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]
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