Opinion issued January 26, 2016




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-14-00557-CR
                         ———————————
                        JORDAN LEWIS, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 81st District Court
                          Wilson County, Texas
                   Trial Court Case No. 13-11-205-CRW


                       MEMORANDUM OPINION

     Appellant, Jordan Lewis, was found guilty by a jury of the offenses of

aggravated robbery1 and aggravated assault.2   Appellant pleaded true to two


1
     See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2), (3) (Vernon 2011),
     § 31.03(a) (Vernon Supp. 2015).
enhancement paragraphs, and the trial court assessed Appellant’s punishment at 50

years in prison for each offense with the sentences to run concurrently. In two

issues on appeal, Appellant (1) complains that “[t]he trial court erred in denying

[his] First Amended Plea of Double Jeopardy” and (2) asserts that the trial court

erred when it did not include his requested jury instruction on spoliation of

evidence.3

      We affirm.

                                     Background

      In 2012, Appellant was incarcerated in the Wilson County jail. At that time,

Appellant worked in the jail’s kitchen as an inmate trustee, helping to prepare

meals for the other inmates. On the morning of March 3, 2012, Appellant obtained

a knife, which had an eight-inch blade, from the jail employee in charge of the

kitchen for the purpose of cutting up tomatoes. After he had been given the knife,

Appellant and the jail employee took the trash outside the jail building. While

outside, Appellant fled the jail on foot, sprinting across a field.




2
      See TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon Supp. 2015), § 22.02(a)(2)
      (Vernon 2011).
3
      This appeal, originally filed in the Fourth Court of Appeals, San Antonio, Texas,
      was transferred by the Supreme Court of Texas, pursuant to its docket equalization
      authority, to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).

                                            2
      Appellant ran to a nearby gas station. There, seventy-two-year-old Carolyn

Orth was sitting in her parked SUV, waiting for her son, who had gone into the

station to purchase some food.

      Appellant opened the passenger door of Orth’s SUV and got into the vehicle.

Displaying what Orth later described as a “butcher knife,” Appellant told Orth to

drive. When Orth did not comply, Appellant ordered her out of the SUV. Orth got

out of the vehicle, but her cell phone and purse remained in the SUV as Appellant

drove away from the gas station. Orth ran for help, and her son called 9-1-1. The

police had already been alerted to Appellant’s jail escape and quickly arrived on

the scene.

      Meanwhile, Appellant fled on the highway in Orth’s SUV with the police in

pursuit. As he drove, Appellant used Orth’s cell phone to call his mother and

another person. Appellant lost control of the vehicle at an intersection, crashing

the SUV. He was then apprehended by law enforcement.

      On November 22, 2013, Appellant was charged in a two-count indictment

with the offenses of aggravated robbery and aggravated assault. The indictment

read as follows:

      [O]n or about the 3rd day of March, 2012, . . . Jordan Lewis . . . did
      then and there:




                                        3
                          COUNT I, PARAGRAPH A

      While in the course of committing theft of property and with intent to
      obtain or maintain control of said property, intentionally or knowingly
      threaten or place, Carolyn Orth, a person 65 years of age or older, in
      fear of imminent bodily injury or death;

                           COUNT I, PARAGRAPH B

      While in the course of committing theft of property and with intent to
      obtain or maintain control of said property, intentionally or knowingly
      threaten or place Carolyn Orth in fear of imminent bodily injury or
      death, and the defendant did then and there use or exhibit a deadly
      weapon, to-wit: a knife;

                                    COUNT II

      [I]ntentionally and knowingly threaten Carolyn Orth with imminent
      bodily injury and did then and there use or exhibit a deadly weapon,
      to-wit: a knife, that in the manner of its use and intended use was
      capable of causing death or serious bodily injury, during the
      commission of said assault.

      On March 24, 2014, trial began on the indictment, and a jury was selected.

That same day, Appellant filed a special plea of double jeopardy. The following

day he filed an amended verified special plea. In the plea, Appellant alleged that

he “was convicted in this Court and sentenced to 22 months in a State Jail Felony

Facility on January 13, 2014, for the offense of Unauthorized Use of a Motor

Vehicle for acts committed during the same incident which has resulted in the

charge of Aggravated Robbery.” Appellant pointed out that unauthorized use of

motor vehicle can be a lesser included offense of aggravated robbery and that

“[g]reater-inclusive and lesser-included offenses are the same offenses for double


                                        4
jeopardy purposes.”    Appellant asserted, “[T]his trial is barred by the double

jeopardy clauses of the Fifth and Fourteenth Amendments to the United States

Constitution, Article I, Section 14 of the Texas Constitution, and Article 1.10 of

the Texas Code of Criminal Procedure.” In his prayer, Appellant requested the

trial court “[to] dismiss the [aggravated-robbery offense] with prejudice, or,

alternatively, enter an order authorizing the submission of such issue to the trier of

fact.” Although the amended special plea was verified, Appellant did not offer the

indictment, the judgment of conviction or any other papers from the unauthorized

use of a motor vehicle (“UUMV”) proceeding.

      Before opening statements, the trial court conducted a hearing on

Appellant’s amended special plea. The State pointed out that the indictment for

the aggravated-robbery offense did not specifically charge Appellant with the theft

of Orth’s motor vehicle. Rather, the indictment charged Appellant with the theft of

Orth’s “property.” The State informed the trial court that the evidence would show

that Appellant had also taken Orth’s cell phone and her purse, which were in the

SUV. During the hearing, the trial judge mentioned that she had not been the

judge to preside over the UUMV proceeding.

      At the conclusion of the hearing, the trial court stated that the special plea

was denied. After presentation of the State’s evidence, Appellant re-urged his

special plea of double jeopardy, which the trial court again denied.



                                          5
      Although he had requested it in in his amended special plea, the special plea

of double jeopardy was not submitted to the jury. At the charge conference,

Appellant did not submit a requested charge on double jeopardy nor did he object

to the charge on that basis.

      Appellant did, however, request that the jury charge include a spoliation-of-

evidence instruction. In support of his request, Appellant pointed to the testimony

of the sheriff’s department official, J. Deagen, who was in charge of the Wilson

County jail. Deagen testified that, on the day of Appellant’s escape, there had been

two video-recording cameras in the jail’s kitchen. Deagen stated that, when he

went to retrieve the video taken by the kitchen’s cameras, the system had already

purged the video made on the day of the escape.

      Whether Appellant used or exhibited a knife was elemental to the

aggravated-assault charge. At trial, Appellant disputed that he had a knife when he

entered Orth’s vehicle. The investigating police officer testified at trial that no

knife was ever recovered from the SUV or from the area searched by law

enforcement. However, the jail employee in charge of the kitchen testified that an

inventory of the knives, following Appellant’s escape, showed that one knife was

missing from the kitchen.      The trial court denied Appellant’s request for a

spoliation instruction.




                                         6
       The jury found Appellant guilty of both the aggravated robbery and

aggravated assault offenses. Appellant chose to have the trial court sentence him.

At the conclusion of the sentencing hearing, Appellant again objected that his

“rights against double jeopardy [were] violated.” Appellant pleaded true to two

enhancement allegations, and the trial court sentenced him to 50 years in prison for

each offense with the sentences to run concurrently.

       Appellant now appeals, raising two issues.

                                 Double Jeopardy

       Appellant frames his first issue as follows: “The trial court erred in denying

[his] First Amended Plea of Double Jeopardy.” As stated, in his special plea,

Appellant requested the trial court to dismiss the aggravated-robbery charge with

prejudice, or, alternatively, submit the issue of double jeopardy to the jury. On

appeal, Appellant requests that the aggravated-robbery conviction be vacated. He

makes no argument that the issue of double jeopardy should have been submitted

to the jury.

       Articles 27.05 and 27.07 of the Code of Criminal Procedure govern special

pleas of double jeopardy. Article 27.05 provides, “A defendant’s only special plea

is that he has already been prosecuted for the same or a different offense arising

out of the same criminal episode that was or should have been consolidated into

one trial, and that the former prosecution . . . resulted in conviction.” TEX. CODE



                                          7
CRIM. PROC. ANN. art. 27.05(1) (Vernon 2006). Under Article 27.07, the trial court

must submit to the jury all issues of fact presented by a special plea unless, after

assuming the facts averred to be true, the court determines that the plea is legally

insufficient to raise a valid jeopardy claim. See TEX. CODE CRIM. PROC. ANN. art.

27.07 (Vernon 2006); Arredondo v. State, 582 S.W.2d 457, 459 (Tex. Crim. App.

1979). That is, “if conceding the facts averred in the special plea to be true, the

plea in bar would not be good in law, the trial court may overrule it and decline to

submit it to the jury.” Arredondo, 582 S.W.2d at 459; see also Kelson v. State, 167

S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.) (discussing function of

special plea).

      In his special plea, Appellant requested the trial court to vacate the

aggravated-robbery charge on the basis that he had been previously prosecuted for

the lesser-included offense of unauthorized use of a motor vehicle. At trial and on

appeal, the focus of Appellant’s double-jeopardy claim is to secure a dismissal of

the aggravated-robbery charge. At the hearing on the special plea, Appellant

argued that “to have him stand trial again for the same offense is a violation of his

right against double jeopardy.”

      We note that a pre-trial writ of habeas corpus, not a special plea, is the usual

procedural vehicle by which a defendant raises a double-jeopardy claim in which

he asserts that he is being re-tried for the same offense. See Gonzalez v. State, 8



                                          8
S.W.3d 640, 643 n.9 (Tex. Crim. App. 2000) (“We have decided that a pretrial writ

of habeas corpus is usually the procedural vehicle by which a defendant should

raise a ‘successive prosecutions for the same offense’ double jeopardy claim.”);

Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) (holding that a

special plea afforded no protection against “twice being put to trial”). A defendant

may file a special plea of double jeopardy pursuant to Article 27.05, however, the

special plea serves only the limited function of preventing successive punishments,

not successive prosecutions.    See Apolinar, 820 S.W.2d at 794; Kelson, 167

S.W.3d at 591–93. Although a claim for double jeopardy may be raised “‘at the

inception of the prosecution under attack,’” the facts underlying the special plea

must be determined during trial on the merits. Apolinar, 820 S.W.2d at 794

(quoting Robinson v. Wade, 686 F.2d 298, 302 n.3 (5th Cir. 1982)). The special

plea of double jeopardy is submitted to the jury only after all the evidence has been

heard. See Ex parte Walker, 813 S.W.2d 570, 571 (Tex. App.—Corpus Christi

1991, pet. ref’d) (observing that determinations on a special plea of double

jeopardy may not be made in advance of trial). Thus, a special plea cannot be

determined before trial to stop the prosecution in question. State v. Lara, 924

S.W.2d 198, 202 (Tex. App.—Corpus Christi 1996, no pet.).

      Requiring a defendant to complete a trial before appealing a successive

prosecutions claim is not, however, consistent with the double jeopardy guarantee



                                         9
against the State trying him successively for the same offense. Kelson, 167 S.W.3d

at 591 (citing Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982)).

The same considerations would not apply to a multiple punishments claim because

the reviewing court can “fully vindicate” the claim on appeal following final

judgment. Id.

      In any event, we note that the San Antonio Court of Appeals has recognized

that a trial court may choose to treat a special plea as a habeas application.4 See Ex

parte Cantu, 913 S.W.2d 701, 704 (Tex. App.—San Antonio 1995, pet. ref’d).

And we are mindful that a double-jeopardy claim may be reviewed for the first

time on appeal when “the undisputed facts show the double jeopardy violation is

clearly apparent on the face of the record and when enforcement of usual rules of

procedural default serves no legitimate state interests.” Gonzalez, 8 S.W.2d at 643;

see also Shaffer v. State, 477 S.W.2d 873, 875–76 (Tex. Crim. App. 1971).

      “A double-jeopardy claim is apparent on the face of the trial record if

resolution of the claim does not require further proceedings for the purpose of

introducing additional evidence in support of the double-jeopardy claim.” Ex

Parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). The critical inquiry

is whether the record before the reviewing court clearly reflects a double jeopardy


4
      When an appeal is transferred, we apply the law of the transferor court to the
      extent required by Texas Rule of Appellate Procedure 41.3. See TEX. R. APP. P.
      41.3.

                                         10
violation. Roy v. State, 76 S.W.3d 87, 93 (Tex. App.—Houston [14th Dist.] 2002,

no pet.).

      The Double Jeopardy Clause of the United States Constitution is applicable

to the states through the Fourteenth Amendment, and it protects an accused from

impermissible multiple punishments or successive prosecutions for the same

offense after an acquittal or conviction. Ex parte Amador, 326 S.W.3d 202, 205

(Tex. Crim. App. 2010); see U.S. CONST. amend. V, cl. 2, XIV. Here, Appellant

asserts that his rights under the federal double jeopardy clause were violated

because he was subjected to successive prosecutions for the same offense after

conviction. Specifically, he asserts that that the State’s prosecution of him for

aggravated robbery violated his federal double-jeopardy rights because he was

convicted two months earlier of the lesser-included offense of UUMV. In so

doing, he correctly points out that the offense of UUMV can be a lesser-included

offense of aggravated robbery. See Griffin v. State, 614 S.W.2d 155, 158 n.4 (Tex.

Crim. App. 1981); Roy, 76 S.W.3d at 96. Appellant also correctly indicates that,

for double-jeopardy purposes, a lesser-included offense is legally the same as a

greater offense, and is wholly subsumed by the elements of the greater offense,

unless the potential lesser-included offense requires proof of a fact not required to

establish the greater offense. See Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct.




                                         11
2221, 2227 (1977); Ex Parte Castillo, 469 S.W.3d 165, 168 (Tex. Crim. App.

2015); Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).

      To determine if an offense is a lesser included of another, a court employs

the cognate-pleading approach, which requires us to compare the elements of the

greater offense as pled to the statutory elements of the potential lesser-included

offense in the abstract. Castillo, 469 S.W.3d at 169. This analysis is a legal

question and does not depend on the evidence offered at trial. Id.

      If the offenses are legally the same, the next step is to determine whether the

offenses are factually the same. Id. (citing Ex parte Benson, 459 S.W.3d 67, 72

(Tex. Crim. App. 2015)). We determine factual sameness by determining the

allowable unit of prosecution and reviewing the trial record to establish how many

units have been shown. Id. The allowable unit of prosecution of an offense turns

on statutory construction and usually requires ascertaining the gravamen, or

gravamina, of the offense. Id. After reviewing the record, if a court concludes that

the offenses are based on the same unit of prosecution, then the offenses are

factually the same for successive prosecution purposes.        Id.   To prevail, the

claimant must prove legal sameness and factual sameness. Id.

      Here, however, we cannot determine whether the offenses are factually the

same. Whether one crime is a lesser-included offense of another depends upon the

offense charged, its statutory elements, and the surrounding facts and



                                         12
circumstances of the crimes. See Campbell v. State, 149 S.W.3d 149, 155–56

(Tex. Crim. App. 2004). That is, not only are the elements of the crime as

described in the penal statute influential, but so is the time and place of the crimes,

the identities of the victim and the accused in each, and the manner and means by

which each crime was committed. See id. at 155.

      Appellant did not include the charging instrument from the UUMV case.

Nor did Appellant include any other filings from the UUMV proceeding, including

the judgment of conviction. Although the UUMV offense was purportedly tried in

the same court as the instant aggravated-robbery offense, the judge in this case

stated on the record that she had not been the presiding judge in the UUMV

proceeding. Appellant did not request the trial court to take judicial notice of the

UUMV proceedings, nor did the State stipulate to the contents of the charging

instrument from that case. Cf. Roy, 76 S.W.3d at 94, 99 (holding that convictions

for both UUMV and aggravated robbery constituted double jeopardy because

unauthorized use was a lesser included offense of aggravated robbery in that case;

court acknowledged that the record was “fully developed” because Appellant

“presented a complete record of [the] trial” and “[t]he appellate record contain[ed]

two separate indictments—one for unauthorized use of motor vehicle and the other

for aggravated robbery”).




                                          13
      Appellant did file a certified special plea in which he stated that he “was

convicted in this Court and sentenced to 22 months in a State Jail Felony Facility

on January 13, 2014, for the offense of Unauthorized Use of a Motor Vehicle for

acts committed during the same incident which has resulted in the charge of

Aggravated Robbery.” However, a special plea “should contain the pleadings of

the former prosecution, show the result of the former proceedings and some final

disposition of the case.” Lara, 924 S.W.2d at 202 (emphasis added); see also

Goins v. State, 841 S.W.2d 527, 529 (Tex. App.—Houston [1st Dist.] 1992, pet.

ref’d) (concluding that defendant must present evidence in support of his claim of

double jeopardy; asserting plea of double jeopardy constitutes only pleading and

does not establish as true issues of fact alleged in the plea). Appellant’s plea did

not contain the charging instrument or any filings from the UUMV proceeding.

      In a double jeopardy challenge, the defendant bears the burden to provide a

record that both establishes the commonality of the offenses and shows that the

State will be relying on the same instances of misconduct for which the accused

was previously convicted or acquitted. Ex parte Infante, 151 S.W.3d 255, 262

(Tex. App.—Texarkana 2004, no pet.). In other words, it is an accused’s burden to

establish a double jeopardy violation, Anderson v. State, 635 S.W.2d 722, 725

(Tex. Crim. App. 1982), and to show that he is entitled to the relief he seeks.

Hoang v. State, 810 S.W.2d 6, 8 (Tex. App.—Dallas 1991), aff’d, 872 S.W.2d 694



                                        14
(Tex. Crim. App. 1993). Here, Appellant did not meet that burden. Appellant has

not provided a complete record from which we can determine whether the

convictions for unauthorized use of a motor vehicle and aggravated robbery

implicate double jeopardy in this case.5

      As a result, we overrule Appellant’s first issue.

                               Spoliation Instruction

      In his second issue, Appellant, asserts that “[t]he trial court erred in denying

[his] specifically requested charge on spoliation of evidence” with respect to the

purged video recorded by the camera in the jail’s kitchen on the day of Appellant’s

escape. He asserts that the video “would have significantly bolstered [his] theory

that no knife was employed if he would have been able to access the purged

video.”

A.    Standard of Review

      We review alleged jury charge error in two steps. First, we determine

whether error exists, and if error exists, we review for harm. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005); Howard v. State, 239 S.W.3d 359, 365

(Tex. App.—San Antonio 2007, pet. ref’d).


5
      We note that the Court of Criminal Appeals has addressed double-jeopardy claims
      in post-trial applications for writ of habeas corpus. See, e.g., Ex parte Jefferson,
      681 S.W.2d 33, 34 (Tex. Crim. App. 1984) (determining claim of double jeopardy
      arising from successive convictions for unauthorized use of a vehicle and theft of
      the same vehicle).

                                           15
B.    Legal Principles

      Spoliation of evidence concerns the loss or destruction of evidence. Torres

v. State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

When the spoliation concerns potentially useful evidence, the defendant bears the

burden of establishing that the State lost or destroyed the evidence in bad faith.

See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); Castilla v.

State, 374 S.W.3d 537, 541 (Tex. App.—San Antonio 2012, pet. ref’d); Torres,

371 S.W.3d at 319.

      The Court of Criminal Appeals has recognized that “‘[p]recisely what

constitutes ‘bad faith’ is not clear.’” 322 S.W.3d at 231 (quoting George E. Dix

and Robert O. Dawson, 42 TEXAS PRACTICE, 2d ed., § 22.63 (2001)). However,

the court also recognized that bad faith is “more than simply being aware that

one’s action or inaction could result in the loss of something that is recognized to

be evidence.” Id. at 238. Bad faith requires a showing of “some sort of improper

motive, such as personal animus against the defendant or a desire to prevent the

defendant from obtaining evidence that might be useful.” Id.

      In Napper, the court explained that “[b]ad faith cannot be established by

showing simply that the analyst destroyed the evidence without thought, or did so

because that was the common practice, or did so because the analyst believed

unreasonably that he was following the proper procedure.” Id. When conduct can,



                                        16
at worst, be described as negligent, the failure to preserve evidence does not rise to

the level of a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 58,

109 S. Ct. 333, 337 (1988).

C.    Analysis

      Here, Appellant did not show that the kitchen video had been purged in bad

faith. To the contrary, the sheriff’s department official, J. Deagen, who was in

charge of the Wilson County jail, testified on direct examination, “The system had

already purged that [kitchen] video for some reason. When I went to try to capture

it was already purged off the system.” Deagen also stated, “After so many days

[the system] overrides and when I went to capture [the video] I didn’t realize it was

past that limit and had already been purged.”

      On cross-examination, Deagen stated that the videos were kept for 15 days

before the system purged them. He acknowledged that he had waited more than 15

days after Appellant’s escape to view the kitchen video, even though he had been

investigating the escape since shortly after it occurred.

      On re-direct examination, the State elicited the following testimony from

Deagen:

      Q. Was it error on your part for you not to pull the kitchen video prior
      to the 15 days?

      A. Yes, that was a mistake on my part.

      Q. You wish you had pulled that video before 15 days?

                                          17
      A. Why sure I wished I would. There’s a lot of things I wished I
      would have done.

      In his brief, Appellant avers that bad faith was shown because Deagen

“knowingly let [the video] be purged by the system.” However, Appellant offered

nothing to controvert Deagen’s testimony that he had simply made a mistake in

failing to check the video until after it had been purged.

      We conclude that the trial court could have reasonably determined that

Appellant did not meet his burden to show that the kitchen video was purged in

bad faith. See Napper, 322 S.W.3d at 229 (holding defendant must show evidence

was lost or destroyed by State in bad faith). We hold that the trial court did not

abuse its discretion in denying Appellant’s request for a spoliation instruction.

      We overrule Appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           18
