Texas criminal justice blog Grits for Breakfast is highlighting a recent court decision in which several judges somehow found a way to uphold a conviction directly predicated on law enforcement deception.
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.
How do we get to 26 kilos from less than a gram of actual cocaine? It happens like this...
Martin Pena needed money for rent. He agreed to meet some other men at a taqueria to run some sort of an errand for $500. One of the men took Pena's car and returned with it a short while later. When he returned, there was a black ice chest in Pena's car. Pena was instructed to drive it to another location and park his vehicle, leaving the keys inside.
Pena was pulled over by Houston police officers who arrested him for an outstanding warrant. The vehicle was impounded and an inventory search performed. The 26 kilos of "cocaine" in the ice chest were discovered and Pena was convicted of transporting 400 grams of cocaine -- enough to trigger a mandatory minimum 15-year sentence.
It was more than a year after Pena's guilty plea before new evidence came to light. The 26 kilos found in Pena's car was almost 100% drywall powder. The ice chest in Pena's car had been tampered with before Pena ever took control of it. Officer Marcos Carrion -- one of the officers who participated in Pena's arrest -- was dirty. He was not only working for drug traffickers, providing them with inside law enforcement info, but also working for himself. From the decision [PDF]:
When a shipment was identified, Carrion and his cohorts replaced the trafficker’s cocaine with sheetrock and trace amounts of cocaine sprinkled on top. Carrion would then seize the “fake” drugs once they reached their destination (usually a courier), knowing that the replaced sheetrock with the sprinkling of cocaine would field-test positive and that it would not be tested for purity. By doing this, Carrion was able to steal narcotics from the traffickers he was working for, and because the traffickers believed that their drugs were in the possession of the State they never learned that the drugs had been stolen.
That's what happened to the cocaine Pena was supposed to deliver. Carrion took the real stuff, replaced it with sheetrock dusted with cocaine, and closed the loop by performing the arrest. Since Carrion knew drug labs wouldn't test the cocaine for purity, Pena was allowed to believe he was facing a significantly longer prison sentence if he didn't plead guilty -- far more than the 400 grams he agreed to.
The lower court agreed with Pena's assertion he would not have pled guilty if this information had been turned over to him prior to him entering his plea. The higher court disagrees. It found he was still guilty of transporting cocaine, even though the substance Pena transported was almost completely drywall. Under Texas law, drug weight calculations are based on the total weight, not the purity of the substance.
Although Pena, in a sense, was carrying the “wrong” cocaine because of Carrion’s drug-swapping actions; his conviction is based on the substance seized from his vehicle, not the cocaine he never possessed. And, as a matter of state law, the substance he possessed is cocaine. In Texas, a controlled substance includes the substance and any adulterants and dilutants.
[...]
The Code makes no exceptions for cocaine with “a lot” of sheetrock in it or based on the purity of the controlled substance.
It admits Officer Carrion's theft of the original stash and replacement with a much more profitable (for Carrion) 99/1 ratio of sheetrock/cocaine was disturbing, but does not change the underlying fact Pena was transporting some form of cocaine.
To be sure, Carrion’s misconduct was willful, brazen, and appalling, but it does not change the fact that Pena was in possession of about 26 kilograms of cocaine (together with adulterants and dilutants) and that his conviction is based on that possession.
This is a disturbing conclusion, albeit one more firmly supported by existing caselaw and statutory direction. The other finding -- that Carrion's actions should have no bearing on the length of Pena's conviction -- is even worse.
To show that Carrion tampered with or fabricated the drugs seized from his car, Pena would have to show that Carrion knew that an investigation or official proceeding was pending or in progress and that he made, presented, or used the seized cocaine with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. TEX. PENAL CODE § 37.09(a)(2); Wilson, 311 S.W.3d at 464. In addition, he would have to show that the misconduct in question took place before the commission of his crime because the state suppression rule “deals with exclusion of illegally obtained evidence of a prior crime[,]” not a crime committed after the misconduct.
The justices claim reading this Pena's way would allow anarchy to reign supreme. For instance, someone could conceivably get away with murdering a cop if he could prove the incident began with an unlawful arrest. (This is literally the example used by the court.) It's a very short parade of horribles that uses an extreme scenario to excuse noxious government misconduct. To thread the legal needle after this "better citizens get screwed than a hypothetical cop murderer go free" assertion, the Texas court has to turn itself into everything citizens hope their courts never morph into: an aider and abettor of police misconduct, rather than a check against government abuse.
Here's what Grits for Breakfast has to say about this legal rationale:
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.
The evidence exists Officer Carrion stole and replaced the drugs. The DEA, which had Carrion under investigation at the time of Pena's arrest, had this evidence. In fact, the DEA tested the substance seized from Pena's car, finding it contained almost no cocaine. And yet, the court insists the evidence does not exist -- or at least does not exist in any way that would allow Pena to challenge his sentence. It seems to believe that because Pena believed he was transporting genuine cocaine -- and because the state considers the presence of adulterants when calculating weight -- a sentence based almost solely on the actions of a crooked cop should stand. No one but Officer Carrion has any idea how much cocaine was in the ice chest originally. But that amount vanished into Carrion's criminal side gig, leaving behind nothing more than 26 kilograms of sheetrock and less than a gram of actual cocaine.
As Grits for Breakfast notes, there are a few dissenting opinions, but because the dissenting judges couldn't agree on which issue of this abhorrent case was the worst, the plurality of judges refusing to punish law enforcement wrongdoing by stripping it of a courtroom victory end up with a dubious "win" of their own. And bad cops are given a better idea of just how far they'll have to go before they need to start worrying about judicial pushback.
