                                   NO. 12-07-00433-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JAMES LLOYD KING, JR.,                            '            APPEAL FROM THE 294TH
APPELLANT

V.                                                '            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                          '            VAN ZANDT COUNTY, TEXAS


                                   MEMORANDUM OPINION
       Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our opinion issued on
August 19, 2009 and substitute the following opinion. James Lloyd King, Jr. appeals his
conviction for manslaughter. In six issues, Appellant argues that the evidence is insufficient to
support the conviction, that the trial court erred in allowing certain evidence and in its
instructions to the jury, and that the State failed to meet its obligations regarding the collection of
evidence. We affirm.


                                           BACKGROUND
       Appellant was getting his rifle out of Delbert Ray Cox=s truck when the rifle discharged,
killing Cox. Appellant and Cox were friends. Following the shooting, Appellant tied Cox to the
bumper of his truck and dragged him to a pond where he sometimes disposed of trash. Jimmie
Marie Wilson was with the men when Appellant shot Cox. She drove to another location and
called the police. Wilson told the police that Appellant had deliberately aimed his rifle at Cox
and shot him. The police responded and ultimately found Cox=s body in the pond. Appellant
was not at the scene, and the police did not recover the rifle.
       A Van Zandt County grand jury indicted Appellant for the murder of Cox. He pleaded
not guilty and a trial was held.
        Wilson testified at trial that she was talking with Appellant=s companion while Appellant
was removing his personal items from the truck. Wilson said she saw Appellant reach into the
vehicle, get the rifle, put it on his hip, point it at Cox, and shoot him in the back. Appellant
adduced testimony through the investigating officers that Wilson had many aliases, and
numerous criminal convictions. The police officers who investigated the shooting all knew
Wilson through their law enforcement work.
        The medical examiner who performed the autopsy on Cox put crucial portions of
Wilson=s testimony in doubt. The examiner testified that Cox was shot in the chest, not in the
back as Wilson had said. The medical examiner also testified that the bullet traveled in a slightly
downward manner. She stated that the bullet entered Cox=s right shoulder; passed through his
collar bone, the upper lobe of his right lung, and his aorta; and exited his back, shattering the
right third through fifth ribs.
        Appellant=s father testified that he had given the rifle to Appellant. He testified that the
rifle had been damaged by being driven over, that it had spontaneously misfired on one occasion,
and that he told Appellant about the problem with the rifle. Appellant testified that his father had
told him the rifle had been run over and the safety was very difficult to set. He thought his father
meant that the gun had a Ahair trigger on it.@ Appellant did not understand that his father meant
the gun would discharge on its own.
        Appellant testified that he was taking the rifle out of the truck because he had been
driving Cox=s truck and was trading back with him for his own vehicle. He testified that the rifle
discharged as he was removing it from the truck, causing the fatal injury to Cox. He stated that
he did not intentionally shoot Cox. Appellant acknowledged that aiming a loaded gun at
someone was dangerous. Appellant also contended that Wilson could not have seen any of the
events because she was talking to a woman on the far side of the truck when the shooting
occurred and because her line of sight was blocked by the truck. Appellant admitted that he tied
a rope to Cox=s ankle, dragged his body to a pond, threw the body in, and covered it with a piece
of metal. He testified that he threw the rifle into the same pond.
        To rebut Appellant=s accident defense, the State offered evidence that Appellant had been
previously convicted of the offense of deadly conduct. Appellant objected to this evidence.
Following a hearing, the trial court allowed the victim in the deadly conduct case to testify.



                                                 2
       The trial court instructed the jury on the offenses of murder and manslaughter. The jury
convicted Appellant of manslaughter and assessed punishment at imprisonment for fifteen years.
This appeal followed.


                              LEGAL AND FACTUAL SUFFICIENCY
       In his first and second issues, Appellant argues that the evidence is legally and factually
insufficient to support a manslaughter conviction.
Standards of Review
       The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.
Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim.
App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.-Tyler 2006, pet. ref=d). Evidence is
not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we
conclude that no rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
       While legal sufficiency is all that is required by the U.S. Constitution, the Texas Court of
Criminal Appeals has determined that the Texas Constitution requires review of the factual
sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex. Crim. App. 1996).
In conducting a factual sufficiency review of the evidence, we must first assume that the
evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).
We review the factual sufficiency of the evidence to determine whether, considering all the
evidence in a neutral light, the evidence supporting the conviction is too weak to withstand
scrutiny or the great weight and preponderance of the evidence contradicts the jury=s verdict to
the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204
S.W.3d 404, 414-15, 417 (Tex. Crim. 2006). A verdict will be set aside Aonly if the evidence
supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the
supporting evidence, as to render the conviction clearly wrong and manifestly unjust.@ Ortiz v.
State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict
occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Jones v.
State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).



                                                3
       The fact that we might harbor a subjective level of reasonable doubt is not enough to
overturn a conviction that is founded on legally sufficient evidence. See Watson, 204 S.W.3d at
417. Although we are authorized to disagree with the jury=s determination, even if probative
evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should
not substantially intrude upon the jury=s role as the sole judge of the weight and credibility of
witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the
jury=s verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932
S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref=d). A jury is in the best position to evaluate the
credibility of witnesses, and we are required to afford Adue deference@ to the jury=s
determination. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
       Manslaughter is defined as recklessly causing the death of a person. TEX. PENAL CODE
ANN. ' 19.04 (Vernon 2003).         A person acts recklessly or is reckless Awith respect to
circumstances surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur.@ TEX. PENAL CODE ANN. ' 6.03(c) (Vernon 2003). The risk Amust be of such a
nature and degree that its disregard constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from the actor=s
standpoint.@ Id.
Application
       The evidence shows that Appellant pointed a rifle at Cox and that the rifle discharged,
killing Cox. Appellant=s testimony establishes this sequence of events, although he testified that
his pointing of the gun at Cox was inadvertent.
       Appellant testified that he was familiar with guns, he knew the risks involved in handling
them, he knew Cox was present, and he caused the rifle to point at Cox. This is sufficient
evidence for the jury to conclude that Appellant was aware of but consciously disregarded a
substantial and unjustifiable risk that Cox would be shot when he pointed the gun at him. See
Gahagan v. State, 242 S.W.3d 80, 87-88 (Tex. App.–Houston [1st Dist.] 2007, pet. ref=d)
(affirming manslaughter conviction for defendant who testified that he picked up a gun he kept
in the beer holder and began Aplaying with@ the gun and spinning it on his index finger, and the
gun accidentally discharged); Davis v. State, 757 S.W.2d 386, 388 (Tex. App.–Dallas 1988, no
pet.) (affirming manslaughter conviction for defendant who alleged he was just playing with gun,



                                                  4
did not know it was loaded, and that it accidentally discharged). Accordingly, the evidence is
legally sufficient for a rational jury to conclude that Appellant committed manslaughter. We
overrule Appellant=s first issue.
         We reach the same conclusion with respect to the factual sufficiency of the evidence.
Appellant argues at length that Wilson=s testimony is not reliable. Specifically, he argues that
her credibility was undermined by her theft convictions and inconsistencies between her version
of events and the physical evidence.
         It is primarily the jury=s role to assess the credibility of witnesses, see Marshall, 210
S.W.3d at 625, and the jury made an assessment in this case. Wilson testified that Appellant
pointed the gun at Cox and fired it. This testimony, if believed, supported a conviction for
murder. However, the jury discounted her testimony and, instead, convicted Appellant on the
basis of his own testimony that he caused the rifle to point at Cox and it discharged accidentally.
         Appellant=s evidence, if the jury credited it, could have established that Appellant did not
know that the rifle was defective or did not understand the nature of the defect. However, even if
we assume the jury believed that the rifle was defective, and that Appellant did not know it, the
jury could nevertheless have concluded that pointing an ordinary rifle at a living person was a
conscious disregard of a substantial and unjustifiable risk. Under Appellant=s version of events,
it was even more of a risk to point this particular gun at a person than Appellant might have
anticipated.     Nevertheless, the jury=s verdict that Appellant=s actions were reckless is not
irrational, and Appellant=s conviction is not clearly wrong or unjust. We overrule Appellant=s
second issue.


                                INTRODUCTION OF EXTRANEOUS OFFENSES
         In his third issue, Appellant argues that the trial court erred in admitting evidence about
an incident in 2004 when Appellant pointed a gun at a motorist and pulled the trigger.1
Applicable Law
         Evidence of other crimes, wrongs, or acts is admissible under certain conditions. TEX. R.
EVID. 404(b). Although not admissible to prove that a person acted in conformity with his
         1
           The motorist testified, over Appellant=s objection, that he and some friends had Aflirted@ with a woman
who was with Appellant, and that Appellant had chased and confronted him. He testified that Appellant drew a
pistol, aimed it at him, and pulled the trigger, but the gun failed to fire. Appellant pleaded no contest to that offense.




                                                            5
character, extraneous offenses may be admissible for other purposes, such as to show motive,
opportunity, and absence of mistake or accident. Id.; Montgomery v. State, 810 S.W.2d 372,
387 (Tex. Crim. App. 1990) (op. on reh=g). The burden is on the proponent of the evidence to
satisfy the trial court that the Aother crime, wrong, or act@ has relevance apart from its tendency
to prove the character of a person in order to show that he acted in conformity therewith.
Montgomery, 810 S.W.2d at 387. For purposes of rule 404(b), the question is whether the
extraneous offense is relevant. See Santellan v. State, 939 S.W.2d 155, 168-69 (Tex. Crim. App.
1997).
         Evidence that is admissible under rule 404 may still be excluded, upon proper objection,
if the trial court determines that the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice, confusion of issues, misleading the jury, or considerations of
undue delay or needless presentation of cumulative evidence. See TEX. R. EVID. 403; Rodriguez
v. State, 203 S.W.3d 837, 843 (Tex. Crim. App 2006). Evidence is relevant if it has the tendency
to make the existence of any fact that is of consequence to the determination of the case more
probable or less probable than it would have been without the evidence. See TEX. R. EVID. 401.
         When a defendant, as here, objects to evidence on the basis of rules of evidence 403 and
404, the factors a trial court must consider in determining the admissibility of extraneous
evidence include the following:


         1)     Whether the danger of undue prejudice outweighs the probative value of the
                evidence in view of the availability of other means of proof and other factors
                appropriate for making decision of this kind under Rule 403;
         2)     How compellingly evidence of the extraneous misconduct serves to make more
                or less probable a fact of consequence;
         3)     The strength of the proponent=s evidence to show the opponent in fact
                committed the extraneous conduct;
         4)     The potential of the extraneous offense to Aimpress the jury in an irrational but
                nevertheless indelible way@
         5)     The amount of time necessary to develop the evidence of the extraneous offense
                evidence; and
         6)     How great the proponent=s Aneed@ is for evidence of the extraneous transaction.



Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1991); Montgomery v. State, 810
S.W.2d at 389-90.
         The proponent=s need for the extraneous evidence is evaluated in terms of whether the
proponent has other available evidence to establish the act of consequence, the strength of the


                                                       6
evidence, and whether the evidence relates to an issue that is in dispute. Montgomery, 810
S.W.2d at 390.
       When a defendant claims self-defense or accident, the state may introduce rebuttal
evidence of prior violent acts by the accused if it helps to understand the defendant=s intent. See
Halliburton v. State, 528 S.W.2d 216, 218 (Tex. Crim. App. 1975) (state permitted to present
evidence that defendant shot another man weeks after the charged shooting to rebut her
testimony that she did not intend to kill the victim); Stembridge v. State, No. 08-07-00181-CR,
2008 Tex. App. LEXIS 8179, at *4 (Tex. App.–El Paso Oct. 30, 2008, no pet.) (mem. op., not
designated for publication) (defendant=s testimony of self as victim permitted rebuttal evidence
of prior violent acts of defendant to show his intent) (citing Bradley v. State, 960 S.W.2d 791,
803 (Tex. App.–El Paso 1997, pet. ref=d)); Jones v. State, 241 S.W.3d 666, 669 (Tex. App.–
Texarkana 2007, no pet.).
       A trial court=s ruling on the admission of extraneous evidence under rule 404(b) is
reviewed for an abuse of discretion. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim.
App. 1996) (citing Montgomery, 810 S.W.2d at 392); see also Moses v. State, 105 S.W.3d 622,
627 (Tex. Crim. App. 2003).
Application
       The issue before the jury was whether Appellant=s admitted shooting of Cox was
intentional, reckless, or an excusable accident–in other words, Appellant=s intent. In an effort to
establish that intent and to rebut Appellant=s testimony that the shooting was an accident, the
State sought to admit testimony regarding an incident for which Appellant had pleaded no
contest to the offense of deadly conduct.
       The trial court found that the testimony of the victim of the deadly conduct was relevant
to rebut Appellant=s defense of accident and mistake in the shooting of Cox. The court also
found that the probative value of the testimony did not outweigh the prejudicial effect of the
evidence. Immediately prior to the victim=s testimony, the trial court instructed the jury that the
evidence was being admitted for the limited purpose of whether it rebutted the defensive theory
of accident. The victim then testified about an altercation he had with Appellant that ended
when Appellant aimed a gun at him and pulled the trigger, causing the gun to make a clicking
sound, but not fire.
       Analyzing the testimony by applying the appropriate factors, we first consider how



                                                7
compellingly the extraneous offense serves to make a fact of consequence more or less probable.
See TEX. R. EVID. 404(b); Mozon, 991 S.W.2d at 846-47.             The fact of consequence was
Appellant=s intent when he shot Cox. Appellant testified that the shooting was an accident. The
State charged Appellant with murder, an intentional offense, and presented evidence to show that
the shooting was intentional. Specifically, Jimmie Marie Wilson testified that Appellant got his
rifle out of Cox=s truck, pointed it at Cox, and shot him. She did not specifically say that the
shooting was intentional, but there was circumstantial evidence that would allow the finder of
fact to conclude that Appellant intended to shoot Cox. Wilson testified that she went to Cox
after Appellant shot him. He died while she was trying to get his cellular telephone out of his
pocket. She testified that she asked Appellant not to kill her, that he said he would not, and that
he took Cox=s telephone from her, saying that there was telephone reception at that location.
       Wilson also testified that Appellant told her that the gun had gone off. When she told
him she had seen what he did, he told her that Ait was going to be all right [and] not to say
anything.@ She testified that Appellant said he had Aput [Cox] out of his misery; he wouldn=t be
suffering anymore.@
       We agree with Appellant that there are differences between his shooting of Cox and his
attempted shooting of the victim with whom he had an altercation. The incidents involved
different firearms, different provocations, and different participants. But unlike when evidence
is offered under rule 404(b) to prove identity or a signature crime, the degree of similarity
required to rebut a defensive issue is not great, and the extraneous offense need not be identical
to the charged offense. See Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.–Houston [1st Dist.]
2006, pet. ref=d); see also Dennis v. State, 178 S.W.3d 172, 178-79 (Tex. App.–Houston [1st
Dist.] 2005, pet. ref=d). What is similar here is that in both instances, according to the State=s
proof, Appellant acted intentionally to shoot another person. Whether the fact that Appellant had
tried to shoot another person makes it more likely that Appellant acted intentionally when he
shot Cox is a question on which reasonable minds may differ. In light of Appellant=s accident
defense, the trial court=s decision to allow the extraneous offense evidence to rebut his defensive
theory is subject to reasonable disagreement. See Bass v. State, 270 S.W.3d 557, 563 (Tex.
Crim. App. 2008).     Accordingly, we hold that the trial court did not abuse its discretion in
allowing the evidence pursuant to rule 404(b).
       It is not enough, however, that the evidence is relevant. Pursuant to rule 403, the



                                                 8
probative value of the evidence must not be substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, or by considerations of delay or needless
presentation of cumulative evidence. Evidence that Appellant had previously tried to shoot
another person is the kind of evidence that has the potential to impress a jury Ain some irrational
but nevertheless indelible way.@ See Montgomery, 810 S.W.2d at 390. The jury could conclude
from that fact that Appellant is a violent person, which is the inference forbidden for this kind of
evidence.
         A significant amount of time was not required to develop this evidence. The reporter=s
record for the entire trial on the merits, excluding the voir dire and the punishment hearing, is
seven hundred and sixty-four pages long. Of those pages, twenty-three pages were devoted to
this witness, including the five pages where the victim=s own prior conviction was discussed.
         Finally, the State had need for this evidence to establish a fact of consequence, which is
Appellant=s intent. Appellant testified that the shooting was accidental. Wilson=s testimony
provided evidence that allowed the conclusion that Appellant intentionally shot Cox. Wilson
was not the most reliable historian of events, and the State did not have other evidence of
Appellant=s intent apart from his actions following the shooting. Accordingly, the State had need
of this evidence.
         In conclusion, there is evidence to support the trial court=s ruling. Reasonable minds
could differ as to the admission of this evidence both because of a tenuous connection between
the two incidents and because of the chance that the jury would look unfavorably on a person
who had previously tried to shoot another individual. These kinds of rulings are subject to
harmless error analysis. See Johnston v. State, 145 S.W.3d 215, 225 (Tex. Crim. App. 2004)
(harmless error analysis appropriate for errors in rule 404(b) rulings). We can be confident that
the jury did not misuse this evidence and that it did not distort their verdict because the jury
found insufficient evidence that Appellant acted intentionally when he killed Cox. This was a
rejection of Wilson=s testimony. The jury accepted Appellant=s testimony that the shooting was
accidental and, in so doing, did not make the forbidden inference that he intended to kill Cox
because he had previously tried to shoot another man.2 We overrule Appellant=s third issue.


         2
           The testimony that the rifle was unreliable and subject to inadvertent firing did not come from Appellant.
Accordingly, any residual bias the jury might have against him because of this evidence would not necessarily
intrude on the jury=s evaluation of the evidence about the condition of the rifle.


                                                         9
               FAILURE TO DISCLOSE GUN IN VIOLATION OF BRADY V. MARYLAND
         In Appellant=s fourth issue, he argues that the State failed to disclose exculpatory
evidence, specifically the rifle that he used to shoot Cox.
Facts
         Before trial, Appellant filed a Brady motion requesting exculpatory information. See
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963).
Appellant testified that he threw the rifle into the same pond where he disposed of Cox=s body.
During the trial, the police testified that they searched the pond but did not find the gun there and
that they had never recovered it. Following the trial, the State filed a motion for judgment nunc
pro tunc. In the motion, the State alleged that the written judgment did not accurately reflect the
rendered judgment because it did not include findings regarding a deadly weapon or support the
forfeiture of the weapon. The trial court granted the motion and issued a new written judgment,
which included a deadly weapon finding made by the jury and a finding that the sheriff=s office
had recovered a specific rifle in their investigation of the case.
         For the first time on appeal, Appellant argues that his right to Brady material was
violated because the State failed to provide the gun for testing prior to trial. The State responded
by asking this court to abate the appeal for an evidentiary hearing. We overruled the State=s
motion. The trial court held a hearing on the matter, and the State presented evidence that it did
not have the gun and that the judgment erroneously stated that the sheriff=s office had recovered
the rifle. Thereafter, the trial court issued another written judgment, which included the deadly
weapon finding but did not include any findings about the sheriff=s office recovering the rifle.
         Appellant points out that the trial court had jurisdiction to issue the original judgment
nunc pro tunc, because notice of appeal had not yet been filed, but did not have jurisdiction to
enter the second judgment nunc pro tunc because the appeal was pending at that time. See TEX.
R. APP. P. 25.2(g). We agree, but we also agree with the State that the forfeiture of the weapon
findings were not properly the subject of a nunc pro tunc order. Instead, Texas law contemplates
that the state or the relevant police agency will file a separate motion for forfeiture of a weapon
in the appropriate case. See TEX. CODE CRIM. PROC. ANN. arts. 18.18, 18.19 (Vernon Supp.
2005).
         Such a motion would address another problem presented here. Specifically, there is no
evidence to support the trial court=s finding that the weapon was recovered by the police.



                                                  10
Instead, the State filed a motion for judgment nunc pro tunc stating that the judgment entered did
not accurately reflect the judgment and sentence. The motion did not include a stipulation that
the State had the rifle. And there is no other evidence to support the trial court=s finding that the
sheriff=s office seized a weapon.3 Accordingly, Appellant has not shown that the State possessed
and failed to provide access to the rifle. We overrule Appellant=s fourth issue.


                                      FAILURE TO PRESERVE EVIDENCE
         In his fifth issue, Appellant argues that his due process rights were violated because the
State did not preserve the truck from which he shot Cox and that the photographs taken of the
truck were inadequate.
Applicable Law
         Three United States Supreme Court cases establish the parameters of the state=s duty to
preserve evidence for trial. In California v. Trombetta, the Court began with the observation
that A[t]he Due Process Clause of the Fourteenth Amendment requires the State to disclose to
criminal defendants favorable evidence that is material either to guilt or to punishment.@
California v. Trombetta, 467 U.S. 479, 480, 104 S. Ct. 2528, 2529, 81 L. Ed. 2d 413 (1984). At
issue in Trombetta was whether the State was required to preserve potentially exculpatory
evidence on behalf of a defendant. Id. 467 U.S. at 488, 104 S. Ct. at 2534. The Court noted that
A[w]henever potentially exculpatory evidence is permanently lost, courts face the treacherous
task of divining the import of materials whose contents are unknown and, very often, disputed.@
Id. at 104 U.S. at 486, 104 S. Ct. at 2533. The Court in Trombetta concluded that


         [w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be
         limited to evidence that might be expected to play a significant role in the suspect=s defense. To
         meet this standard of constitutional materiality [citation omitted], evidence must both possess an
         exculpatory value that was apparent before the evidence was destroyed, and be of such a nature
         that the defendant would be unable to obtain comparable evidence by other reasonably available
         means.


104 U.S. at 489-90, 104 S. Ct. at 2534.
         The United States Supreme Court subsequently held, in Arizona v. Youngblood, that,

         3
           We are aware that, in some jurisdictions, the district attorney=s office prepares the judgments for the trial
court=s review and approval. There is no evidence that this occurred here, and Appellant has not shown any
evidence that supports the trial court=s finding that the State had the weapon.




                                                          11
unless the accused can show bad faith on the part of law enforcement in failing to preserve
potentially useful evidence, the accused was not denied his rights under the Fourteenth
Amendment=s Due Process Clause. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333,
337, 102 L. Ed.2d 281 (1988).        In Youngblood, clothing obtained during a sexual assault
investigation was not refrigerated. Two small semen stains were found on the clothing over a
year later. Because the clothing had not been refrigerated, the sample had degraded and a test on
the stains was inconclusive as to the contributor=s identity. The Court held that the State had not
violated the defendant=s due process rights because there was not a sufficient likelihood that the
evidence was exculpatory and because there could not be a violation unless Athe exculpatory
value of the evidence [was] apparent >before the evidence [was] destroyed.=@ Youngblood, 488
U.S. at 56, 109 S. Ct. at 336. Accordingly, a defendant must show that the loss or destruction of
evidence was done with Apolice=s knowledge of the exculpatory value of the evidence at the time
it was lost or destroyed.@ Id., 488 U.S. at 56, 109 S. Ct. at 337.
       Similarly, in Illinois v. Fisher, the Due Process Clause was not violated when, consistent
with police procedure, the police destroyed the white powder they found in the defendant=s
possession. See Illinois v. Fisher, 540 U.S. 544, 545, 124 S. Ct. 1200, 1200, 157 L. Ed. 2d 1060
(2004) (per curiam). In that case, the police had tested the white powder to confirm that it was
cocaine. While on release, Fisher fled the jurisdiction and was a fugitive for ten years. The
cocaine was destroyed on a routine basis during the years Fisher was a fugitive. The Supreme
Court concluded that Athe applicability of the badBfaith requirement in Youngblood depended
not on the centrality of the contested evidence to the prosecution=s case or the defendant=s
defense, but on the distinction between >material exculpatory= evidence and >potentially useful=
evidence.@ Id., 540 U.S. at 549, 124 S. Ct. at 1203. Because Fisher=s claim for the need for a
retest of the cocaine related to A>potentially useful= evidence,@ the Court noted that A[a]t most,
respondent could hope that, had the evidence been preserved, a fifth test conducted on the
substance could have exonerated him.@ Id. 540 U.S. at 548, 124 S. Ct. at 1202. That potential
benefit was not sufficient to impose a duty upon the police to require the police to retain the
cocaine for the decade while Fisher was a fugitive.


Application
       According to Appellant, he shot Cox, according to Appellant, while standing on the



                                                 12
running board of Cox=s truck. Appellant argues that his defense depended, in part, on being able
to show the jury the mechanics of how he was removing the rifle from the truck, and that this
was hampered by not having the truck available for trial. He also argues that by having the truck
available, he would have been able to show that Wilson was not in a position to see the events
about which she testified. The investigating officers took three photographs of the truck, which
were admitted at trial. However, the photographs depict only the passenger side and the front of
the truck. The police did not retain the truck. Appellant contends photographs of the driver=s
side of the vehicle would allow him to better demonstrate how the shooting occurred. Appellant
offered photographs of a somewhat similar vehicle, but the State objected, due to the vehicle=s
dissimilarity. The court sustained the objection.
       Appellant does not directly accuse the State of acting in bad faith by not preserving the
truck or taking more photographs of it. However, Appellant suggests that Abad faith can be
imputed in a case where the State disposes of evidence which is vital to both the State and the
defense.@
       We cannot conclude that Appellant has shown bad faith or that it can be imputed under
these circumstances. The police took photographs of the truck, and there is no evidence that they
were seeking to keep any evidence from Appellant. Furthermore, the truck was hardly unique,
and there would be no reason to conclude that releasing the truck would prevent Appellant from
having evidence he needed. More importantly, the police had no basis to anticipate that such
evidence would be material or exculpatory evidence because they did not know that Appellant
would argue that the shooting was accidental until the trial.
       Alternately, Appellant argues that we should follow the court=s decision in Pena v. State,
in which the court held that the Texas Constitution=s due course of law provision provides
broader protection than does the Due Process Clause of the U.S. Constitution. See Pena v. State,
226 S.W.3d 634 (Tex. App.–Waco 2007). In Pena, the Tenth Court of Appeals held that the due
course of law provision does not require a showing of bad faith to bring this kind of claim. Id. at
651-53. However, after Appellant filed his brief, the Texas Court of Criminal Appeals reversed
the intermediate court decision on the grounds that the defendant had waived the argument that
the Texas Constitution provided broader protections because he had not made that argument in
the trial court. See Pena v. State, No. PD-1411-07, 2009 Tex. Crim. App. LEXIS 511, at *9-10
(Tex. Crim. App. 2009). Appellant has not directed us to, nor have we found, where he



                                                13
advanced this argument in the trial court. Therefore, he has not preserved a claim based on the
Texas Constitution. Id.
       Appellant has not shown that the State acted in bad faith or with the intent to deprive
Appellant of exculpatory evidence when it released the truck. Accordingly, Appellant=s due
process rights were not violated, and we overrule Appellant=s fifth issue.


                                        LESSER INCLUDED OFFENSE
       In Appellant=s sixth issue, Appellant argues that the trial court erred when it did not, on
its own motion, instruct the jury on the lesser included offense of criminally negligent homicide.
Appellant was indicted for the offense of murder. The trial court instructed the jury to consider
whether he was guilty of murder or the lesser offense of manslaughter. Appellant did not object
to the charge and did not request that the jury be instructed on the lesser included offense of
criminally negligent homicide.
       Appellant concedes that this court has previously held that the failure to submit an
unrequested lesser included offense instruction is not error nor is it subject to the Almanza4
egregious harm analysis. See Middleton v. State, No. 12-07-00066-CR, 2008 Tex. App. LEXIS
2137, at *9-10 (Tex. App.–Tyler Mar. 26, 2008, pet. ref=d) (mem. op., not designated for
publication) (citing Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007)). Appellant
suggests that this court relied on dicta in the Delgado decision and respectfully requests that we
reconsider our holding.
       The Delgado decision addressed whether the trial court was required, in the absence of a
request, to give an instruction defining the state=s burden of proof for extraneous offenses offered
in the guilt phase of trial. Id. at 253. Analogizing that issue with the issue of whether it was
error for the trial court not to give an unrequested instruction for a lesser included offense, the
court concluded that such matters were strategic decisions to be made by a defendant and so did
not represent an error that could be complained of on appeal. Id. at 250, 254. The court quoted
Professor George Dix at length, and with approval, on this precise issue, including the following
passage from Professor Dix:



       4
           Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh=g).




                                                       14
           Because of the strategic nature of the decision, it is appropriate for the trial court to defer to
           the implied strategic decisions of the parties by refraining from submitting lesser offense
           instructions without a party=s request. It is clear that the defense may not claim error
           successfully on appeal due to the omission of a lesser included offense if the defense refrained
           from requesting one.



Id. at 250 (quoting 43 George E. Dix & Robert O. Dawson, CRIMINAL PRACTICE                                      AND

PROCEDURE ' 36.50 (Supp. 2006)).
          Strictly speaking, Appellant is correct that this language was not directly necessary to the
court=s ultimate holding in Delgado. However, we conclude that the court=s statements in
Delgado are an accurate assessment of the law. See Oursbourn v. State, 259 S.W.3d 159, 179
(Tex. Crim. App. 2008) (AAs we recently stated in Delgado: >The trial judge has an absolute sua
sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific
offense charged. But it does not inevitably follow that he has a similar sua sponte duty to instruct
the jury on all potential defensive issues, lesser-included offenses, or evidentiary issues. These
are issues that frequently depend upon trial strategy and tactics.=@); see also Thomas v. State, 701
S.W.2d 653, 656 (Tex. Crim. App. 1985) (court could not consider complaint about lesser
included instruction that was not sought by the defendant).
          Appellant=s position, which would essentially require a trial court to instruct the jury on
every plausible lesser included offense, would allow convictions for offenses the defendant had
never been charged with and instructions for which neither party asked. As the court noted in
Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998), that convicted person could then
argue on appeal that it was error to instruct the jury on a charge that neither he nor the state
sought.
          The legislature has provided a mechanism to deal with this issue. The trial court is
obligated to give a charge to the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007).
The defendant is provided an opportunity to examine the charge and present objections. Id. In
some cases, it is clear that a defendant is not seeking an instruction on lesser included offenses.
See Walton v. State, No. 14-06-00227-CR, 2007 Tex. App. LEXIS 1847, at *6-7 (Tex. App.–
Houston [14th Dist.] Mar. 8, 2007, pet. ref=d) (mem. op., not designated for publication). In
other cases it may be less clear, but article 36.14 imposes an obligation on a defendant to raise
any objections he has to the proposed charge at a time when those objections can be addressed,
that is before the jury is instructed.



                                                          15
         The decision to request a lesser included offense instruction is a strategic one that belongs
to the litigants. Accordingly, the failure to give an unrequested instruction for a lesser included
offense is not error. We overrule Appellant=s sixth issue.


                                                      DISPOSITION
         Having overruled Appellant=s six issues, we affirm the judgment of the trial court.




                                                                     SAM GRIFFITH
                                                                        Justice



Opinion delivered April 16, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                 (DO NOT PUBLISH)


                                                                16
