The STATE of Texas, Appellant v. Jose Garcia VASQUEZ, Appellee.
No. 14-06-00381-CR
Court of Appeals of Texas, Houston (14th Dist.).
June 28, 2007.
More importantly, if circumstances as innocuous as this can justify police entry into private homes, then the emergency doctrine exception will largely swallow the Fourth Amendment exclusionary rule in this context and render other exceptions to the warrant requirement unnecessary.
Randy McDonald, Houston, for State.
Kristen Moore, Richmond, for Appellee.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
I. FACTUAL AND PROCEDURAL BACKGROUND
While driving his vehicle on July 26, 2003, appellee Jose Garcia Vasquez collided with another vehicle, resulting in the death of Randy Clark. Two hours after the collision, Vasquez‘s blood was drawn and thereafter tested for alcohol. The test results indicated that Vasquez‘s blood-alcohol level was .12, which is above the legal limit for operation of a motor vehicle. A few months later, on October 17, 2003, Vasquez was charged with the felony offense of intoxication manslaughter.
Trial was initially set for April 13, 2004, but, by agreement, the trial date was reset to June 22, 2004, and then reset again for October 11, 2005. In the interim, Robert Prince, a technician with the Texas Department of Public Safety Crime Laboratory in Houston, Texas (hereinafter “DPS Laboratory“), sent a letter dated September 8, 2003, to Trooper Alfred Bee of the Texas Department of Public Safety Highway Patrol. The letter stated that Vasquez‘s blood sample “contained .12 grams of alcohol per 100 ml” and that the “evidence will be retained until notified of the disposition.” About a year later, on September 20, 2004, before the case went to trial, Trooper Bee signed a form authorizing the destruction of the blood sample. He marked the “guilty” and “destroy” boxes on the form even though the case had not yet been tried. Trooper Bee later explained that he signed this form because “someone at the District Attorney‘s office” informed him, during a telephone conversation, that Vasquez had been found guilty. On November 5, 2004, upon Trooper Bee‘s recommendation, technicians Brenda Himes and Robert Prince of the DPS Laboratory destroyed Vasquez‘s blood sample.
As agreed, a few days after the pre-trial conference, Vasquez‘s counsel conferred with Prince, who, in the course of discussion, revealed that Vasquez‘s blood sample had been destroyed. Upon hearing this news, Vasquez, for the first time in three years, filed a “Motion to Discover, Inspect and Independently Test the Blood Evidence.” He also filed a separate motion to suppress the results of all tests performed on his blood sample, alleging that the State‘s destruction of the blood sample violated his rights under the United States Constitution‘s Due Process Clause (“Due Process Clause“) and also under the Due Course of Law Clause in Article I, Section 19 of the Texas Constitution (“Due Course of Law Clause“). On April 10, 2006, the trial court held a hearing on these motions and then took the matter under advisement pending its review of the evidence and case law. The following week, the trial court issued a written order suppressing “evidence in the medical records and the analysis of the blood evidence done by the Department of Public Safety laboratory relating to the blood alcohol content of defendant[‘s] blood.”
In its April 17, 2006 order, the trial court concluded that the State destroyed the blood sample intentionally, knowingly, and purposefully, but not in bad faith. The trial court ruled that the State had a duty to preserve the blood evidence. The trial court found that Vasquez was unable to obtain comparable evidence by other reasonably available means and that the blood sample was “potentially useful to the defendant.” The State requested and received a hearing to clarify the trial court‘s ruling on the motion to suppress. At that hearing, on April 20, 2006, the trial court indicated that the destruction of the blood evidence was intentional, in that the State intended to destroy the blood sample, but the court found no bad faith on the part of the State because the blood sample was destroyed based on the receipt of incorrect information. The trial court stated at the hearing that its ruling was based on the legal standard articulated by the Waco Court of Appeals in Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005), vacated by 191 S.W.3d 133, 145-46 (Tex.Crim.App. 2006), an opinion the Court of Criminal Appeals has since vacated.
A trial court‘s ruling on a motion to suppress is reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). An abuse of discretion occurs when the trial court‘s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992). The trial court‘s findings of fact are given almost total deference, and in the absence of explicit findings, we presume the trial court made whatever appropriate implicit findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000). However, the application of the relevant law to the facts is reviewed de novo. Id. at 327. Likewise, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106. The trial court‘s ruling must be upheld if it is correct under any theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005).
III. ANALYSIS
In challenging the trial court‘s ruling on Vasquez‘s motion to suppress, the State asserts the trial court abused its discretion in suppressing the blood-test results because this evidence is not exculpatory and because there is no evidence of bad faith.1 The State argues that the Due Course of
In addressing whether the pre-trial destruction of evidence constitutes a denial of due process of law under the United States Constitution, the Supreme Court of the United States has drawn a distinction between “material, exculpatory evidence” and “potentially useful evidence.” See Arizona v. Youngblood, 488 U.S. 51, 57, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). A federal due-process violation occurs whenever a state suppresses or fails to disclose material, exculpatory evidence, regardless of whether the state acted in bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004). However, the United States Supreme Court has held that, if a defendant seeks to prove a federal due-process violation based on a state‘s destruction of potentially useful evidence, as opposed to material, exculpatory evidence, the defendant must show the state acted in bad faith in destroying the evidence.2 Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202; Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337. The Youngblood court described potentially useful evidence as “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.” Id. at 57-58, 109 S.Ct. at 337. The State‘s testing showed that the blood sample at issue in this case was inculpatory, not exculpatory. Even if Vasquez asserts that further testing would have produced exculpatory results, on this record, nothing more can be said of the
Vasquez, however, also sought to suppress the evidence in question based on the Due Course of Law Clause, and the trial court indicated that it was following the Waco Court of Appeals‘s opinion in Pena v. State in granting Vasquez‘s motion to suppress. See Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005) (hereinafter, ”Pena I“), vacated, 191 S.W.3d 133, 145-46 (Tex.Crim.App.2006) (vacating and remanding opinion back to court of appeals). In Pena I, the Waco Court of Appeals held that the Due Course of Law Clause provides a greater level of protection than the Due Process Clause. See
- the degree of negligence involved,
- the significance of the destroyed evidence considered in light of the probative value and reliability of secondary evidence that remains available, and
- the sufficiency of the other evidence used at trial to support the conviction.
Pena I, 166 S.W.3d at 281-82. According to Pena I, if, after considering these factors, the trial court concludes that a trial without the missing evidence would be fundamentally unfair, the trial court may then determine the appropriate measures needed to protect the defendant‘s rights, such as instructing the jurors that they may infer that the missing evidence would have been favorable to the defense or dismissing the charges. Considering these three factors, the Waco Court of Appeals held that the trial court had violated Pena‘s rights under the Due Course of Law Clause, even though there was no evidence of bad faith on the part of law enforcement officials. Id. at 280-82. Therefore, the Pena I court reversed the trial court‘s judgment and remanded for further proceedings.3 Id. at 283.
At the time of the April 20, 2006 hearing in the instant case, Pena I was still pending before the Court of Criminal Appeals. However, six days after this hearing, the Court of Criminal Appeals issued its opinion in Pena II and vacated the judgment in Pena I. See Pena II, 191 S.W.3d at 145-46. The Court of Criminal Appeals held that the Waco Court of Appeals erred by reviewing unassigned error regarding the Due Course of Law Clause without requesting additional briefing thereon. Id.
On remand, the Waco Court of Appeals in Pena III again held that the Due Course of Law Clause provides a greater level of protection than the Due Process Clause. See
- whether the evidence would have been subject to discovery or disclosure,
- if so, whether the state had a duty to preserve the evidence, and
- if there was a duty to preserve, whether that duty was breached, and what consequences should flow from the breach.
See id. at 650-651. With regard to the third element of this analysis, courts draw a balance between the nature of the state‘s conduct and the degree of prejudice to the accused. See id. Under this analysis, the state must justify the conduct of the police or prosecutor, and the defendant must show how his defense was impaired by loss of the evidence. See id. In general terms, courts applying this analysis should consider:
- the degree of negligence or bad faith involved,
- the importance of the lost evidence, and
- the sufficiency of the other evidence adduced at the trial to sustain the conviction.
See id. at 651. After applying this analysis to determine if the state violated the Due Course of Law Clause, a court finding a violation then would have to perform a constitutional harm analysis. See id. at 654. If a court determines then that harmful constitutional error has occurred, the court should choose from three potential remedies for the loss or destruction of this evidence: (1) dismissal, (2) exclusion of related evidence, or (3) an adverse-inference jury instruction. See id. at 655. Applying this analysis, the Pena III court reversed and remanded based on its determination that harmful constitutional error had occurred and that the appropriate remedy was an adverse-inference jury instruction. See id. at 653-656.
To adjudicate this appeal, we must determine whether the Due Course of Law Clause provides a greater level of protection than the Due Process Clause regarding the State‘s pre-trial destruction of potentially useful evidence in a criminal prosecution. Beginning with the relevant texts of the two clauses, we note that, under the Due Course of Law Clause, “[n]o 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.”
In addition, eight other Texas courts of appeals, including the Waco Court of Appeals, have held that the Due Course of Law Clause does not provide a greater level of protection than the Due Process Clause regarding the State‘s loss or destruction of evidence in a criminal prosecution. See Alvarado v. State, No. 07-06-0084-CR, 2006 WL 2860973, at *3 (Tex.App.-Amarillo Oct. 9, 2006, no pet.) (not designated for publication) (declining to follow decision in Pena I and holding that Due Process Clause and Due Course of Law Clause provide the same protection as to the state‘s destruction of potentially useful evidence); 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.) (same); Jackson v. State, 50 S.W.3d 579, 588-89 (Tex.App.-Fort Worth 2001, pet. ref‘d) (holding that both Due Course of Law Clause and Due Process Clause require showing of bad faith by state in failing to preserve potentially useful evidence); Williams v. State, 946 S.W.2d 886, 893 & n. 4 (Tex.App.-Waco 1997, no pet.) (concluding that state‘s loss of videotape showing appellant‘s performance of sobriety tests did not violate Due Process Clause or Due Course of Law Clause because there was no evidence of bad faith by state); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (holding that state‘s erasing of videotape of sobriety tests did not violate Due Process Clause or Due Course of Law Clause because there was no evidence of bad faith by state); State v. Rudd, 871 S.W.2d 530, 532-33 (Tex.App.-Dallas 1994, no pet.) (holding that Due Process Clause and Due Course of Law Clause provide the same protection as to state‘s destruction of potentially useful evidence); Saldana v. State, 783 S.W.2d 22, 23 (Tex.App.-Austin 1990, no pet.) (same as Jackson) but see Pena III, 226 S.W.3d at 637-651; Pena I, 166 S.W.3d at 278-82.
Other than the Waco Court of Appeals‘s opinions in Pena I and Pena III, no Texas appellate opinion contradicts the above precedents from eight intermediate courts. In Pena III, the Waco Court of Appeals acknowledged that its holding
IV. CONCLUSION
Unquestionably, the State has an important duty to preserve evidence in its possession. It is incumbent upon the State to act diligently and carefully in preserving blood and other biological evidence for the accused‘s use in pending or reasonably foreseeable litigation. Because preserved evidence can help solve cases and exonerate the innocent, law enforcement officials should take extra precautions to ensure that all procedures are followed carefully before destroying evidence. Safeguarding biological evidence in criminal cases is crucial because it can provide the best evidence of innocence or guilt. Likewise, the failure to preserve biological evidence is problematic not only because it deprives the accused of the opportunity to test the evidence but also because the untimely destruction of potentially useful evidence tends to undermine the integrity of our system of justice. Nonetheless, not all failures to preserve evidence in criminal cases result in the deprivation of constitutional rights.
The text of the Due Course of Law Clause and many Texas court opinions interpreting them, show that the respective provisions from our federal and state constitutions provide the same protections in this context. Because the sole basis for the trial court‘s ruling was an incorrect legal conclusion (based on the Waco Court of Appeals‘s opinion in Pena I) that the Due Course of Law Clause provides greater protection than its federal counterpart, the trial court erred in suppressing the evidence, and we must reverse the trial court‘s order. Although this court by no means condones the pre-trial destruction of evidence (exculpatory or otherwise) without prior notice to the defendant, the law and the record evidence compel us to sustain the State‘s sole issue, reverse the trial court‘s order granting the motion to suppress, and remand this case to the trial court for further proceedings consistent with this opinion.
SEYMORE, J., concurring.
CHARLES SEYMORE, Justice, concurring.
I concur in the result. Under Illinois v. Fisher and Arizona v. Youngblood, absent bad faith, destruction of “potentially use-
The instant case arises at a time when Texas has achieved an international reputation for its flawed crime lab processes, misrepresented results, and lost or destroyed evidence. See e.g., Amnesty International, USA(Texas): Death penalty/Legal concern, Willie Marcel Shannon (m), Nov. 2, 2006, http://web.amnesty.org/library/index/ENGAMR511672006?open & of=ENG-USA (last visited June 13, 2007) (referring to Houston Police Department‘s
At present, however, the State has little incentive to prevent accidental loss or destruction of inculpatory evidence a defendant might want to subject to independent testing. Such evidence is deemed only potentially useful evidence-“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, 109 S.Ct. at 337. Under Fisher and Youngblood, the due process clause provides a defendant with no protection and no remedy when the State destroys or loses potentially useful evidence but does not act in bad faith. See Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202; Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337. Absent bad faith, a due process violation occurs only when the State loses or destroys material, exculpatory evidence. See Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202. Similarly, to be entitled to a spoliation instruction allowing the jury to infer lost or destroyed evidence would have produced a result favorable to the defense, a criminal defendant must affirmatively show the evidence was favorable and material to the defense. White v. State, 125 S.W.3d 41, 43-44 (Tex.App.-Houston [14th Dist.] 2003, pet. ref‘d), 149 S.W.3d 159 (Tex.Crim.App.2004).3 Given these limitations, a spoliation instruction would rarely, if ever, be useful to a criminal defendant because, if the lost or destroyed evidence were material and exculpatory, he would have a more meaningful remedy under the due process clause.
A spoliation instruction, however, should not be limited to an adverse inference that the lost or missing evidence is favorable to the defendant. Although the evidentiary function is important, a spoliation instruc-
Arguably, a trial court should give an adverse inference instruction only when there is some indication the spoliator acted in bad faith. See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) (“An adverse inference drawn from the destruction of records is predicated on bad conduct.“); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (“Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction.“); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, fact-finder must be able to conclude State‘s actions were an admission evidence was unfavorable to its case); but see Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (“While allowing a court to hold a party accountable for negligent as well as intentional spoliation may appear inconsistent with the punitive purpose of remedying spoliation, it is clearly consistent with the evidentiary rationale supporting it because the remedies ameliorate the prejudicial effects resulting from the unavailability of evidence.“); Anderson v. Litzenberg, 115 Md.App. 549, 694 A.2d 150, 156 (Md.1997) (stating adverse presumption may arise against spoliator even if there is no evidence of fraudulent intent). Premising an adverse inference spoliation instruction on bad faith is consistent with the rationale underlying the instruction, i.e., that the destruction reflects consciousness of a weak case, an admission by conduct. See Langlet, 283 N.W.2d at 333.4
In consideration of the fact that the blood sample was destroyed long before Vasquez‘s request for independent testing, the trial court cannot be faulted for finding an absence of bad faith in the instant case. At most the State was negligent. I would therefore not urge the court to give an adverse inference spoliation instruction.
In the exercise of its discretion, however, the trial court could, instruct the jury, when weighing the evidence in the case, to consider the State‘s destruction of the blood sample and the defendant‘s resultant inability to conduct his own independent test to assess the reliability of results produced by an agency of the State. In the trial court, the prosecutor acknowledged, as a result of the destruction of the blood sample, that defense counsel now had “an argument to present to the jury ... to perhaps put some doubt in someone‘s mind that maybe he should have been able to test it, maybe they should doubt it or whatever.” This argument is always available to a criminal defendant; however, I believe the trial court has an important role in fashioning spoliation remedies calculated to encourage or coerce the State to preserve the evidence.
“[T]he unique problems seen in Texas during the last decade provide considerable impetus toward a conclusion that-fundamental fairness’ demands preservation of potentially exculpatory evidence.” Pena v. State, 226 S.W.3d 634, 650 (Tex.App.-Waco, 2007, pet. filed). Indeed, the majority recognizes the State‘s “important duty to preserve evidence in its posses-
On remand, the trial court has discretion to include a spoliation instruction. See Wise, 221 F.3d at 156 (stating district court has discretion to admit evidence of spoliation and to instruct jury on adverse inferences); see also Trevino, 969 S.W.2d at 959, 960 (Baker, J., concurring) (stating, in civil context, trial courts have broad discretion in choosing appropriate sanction and in instructing juries). Such an instruction might include, but should not necessarily be limited to the following: (1) the State had a duty to preserve the blood sample; (2) the State failed to preserve the blood sample, thereby precluding the defendant from obtaining independent tests, and (3) when determining reliability of the State‘s expert testimony, you may consider the fact that defendant was precluded from testing the blood sample.
Finally, I recognize that the issue of a spoliation instruction is not presented in this appeal. However, I have addressed this very important matter with the hope that our criminal jurisprudence will evolve and provide remedies sufficient to insure fundamental fairness, a proper goal of all courts.
CHARLES SEYMORE
Justice
Notes
First, I interpret the State‘s post-conviction duty to preserve evidence containing biological material, a fortiori, to create a duty to preserve such evidence prior to, and during, the prosecution of the case. Were it otherwise, Chapter 64 and article 38.43 would be hollow assurances indeed.
Second, I urge the legislature to extend the preservation duty to all physical evidence when (1) the State is the sole agency testing the evidence and (2) the evidence is essential to establishing an element of the offense. Establishing the elements of the offense and the defendant‘s identity are equally part of the State‘s case. See Jones v. State, 687 S.W.2d 430, 432 (Tex.App.-Houston [14th Dist.] 1985, no pet.) (stating first element of a crime is that there exist a person who commits the offense). I can think of no principled reason why the State‘s duty to preserve evidence of the elements should differ from its duty to preserve evidence of identity.