                                 NO. 07-06-0086-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                OCTOBER 9, 2006
                         ______________________________

                         ENRIQUE ALVARADO, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2003-403998; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                     _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Enrique Alvarado, appeals from his conviction for driving while

intoxicated, with two previous convictions for driving while intoxicated. Punishment was

assessed at five years confinement, confinement suspended and appellant placed on

community supervision for a period of ten years. We affirm.
                                    Factual background


       On September 11, 2003, DPS trooper Kim LaCaze was arresting a driver for the

offense of driving while intoxicated and ticketing a passenger for public intoxication when

she allowed the passenger to call someone to come pick him up. The passenger called

appellant. When appellant arrived at the scene, he parked at the far side of the parking

lot and did not approach the trooper until requested to do so. When appellant arrived at

the trooper’s position, the trooper noticed an odor of an alcoholic beverage on appellant’s

breath. Field sobriety tests were then administered to appellant and he was subsequently

arrested for driving while intoxicated.


       Appellant contends that the trial court committed error by allowing improper

impeachment of a defense witness and by refusing to give a requested jury instruction.


                             Impeachment of defense witness


       Appellant first contends that the trial court allowed the State to improperly impeach

defense witness, Richard Rodriguez. Rodriguez was called by appellant to testify that he,

Rodriguez, was the person driving appellant’s vehicle when it arrived at the scene. In order

to determine the scope of the State’s cross-examination, specifically related to

impeachment, a hearing was held outside the presence of the jury to ascertain Rodriguez’s

criminal history. The trial court heard evidence that Rodriguez had a pending driving while

intoxicated charge in New Mexico and failed to appear to answer the charges. Additionally,

Rodriguez had two convictions for theft and an indecent exposure conviction, all dating

back to the 1970's. The trial court ruled that the State could cross-examine Rodriguez as

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to the prior convictions.   At the trial before the jury, Rodriguez testified on direct

examination that he had an outstanding warrant for driving while intoxicated in New Mexico

and had previously been convicted twice of theft. During the State’s cross-examination

Rodriguez additionally admitted to the previous conviction for indecent exposure.

Subsequently, appellant developed testimony that the indecent exposure conviction

resulted when Rodriguez had been urinating in an alley way.


                                        Analysis


      We review the admission of evidence under an abuse of discretion standard. See

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A reviewing court should

not reverse the trial judge’s decision whose ruling was within the zone of reasonable

disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996).


      By questioning Rodriguez during direct examination about his criminal history and

eliciting testimony regarding two theft convictions and the pending DWI, appellant placed

this information before the jury. Since appellant elicited this information, he cannot now

complain of the evidence being considered by the jury. See Johnson v. State, 981 S.W.2d

759, 760 ) (Tex.App.–Houston [1st Dist] 1998, pet. ref’d) (citing Wilkerson v. State, 736

S.W. 2d 656, 662 (Tex.Crim.App. 1987)). We conclude that the trial court did not err in

allowing the testimony regarding the theft convictions nor any testimony related to the

driving while intoxicated charge in New Mexico.


      Next, appellant contends that the trial court erred in allowing the State to cross-

examine Rodriguez about the conviction for indecent exposure because it was not proven

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to be a crime of moral turpitude. During the hearing out of the presence of the jury,

Rodriguez testified that the conviction for indecent exposure occurred in Texas, was for

urinating in public, and that the date of the conviction was during the 1970's.


       Appellant contends that the indecent exposure conviction is comparable to

disorderly conduct because the offense did not involve sexual gratification. Appellant

further contends that disorderly conduct without proof of intent to arouse or gratify the

sexual desire of any person is not a crime involving moral turpitude. However, indecent

exposure as originally enacted in 1973 involved exposure of a persons “anus or any part

of his genitals with intent to arouse or gratify the sexual desire of any person . . . .” Acts

1973, 63rd Leg., R.S., ch. 399, § 1, sec. 21.08, 1973 Tex. Gen. Laws 885, 917 (amended

1983) (current version at TEX . PENAL CODE ANN . § 21.08 (Vernon 2003)). It is the intent to

arouse or gratify sexual desire of any person which makes indecent exposure a crime of

moral turpitude. Polk v. State, 865 S.W.2d 627, 630 (Tex.App.–Fort Worth 1993, pet.

ref’d). Contrary to the assertions of appellant, the testimony was that Rodriguez was

convicted of indecent exposure rather than disorderly conduct. Accordingly, the trial court

did not abuse his discretion in overruling appellant’s objection to allowing the State to

impeach Rodriguez with a conviction for indecent exposure as it is a crime involving moral

turpitude.


       Thirdly, appellant contends that the indecent exposure conviction was too remote

to be considered by the trial court. The general rule in Texas is that proof of a prior

conviction is not admissible if more than ten years has elapsed since the date of

conviction. TEX . R. EVID . 609(b). The rule further provides an exception if the trial court

                                              4
determines that the probative value of the conviction, as shown by the specific facts and

circumstances substantially outweighs the conviction’s prejudicial effect. Id. For example,

the Court of Criminal Appeals has held that an exception to the general rule of Rule 609(b)

occurs when the witness has demonstrated through later conduct that he has not reformed.

Lucas v. State, 791 S.W.2d 35, 51 (Tex.Crim.App. 1989) (flight to avoid prosecution for

driving while intoxicated demonstrative of a lack of reformation of a person’s character).

The State posits that evidence that Rodriguez had failed to appear to answer the driving

while intoxicated charge in New Mexico, at the time of trial, is probative of his lack of

reformation.    Although, Lucas was tried before the adoption of our current rules of

evidence, the Court of Criminal Appeals was cognizant of the adoption of the rules of

evidence and, in fact, referred to Rule 609 in footnote 9 of the opinion. Id. Cases since

Lucas have supported the reasoning for allowing the use of the evidence as proof of lack

of reformation. See LaHood v. State, 171 S.W.3d 613, 620 (Tex.App–Houston [14th Dist.]

2005, pet. ref’d); Jackson v. State, 50 S.W.3d 579, 591 (Tex.App–Fort Worth 2001, pet.

ref’d). Accordingly, we cannot say that allowing the State to question Rodriguez about his

conviction for indecent exposure was an abuse of discretion. Appellant’s first issue is

overruled.


                                Requested jury instruction


       Appellant next contends that the trial court erred in refusing to give a requested jury

instruction regarding destruction or loss of evidence. The record reflects that the DPS

trooper had originally stopped another individual for driving while intoxicated. The vehicle

driven by the DPS trooper was equipped with an in-car video and audio recording device.

                                              5
The tape from the first arrest was destroyed according to standard procedure of the DPS

after the disposition of the case against the first driver. The record further reflects that the

camera was never turned to allow video taping of appellant’s field sobriety tests. The

videotape did, however, contain some audio of the arrest of appellant. Based upon the

facts, appellant contends that the jury should have been instructed that, since the State

had the capacity to preserve the recording, the jury should infer that the destroyed

evidence was favorable to appellant and unfavorable to the State.


                                           Analysis


       Appellant posits that the due process clause of the Texas Constitution sets a higher

standard when dealing with lost or destroyed exculpatory evidence than that enumerated

in the United States Constitution. Pena v. State, 166 S.W.3d 274, 282 (Tex.App–Waco

2005, pet granted). Subsequently, the Court of Criminal Appeals vacated the judgment of

the Waco court and remanded the case. Pena v. State, 191 S.W.3d 133 (Tex.Crim.App.

2006). Inasmuch as the original opinion has been vacated, it has no precedential value.

However, since the original opinion in Pena by the Waco Court, the same issue has been

reviewed by the San Antonio Court of Appeals. See Salazar v. State, 185 S.W.3d 90

(Tex.App.–San Antonio 2005, no pet.). The Salazar court was dealing with a motion to

suppress seeking to suppress testimony that appellant had used a weapon during a prison

riot. The facts revealed that the prison system had videotaped the riot, and according to

appellant, the videotape would have shown that he was not armed with a weapon, thereby

contradicting the testimony of the prison guards. The appellant in Salazar contended that

the Texas Constitutional guarantee of due process provided stronger protection than that

                                               6
afforded under the United States Constitution. The San Antonio Court refused to follow

the reasoning set forth in the original Pena opinion and held that the Texas Constitution

and the United States Constitution afforded the same standard of protection when dealing

with the loss or destruction of evidence in the possession of the State. Salazar, 185

S.W.3d at 92. We agree with the San Antonio court.


       It is beyond dispute that the State has a duty to preserve evidence in its possession.

California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct 2528, 81 L.Ed.2d 413 (1984);

Jackson, 50 S.W.3d at 588. The appellant must then demonstrate that the evidence was

both favorable and material to his case. Id. at 589. Simply showing that the evidence

might have been favorable does not meet the materiality standard. Id. Finally, in order to

sustain a violation of due process or due course of law an appellant must prove that the

State acted in bad faith when it lost or destroyed the evidence. Id. (citing Arizona v.

Youngblood, 488 U.S.51, 58, 109 S.Ct 333, 102 L.Ed.2d 281(1988), for due process and

Mahaffey v. State, 937 S.W.2d 51, 53 (Tex.App.–Houston [1st Dist.] 1996, no pet.), for due

course of law).


       Appellant’s contention fails for two reasons. First, the record does not demonstrate

that the evidence would have been favorable. At best, the record simply implies that it

might have been favorable. Therefore, appellant has failed to meet the materiality

standard. Jackson, 50 S.W.3d at 589. Second, there is no testimony in the record, nor

any assertion by the appellant, that the State acted in bad faith. Id. Therefore, the trial

court did not err in refusing to give the requested jury instruction. We overrule appellant’s

second issue.

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                                      Conclusion


      Having overruled appellant’s issues, we affirm the trial court.




                                         Mackey K. Hancock
                                             Justice




Do not publish.




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