James Curtis Sheppard v. State

Sheppard v. State






IN THE

TENTH COURT OF APPEALS


No. 10-94-113-CR

No. 10-94-114-CR

No. 10-94-115-CR

No. 10-94-116-CR

No. 10-94-117-CR

No. 10-94-118-CR

 

     JAMES CURTIS SHEPPARD,

                                                                                              Appellant

     v.


     THE STATE OF TEXAS,

                                                                                              Appellee

From the 195th District Court

Dallas County, Texas

Trial Court # F93-69020-TLN, F93-45230-SN,

F93-69022-TLN, F93-69021-TLN,

F93-38974-TLN and F93-45190-QTN

                                                                                                    


MEMORANDUM OPINION

                                                                                                    


      James Sheppard's appointed attorney filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). On November 30, 1994, we granted the attorney's motion to withdraw in a per curiam order, finding that the appeal was without merit. See Johnson v. State, 885 S.W.2d 641 (Tex. App.—Waco 1994) (discussing procedures for Anders appeals). Sheppard has not filed a pro-se brief or any requests for extensions. See id. at 647 & n.3. Thus, because we have no viable points of error to consider, the judgments are affirmed. See Tex. R. App. P. 81(b)(2), 90(a).

                                                                                  PER CURIAM



Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion issued and filed February 1, 1995

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orts 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).

            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.

 

            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

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