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
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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

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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).

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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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