Jose Luis Pena, Appellant v. the State of Texas

Summary

The Court of Criminal Appeals of Texas held that Jose Luis Pena failed to preserve his claim that the Texas Constitution's due course of law provision affords greater protection than the federal Due Process Clause for lost or destroyed evidence, because he never argued before the trial judge that Article I, Section 19 is more protective than the Fourteenth Amendment while the judge and prosecutor applied the established federal bad-faith standard. Because the claim was unpreserved, the Waco Court of Appeals erred in reaching it and in reversing Pena's conviction and life sentence, so the Court reversed the court of appeals' judgment and remanded. The Court also rejected the contention that its 2006 remand had implicitly resolved preservation in Pena's favor, explaining that it had expressly declined to address the issue at that time. Judge Holcomb dissented, joined by Judges Price and Johnson (Judge Cochran as to Part I), arguing the claim was preserved or its preservation excused and that the Court was estopped by its own earlier remand orders.