TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00180-CR
v.
The State of Texas, Appellee
NO. CR-96-0325, HONORABLE CHARLES E. (CHUCK) MILLER, JUDGE PRESIDING
One Point of Error
The sole point of error is that the trial court erred in overruling appellant's written motion to dismiss the cause "because of the destruction of the defendant's automobile" as a result of the State's failure to preserve potentially exculpatory evidence. Appellant argues that the State permitted the destruction of the automobile alleged to be a deadly weapon before he and his "defense team" had an opportunity to examine the vehicle for any defects. The main thrust of his argument at trial and on appeal is that the driver's car carpet which caused the "accident" was destroyed along with the vehicle. In his written motion to dismiss, appellant relied solely upon the due process clause of the Fourteenth Amendment to the United States Constitution.
Facts
The sufficiency of the evidence is not challenged, but a brief recitation of the facts will place appellant's contention in proper perspective. About 11 p.m. on June 26, 1996, San Marcos Police Officer Stuart Ellis was on patrol duty when he observed a 1979 Chevrolet station wagon occupied by a male driver and a female passenger. The vehicle matched the description of a motor vehicle reportedly involved in a disturbance earlier in the evening. Officer Ellis began to follow the station wagon and turned on the overhead lights on his patrol unit. The station wagon accelerated in an obvious attempt to evade the officer. It reached speeds from 70 to 80 to 90 m.p.h. The vehicle ran two stops signs, drove the wrong way down a three-lane access road to IH 35, forced three different civilian cars off the roadway, drove directly at a police vehicle blocking access to the wrong way up an "exit" ramp to IH 35, swerved at the last second, and continued its high-speed flight through a residential neighborhood. Ultimately, the station wagon collided with a marked police vehicle at an intersection and injured Officer Tracy Balusek. The driver of the station wagon fled the scene. When he was apprehended a few minutes later, he told the arresting officer in obscene, four-letter words that the officer could not do anything to him. Officer Ellis, who made the arrest, identified the appellant as the driver of the station wagon, and described him as being intoxicated at the time of the arrest. The police learned that the registered owner of the station wagon was Saucedo Construction Company. Officer Ellis testified that the station wagon was being operated in a manner that was capable of causing death or serious bodily injury. (2)
Testifying in his own behalf, appellant acknowledged that he was driving the station wagon and accelerated when he saw the flashing lights on the patrol unit. He explained that he was "running scared" because he had been drinking that afternoon, knew that he might be arrested for driving while intoxicated, knew that there was an outstanding warrant for his arrest for public intoxication from the City of Lockhart, and he wanted to prevent his vehicle from being impounded. Appellant related that he was trying to reach the Saucedo Construction Company where he could park his station wagon. (3) He admitted that in the process he committed many traffic offenses as described by the officer witnesses. He explained that it was an "accident" that the station wagon struck Officer Balusek's vehicle; that the carpet under the driver's feet "slipped" or "stuck" and caused the car to accelerate just prior to the collision; and that the same thing had happened on a previous occasion when the carpet, which he obtained from another car at Saucedo Towing, "slipped." On direct examination, he acknowledged that despite the difficulty with the carpet, he did not think that he could have avoided hitting the police vehicle. He agreed, however, that the brakes on the station wagon were in good working order at the time. Manuela Pineda, a defense witness, testified that she was in the station wagon approximately a year before the offense when the carpet caused the gas pedal to depress, resulting in the acceleration of the vehicle.
The defense also offered evidence that the station wagon was impounded by the police on June 26, 1996, and transferred to the Southwest Towing Company for storage on July 10, 1996. On July 18, 1996, counsel was appointed by the trial court for appellant. Melanie Hazelwood, Office Manager for Southwest Towing, testified that she did not make decisions about the disposition of wrecked cars stored by the company. She remembered the station wagon in question and recalled it was "smashed pretty good," and that vehicles in that condition were normally taken to salvage yards or were crushed. Hazelwood stated that the A to Z Auto Crushers "came and picked up" the station wagon. She did not testify as to dates; however, a vehicle log which she kept reflected that the station wagon was "released" to A to Z Auto Crushers on July 20, 1996. To add to the confusion, Hazelwood identified a letter from her company to Saucedo Construction Company, the registered owner of the vehicle, that if storage charges were not paid the vehicle would be declared abandoned within ten days. The letter was dated August 31, 1996. The record is devoid of evidence when or if the vehicle was crushed or destroyed or if the carpet in question was in the vehicle at the time.
The Hearings
At the request of the trial court, the motion to dismiss the cause was not heard until the conclusion of the guilt/innocence stage of the trial. The motion, based on a violation of federal due process, alleged that the speedy destruction of the station wagon was indicative of bad faith on the part of the State and that since the vehicle was described as a deadly weapon in the indictment the vehicle's condition was material evidence. The motion stated that appellant anticipated raising issues concerning "unique mechanical problems" with the vehicle, but was unable to have the vehicle examined by an expert.
At the hearing, appellant did not rely upon any "unique mechanical problems." He urged that the cause of the "accident" was the carpet which had not been preserved by the State and that he had been deprived of an expert to testify that there was a probability that the "accident" had happened that way. He urged that the State had acted in bad faith. The State countered that it had not acted in bad faith and that appellant's "cause-of-the-accident" argument was supported by his own testimony and that of Pineda. The trial court overruled the motion.
Federal Due Process
Loss or destruction of potentially exculpatory evidence can result in a denial of federal due process. See Burke v. State, 930 S.W.2d 230, 232 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd); see also generally 41 George E. Dix and Robert O. Dawson, Criminal Practice and Procedure, § 22.27 at 437-441 (Texas Practice 1995) (hereinafter Dix). The question presented does not involve a failure to disclose evidence as in United States v. Bagley, 473 U.S. 667, 676 (1985) and Brady v. Maryland, 373 U.S. 83, 87 (1963), but a failure to preserve potentially exculpatory evidence. See State v. Morales, 844 S.W.2d 885, 890 (Tex. App.--Austin 1992, no pet.).
A duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense. California v. Trombetta, 467 U.S. 479, 488 (1984). To meet this standard of materiality, the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489; see also McDonald v. State, 863 S.W.2d 541, 543 (Tex. App.--Houston [1st Dist.] 1993, no pet.). The State has no duty to discover evidence that exonerates the accused, only to preserve evidence possessing an exculpatory value. See Carmona v. State, 880 S.W.2d 227, 231 (Tex. App.--Austin 1994), vacated on other grounds, 941 S.W.2d 949 (Tex. Crim. App. 1997).
The accused must establish that the evidence in question would have been both favorable and material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); Nastu v. State, 589 S.W.2d 434, 441 (Tex. Crim. App. 1979), cert. denied, 447 U.S. 911 (1980); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.--Houston [1st Dist.] 1996, no pet.). A showing that the evidence might have been favorable does not meet the materiality standard. Lee v. State, 893 S.W.2d 80, 87 (Tex. App.--El Paso 1994, no pet.); McDonald, 863 S.W.2d 252 at 253.
In addition, the United States Supreme Court has held that the failure to preserve potentially useful evidence does not constitute a denial of due process unless the accused can show bad faith on the part of the State. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Burke, 930 S.W.2d at 236; Morales, 844 S.W.2d at 890.
No Violation of Due Process
In the instant case, appellant has failed to establish that the State acted in bad faith. See generally Williams v. State, 946 S.W.2d 886, 893 (Tex. App.--Waco 1997, no pet.). What constitutes "bad faith" is not altogether clear from the case law. As in Trombetta, there was no allegation or showing that the police acted with "official animus" towards the accused or acted with "a conscious effort to suppress exculpatory evidence." 467 U.S. at 488. Either would suggest "bad faith" but neither is present here. The record reflects that the station wagon in question was handled in a routine manner after its impoundment by the police and there was no showing that the vehicle or the driver's floor carpet had an exculpatory value that was apparent to the police before the transfer of the vehicle to a towing or storage company. Some thirteen days after its impoundment the station wagon was transferred to the towing company on July 10, 1996. One log of that company's records reflects the vehicle was "released" to A to Z Auto Crushers on July 20, 1996, yet the towing company sent a letter to the registered owner on August 31, 1996, that if the storage fees were not paid within ten days the station wagon would be declared abandoned. No records of the A to Z Auto Crushers were offered to show what disposition, if any, was made of the vehicle or the carpet. The record shows the police made no effort to have the towing company or anyone else speed the disposition of the vehicle. Appellant failed to establish that the State acted in bad faith.
Next, we observe that appellant failed to show that the destroyed or nonpreserved evidence was both favorable and material. A mere possibility that the evidence would have exculpated the accused is not sufficient to meet the requirement of materiality. See Youngblood, 488 U.S. at 56 n*. "Thus, a defendant must apparently show at least a substantial or considerable likelihood that the evidence, if preserved, would have tended to show his innocence." Dix, § 22.27 at 439.
Still further, appellant testified that the car carpet caused the "accident" and offered another witness to a similar problem with the carpet on a prior occasion. He did not call as a witness the female passenger in the station wagon on the night in question. There is nothing to show that appellant could not have called experts or other qualified witnesses to testify that carpet of the same design, size, and type could have caused the vehicle to accelerate at the time of the offense. The destroyed material exculpatory evidence must have been "of such nature that the defendant [is] unable to obtain comparable evidence by other reasonable means." Trombetta, 467 U.S. at 489.
The record reflects little or no likelihood that the vehicle or the carpet was exculpatory evidence as required. No showing was made that appellant was significantly prejudiced at trial by the absence of the evidence, or that there was culpability on the part of the State. Appellant was not denied federal due process as claimed in his written motion to dismiss. The trial court did not err in overruling the motion.
No Texas Constitutional Issue Raised
In his appellate brief, appellant urges this Court "to depart from the federal precedent established in Youngblood." He does not explain how we do this when the issue he has raised is federal due process and the United States Supreme Court's opinion in Youngblood is extant. Appellant requests that "as permitted by Article I, Sec. 9 of the Texas Constitution," we fashion a more pragmatic approach for our State. He cites Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). At trial, appellant did not object on the basis of any designated portion of the Texas Constitution. To preserve error for review, appellant must have made a timely and specific objection. Tex. R. App. P. 33.1(a)(1). A point of error must correspond to the objection at trial. Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993), cert. denied, 512 U.S. 1246 (1994). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 867, 700 (Tex. Crim. App. 1990). Appellant's argument based on article I, section 9 of the Texas Constitution is not presented for review. The sole point of error is overruled.
The judgment is affirmed.
John F. Onion, Jr., Justice
Before Justices Jones, Kidd and Onion*
Affirmed
Filed: June 11, 1998
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. At the penalty phase of the trial, appellant's prior criminal record was shown to include convictions
for burglary, theft, assault, and numerous convictions for driving while intoxicated.
2. One of the definitions of 'deadly weapon' is "[A]nything that in the manner of its use or intended use
is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(17)(B) (West 1994).
3. Appellant testified that he made the last payment on his vehicle the Friday preceding his arrest. He
did not reveal from whom he had purchased the automobile. There was evidence that he worked at
Saucedo Construction Company.
ndant must apparently show at least a substantial or considerable likelihood that the evidence, if preserved, would have tended to show his innocence." Dix, § 22.27 at 439.
Still further, appellant testified that the car carpet caused the "accident" and offered another witness to a similar problem with the carpet on a prior occasion. He did not call as a witness the female passe