

 


 


NUMBER 13-07-00383-CR

 
COURT OF APPEALS

 
THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



GABRIEL ARTEMIO GARZA, JR.,	 Appellant,

v.

THE STATE OF TEXAS,                                                               Appellee.


On appeal from the 24th District Court of Jackson County, Texas.



MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Benavides

Memorandum Opinion by Justice Benavides


	Appellant, Gabriel Artemio Garza, Jr., appeals his conviction for possession of more
than fifty but less than 2,000 pounds of marijuana, a second-degree felony.  Tex. Health
& Safety Code Ann. § 481.121(b)(5) (Vernon 2003).  Garza pleaded "true" to an
enhancement allegation based on a prior felony conviction for delivery of cocaine, elevating
his criminal conduct to that of a first-degree felony.  See  Tex. Penal Code Ann. § 12.42(b)
(Vernon Supp. 2008).  After a jury trial, the jury found him guilty of the offense and
assessed his punishment at 99 years imprisonment in the Texas Department of Criminal
Justice--Institutional Division and a $10,000 fine.  See id. § 12.32 (Vernon 2003).  	On appeal, Garza raises two issues, arguing that: (1) the prosecution failed to
preserve exculpatory evidence, and (2) the prosecutor exceeded the bounds of proper jury
argument during the punishment phase of the trial.  We affirm. (1)
I.  Preservation of Exculpatory Evidence
 By his first issue, Garza argues that the prosecution failed to preserve exculpatory
evidence, violating his right to due process under the Fourteenth Amendment to the United
States Constitution.  See U.S. Const. amend. XIV.  Garza complains that the prosecution
did not preserve a video recording of the traffic stop that resulted in the seizure of
marijuana from Garza's car.  In response, the State argues that Garza failed to preserve
this error by failing to raise it in the trial court and, in any event, Garza has failed to
establish a due process violation.  We agree.
	The record does not contain any request by Garza for production of the videotape
or any objection to the State's failure to produce it.  In order to preserve error for appeal,
an appellant must present to the trial court a timely request, objection, or motion that states
the specific grounds for the relief sought.  See Tex. R. App. P. 33.1(a)(1)(A).  This rule
applies to constitutional violations.  See Pena v. State, No. PD-1411-07, 2009 WL 928594,
at *3 (Tex. Crim. App. Apr. 8, 2009).  Because Garza did not object or raise this issue in
the trial court, Garza did not preserve error for our review.
	Even so, the record does not support Garza's argument.  "The State has a duty to
preserve exculpatory evidence."  Jackson v. State, 50 S.W.3d 579, 588 (Tex. App.-Fort
Worth 2001, pet. ref'd).  When a defendant complains of lost evidence, he must establish
that "the evidence lost is both material and favorable to him."  Id. at 589 (citing United
States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982)).  Additionally, to prove a due
process violation, the defendant must show that the State acted in bad faith when it failed
to preserve the evidence.  Id.
	Garza argues that the video would have shown the entire traffic stop, including the
radar machine used to determine his speed and his conversation with the trooper as to the
search of the vehicle.  Garza argues in his brief that this evidence was an "essential" piece
of evidence.  However, Garza does not explain how the video would have been material
or favorable.  In fact, as the State points out, Garza's confession was admitted into
evidence, and in it, Garza conceded that he was stopped for exceeding the speed limit and
that he voluntarily consented to a search of the vehicle he was driving, which led to the
discovery of marijuana in his tires.  Thus, the record demonstrates that the video was not
"essential" or favorable to Garza. 
	Furthermore, Garza does not argue that the State acted in bad faith by failing to
preserve the evidence.  In fact, the record supports the opposite conclusion.  Garza was
stopped for a traffic violation on February 22, 2000.  Trooper Don Plunkett initiated the stop
and discovered marijuana in the vehicle.  Garza was then arrested.  After he was released
on bail, Garza failed to appear thereafter and was a fugitive until his arrest in 2007.  

	During the time between Garza's arrest and trial, Trooper Plunkett had been
assigned to different "services" within the police force.  In 2000, he was working with the
Texas Highway Patrol Service.  Thereafter, he was assigned as a "criminal interdiction
trooper" for the narcotics division.  In 2006, he was reassigned to the Highway Patrol
Service.  Trooper Plunkett testified that when he left to go into "criminal law enforcement,"
he had the videotape, and that when he returned as a highway patrol officer, the tape was
not with the rest of the evidence in the case.  Trooper Plunkett testified that he did not
know what happened to the videotape, and he stated that he did not "get rid" of the
videotape.  See id. (holding that unintentional loss or destruction of evidence does not
satisfy bad faith requirement). We overrule Garza's first issue.
II.  Closing Argument 
	By his second issue, Garza argues that the prosecutor exceeded the bounds of
permissible jury argument during the punishment phase of the trial.  See Brown v. State,
270 S.W.3d 564, 570 (Tex. Crim. App. 2008) ("[P]roper jury argument generally falls within
one of four general areas:  (1) summation of the evidence; (2) reasonable deduction from
the evidence; (3) answer to argument of opposing counsel; and (4) plea for law
enforcement.").  The State argues that Garza waived this issue by failing to object to the
prosecution's argument in the trial court.  We agree with the State.
	In Cockrell v. State, the Texas Court of Criminal Appeals held that an objection is
necessary to preserve an argument regarding improper jury argument.  933 S.W.2d 73,
89 (Tex. Crim. App. 1996).  This is true even though the trial court could not have cured
the error with an instruction.  Id.  Garza's attorney did not object a single time during the
prosecution's argument.  Under these circumstances, nothing is preserved for our review. 
Id.; see Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); McDonald v.
State, 186 S.W.3d 86, 91 (Tex. App.-Houston [1st Dist.] 2005, no pet.).  We overrule
Garza's second issue.
III.  Conclusion
	Having overruled both of Garza's issues, we affirm the trial court's judgment.  
 								__________________________
								GINA M. BENAVIDES,
								Justice
Do not publish.
See Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and 
filed this the 7th day of May, 2009.

 
1.  As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them
herein except as necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P.
47.4.

