                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-05-00151-CR

DON TERRELL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 85th District Court
                               Brazos County, Texas
                           Trial Court No. 03-04527-CRF


                             OPINION ON REMAND


       Don Terrell was convicted of indecency with a child and was sentenced to

thirteen years in prison. Terrell contends the trial court erred in denying his motion to

dismiss because the State’s failure to preserve several taped interviews violated his due

course of law rights under the Texas Constitution. See TEX. CONST. art. I, § 19.

       On original submission, this Court, holding that the failure to preserve the tapes

did not violate Terrell’s due course of law rights, affirmed Terrell’s conviction. See

Terrell v. State, 228 S.W.3d 343, 347-48 (Tex. App.—Waco 2007). Chief Justice Gray
concurred only in the judgment affirming Terrell’s conviction. See id. at 348-49. The

Court of Criminal Appeals reversed and remanded the case to this Court to determine

whether Terrell’s specific due course of law complaint was timely and specific under

Texas Rule of Appellate Procedure 33.1. See Terrell v. State, --- S.W.3d ---, 2009 WL

928587 (Tex. Crim. App. Apr. 8, 2009).

        Rule 33.1 states, in part:

           (a) In General. As a prerequisite to presenting a complaint for
        appellate review, the record must show that:

                (1) the complaint was made to the trial court by a timely request,
             objection, or motion that:

                       (A) stated the grounds for the ruling that the complaining party
                   sought from the trial court with sufficient specificity to make the
                   trial court aware of the complaint, unless the specific grounds were
                   apparent from the context.

TEX. R. APP. P. 33.1.

        This Rule encompasses the concept of “party responsibility.” The
        complaining party bears the responsibility of clearly conveying to the trial
        judge the particular complaint, including the precise and proper
        application of the law as well as the underlying rationale. Error
        preservation does not involve a hyper-technical or formalistic use of
        words or phrases; instead, “[s]traight forward communication in plain
        English” is sufficient. To avoid forfeiting a complaint on appeal, the party
        must “let the trial judge know what he wants, why he thinks he is entitled
        to it, and to do so clearly enough for the judge to understand him at a time
        when the judge is in the proper position to do something about it.” This
        gives the trial judge and the opposing party an opportunity to correct the
        error. Whether a party’s particular complaint is preserved depends on
        whether the complaint on appeal comports with the complaint made at
        trial. In making this determination, we consider the context in which the
        complaint was made and the parties’ shared understanding at that time.

Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009) (citations omitted).


Terrell v. State                                                                          Page 2
        In this case, Terrell’s specific due course of law complaint is that Article 1,

Section 19 of the Texas Constitution provides greater protections than the United States

Constitution as it pertains to lost or destroyed evidence and that, because of this, the

State’s failure to preserve the audiotape and videotape of Terrell’s police interview and

the audiotape of the victim’s police interview violated his due course of law rights

under the Texas Constitution. Terrell made the following motion before the trial judge:

               Judge, I also would -- outside the presence of the jury prior to the
        charging of the jury -- after the closing of the evidence would urge a
        motion for directed verdict and a motion to dismiss based upon the
        following facts: Judge, the testimony from Detective Davis indicates that
        there were two audiotaped statements and one videotaped statement
        made during the investigation of this case. An audiotape -- an audiotape
        recording of Don Terrell, a videotape recording that was made of Don
        Terrell, and an audiotape recording of the complainant [N.M.] that was
        done on the afternoon of October the 15th, 2003. Detective Davis testified
        that she was not able to produce those; that they were lost; that there had
        been attempts made to locate those pieces of evidence but they have been
        lost. Based upon that -- based upon that testimony and the unavailability
        of the evidence related to the statements -- the two statements or the audio
        and videotaped statements of Don Terrell done during the investigation
        stage and the audiotape of [N.M.], Judge, we would request the Court
        direct a verdict of acquittal or in the alternative consider a dismissal of the
        indictment prior to the charging of the jury based upon violation of Mr.
        Terrell’s due process of law rights under the United States Constitution
        Article 5 -- I mean Amendment 5 and Article -- and the 14th Amendment
        of the United States Constitution and -- as well as Article 1, Section 19 of
        the Texas Constitution both of which guarantee due process of law both at
        the state and federal level.

               We would -- I have -- I would also ask that there -- the Court
        consider other Constitutional guarantees, specifically the inability to
        render effective assistance of counsel under the United States
        Constitution, the Sixth Amendment and the Texas Constitution Article 1,
        Section 10 based upon the unavailability of that material evidence based
        upon the testimony of Detective Davis.




Terrell v. State                                                                          Page 3
               I have no -- I have done research on this case. I recognize that there
        is no indication that there was some intentional misappropriation or
        exfoliation [sic] of this evidence, it was just lost; nevertheless -- and I’ve
        done research based upon that. I was not able to come up with any case
        law that would help the Court in this matter. I also recognize I had a full
        and adequate opportunity to cross-examine [N.M.] based upon the
        handwritten statement and collateral and impeach her based on
        statements that were made or omissions as well.

        Terrell did not argue before the trial court that the Texas Constitution provides

greater protection than the federal Due Process Clause. Thus, he failed to preserve his

complaint that the due course of law provides greater protection for appellate review.

See Pena, 285 S.W.3d at 464 (“We hold that, by failing to distinguish the rights and

protections afforded under the Texas due course of law provision from those provided

under the Fourteenth Amendment before the trial judge in this context, Pena failed to

preserve his complaint that the due course of law provides greater protection for

appellate review.”).    We thus overrule Terrell’s point and affirm the trial court’s

judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 16, 2009
Publish
[CR25]




Terrell v. State                                                                         Page 4
