State v. David Pena, III ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00765-CR
The State of Texas, Appellant
v.
David Pena, III, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2017-110, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING
ORDER
PER CURIAM
David Pena, III, was charged with possession with intent to deliver between one
and four grams of a controlled substance (methamphetamine). See Tex. Health & Safety Code
§§ 481.102(6), .112(a), (c). Before trial, Pena filed a motion to suppress, and the district court
granted the motion. The State appealed the district court’s order granting the motion to suppress.
See Tex. Code Crim. Proc. art. 44.01(a)(5). This Court affirmed the district court’s order in part,
reversed the order in part, and remanded for further proceedings consistent with our opinion. See
State v. Pena, 581 S.W.3d 467, 471 (Tex. App.—Austin 2019, pet. ref’d). Following our ruling,
Pena filed a petition for discretionary review, but the Court of Criminal Appeals refused it.
Pena has now filed with this Court a motion asking that we stay the issuance of
our mandate under Rule 18.2 of the Rules of Appellate Procedure, which authorizes an appellate
court to grant a stay of its mandate if a party “move[s] to stay issuance of the mandate pending
the United States disposition of a petition for writ of certiorari.” See Tex. R. App. P. 18.2. In his
motion, Pena asserts that he will be filing a petition for writ of certiorari arguing that evidence
regarding the items seized from his car should have been suppressed as fruit of the poisonous
tree under governing law and that he will incur serious hardship from the mandate’s issuance if
the Supreme Court were to later reverse this Court’s judgment See id.
We grant Pena’s motion and will stay issuance of our mandate for 90 days in
order to allow Pena the option to timely file a petition for writ of certiorari. See id. After 90
days have run, this Court’s mandate will issue without further notice. See id.
It is so ordered March 27, 2020.
Before Justices Goodwin, Baker, and Kelly
Do Not Publish
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