            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         PD-0356-09

                        STEVEN DOUGLAS FREEMAN, Appellant

                                              v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE TENTH COURT OF APPEALS
                           MCLENNAN COUNTY


              Per curiam.

                                       OPINION


       Appellant was stopped for a traffic violation and was ultimately arrested and charged

with driving while intoxicated. At trial, it came to light that the police videotape of

appellant’s stop and field sobriety tests was recorded over. At the close of evidence,

appellant requested a spoliation instruction regarding the missing tape. Appellant did not cite

any constitutional authority in support of his requested instruction. The State argued that

the federal standard under Arizona v. Youngblood, 408 U.S. 51 (1988), applied. The
                                                      STEVEN DOUGLAS FREEMAN – 2


requested instruction was denied.

       On appeal, the Waco Court of Appeals held appellant had adequately preserved his

claim under the Texas due course of law provision by requesting the instruction. The court

then applied the holding in Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco 2007), which

held that the Texas due course of law provision provides a greater level of protection than

the Due Process Clause of the Fourteenth Amendment, to analyze the trial court’s denial of

the requested instruction. The court ultimately held that appellant’s due course of law rights

were not violated and affirmed his conviction and sentence.

       Appellant has filed a petition for discretionary review in which he complains, in part,

of the court of appeals’ application of its own test established in Pena. However, this Court

has since reversed the court of appeals in Pena, holding that Pena had failed to preserve his

complaint that the Texas due course of law provides greater protection than the federal

provision. Pena v. State, PD-1411-07 (Tex. Crim. App. April 8, 2009). Based on our

decision in Pena, we grant appellant’s petition for discretionary review, vacate the judgment

of the court of appeals, and remand this case to that court to reconsider whether the issue was

preserved.


DELIVERED July 1, 2009
PUBLISH
