Steven Douglas Freeman v. State

• Court: Court of Appeals of Texas
• Decided: January 20, 2010
• Docket: 10-07-00363-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-07-00363-CR

STEVEN DOUGLAS FREEMAN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2007-297-C2

OPINION ON REMAND

On original submission, the Court, in a plurality opinion and in reliance on Pena

v. State, 226 S.W.3d 634, 656 (Tex. App.—Waco 2007), held that Steven Douglas Freeman

preserved his due course of law complaint by requesting a spoliation instruction. See

Freeman v. State, 276 S.W.3d 630, 633-34 (Tex. App.—Waco 2008). Having reversed Pena,

the Court of Criminal Appeals vacated our judgment in Freeman and remanded. See

Freeman v. State, 286 S.W.3d 370, 370-71 (Tex. Crim. App. 2009); see also Pena v. State, 285

S.W.3d 459 (Tex. Crim. App. 2009). The sole issue on remand is whether Freeman preserved his complaint for appellate review. See Freeman, 286 S.W.3d at 371. We

affirm.

Freeman was convicted of felony driving while intoxicated. Before trial, the tape

of the field sobriety tests was recorded over pursuant to department policy. The trial

court denied Freeman’s request for a spoliation instruction.

In Pena, the Court of Criminal Appeals held that Pena failed to preserve his due

course of law claim because, even though he invoked the Texas due course of law

provision, he at no time argued that the provision affords greater protection than the

federal Due Process Clause. See Pena, 285 S.W.3d at 464. In this case, Freeman sought a

spoliation instruction, but urged no constitutional or statutory support for his position.

In light of Pena, Freeman’s complaint is not preserved for appellate review. Id.; see

Rodriguez v. State, No. 13-07-00494-CR, 2009 Tex. App. LEXIS 6981, at *12-14 (Tex.

App.—Corpus Christi Aug. 31, 2009, no pet.) (not designated for publication).

We overrule Freeman’s sole issue and affirm the judgment.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed January 20, 2010 Do not publish [CRPM]

Freeman v. State Page 2