                                  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
