entrapment", but that was eviscerated by the appellate courts. It is much worse in the federal system because the conspiracy statutes make the mere discussion of drug quantity a proxy for its actual possession by anyone. Agents or informants can exponentially increase a defendant's punishment just by getting them to agree to a drug amount, even if the deal is not feasible and never occurs.

James S. said...

5:34 isn't far off. Reversals were MUCH more common at the CCA during the late 80's and early 90's. Whatever expansion of incarceration you remember, Scott, was mostly due to the Legislature passing pro-prosecution statutes to undue CCA decisions.

john said...

I disagree with Steven in that THE VAST MAJORITY OF VOTERS (or not) HAVE NO IDEA. First of all, they certainly don't read this column. If it ain't on TV or their idiot-phones, they ain't listening. They don't WANT the crooks in TX gov, they're merely surrounded.
The mainstream "news" isn't going to follow-up on much, and they're left-slanted.
TV ads are super-high-priced so We The Poor People cannot take out an ad to unelect or sue or jail those in power.
NOTHING the Cops' War On America or anything in/near Houston should surprise ANYONE, on its criminal, selfish mindset. We often wondered if Houston, etc., were allowed to go rogue, since they send tons of citizen-stolen money to the State gov.
And aren't youse guys in Austin? Over by Houston, it's the grit in the face meets face on the road. What prisons flooded? No problem, judges can go on vacation. THERE IS NEARLY NO ACCOUNTABILITY.
THE COURTS ARE THE HEIGHT OF THE TRAITOROUS COVER-UP. Watch out, if they "fear for their lives" (today's equiv of a throw-down gun), their Cops will kill you, and go on paid admin leave, while the unions and courts cover it up.
I'm too poor to escape. "In spite of my rage, I'm still just a rat in a cage."

Anonymous said...

"The sheetrock should be considered the same as "adulterants or dilutants"

The crime lab should have been able to provide the concentration (or weight ratio) of cocaine within in the adulterant. Knowing the total weight (26ooo grams), multiplied by the ratio gives that actual amount of cocaine. That is simple math. The defense attorney should have brought this up at trial, as should have the Prosecutors (and the crime lab tech). And the Judges, too, should have brought this up, given that "adulterants or dilutants" are not illegal.

Mathematical idiots have no place on the Bench or in the court room. I would love to see SCOTUS rip the CCA to shreds for this stupidity.

Anonymous said...

Gypsum... A hell of a drug

Anonymous said...

To 12:06 --
What stupidity? I mean, the case has problems, but you've focused in on the least problematic thing about it. Sorry, but the statutes specifically call for the weight of drugs to include "adulterants or dilutants." It may not make sense to you from a possession standpoint, but think of it from a seller's point of view. Why should a drug dealer get away with moving a ton of product (and sentenced for, say, a third degree felony) just because he tried to bilk his customers by selling 40,000 units of something that should have probably been, oh, 100 units.

Anonymous said...

State the statue that you are are referring to.

Why not include the weight of the car, calling it an "adulterant"? That's another 2,000,000 grams of "cocaine" -- a life sentence for sure.

And more to the point of the blog, why should the cops get away with tampering with evidence just to get a longer sentence for the dealer (and keep a majority of the drugs for themselves)?

Anonymous said...

Let me help out. Possession of a controlled substance is covered under the Health and Safety Code. Specifically, 481.115 of the Texas Health & Safety Code addresses drugs found in penalty group 1 (cocaine, meth, etc). Under 481.115, the offense level is determined by weight, and each subsection provides for a different level felony. For example, 481.115(b) states "an offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram." The law is clear that the indictment can consider anything added or mixed with the alleged narcotics, the goal being to catch the dealer that "cuts" his drugs with something like baking soda, etc. However, if a user combines his drugs with a liquid (putting heroin in a bottle of Visine for example, or pouring meth into a water bottle, then the defendant is charged with the total weight of the liquid absent the container. Thus, a defense attorney has no legal option to argue that the weight of the drugs should not have included the gypsum powder. The attorney was not ineffective for not bringing up an argument the trial court would have been violating the statute to allow or that the appellate courts would never have allowed to stand anyway.

Anonymous said...

Why spend a couple hundred dollars on the forensics crime lab HPLC testing when you can fake a positive field test and fabricate a drug weight? #sarcasm

Was there evidence that the drug dealers put actual drugs in the car? Maybe the drug dealers just put fake drugs in the car (i.e. the so-called adulterants)? And what evidence was there of a presumptive positive test for cocaine? Lab report, or officers word? Inasmuch as the cops fabricated evidence, there's no telling what the drug dealers put in the back of Pena's car.

Anonymous said...

By the definition of 481.115, every drug user could be convicted of transporting drug, the equivalent of the aggregate body weight of the user. Positive drug tests of a drug user can assume that hair, blood, urine are the "adulterants and dilutants". Regardless the bump of cocaine that was snorted, the average body weight is 80+ kilograms. Hence, we're talking life sentences for each drug user that tests presumptive positive.

Let's hope these drug users cross state lines, or get on a plane and travel to another another country.

Hell, the amount of cocaine that taints the bills in my wallet could get me a felony conviction.

Anonymous said...

Does Texas have an impeachment process for Judges and if so, what is the first step to kick off the process?

Anonymous said...

12:26, your parade of horribles doesn't make sense. It's pretty clear (I won't say "black-letter law" as that seems to ruffle feathers) that in Texas you can't be convicted of possession of drugs that have been consumed (I mean, excluding weird examples like eating a pound of heroin in front of a cop or whatever). So, whereas a drug user CAN be convicted for the blood + meth amount in a pop bottle cap (on his person) that he uses for shooting up, it would be impossible in another to pretend that blood was an adulterant because drugs were in your system.

Also, 02:57, a car is an adulterant or dilutant? I mean, the terms are not very exact, I grant you, but no reasonable jurist would define as an adulterant or dilutant the container in which the drug is stored. That would be dumb.

levelheads said...

"Applicant, Martin Pena, pled guilty to intentionally possessing at least 400 grams
of cocaine with intent to deliver. He was sentenced to the statutory minimum of 15 years’
confinement and assessed a $1,000 fine. He did not appeal. After his conviction, it was
discovered that one of the arresting officers had been participating in a drug “swapping”
conspiracy "

When you don't cherry pick and read the actual record it makes a lot more sense. Come on people attempt to be level headed before deciding everything confirms what you think. When everyone's arguing that they are right about everything 50% of them are wrong without knowing it despite how certain and self righteous they feel.

Interpret facts don't fall for half-truths and bs cheap scare pieces.

Pamela... said...

Did he actually have 400+ grams of cocaine, or 400+ grams of bunk (from the dealer, before the cops got to it)? Maybe he took the plea because he didn't want to do 25-30 years. This is not unlike to the defendants in Houston who plead guilty to possession because they were presented with a drug field test that was bogus. They plead guilty (even though they were innocent) in order to get a lesser sentence.

Dumb is doing 15 years for 26kilos of powdered gypsum that was put in your car from a dirty cop. Pena thought he might have been traveling with drugs, but thinking you have drugs and actually having drugs are two different things.

James S. said...

Pamela, not sure I see the distinction. Possession means care, custody, and control. He apparently agreed to transport drugs. Some dealer put drugs in the back of his car. A dirty cop switched them. The defendant drove with the drugs. He knew there were drugs in the back, and that's substantiated by the fact that he pled guilty to it. I mean, he might have an interesting Brady claim about the dirty cop, but that doesn't change the fact that he appears to be guilty of the substantive crime.
So when you imply that he was innocent of "actually having drugs," I don't think I understand that.

Gritsforbreakfast said...

He did have drugs, James S. He had less than a gram of cocaine when he was arrested, which is a state jail felony and a max 2 year sentence, not 15 years. No more than that was ever in his possession: Whatever the dealers put in his car, the cop stole it first.

James S. said...

No. He had 26 kilograms of cocaine (including adulterants and dilutants) when he was arrested. If your problem is with the statutes cited above, that's fine. I don't know what alternative you want, but I see you think the adulterant and dilutant rules are unjust. But no one involved in this case seems to think there's a sufficiency problem (with regard to drug amounts) in this case. (Though apparently Mr. Pena tried to argue that he was actually convicted of possessing the drugs that were originally stolen. But that can't be possible).

The opinion is unclear, so if I get something wrong, correct me. Pena appears to have known that the ice chest put in his car had drugs (as evidenced by his guilty plea). Carrion then "switched" the drugs. I can only presume that he used the same or a similar ice chest (though said ice chest almost certainly contained a much, much thinner proportion of cocaine to gypsum, or whatever it was). Accordingly, Pena was the sole occupant of a car containing an ice chest (of a certain mass) that contained drugs. And under the statutes, the lower proportion of cocaine-to-adulterants is irrelevant.

I agree that there are Brady problems with this whole mess, but put that aside for a moment. What if it wasn't a cop who switched the drugs? Meaning, just a double-crossing dealer. Would you still have a problem with the over-400-gram offense to which he pled guilty (I mean, from a sufficiency point of view)?