                                                                                 PD-1609-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 1/23/2015 1:25:01 PM
                                                               Accepted 1/29/2015 11:04:34 AM
                                                                                  ABEL ACOSTA
                             PDR No. PD-1609-14                                           CLERK

                    ________________________________

                     In the Court of Criminal Appeals Texas

                    ________________________________

                    CHRISTOPHER CAMACHO, Appellant

                                      V.

                           THE STATE OF TEXAS

                     _______________________________

                On Appellant’s Petition for Discretionary Review
                    From the Fourteenth Court of Appeals,
                        Appeal No. 14-13-00626-CR,
                    On Appeal from the 400th District Court
                         Of Fort Bend County, Texas
                        Cause No. 06-DCR-045165A
                    _______________________________
                PETITION FOR DISCRETIONARY REVIEW
               FOR APPELLANT, CHRISTOPHER CAMACHO

                    ______________________________________


Oral Argument Requested

Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401                           January 29, 2015
Texas Bar No. 00793616

Attorney for Appellant



                                       i
              IDENTITY OF JUDGE, PARTIES AND COUNSEL


 Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a

complete list of the trial court judge, all the parties to the judgment or order

appealed from, and the names and addresses of counsel in the trial and on appeal:


Trial Court Judge:
The Honorable Clifford Vacek
Presiding Judge 400th District Court
Fort Bend County, Texas

Appellant:
Christopher Camacho

Counsel for Appellant:
Michael C. Diaz (at trial and appeal)
20228 Hwy. 6
Manvel, Texas 77578
Brian Middleton-Trial
7322 Southwest Freeway, Suite 1980
Houston, Texas 77074

Counsel for the State of Texas:
John F. Healey Jr.-District Attorney
Chris Delozier-Trial
Bob Yack-Trial
John Harrity-Appeal
Fort Bend County, Texas District Attorney’s Office
1422 Eugene Heimann Cir
Richmond, Texas 77469




                                         ii
                                Table of Contents


Identity of judge, parties and counsel………………………………………………ii


Index of Authorities………………………………………………………………...v


Statement Regarding Oral Argument……………………………………………vi


Statement of the Case………………………………………………………...…vii


Procedural History of the Case…………………………………...………………viii


Grounds for Discretionary Review…………………………………………………2


                                GROUND ONE


  DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO
    FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO
           PRESERVE POTENTIALLY USEFUL EVIDENCE



                             Ground One Sub Issue

  Was Appellant entitled to an adverse-inference jury instruction based upon the
        Motion to Suppress Violating The Due Course of Law Clause?



Reasons to Grant Review in Support of Ground for Review………………………2

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter.
                                        iii
Argument and Authorities In Support Of Grounds for Review……………………2

Argument and Authorities In Support Of Ground One Sub Issue……………..….10


Prayer for Relief…………………………………………………………………..11


Certificate of Compliance.………………………………………………………...13


Certificate of Service…...…………………………………………………………13


Appendix ..………………………………………………………………………..14




                                  iv
                          INDEX OF AUTHORITIES

CASES:

Arizona v. Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337……………..4, 9, 10

Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App.
LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for
publication)…………………………………………………………………………9

Illinois v. Fisher, 540             U.S.    at    547-48,     124     S.Ct.    at
1202…………………………….4

Lolly v. State, 611 A.2d 956, 960 (Del.1992)……………………………...…….9,
10

Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005)………………………2, 8,
10

Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007)……........................…2-8,
10

State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston [14th Dist.] 2007,
no pet.)…………………………………………………………...…………2, 3, 6, 8

State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999)………………………………..9

Thorne v. Dept. of Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989)…….…9

White v. State, 125 S.W.3d 41 (Tex. App.-Houston [14th Dist.] 2003)…………….2

STATUTES, CODES AND RULES:

Tex. R. App. P. 9.4(i)…………..………………………………………………... 13

Tex. R. App. P. 9.5…………………………………...…………………………...13

Tex. R. App. P. 66.3(a)…………………………...………………………..iii, 2, 3

Tex. R. App. P. 68.4(a)……………………………………………………………..ii

Tex. R. App. P. 68.4(c)…………………………………………………….............vi

                                        v
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful because this case presents an issue that

needs to be resolved by this Court. This appeal involves questions of law,

questions of fact, public policy and procedure which cannot be adequately

addressed, analyzed and evaluated through written communication alone. Oral

argument is essential to emphasize the unique characteristics of these questions and

to address the unforeseeable exigencies arising during the Court’s consideration of

this appeal.




                                         vi
                          STATEMENT OF THE CASE


      On January 25, 2010, Appellant, was indicted for Capital Murder. Appellant

filed a motion to suppress and motion to dismiss based upon bad faith destruction

of evidence. Appellant argued that the State had a Cadillac, the crime scene, in its

possession and allowed it to be removed to a storage lot, and auctioned off,

knowing that it contained blood spatter, which could have been exculpatory or

inculpatory in nature, if the Appellants expert could have examined the car. The

trial court denied Appellant’s motion to suppress and motion to dismiss. The

Court of Appeals held that the trial court did not err in determining that that the

record adequately supports the trial court’s implied finding that the State did not

act in bad faith in failing to preserve potentially useful evidence and that the trial

court did not abuse its discretion in denying appellant’s motion to suppress.


      Appellant also argued that he was entitled to an adverse-inference jury

instruction based upon the testimony brought out at trial and based upon

appellant’s motion to suppress, which the trial court denied. The Court of Appeals

held that Appellant has not shown that the lost Cadillac body was favorable or


                                          vii
material to his defense; he has shown, at most, that the evidence contained in the

car’s shell was potentially useful. This petition challenges these holdings.




                    PROCEDURAL HISTORY OF THE CASE


      On October 7, 2014, the Fourteenth Court of Appeals affirmed Appellant’s

conviction. Camacho v. State, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-

Houston [14th Dist.], October 7, 2014, pet. pending). On October 21, 2014,

Appellant timely filed his motion for rehearing. The Fourteenth Court of Appeals

overruled and denied Appellant’s motion for rehearing on November 13, 2014. On

January 29, 2015, Appellant timely filed this petition for discretionary review with

the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.




                                         viii
                              PDR No. PD-1609-14

                     ________________________________

                     In the Court of Criminal Appeals Texas

                     ________________________________

                    CHRISTOPHER CAMACHO, Appellant

                                        V.

                            THE STATE OF TEXAS

                      _______________________________

                On Appellant’s Petition for Discretionary Review
                    From the Fourteenth Court of Appeals,
                        Appeal No. 14-13-00626-CR,
                    On Appeal from the 400th District Court
                         Of Fort Bend County, Texas
                        Cause No. 06-DCR-045165A
                    _______________________________
                PETITION FOR DISCRETIONARY REVIEW
               FOR APPELLANT, CHRISTOPHER CAMACHO

                     ______________________________________




To The Honorable Justices of the Court of Criminal Appeals:

      Comes now Appellant, Christopher Camacho by, and through his attorney of

record, Michael C. Diaz, and files this petition for discretionary review of the of

the October 7, 2014, decision of the Fourteenth Court of Appeals of Texas in

Camacho v. State, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-Houston

                                         1
[14th Dist.], October 7, 2014, pet. pending), and would respectfully show the Court

the following:


                                  GROUND ONE


  DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO
    FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO
           PRESERVE POTENTIALLY USEFUL EVIDENCE

                              Ground One Sub Issue

  Was Appellant entitled to an adverse-inference jury instruction based upon the
        Motion to Suppress Violating The Due Course of Law Clause?


            Reasons to Grant Review in Support of Ground for Review

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the decisions of
another court of appeals on the same matter, namely:


Ground One: State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston
[14th Dist.] 2007, no pet.); White v. State, 125 S.W.3d 41 (Tex. App.-Houston [14th
Dist.] 2003).

In conflict with: Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005); Pena v.
State, 226 S.W.3d 634 (Tex.App.-Waco 2007)



ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW
                          ONE

      In its October 7, 2014, opinion, the Fourteenth Court of Appeals affirmed

Appellant’s conviction in determining that the trial court did not err in determining


                                          2
that that the record adequately supports the trial court’s implied finding that the

State did not act in bad faith in failing to preserve potentially useful evidence and

that that the trial court did not abuse its discretion in denying appellant’s motion to

suppress.


      This Court should review this ground and review is appropriate under Tex.

R. App. P. 66.3(a), because the Court of Appeals has rendered a decision which is

in conflict with the decisions of another court of appeals on the same matter.


      In its opinion, the Fourteenth Court of Appeals responded to Appellant’s

first point of error by citing and using case law which is in conflict with case law

from another Court of Appeals decision on the same issue, which Appellant cited

and used in his brief.        The Fourteenth Court of Appeals used and cited the

following case:   State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.—Houston

[14th Dist.] 2007, no pet.)


      In Vasquez, the Fourteenth Court of Appeals, held that “We stated, “[T]he

Due Course of Law Clause provides the same protection as the Due Process Clause

regarding the State’s destruction of potentially useful evidence in a criminal

prosecution.” Id. We reached this conclusion by analyzing the nearly identical

language of the state and federal clauses. Id.at 749-50.



                                           3
      Vasquez, which quoted Pena III, which Appellant cited in his brief, said that

the United States Supreme Court has held that, if a defendant seeks to prove a

federal due-process violation based on a state's destruction of potentially useful

evidence, as opposed to material, exculpatory evidence, the defendant must show

the state acted in bad faith in destroying the evidence. Illinois v. Fisher, 540 U.S.

at 547-48, 124 S.Ct. at 1202; Arizona v. Youngblood, 488 U.S. at 57-58, 109 S.Ct.

at 337.     The Youngblood court described potentially useful evidence as

"evidentiary material of which no more can be said than that it could have been

subjected to tests, the results of which might have exonerated the defendant." Id,

488 U.S. at 57-58, 109 S.Ct. at 337.


      The Due Course of Law Clause provides a greater level of protection than

the Due Process Clause. Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007), or

Pena III. Under the Due Course of Law Clause, the State has a duty to preserve

both material, exculpatory evidence and potentially useful evidence. To determine

whether the loss or destruction of potentially useful evidence violates the Due

Course of Law Clause, the Pena III court adopted the legal standard employed by

the Delaware Supreme Court for the due process protections of the Delaware

Constitution. See id. at 650-653. Under this standard, to determine if the state has

violated the defendant's right to due process under the state constitution, courts

balance the following factors:

                                         4
      (1) whether the evidence would have been subject to discovery or disclosure,


      (2) if so, whether the state had a duty to preserve the evidence, and


      (3) if there was a duty to preserve, whether that duty was breached, and what

consequences should flow from the breach.


      See id. at 650-651. With regard to the third element of this analysis, courts

draw a balance between the nature of the state's conduct and the degree of

prejudice to the accused. See id. Under this analysis, the state must justify the

conduct of the police or prosecutor, and the defendant must show how his defense

was impaired by loss of the evidence. See id. In general terms, courts applying this

analysis should consider:


      (1) the degree of negligence or bad faith involved,


      (2) the importance of the lost evidence, and


      (3) the sufficiency of the other evidence adduced at the trial to sustain the

conviction.


      See id. at 651. After applying this analysis to determine if the state violated

the Due Course of Law Clause, a court finding a violation then would have to

perform a constitutional harm analysis. See id. at 654. If a court determines then

                                         5
that harmful constitutional error has occurred, the court should choose from three

potential remedies for the loss or destruction of this evidence: (1) dismissal, (2)

exclusion of related evidence, or (3) an adverse-inference jury instruction. See id.

at 655. Applying this analysis, the Pena III court reversed and remanded based on

its determination that harmful constitutional error had occurred and that the

appropriate remedy was an adverse-inference jury instruction. See id. at 653-656.

State v. Vasquez, 230 S.W.3d 744 (Tex.App.-Houston (14th Dist.) 2007).


      During the motion to suppress hearing, the States called four witnesses to

testify. Detective Kubricht acknowledged that the white Cadillac was the crime

scene and a piece of evidence which he consented to being released to A&M

Automotive without placing a hold on it. Detective Arredondo testified that he

asked Kubricht if the Cadillac was available for release to A&M Automotive, and

Kubricht told Arredondo that it was, without any special instructions. (RR 15 at

53). Abraham Mejorado testified that he is the owner of A&M Automotive and he

was given no special instructions with regard to holding the Cadillac. (RR 15 at

59-61). Mejorado testified that the Cadillac was auctioned off after 90 days. (RR

15 at 61). Crime scene investigator, Chris Bronsell testified that the Cadillac was

the crime scene. (RR 15 at 69). Bronsell also testified that there was spatter in

other parts of the vehicle that weren't kept as evidence, such as the headliner and

door posts. (RR 15 at 75). In addition, Bronsell testified that in his opinion and

                                         6
based upon his training, in a double homicide case, all evidence should be kept

until the disposition of the case and that the time frame makes no difference. (RR

15 at 75-76). Bronsell also testified that a hold could be placed on a vehicle which

is removed to another wrecker company’s lot and that this is typical. (RR 15 at

78). Appellant’s expert, Louis Akin testified that the Cadillac was primary, critical

evidence and he was unable to conduct his analysis because of the poor quality of

the photographs and the absence of the crime scene. (RR 15 at 100-101). Akin

testified that because of the absence of the Cadillac, his hypotheses were impaired.

(RR 15 at 104). Middleton (appellant’s co-counsel): “Okay. So, can I summarize

your testimony that, with the seats being removed and being separated, it creates a

disadvantage or impacts your analysis because of the spatial information that is --

that has now been removed from your analysis?” Akin: “Yes. As I think I said if I

were to have the car available, I would have sat in the back right seat and see what

I could see from there. I would have sat in the other seats and see what it's like to

turn – one of the things I would like to know is how fast I could turn and leap from

the driver's seat into the position where he wound up. Was it possible that he tried

to spin around and grab the gun, and that's how he got shot? You can't tell those

things like that from the photographs.” (RR 15 at 108).


      Applying the legal standard as quoted in Pena III, the State violated

appellant's right to due process under the state constitution. The State had a duty to

                                          7
preserve both material exculpatory evidence and potentially useful evidence which

was the Cadillac. The Cadillac was subject to discovery, the State had a duty to

preserve the vehicle, especially in a case such as this and this duty was obviously

breached.


      Applying the element of Pena III, to determine if the state violated the Due

Course of Law Clause, the State failed to justify Kubricht’s conduct of releasing

the vehicle, by basically relying on photographs in a case of this magnitude.

Furthermore, defense expert, Akin, testified that the Cadillac was primary, critical

evidence and he was unable to conduct his analysis because of the poor quality of

the photographs and the absence of the crime scene. Moreover, Akin testified that

because of the absence of the Cadillac, his hypotheses were impaired.


      There was a substantial degree of negligence involved with regard to

Kubricht’s actions. Kubricht not only acknowledged his department policy of

preserving evidence, but the gravity of this case, yet he consented to the release of

the vehicle.


      Appellant respectfully urges this Court to follow Pena III because of the

lack of remedies available to an accused and the absurd results that follow under

Vasquez.       In addition, Appellant relies on language in Pena I to show the

difficulties for an accused when the State has lost evidence, such as, the practical

                                         8
impossibility of proving bad faith on the part of the police, "Short of an admission

by the police, it is unlikely that a defendant would ever be able to make the

necessary showing to establish the required elements for proving bad faith." Lolly

v. State, 611 A.2d 956, 960 (Del.1992); State v. Ferguson, 2 S.W.3d 912, 917

(Tenn.1999) (finding that proving bad faith is extremely difficult).            The

Youngblood decision could have the unfortunate effect of encouraging the

destruction of evidence to the extent that evidence destroyed becomes merely

potentially useful since its contents would be unprovable." Thorne v. Dept. of

Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989). Another reason touted by

the states rejecting Youngblood is that the requirement of bad faith operates as a

litmus test mandating no due process violation even when serious questions exist

concerning the fundamental fairness of the trial. Youngblood "permits no

consideration of the materiality of the missing evidence, or its effect on the

defendant's case.... [It] substantially increases the defendant's burden, while

reducing the prosecution's burden at the expense of the defendant's fundamental

right to a fair trial." Ferguson, 2 S.W.3d at 916-17.


      Even if a defendant's case approaches bad faith, such as adequate proof of

gross negligence or reckless disregard, a due process violation cannot be found.

Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App.

LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for

                                          9
publication).   The Delaware Supreme Court found that such a scenario would

place the court in a difficult position.


      The court must either find bad faith and dismiss the charges, despite facts

which support only a finding of gross negligence, or find no bad faith and deny the

defendant the benefit of a favorable inference, despite the loss of material evidence

due to the State's negligence. In such a situation, the court is left with an all or

nothing proposition leading to two equally unsatisfactory results. Lolly, 611 A.2d

at 960.


      Youngblood is both too broad and too narrow.        It is too broad because it

would require the imposition of sanctions even though a defendant has

demonstrated no prejudice from the lost evidence. It is too narrow because it limits

due process violations to only those cases in which a defendant can demonstrate

bad faith, even though the negligent loss of evidence may critically prejudice a

defendant. Pena v. State, 166 S.W.3d 274.


      Argument and Authorities in Support of Ground One Sub Issue


      The Court of Appeals incorrectly affirmed the trial court decision in not

giving Appellant a jury instruction on adverse- inference as requested by

Appellant. Based upon Appellant’s Motion to Suppress and the testimony at trial,


                                           10
the trial court should have found that harmful constitutional error occurred and

provided the potential remedy of an adverse-inference jury instruction, based upon

the motion to suppress and testimony at trial violating the Due Course Clause.

Again citing Pena III, after applying this analysis to determine if the state violated

the Due Course of Law Clause, a court finding a violation then would have to

perform a constitutional harm analysis. See id. at 654. If a court determines then

that harmful constitutional error has occurred, the court should choose from three

potential remedies for the loss or destruction of this evidence: (1) dismissal, (2)

exclusion of related evidence, or (3) an adverse-inference jury instruction. See id.

at 655.


      From the dialogue mentioned above from the motion to suppress hearing,

the Appellant clearly had shown through Akin’s testimony that the Cadillac would

have been favorable and material to his analysis.




                              PRAYER FOR RELIEF


      WHEREFORE,         PREMISES       CONSIDERED,         Appellant,   Christopher

Camacho, prays that this Court grant the Petition for Discretionary Review for

Appellant, order briefing on this cause, and set it for submission at the earliest


                                         11
possible date. Moreover, upon submission and review of the appellate record and

the briefs and arguments of counsel, the Court find reversible error in the

judgments of the Fourteenth Court of Appeals in appeal number 14-13-00626-CR

and of the 400th District Court of Fort Bend County, Texas, cause number 06-

DCR-045165A.      In accordance with this Court’s finding of reversible error,

appellant also requests that the Court then issue its opinion and judgment reversing

the judgments of the Fourteenth Court of Appeals and the 400th District Court of

Fort Bend County, Texas, remand this cause to the 400th District Court of Fort

Bend County, Texas, assess all costs of the appeal against Appellee, and order

execution of its judgment in accordance with its opinion.


                                                   Respectfully submitted,


                                                   /s/Michael C. Diaz
                                                   Michael C. Diaz
                                                   20228 Hwy. 6
                                                   Manvel, Texas 77578
                                                   Telephone: 281-489-2400
                                                   Facsimile: 281-489-2401
                                                   State Bar No. 00793616
                                                   Attorney for Appellant




                                         12
                      CERTIFICATE OF COMPLIANCE


      Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing

document, Appellant’s Petition for Discretionary Review, filed on January 23,

2015, has 3581 words, based upon the word count under Microsoft Word.


                                            /s/ Michael C. Diaz
                                            Michael C. Diaz
                                            20228 Hwy. 6
                                            Manvel, Texas 77578
                                            Telephone: 281-489-2400
                                            Facsimile: 281-489-2401
                                            Texas Bar No. 00793616
                                            E-mail: mjoeldiaz@sbcglobal.net
                                            Attorney for Appellant




                         CERTIFICATE OF SERVICE

      In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a

true and correct copy of the foregoing Petition for Discretionary Review has been

served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422

Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 23rd day of

January, 2015.


                                                        /s/Michael C. Diaz
                                       13
           Michael C. Diaz




APPENDIX




   14
15
Affirmed and Memorandum Opinion filed October 7, 2014




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00626-CR

                       CHRISTOPHER CAMACHO, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 400th District Court
                              Fort Bend County, Texas
                       Trial Court Cause No. 06-DCR-045165A

                    MEMORANDUM                         OPINION

      A jury convicted Christopher Camacho of capital murder of multiple
persons,1 and the trial court assessed his punishment at life imprisonment.
Appellant contends that the trial court committed reversible error in denying
appellant’s (1) motion to suppress; and (2) proposed adverse-inference jury
instruction. We affirm.

      1
          See Tex. Penal Code Ann. § 19.03(a)(7) (Vernon Supp. 2014).
                                   BACKGROUND

      Pedro Cortez discovered a white Cadillac sedan parked in an empty field in
Fort Bend County on the morning of January 21, 2004. Cortez observed a woman
later identified as Vivian Michelle Moreno in the front passenger’s seat jumping up
and down and gasping for air. Kneeling before her, also on the front passenger’s
side, was a man later identified as Michael Montalvo. Cortez believed Moreno to
be gravely injured and Montalvo to be dead. He called emergency dispatch.

      Soon after receiving Cortez’s call, Fort Bend County Sheriff’s Department
deputies and medical personnel arrived on the scene. The emergency responders
extracted Moreno from the vehicle and rushed her to a nearby hospital. Once at
the hospital, Moreno was pronounced dead from a gunshot wound to the head. She
also exhibited multiple stab wounds on the right side of her face.

      Deputies at the crime scene determined that Montalvo died from a gunshot
wound to the head. They photographed the car with Montalvo’s body inside; they
also photographed the ground immediately surrounding the car and collected
evidence including a bullet found on the front driver’s side floor.

      The Cadillac was towed to the sheriff’s department headquarters for
additional processing after Montalvo’s body was removed. Once at headquarters,
additional photographs of the interior and exterior of the car were taken. The Fort
Bend County Sheriff’s Department took approximately 100 photographs of the car,
48 of which were admitted at trial. These photographs show, among other things,
pooled blood on the back passenger’s side floor; they also show blood splatter on
the front seats and front center console. Additionally, the photographs show a
large crack in the front driver’s side window.

      In addition to taking photographs, the sheriff’s department also dusted the


                                          2
car for finger prints, vacuumed the car to collect trace evidence, and examined the
car for gunshot residue. The sheriff’s department found gunshot residue on the
interior car door surfaces and on the front headrests.

      Investigators at the sheriff’s department removed many of the interior
structural items of the car to check for additional trace evidence. They removed
the front driver’s seat, which was connected to the center console; the front
passenger’s seat; the rear seat; the carpet; the vents located on the dash; and the
steering wheel. After separating these items and performing evidentiary tests, the
investigators placed these items in an enclosed evidence storage unit.           The
investigators covered these items with plastic. The rest of the Cadillac’s body was
stored separately in an outdoor sheriff’s department storage lot, where it remained
for the next four years.

      Fort Bend County Sheriff’s Department Detective Michael Kubricht
received a call in 2008 from a fellow detective, Carlos Arredondo, notifying him
that the sheriff’s department vehicle storage lot was full. Detective Arredondo
asked for permission to transfer the Cadillac to a third-party storage lot. Detective
Kubricht agreed, and the car was transferred to the third-party lot in January 2008.

      The sheriff’s department has a policy of keeping all evidence in a homicide
case until the case is completely closed. Detective Kubricht testified in the trial
court that he believed the third-party storage lot used by the Fort Bend County
Sheriff’s Department held vehicles until needed. He previously had worked with
another sheriff’s department that used a third-party storage lot to hold vehicles
indefinitely. Unbeknownst to Detective Kubricht, the third-party storage lot used
by the Fort Bend County Sheriff’s Department typically auctioned off cars after 90
days. Pursuant to this policy, the car Detectives Kubricht and Arredondo sent to
the third-party storage lot was auctioned off in 2008. Its whereabouts remain

                                          3
unknown.

       Appellant was indicted for the capital murders of Moreno and Montalvo in
2010. Before trial, appellant moved to suppress all evidence from the Cadillac and
testimony concerning such evidence because the Cadillac’s body was unavailable
for his independent inspection. The trial court held a hearing on the matter and
denied appellant’s motion.

       Trial commenced in 2013. Before the jury was charged, appellant’s counsel
requested an adverse-inference jury instruction, which the trial court denied. The
jury found appellant guilty of the capital murders of Moreno and Montalvo. This
appeal followed.

                                           ANALYSIS

       Appellant’s two appellate issues are intertwined. Appellant contends that his
state constitutional rights were violated by the loss of the Cadillac’s body because
further testing of it could have provided exculpatory evidence. Appellant argues
the trial court should have excluded related evidence or given an adverse-inference
jury instruction.2


       2
          In issue one, appellant additionally asserts that the trial court erred in denying his
motion to dismiss. Nevertheless, appellant does not argue or ask for dismissal in his brief to this
court, nor does he cite relevant legal authority or the record to support dismissal. An appellant’s
brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record. Tex. R. App. P. 38.1(i). An unargued point is
considered waived. Parker Cnty. Appraisal Dist. v. Francis, 436 S.W.3d 845, 848 n.2 (Tex.
App.—Fort Worth 2014, no. pet.). Because appellant has not argued or asked for dismissal, and
has not cited relevant authority or the record, we hold appellant has waived his challenge to the
trial court’s denial of his motion to dismiss. See Robinson v. Tex. Constr. Servs. Corp., No. 14-
12-00723-CV, 2014 WL 1673821, at *5 (Tex. App.—Houston [14th Dist.] Apr. 24, 2014, no
pet.) (mem. op.) (finding an appellant waived his challenge to the legal and factual sufficiency
supporting the trial court’s finding by not providing any argument, analysis, or citations to the
record or legal authority); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (overruling an appellant’s issue as insufficiently
argued where the appellant asserted only that there are additional grounds for reversal and that
                                                4
I.     Motion to Suppress

       Appellant contends in his first issue that the trial court erred in denying his
motion to suppress evidence relating to the preserved portions of the Cadillac’s
interior.

       We review a trial court’s ruling on a motion to suppress for abuse of
discretion and will overturn the trial court’s decision only if it lies outside the zone
of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim.
App. 2011). We apply a bifurcated standard of review; we give almost complete
deference to the trial court’s determinations of credibility and historical facts, but
review de novo the trial court’s application of the law to the facts. State v. McLain,
337 S.W.3d 268, 271 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554,
559 (Tex. Crim. App. 2010). Where, as here, the trial court does not make explicit
findings of fact, we presume the trial court made implicit findings supported in the
record that buttress its conclusion. Carmouche v. State, 10 S.W.3d 323, 327-28
(Tex. Crim. App. 2000).

       The Texas Constitution provides due process protection through the Due
Course of Law Clause, which states, “No citizen of this State shall be deprived of
life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land.” Tex. Const. art. I, § 19. The Due
Course of Law Clause is comparable to the Due Process Clause of the United
States Constitution, which provides, “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV § 1. While the two clauses are
textually similar, appellant insists that the Due Course of Law Clause provides a

reversal would avoid injustice).

                                           5
broader level of protection than the federal Due Process Clause.

      Appellant relies exclusively on Pena v. State, 226 S.W.3d 634, 653 (Tex.
App.—Waco 2007), rev’d, 285 S.W.3d 459 (Tex. Crim. App. 2009).                Pena
concluded that the Due Course of Law Clause standard provides greater protection
than the Due Process Clause to defendants faced with the State’s loss or
destruction of potentially exculpatory evidence.     Id. at 651-56.    Key to this
standard is a balancing test. Id. at 651. Pena focused on (1) whether the evidence
would have been subject to discovery or disclosure; (2) whether the State had a
duty to preserve the evidence; and (3) if there was a duty, whether the duty was
breached and what consequences should flow. Id. In turn, the third element
focused on (1) the degree of negligence or bad faith involved; (2) the importance
of the lost evidence; and (3) the sufficiency of the other evidence adduced at trial
to sustain the conviction. Id. Applying this test, Pena held that a due course of
law violation existed based on the State’s destruction of potentially exculpatory
evidence. Id. at 653-56. The Court of Criminal Appeals reversed, holding that the
defendant failed to preserve for review his due course of law claim. Pena, 285
S.W.3d at 464.

      Appellant misplaces his reliance on Pena because binding precedent in this
court rejects the Pena standard. See State v. Vasquez, 230 S.W.3d 744, 748-51
(Tex. App.—Houston [14th Dist.] 2007, no pet.). We stated, “[T]he Due Course of
Law Clause provides the same protection as the Due Process Clause regarding the
State’s destruction of potentially useful evidence in a criminal prosecution.” Id.
We reached this conclusion by analyzing the nearly identical language of the state
and federal clauses. Id. at 749-50; see also Univ. of Tex. Med. Sch. at Houston v.
Than, 901 S.W.2d 926, 929 (Tex. 1995) (“While the Texas Constitution is
textually different in that it refers to ‘due course’ rather than ‘due process,’ we

                                         6
regard these terms as without meaningful distinction.”). Vasquez has not been
overruled by a higher court or this court sitting en banc, nor has there been an
intervening and material change in statutory law. Accordingly, Vasquez controls
here. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d
619, 630 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“Absent a decision
from a higher court or this court sitting en banc that is on point and contrary to the
prior panel decision or an intervening and material change in the statutory law, this
court is bound by the prior holding of another panel of this court.”).3

       Under Vasquez, the State must preserve material, exculpatory evidence. See
Vasquez, 230 S.W.3d at 747; see also California v. Trombetta, 467 U.S. 479, 488
(1984). Appellant does not contend that the Cadillac’s body constitutes material,
exculpatory evidence.

       Where lost or destroyed evidence is merely “potentially useful,” due process
is not violated “unless a criminal defendant can show bad faith on the part of the
police.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Illinois v. Fisher,
540 U.S. 544, 547-48 (2004) (reaffirming the Youngblood standard). “Potentially
useful” evidence is “evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might have exonerated the
defendant.” Youngblood, 488 U.S. at 57-58. Appellant’s expert testified that the
Cadillac’s disappearance prevented him from determining whether evidence
       3
         No other Texas appellate court has adopted the due course of law standard discussed in
Pena; at least six courts of appeals, including this one, have applied the federal due process
standard for determining whether a defendant’s state constitutional rights have been violated by
the State’s failure to preserve potentially exculpatory evidence. See Jones v. State, 437 S.W.3d
536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926
(Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751; McGee v. State,
210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92
(Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006
WL 2860973, at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for
publication).

                                               7
contained in the car’s shell was exculpatory or inculpatory.           Therefore, the
Cadillac’s body is at most potentially useful evidence.

      The trial court did not make findings of fact; it orally rejected appellant’s
motion to suppress after a hearing on the matter. Where the trial court does not
make explicit findings of fact, we review the evidence in the light most favorable
to the trial court’s ruling. Carmouche, 10 S.W.3d at 327-28. In other words, we
assume the trial court made implicit findings of fact supported in the record that
buttress its conclusions. Id. Viewing the record in this light, we conclude that the
evidence supports the trial court’s implicit finding that the State did not lose or
destroy the body of the car in bad faith.

      Fort Bend County Sheriff’s Department detectives testified that they
mistakenly transferred the vehicle at issue in this case to a third-party storage lot,
which did not have a procedure for preserving vehicles indefinitely. Detective
Kubricht testified that he approved the transfer while under the mistaken belief that
the vehicle would be preserved. Detective Arredondo testified that he had no
knowledge of this case at the time he transferred the vehicle, nor did he know of
the importance of the vehicle to the case. Both individuals testified that they held
no animus towards appellant when they transferred the vehicle. Viewing the
evidence in the light most favorable to the trial court’s ruling, we hold that the
record adequately supports the trial court’s implied finding that the State did not
act in bad faith in failing to preserve potentially useful evidence.

      Accordingly, we hold that the trial court did not abuse its discretion in
denying appellant’s motion to suppress.         See Vasquez, 230 S.W.3d at 747-48
(affirming denial of motion to suppress blood-test results performed on an accused
intoxicant’s blood sample where the trial court found that the blood sample was not
destroyed in bad faith).

                                            8
II.   Jury Instruction

      Appellant argues in his second issue that the trial court erred by failing to
include an adverse-inference jury instruction in the charge.

      Article 36.14 of the Texas Code of Criminal Procedure requires the trial
court to give the jury a written charge, setting forth the law applicable to the case.
Tex. Code Crim. Proc. art. 36.14 (Vernon 2007). We review a claim of jury charge
error using the two-step procedure set out in Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009). We first determine whether there is error in the charge. Id.
Then, if error is found, we analyze that error for harm. Celis v. State, 416 S.W.3d
419, 423 (Tex. Crim. App. 2013).

      Appellant requested an adverse-inference jury instruction, which the trial
court denied. The jury charge did not include any instruction on presumptions the
jury may or must make regarding the State’s failure to produce the Cadillac’s body
for appellant’s independent inspection. Citing Pena, 226 S.W.3d at 655, appellant
contends that an adverse-inference instruction was mandated to cure a due course
of law violation.

      Appellant has not established a due course of law violation; thus, he has not
established entitlement to an adverse-inference jury instruction. Moreover, Pena
does not control. See Vasquez, 230 S.W.3d at 748-51. Under binding precedent,
the trial court did not err in refusing appellant’s adverse-inference instruction. A
criminal defendant requesting an adverse-inference instruction allowing the jury to
infer lost or destroyed evidence would have produced a result favorable to the
defendant must show that the evidence was favorable and material. White v. State,
125 S.W.3d 41, 43-44 (Tex. App.—Houston [14th Dist.] 2003), pet. ref’d).
Appellant has not shown that the lost Cadillac body was favorable or material to
                                          9
his defense; he has shown, at most, that the evidence contained in the car’s shell
was potentially useful. Accordingly, the trial court did not err in refusing an
adverse-inference instruction. See id. at 44 (trial court did not err in refusing an
adverse-inference instruction where the defendant could show only that the
unpreserved evidence might have been favorable to his defense).

      We overrule appellant’s second issue. See Celis, 416 S.W.3d at 42 (when
there is no charge error, the court need not conduct a harm analysis).

                                   CONCLUSION

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



                                       /s/    William J. Boyce
                                              Justice



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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