PD-1609-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/23/2015 1:25:01 PM Accepted 1/29/2015 11:04:34 AM ABEL ACOSTA PDR No. PD-1609-14 CLERK
________________________________
In the Court of Criminal Appeals Texas
CHRISTOPHER CAMACHO, Appellant
V.
THE STATE OF TEXAS
_______________________________
On Appellant’s Petition for Discretionary Review From the Fourteenth Court of Appeals, Appeal No. 14-13-00626-CR, On Appeal from the 400th District Court Of Fort Bend County, Texas Cause No. 06-DCR-045165A _______________________________ PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, CHRISTOPHER CAMACHO
______________________________________
Oral Argument Requested
Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 January 29, 2015 Texas Bar No. 00793616
Attorney for Appellant
i IDENTITY OF JUDGE, PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a
complete list of the trial court judge, all the parties to the judgment or order
appealed from, and the names and addresses of counsel in the trial and on appeal:
Trial Court Judge: The Honorable Clifford Vacek Presiding Judge 400th District Court Fort Bend County, Texas
Appellant: Christopher Camacho
Counsel for Appellant: Michael C. Diaz (at trial and appeal) 20228 Hwy. 6 Manvel, Texas 77578 Brian Middleton-Trial 7322 Southwest Freeway, Suite 1980 Houston, Texas 77074
Counsel for the State of Texas: John F. Healey Jr.-District Attorney Chris Delozier-Trial Bob Yack-Trial John Harrity-Appeal Fort Bend County, Texas District Attorney’s Office 1422 Eugene Heimann Cir Richmond, Texas 77469
ii Table of Contents
Identity of judge, parties and counsel………………………………………………ii
Index of Authorities………………………………………………………………...v
Statement Regarding Oral Argument……………………………………………vi
Statement of the Case………………………………………………………...…vii
Procedural History of the Case…………………………………...………………viii
Grounds for Discretionary Review…………………………………………………2
GROUND ONE
DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO PRESERVE POTENTIALLY USEFUL EVIDENCE
Ground One Sub Issue
Was Appellant entitled to an adverse-inference jury instruction based upon the Motion to Suppress Violating The Due Course of Law Clause?
Reasons to Grant Review in Support of Ground for Review………………………2
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in conflict with the decisions of another court of appeals on the same matter. iii Argument and Authorities In Support Of Grounds for Review……………………2
Argument and Authorities In Support Of Ground One Sub Issue……………..….10
Prayer for Relief…………………………………………………………………..11
Certificate of Compliance.………………………………………………………...13
Certificate of Service…...…………………………………………………………13
Appendix ..………………………………………………………………………..14
iv INDEX OF AUTHORITIES
CASES:
Arizona v. Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337……………..4, 9, 10
Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App. LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for publication)…………………………………………………………………………9
Illinois v. Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202…………………………….4
Lolly v. State, 611 A.2d 956, 960 (Del.1992)……………………………...…….9, 10
Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005)………………………2, 8, 10
Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007)……........................…2-8, 10
State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston [14th Dist.] 2007, no pet.)…………………………………………………………...…………2, 3, 6, 8
State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999)………………………………..9
Thorne v. Dept. of Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989)…….…9
White v. State, 125 S.W.3d 41 (Tex. App.-Houston [14th Dist.] 2003)…………….2
STATUTES, CODES AND RULES:
Tex. R. App. P. 9.4(i)…………..………………………………………………... 13
Tex. R. App. P. 9.5…………………………………...…………………………...13
Tex. R. App. P. 66.3(a)…………………………...………………………..iii, 2, 3
Tex. R. App. P. 68.4(a)……………………………………………………………..ii
Tex. R. App. P. 68.4(c)…………………………………………………….............vi
v STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful because this case presents an issue that
needs to be resolved by this Court. This appeal involves questions of law,
questions of fact, public policy and procedure which cannot be adequately
addressed, analyzed and evaluated through written communication alone. Oral
argument is essential to emphasize the unique characteristics of these questions and
to address the unforeseeable exigencies arising during the Court’s consideration of
this appeal.
vi STATEMENT OF THE CASE
On January 25, 2010, Appellant, was indicted for Capital Murder. Appellant
filed a motion to suppress and motion to dismiss based upon bad faith destruction
of evidence. Appellant argued that the State had a Cadillac, the crime scene, in its
possession and allowed it to be removed to a storage lot, and auctioned off,
knowing that it contained blood spatter, which could have been exculpatory or
inculpatory in nature, if the Appellants expert could have examined the car. The
trial court denied Appellant’s motion to suppress and motion to dismiss. The
Court of Appeals held that the trial court did not err in determining that that the
record adequately supports the trial court’s implied finding that the State did not
act in bad faith in failing to preserve potentially useful evidence and that the trial
court did not abuse its discretion in denying appellant’s motion to suppress.
Appellant also argued that he was entitled to an adverse-inference jury
instruction based upon the testimony brought out at trial and based upon
appellant’s motion to suppress, which the trial court denied. The Court of Appeals
held that Appellant has not shown that the lost Cadillac body was favorable or
vii material to his defense; he has shown, at most, that the evidence contained in the
car’s shell was potentially useful. This petition challenges these holdings.
PROCEDURAL HISTORY OF THE CASE
On October 7, 2014, the Fourteenth Court of Appeals affirmed Appellant’s
conviction. Camacho v. State, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-
Houston [14th Dist.], October 7, 2014, pet. pending). On October 21, 2014,
Appellant timely filed his motion for rehearing. The Fourteenth Court of Appeals
overruled and denied Appellant’s motion for rehearing on November 13, 2014. On
January 29, 2015, Appellant timely filed this petition for discretionary review with
the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
viii PDR No. PD-1609-14
On Appellant’s Petition for Discretionary Review From the Fourteenth Court of Appeals, Appeal No. 14-13-00626-CR, On Appeal from the 400th District Court Of Fort Bend County, Texas Cause No. 06-DCR-045165A _______________________________ PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, CHRISTOPHER CAMACHO
To The Honorable Justices of the Court of Criminal Appeals:
Comes now Appellant, Christopher Camacho by, and through his attorney of
record, Michael C. Diaz, and files this petition for discretionary review of the of
the October 7, 2014, decision of the Fourteenth Court of Appeals of Texas in
Camacho v. State, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-Houston
1 [14th Dist.], October 7, 2014, pet. pending), and would respectfully show the Court
the following:
DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO PRESERVE POTENTIALLY USEFUL EVIDENCE
Was Appellant entitled to an adverse-inference jury instruction based upon the Motion to Suppress Violating The Due Course of Law Clause?
Reasons to Grant Review in Support of Ground for Review
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in conflict with the decisions of another court of appeals on the same matter, namely:
Ground One: State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston [14th Dist.] 2007, no pet.); White v. State, 125 S.W.3d 41 (Tex. App.-Houston [14th Dist.] 2003).
In conflict with: Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005); Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007)
ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW ONE
In its October 7, 2014, opinion, the Fourteenth Court of Appeals affirmed
Appellant’s conviction in determining that the trial court did not err in determining
2 that that the record adequately supports the trial court’s implied finding that the
State did not act in bad faith in failing to preserve potentially useful evidence and
that that the trial court did not abuse its discretion in denying appellant’s motion to
suppress.
This Court should review this ground and review is appropriate under Tex.
R. App. P. 66.3(a), because the Court of Appeals has rendered a decision which is
in conflict with the decisions of another court of appeals on the same matter.
In its opinion, the Fourteenth Court of Appeals responded to Appellant’s
first point of error by citing and using case law which is in conflict with case law
from another Court of Appeals decision on the same issue, which Appellant cited
and used in his brief. The Fourteenth Court of Appeals used and cited the
following case: State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston
[14th Dist.] 2007, no pet.)
In Vasquez, the Fourteenth Court of Appeals, held that “We stated, “[T]he
Due Course of Law Clause provides the same protection as the Due Process Clause
regarding the State’s destruction of potentially useful evidence in a criminal
prosecution.” Id. We reached this conclusion by analyzing the nearly identical
language of the state and federal clauses. Id.at 749-50.
3 Vasquez, which quoted Pena III, which Appellant cited in his brief, said that
the United States Supreme Court has held that, if a defendant seeks to prove a
federal due-process violation based on a state's destruction of potentially useful
evidence, as opposed to material, exculpatory evidence, the defendant must show
the state acted in bad faith in destroying the evidence. Illinois v. Fisher, 540 U.S.
at 547-48, 124 S.Ct. at 1202; Arizona v. Youngblood, 488 U.S. at 57-58, 109 S.Ct.
at 337. The Youngblood court described potentially useful evidence as
"evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant." Id,
488 U.S. at 57-58, 109 S.Ct. at 337.
The Due Course of Law Clause provides a greater level of protection than
the Due Process Clause. Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007), or
Pena III. Under the Due Course of Law Clause, the State has a duty to preserve
both material, exculpatory evidence and potentially useful evidence. To determine
whether the loss or destruction of potentially useful evidence violates the Due
Course of Law Clause, the Pena III court adopted the legal standard employed by
the Delaware Supreme Court for the due process protections of the Delaware
Constitution. See id. at 650-653. Under this standard, to determine if the state has
violated the defendant's right to due process under the state constitution, courts
balance the following factors:
4 (1) whether the evidence would have been subject to discovery or disclosure,
(2) if so, whether the state had a duty to preserve the evidence, and
(3) if there was a duty to preserve, whether that duty was breached, and what
consequences should flow from the breach.
See id. at 650-651. With regard to the third element of this analysis, courts
draw a balance between the nature of the state's conduct and the degree of
prejudice to the accused. See id. Under this analysis, the state must justify the
conduct of the police or prosecutor, and the defendant must show how his defense
was impaired by loss of the evidence. See id. In general terms, courts applying this
analysis should consider:
(1) the degree of negligence or bad faith involved,
(2) the importance of the lost evidence, and
(3) the sufficiency of the other evidence adduced at the trial to sustain the
conviction.
See id. at 651. After applying this analysis to determine if the state violated
the Due Course of Law Clause, a court finding a violation then would have to
perform a constitutional harm analysis. See id. at 654. If a court determines then
5 that harmful constitutional error has occurred, the court should choose from three
potential remedies for the loss or destruction of this evidence: (1) dismissal, (2)
exclusion of related evidence, or (3) an adverse-inference jury instruction. See id.
at 655. Applying this analysis, the Pena III court reversed and remanded based on
its determination that harmful constitutional error had occurred and that the
appropriate remedy was an adverse-inference jury instruction. See id. at 653-656.
State v. Vasquez, 230 S.W.3d 744 (Tex.App.-Houston (14th Dist.) 2007).
During the motion to suppress hearing, the States called four witnesses to
testify. Detective Kubricht acknowledged that the white Cadillac was the crime
scene and a piece of evidence which he consented to being released to A&M
Automotive without placing a hold on it. Detective Arredondo testified that he
asked Kubricht if the Cadillac was available for release to A&M Automotive, and
Kubricht told Arredondo that it was, without any special instructions. (RR 15 at
53). Abraham Mejorado testified that he is the owner of A&M Automotive and he
was given no special instructions with regard to holding the Cadillac. (RR 15 at
59-61). Mejorado testified that the Cadillac was auctioned off after 90 days. (RR
15 at 61). Crime scene investigator, Chris Bronsell testified that the Cadillac was
the crime scene. (RR 15 at 69). Bronsell also testified that there was spatter in
other parts of the vehicle that weren't kept as evidence, such as the headliner and
door posts. (RR 15 at 75). In addition, Bronsell testified that in his opinion and
6 based upon his training, in a double homicide case, all evidence should be kept
until the disposition of the case and that the time frame makes no difference. (RR
15 at 75-76). Bronsell also testified that a hold could be placed on a vehicle which
is removed to another wrecker company’s lot and that this is typical. (RR 15 at
78). Appellant’s expert, Louis Akin testified that the Cadillac was primary, critical
evidence and he was unable to conduct his analysis because of the poor quality of
the photographs and the absence of the crime scene. (RR 15 at 100-101). Akin
testified that because of the absence of the Cadillac, his hypotheses were impaired.
(RR 15 at 104). Middleton (appellant’s co-counsel): “Okay. So, can I summarize
your testimony that, with the seats being removed and being separated, it creates a
disadvantage or impacts your analysis because of the spatial information that is --
that has now been removed from your analysis?” Akin: “Yes. As I think I said if I
were to have the car available, I would have sat in the back right seat and see what
I could see from there. I would have sat in the other seats and see what it's like to
turn – one of the things I would like to know is how fast I could turn and leap from
the driver's seat into the position where he wound up. Was it possible that he tried
to spin around and grab the gun, and that's how he got shot? You can't tell those
things like that from the photographs.” (RR 15 at 108).
Applying the legal standard as quoted in Pena III, the State violated
appellant's right to due process under the state constitution. The State had a duty to
7 preserve both material exculpatory evidence and potentially useful evidence which
was the Cadillac. The Cadillac was subject to discovery, the State had a duty to
preserve the vehicle, especially in a case such as this and this duty was obviously
breached.
Applying the element of Pena III, to determine if the state violated the Due
Course of Law Clause, the State failed to justify Kubricht’s conduct of releasing
the vehicle, by basically relying on photographs in a case of this magnitude.
Furthermore, defense expert, Akin, testified that the Cadillac was primary, critical
evidence and he was unable to conduct his analysis because of the poor quality of
the photographs and the absence of the crime scene. Moreover, Akin testified that
because of the absence of the Cadillac, his hypotheses were impaired.
There was a substantial degree of negligence involved with regard to
Kubricht’s actions. Kubricht not only acknowledged his department policy of
preserving evidence, but the gravity of this case, yet he consented to the release of
the vehicle.
Appellant respectfully urges this Court to follow Pena III because of the
lack of remedies available to an accused and the absurd results that follow under
Vasquez. In addition, Appellant relies on language in Pena I to show the
difficulties for an accused when the State has lost evidence, such as, the practical
8 impossibility of proving bad faith on the part of the police, "Short of an admission
by the police, it is unlikely that a defendant would ever be able to make the
necessary showing to establish the required elements for proving bad faith." Lolly
v. State, 611 A.2d 956, 960 (Del.1992); State v. Ferguson, 2 S.W.3d 912, 917
(Tenn.1999) (finding that proving bad faith is extremely difficult). The
Youngblood decision could have the unfortunate effect of encouraging the
destruction of evidence to the extent that evidence destroyed becomes merely
potentially useful since its contents would be unprovable." Thorne v. Dept. of
Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989). Another reason touted by
the states rejecting Youngblood is that the requirement of bad faith operates as a
litmus test mandating no due process violation even when serious questions exist
concerning the fundamental fairness of the trial. Youngblood "permits no
consideration of the materiality of the missing evidence, or its effect on the
defendant's case.... [It] substantially increases the defendant's burden, while
reducing the prosecution's burden at the expense of the defendant's fundamental
right to a fair trial." Ferguson, 2 S.W.3d at 916-17.
Even if a defendant's case approaches bad faith, such as adequate proof of
gross negligence or reckless disregard, a due process violation cannot be found.
Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App.
LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for
9 publication). The Delaware Supreme Court found that such a scenario would
place the court in a difficult position.
The court must either find bad faith and dismiss the charges, despite facts
which support only a finding of gross negligence, or find no bad faith and deny the
defendant the benefit of a favorable inference, despite the loss of material evidence
due to the State's negligence. In such a situation, the court is left with an all or
nothing proposition leading to two equally unsatisfactory results. Lolly, 611 A.2d
at 960.
Youngblood is both too broad and too narrow. It is too broad because it
would require the imposition of sanctions even though a defendant has
demonstrated no prejudice from the lost evidence. It is too narrow because it limits
due process violations to only those cases in which a defendant can demonstrate
bad faith, even though the negligent loss of evidence may critically prejudice a
defendant. Pena v. State, 166 S.W.3d 274.
Argument and Authorities in Support of Ground One Sub Issue
The Court of Appeals incorrectly affirmed the trial court decision in not
giving Appellant a jury instruction on adverse- inference as requested by
Appellant. Based upon Appellant’s Motion to Suppress and the testimony at trial,
10 the trial court should have found that harmful constitutional error occurred and
provided the potential remedy of an adverse-inference jury instruction, based upon
the motion to suppress and testimony at trial violating the Due Course Clause.
Again citing Pena III, after applying this analysis to determine if the state violated
the Due Course of Law Clause, a court finding a violation then would have to
perform a constitutional harm analysis. See id. at 654. If a court determines then
that harmful constitutional error has occurred, the court should choose from three
potential remedies for the loss or destruction of this evidence: (1) dismissal, (2)
exclusion of related evidence, or (3) an adverse-inference jury instruction. See id.
at 655.
From the dialogue mentioned above from the motion to suppress hearing,
the Appellant clearly had shown through Akin’s testimony that the Cadillac would
have been favorable and material to his analysis.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Christopher
Camacho, prays that this Court grant the Petition for Discretionary Review for
Appellant, order briefing on this cause, and set it for submission at the earliest
11 possible date. Moreover, upon submission and review of the appellate record and
the briefs and arguments of counsel, the Court find reversible error in the
judgments of the Fourteenth Court of Appeals in appeal number 14-13-00626-CR
and of the 400th District Court of Fort Bend County, Texas, cause number 06-
DCR-045165A. In accordance with this Court’s finding of reversible error,
appellant also requests that the Court then issue its opinion and judgment reversing
the judgments of the Fourteenth Court of Appeals and the 400th District Court of
Fort Bend County, Texas, remand this cause to the 400th District Court of Fort
Bend County, Texas, assess all costs of the appeal against Appellee, and order
execution of its judgment in accordance with its opinion.
Respectfully submitted,
/s/Michael C. Diaz Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 State Bar No. 00793616 Attorney for Appellant
12 CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing
document, Appellant’s Petition for Discretionary Review, filed on January 23,
2015, has 3581 words, based upon the word count under Microsoft Word.
/s/ Michael C. Diaz Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 Texas Bar No. 00793616 E-mail: mjoeldiaz@sbcglobal.net Attorney for Appellant
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a
true and correct copy of the foregoing Petition for Discretionary Review has been
served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422
Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 23rd day of
January, 2015.
/s/Michael C. Diaz 13 Michael C. Diaz
APPENDIX
14 15 Affirmed and Memorandum Opinion filed October 7, 2014
In The
Fourteenth Court of Appeals
NO. 14-13-00626-CR
CHRISTOPHER CAMACHO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 06-DCR-045165A
MEMORANDUM OPINION
A jury convicted Christopher Camacho of capital murder of multiple persons,1 and the trial court assessed his punishment at life imprisonment. Appellant contends that the trial court committed reversible error in denying appellant’s (1) motion to suppress; and (2) proposed adverse-inference jury instruction. We affirm.
1 See Tex. Penal Code Ann. § 19.03(a)(7) (Vernon Supp. 2014). BACKGROUND
Pedro Cortez discovered a white Cadillac sedan parked in an empty field in Fort Bend County on the morning of January 21, 2004. Cortez observed a woman later identified as Vivian Michelle Moreno in the front passenger’s seat jumping up and down and gasping for air. Kneeling before her, also on the front passenger’s side, was a man later identified as Michael Montalvo. Cortez believed Moreno to be gravely injured and Montalvo to be dead. He called emergency dispatch.
Soon after receiving Cortez’s call, Fort Bend County Sheriff’s Department deputies and medical personnel arrived on the scene. The emergency responders extracted Moreno from the vehicle and rushed her to a nearby hospital. Once at the hospital, Moreno was pronounced dead from a gunshot wound to the head. She also exhibited multiple stab wounds on the right side of her face.
Deputies at the crime scene determined that Montalvo died from a gunshot wound to the head. They photographed the car with Montalvo’s body inside; they also photographed the ground immediately surrounding the car and collected evidence including a bullet found on the front driver’s side floor.
The Cadillac was towed to the sheriff’s department headquarters for additional processing after Montalvo’s body was removed. Once at headquarters, additional photographs of the interior and exterior of the car were taken. The Fort Bend County Sheriff’s Department took approximately 100 photographs of the car, 48 of which were admitted at trial. These photographs show, among other things, pooled blood on the back passenger’s side floor; they also show blood splatter on the front seats and front center console. Additionally, the photographs show a large crack in the front driver’s side window.
In addition to taking photographs, the sheriff’s department also dusted the
2 car for finger prints, vacuumed the car to collect trace evidence, and examined the car for gunshot residue. The sheriff’s department found gunshot residue on the interior car door surfaces and on the front headrests.
Investigators at the sheriff’s department removed many of the interior structural items of the car to check for additional trace evidence. They removed the front driver’s seat, which was connected to the center console; the front passenger’s seat; the rear seat; the carpet; the vents located on the dash; and the steering wheel. After separating these items and performing evidentiary tests, the investigators placed these items in an enclosed evidence storage unit. The investigators covered these items with plastic. The rest of the Cadillac’s body was stored separately in an outdoor sheriff’s department storage lot, where it remained for the next four years.
Fort Bend County Sheriff’s Department Detective Michael Kubricht received a call in 2008 from a fellow detective, Carlos Arredondo, notifying him that the sheriff’s department vehicle storage lot was full. Detective Arredondo asked for permission to transfer the Cadillac to a third-party storage lot. Detective Kubricht agreed, and the car was transferred to the third-party lot in January 2008.
The sheriff’s department has a policy of keeping all evidence in a homicide case until the case is completely closed. Detective Kubricht testified in the trial court that he believed the third-party storage lot used by the Fort Bend County Sheriff’s Department held vehicles until needed. He previously had worked with another sheriff’s department that used a third-party storage lot to hold vehicles indefinitely. Unbeknownst to Detective Kubricht, the third-party storage lot used by the Fort Bend County Sheriff’s Department typically auctioned off cars after 90 days. Pursuant to this policy, the car Detectives Kubricht and Arredondo sent to the third-party storage lot was auctioned off in 2008. Its whereabouts remain
3 unknown.
Appellant was indicted for the capital murders of Moreno and Montalvo in 2010. Before trial, appellant moved to suppress all evidence from the Cadillac and testimony concerning such evidence because the Cadillac’s body was unavailable for his independent inspection. The trial court held a hearing on the matter and denied appellant’s motion.
Trial commenced in 2013. Before the jury was charged, appellant’s counsel requested an adverse-inference jury instruction, which the trial court denied. The jury found appellant guilty of the capital murders of Moreno and Montalvo. This appeal followed.
ANALYSIS
Appellant’s two appellate issues are intertwined. Appellant contends that his state constitutional rights were violated by the loss of the Cadillac’s body because further testing of it could have provided exculpatory evidence. Appellant argues the trial court should have excluded related evidence or given an adverse-inference jury instruction.2
2 In issue one, appellant additionally asserts that the trial court erred in denying his motion to dismiss. Nevertheless, appellant does not argue or ask for dismissal in his brief to this court, nor does he cite relevant legal authority or the record to support dismissal. An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i). An unargued point is considered waived. Parker Cnty. Appraisal Dist. v. Francis, 436 S.W.3d 845, 848 n.2 (Tex. App.—Fort Worth 2014, no. pet.). Because appellant has not argued or asked for dismissal, and has not cited relevant authority or the record, we hold appellant has waived his challenge to the trial court’s denial of his motion to dismiss. See Robinson v. Tex. Constr. Servs. Corp., No. 14- 12-00723-CV, 2014 WL 1673821, at *5 (Tex. App.—Houston [14th Dist.] Apr. 24, 2014, no pet.) (mem. op.) (finding an appellant waived his challenge to the legal and factual sufficiency supporting the trial court’s finding by not providing any argument, analysis, or citations to the record or legal authority); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (overruling an appellant’s issue as insufficiently argued where the appellant asserted only that there are additional grounds for reversal and that 4 I. Motion to Suppress
Appellant contends in his first issue that the trial court erred in denying his motion to suppress evidence relating to the preserved portions of the Cadillac’s interior.
We review a trial court’s ruling on a motion to suppress for abuse of discretion and will overturn the trial court’s decision only if it lies outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply a bifurcated standard of review; we give almost complete deference to the trial court’s determinations of credibility and historical facts, but review de novo the trial court’s application of the law to the facts. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). Where, as here, the trial court does not make explicit findings of fact, we presume the trial court made implicit findings supported in the record that buttress its conclusion. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).
The Texas Constitution provides due process protection through the Due Course of Law Clause, which states, “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. The Due Course of Law Clause is comparable to the Due Process Clause of the United States Constitution, which provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV § 1. While the two clauses are textually similar, appellant insists that the Due Course of Law Clause provides a
reversal would avoid injustice).
5 broader level of protection than the federal Due Process Clause.
Appellant relies exclusively on Pena v. State, 226 S.W.3d 634, 653 (Tex. App.—Waco 2007), rev’d, 285 S.W.3d 459 (Tex. Crim. App. 2009). Pena concluded that the Due Course of Law Clause standard provides greater protection than the Due Process Clause to defendants faced with the State’s loss or destruction of potentially exculpatory evidence. Id. at 651-56. Key to this standard is a balancing test. Id. at 651. Pena focused on (1) whether the evidence would have been subject to discovery or disclosure; (2) whether the State had a duty to preserve the evidence; and (3) if there was a duty, whether the duty was breached and what consequences should flow. Id. In turn, the third element focused on (1) the degree of negligence or bad faith involved; (2) the importance of the lost evidence; and (3) the sufficiency of the other evidence adduced at trial to sustain the conviction. Id. Applying this test, Pena held that a due course of law violation existed based on the State’s destruction of potentially exculpatory evidence. Id. at 653-56. The Court of Criminal Appeals reversed, holding that the defendant failed to preserve for review his due course of law claim. Pena, 285 S.W.3d at 464.
Appellant misplaces his reliance on Pena because binding precedent in this court rejects the Pena standard. See State v. Vasquez, 230 S.W.3d 744, 748-51 (Tex. App.—Houston [14th Dist.] 2007, no pet.). We stated, “[T]he Due Course of Law Clause provides the same protection as the Due Process Clause regarding the State’s destruction of potentially useful evidence in a criminal prosecution.” Id. We reached this conclusion by analyzing the nearly identical language of the state and federal clauses. Id. at 749-50; see also Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“While the Texas Constitution is textually different in that it refers to ‘due course’ rather than ‘due process,’ we
6 regard these terms as without meaningful distinction.”). Vasquez has not been overruled by a higher court or this court sitting en banc, nor has there been an intervening and material change in statutory law. Accordingly, Vasquez controls here. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, this court is bound by the prior holding of another panel of this court.”).3
Under Vasquez, the State must preserve material, exculpatory evidence. See Vasquez, 230 S.W.3d at 747; see also California v. Trombetta, 467 U.S. 479, 488 (1984). Appellant does not contend that the Cadillac’s body constitutes material, exculpatory evidence.
Where lost or destroyed evidence is merely “potentially useful,” due process is not violated “unless a criminal defendant can show bad faith on the part of the police.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Illinois v. Fisher, 540 U.S. 544, 547-48 (2004) (reaffirming the Youngblood standard). “Potentially useful” evidence is “evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57-58. Appellant’s expert testified that the Cadillac’s disappearance prevented him from determining whether evidence 3 No other Texas appellate court has adopted the due course of law standard discussed in Pena; at least six courts of appeals, including this one, have applied the federal due process standard for determining whether a defendant’s state constitutional rights have been violated by the State’s failure to preserve potentially exculpatory evidence. See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973, at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication).
7 contained in the car’s shell was exculpatory or inculpatory. Therefore, the Cadillac’s body is at most potentially useful evidence.
The trial court did not make findings of fact; it orally rejected appellant’s motion to suppress after a hearing on the matter. Where the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327-28. In other words, we assume the trial court made implicit findings of fact supported in the record that buttress its conclusions. Id. Viewing the record in this light, we conclude that the evidence supports the trial court’s implicit finding that the State did not lose or destroy the body of the car in bad faith.
Fort Bend County Sheriff’s Department detectives testified that they mistakenly transferred the vehicle at issue in this case to a third-party storage lot, which did not have a procedure for preserving vehicles indefinitely. Detective Kubricht testified that he approved the transfer while under the mistaken belief that the vehicle would be preserved. Detective Arredondo testified that he had no knowledge of this case at the time he transferred the vehicle, nor did he know of the importance of the vehicle to the case. Both individuals testified that they held no animus towards appellant when they transferred the vehicle. Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the record adequately supports the trial court’s implied finding that the State did not act in bad faith in failing to preserve potentially useful evidence.
Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress. See Vasquez, 230 S.W.3d at 747-48 (affirming denial of motion to suppress blood-test results performed on an accused intoxicant’s blood sample where the trial court found that the blood sample was not destroyed in bad faith).
8 II. Jury Instruction
Appellant argues in his second issue that the trial court erred by failing to include an adverse-inference jury instruction in the charge.
Article 36.14 of the Texas Code of Criminal Procedure requires the trial court to give the jury a written charge, setting forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14 (Vernon 2007). We review a claim of jury charge error using the two-step procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). We first determine whether there is error in the charge. Id. Then, if error is found, we analyze that error for harm. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013).
Appellant requested an adverse-inference jury instruction, which the trial court denied. The jury charge did not include any instruction on presumptions the jury may or must make regarding the State’s failure to produce the Cadillac’s body for appellant’s independent inspection. Citing Pena, 226 S.W.3d at 655, appellant contends that an adverse-inference instruction was mandated to cure a due course of law violation.
Appellant has not established a due course of law violation; thus, he has not established entitlement to an adverse-inference jury instruction. Moreover, Pena does not control. See Vasquez, 230 S.W.3d at 748-51. Under binding precedent, the trial court did not err in refusing appellant’s adverse-inference instruction. A criminal defendant requesting an adverse-inference instruction allowing the jury to infer lost or destroyed evidence would have produced a result favorable to the defendant must show that the evidence was favorable and material. White v. State, 125 S.W.3d 41, 43-44 (Tex. App.—Houston [14th Dist.] 2003), pet. ref’d). Appellant has not shown that the lost Cadillac body was favorable or material to 9 his defense; he has shown, at most, that the evidence contained in the car’s shell was potentially useful. Accordingly, the trial court did not err in refusing an adverse-inference instruction. See id. at 44 (trial court did not err in refusing an adverse-inference instruction where the defendant could show only that the unpreserved evidence might have been favorable to his defense).
We overrule appellant’s second issue. See Celis, 416 S.W.3d at 42 (when there is no charge error, the court need not conduct a harm analysis).
CONCLUSION
Having overruled appellant’s two issues, we affirm the trial court’s judgment.
/s/ William J. Boyce Justice
Panel consists of Justices Boyce, Busby, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b).