State v. David Pena, III

Opinion

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Do Not Publish