i PDR No. PD-1609-14

________________________________

In the Court of Criminal Appeals Texas

________________________________

CHRISTOPHER CAMACHO, Appellant

V.

THE STATE OF TEXAS

_______________________________

On Appellant’s Petition for Discretionary Review

From the Fourteenth Court of Appeals,

Appeal No. 14-13-00626-CR,

On Appeal from the 400 th District Court

Of Fort Bend County, Texas

Cause No. 06-DCR-045165A

_______________________________

PETITION FOR DISCRETIONARY REVIEW

FOR APPELLANT, CHRISTOPHER CAMACHO

______________________________________

Oral Argument Requested

Michael C. Diaz

20228 Hwy. 6

Manvel, Texas 77578

Telephone: 281-489-2400

Facsimile: 281-489-2401

Texas Bar No. 00793616

Attorney for Appellant PD-1609-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/23/2015 1:25:01 PM

Accepted 1/29/2015 11:04:34 AM

ABEL ACOSTA

CLERKii IDENTITY OF JUDGE, PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a

complete list of the trial court judge, all the parties to the judgment or order

appealed from, and the names and addresses of counsel in the trial and on appeal:

Trial Court Judge:

The Honorable Clifford Vacek

Presiding Judge 400 th District Court

Fort Bend County, Texas

Appellant:

Christopher Camacho

Counsel for Appellant:

Michael C. Diaz (at trial and appeal)

20228 Hwy. 6

Manvel, Texas 77578

Brian Middleton-Trial

7322 Southwest Freeway, Suite 1980

Houston, Texas 77074

Counsel for the State of Texas:

John F. Healey Jr.-District Attorney

Chris Delozier-Trial

Bob Yack-Trial

John Harrity-Appeal

Fort Bend County, Texas District Attorney’s Office

1422 Eugene Heimann Cir

Richmond, Texas 77469iii Table of Contents

Identity of judge, parties and counsel......................................................ii

Index of Authorities...........................................................................v

Statement Regarding Oral Argument...................................................vi

Statement of the Case.....................................................................vii

Procedural History of the Case............................................................viii

Grounds for Discretionary Review.........................................................2

GROUND ONE

DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO

FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO

PRESERVE POTENTIALLY USEFUL EVIDENCE

Ground One Sub Issue

Was Appellant entitled to an adverse-inference jury instruction based upon the

Motion to Suppress Violating The Due Course of Law Clause?

Reasons to Grant Review in Support of Ground for Review...........................2

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court

Of Appeals has rendered a decision, which is in conflict with the decisions of

another court of appeals on the same matter.iv

Argument and Authorities In Support Of Grounds for Review........................2

Argument and Authorities In Support Of Ground One Sub Issue.....................10

Prayer for Relief.............................................................................11

Certificate of Compliance...................................................................13

Certificate of Service........................................................................13

Appendix .....................................................................................14v INDEX OF AUTHORITIES

CASES:

Arizona v. Youngblood

, 488 U.S. at 57-58, 109 S.Ct. at 337.................4, 9, 10

Delgadillo v. State

, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App.

LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for

publication)....................................................................................9

Illinois v. Fisher

, 540 U.S. at 547-48, 124 S.Ct. at

1202..................................4

Lolly v. State

, 611 A.2d 956, 960 (Del.1992)...........................................9,

10

Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005)...........................2, 8,

10

Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007).................................2-8,

10

State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.

— Houston [14th Dist.] 2007,

no pet.).................................................................................2, 3, 6, 8

State v. Ferguson

, 2 S.W.3d 912, 917 (Tenn.1999)......................................9

Thorne v. Dept. of Public Safety

, 774 P.2d 1326, 1331, n. 9 (Alaska 1989)..........9

White v. State

, 125 S.W.3d 41 (Tex. App.-Houston [14 th Dist.] 2003)................2

STATUTES, CODES AND RULES :

Tex. R. App. P. 9.4(i)....................................................................... 13

Tex. R. App. P. 9.5...........................................................................13

Tex. R. App. P. 66.3(a)..............................................................iii, 2, 3

Tex. R. App. P. 68.4(a).......................................................................ii

Tex. R. App. P. 68.4(c).........................................................................vivi STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful because this case presents an issue that

needs to be resolved by this Court. This appeal involves questions of law,

questions of fact, public policy and procedure which cannot be adequately

addressed, analyzed and evaluated through written communication alone. Oral

argument is essential to emphasize the unique characteristics of these questions and

to address the unforeseeable exigencies arising during the Court’s consideration of

this appeal.vii STATEMENT OF THE CASE

On January 25, 2010, Appellant, was indicted for Capital Murder. Appellant

filed a motion to suppress and motion to dismiss based upon bad faith destruction

of evidence. Appellant argued that the State had a Cadillac, the crime scene, in its

possession and allowed it to be removed to a storage lot, and auctioned off,

knowing that it contained blood spatter, which could have been exculpatory or

inculpatory in nature, if the Appellants expert could have examined the car. The

trial court denied Appellant’s motion to suppress and motion to dismiss. The

Court of Appeals held that the trial court did not err in determining that that the

record adequately supports the trial court’s implied finding that the State did not

act in bad faith in failing to preserve potentially useful evidence and that the trial

court did not abuse its discretion in denying appellant’s motion to suppress.

Appellant also argued that he was entitled to an adverse-inference jury

instruction based upon the testimony brought out at trial and based upon

appellant’s motion to suppress, which the trial court denied. The Court of Appeals

held that Appellant has not shown that the lost Cadillac body was favorable orviii

material to his defense; he has shown, at most, that the evidence contained in the

car’s shell was potentially useful. This petition challenges these holdings.

PROCEDURAL HISTORY OF THE CASE

On October 7, 2014, the Fourteenth Court of Appeals affirmed Appellant’s

conviction. Camacho v. State

, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-

Houston [14th Dist.], October 7, 2014, pet. pending). On October 21, 2014,

Appellant timely filed his motion for rehearing. The Fourteenth Court of Appeals

overruled and denied Appellant’s motion for rehearing on November 13, 2014. On

January 29, 2015, Appellant timely filed this petition for discretionary review with

the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.1 PDR No. PD-1609-14

________________________________

In the Court of Criminal Appeals Texas

________________________________

CHRISTOPHER CAMACHO, Appellant

V.

THE STATE OF TEXAS

_______________________________

On Appellant’s Petition for Discretionary Review

From the Fourteenth Court of Appeals,

Appeal No. 14-13-00626-CR,

On Appeal from the 400 th District Court

Of Fort Bend County, Texas

Cause No. 06-DCR-045165A

_______________________________

PETITION FOR DISCRETIONARY REVIEW

FOR APPELLANT, CHRISTOPHER CAMACHO

______________________________________

To The Honorable Justices of the Court of Criminal Appeals:

Comes now Appellant, Christopher Camacho by, and through his attorney of

record, Michael C. Diaz, and files this petition for discretionary review of the of

the October 7, 2014, decision of the Fourteenth Court of Appeals of Texas in

Camacho v. State

, No. 14-13-00626-CR, slip op. at 1-10, (Tex. App.-Houston2

[14th Dist.], October 7, 2014, pet. pending), and would respectfully show the Court

the following:

GROUND ONE

DID THE FOURTEENTH COURT OF APPEALS ERR BY REFUSING TO

FIND THAT THE STATE ACTED IN BAD FAITH BY FAILING TO

PRESERVE POTENTIALLY USEFUL EVIDENCE

Ground One Sub Issue

Was Appellant entitled to an adverse-inference jury instruction based upon the

Motion to Suppress Violating The Due Course of Law Clause?

Reasons to Grant Review in Support of Ground for Review

Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court

Of Appeals has rendered a decision, which is in conflict with the decisions of

another court of appeals on the same matter, namely:

Ground One : State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.

— Houston

[14th Dist.] 2007, no pet.); White v. State

, 125 S.W.3d 41 (Tex. App.-Houston [14 th

Dist.] 2003).

In conflict with: Pena v. State

, 166 S.W.3d 274 (Tex.App.-Waco 2005); Pena v.

State, 226 S.W.3d 634 (Tex.App.-Waco 2007)

ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW

ONE

In its October 7, 2014, opinion, the Fourteenth Court of Appeals affirmed

Appellant’s conviction in determining that the trial court did not err in determining3

that that the record adequately supports the trial court’s implied finding that the

State did not act in bad faith in failing to preserve potentially useful evidence and

that that the trial court did not abuse its discretion in denying appellant’s motion to

suppress.

This Court should review this ground and review is appropriate under Tex.

R. App. P. 66.3(a), because the Court of Appeals has rendered a decision which is

in conflict with the decisions of another court of appeals on the same matter.

In its opinion, the Fourteenth Court of Appeals responded to Appellant’s

first point of error by citing and using case law which is in conflict with case law

from another Court of Appeals decision on the same issue, which Appellant cited

and used in his brief. The Fourteenth Court of Appeals used and cited the

following case: State v. Vasquez, 230 S.W.3d 744, 748-51(Tex. App.

— Houston

[14th Dist.] 2007, no pet.)

In Vasquez

, the Fourteenth Court of Appeals, held that “We stated, “[T]he

Due Course of Law Clause provides the same protection as the Due Process Clause

regarding the State’s destruction of potentially useful evidence in a criminal

prosecution.” Id. We reached this conclusion by analyzing the nearly identical

language of the state and federal clauses. Id.at 749-50.4

Vasquez

, which quoted Pena III

, which Appellant cited in his brief, said that

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. Illinois v. Fisher, 540 U.S.

at 547-48, 124 S.Ct. at 1202 ; Arizona v. 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,

488 U.S. at 57-58, 109 S.Ct. at 337

.

The Due Course of Law Clause provides a greater level of protection than

the Due Process Clause. Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007)

, or

Pena III. Under the Due Course of Law Clause, the State has a duty to preserve

both material, exculpatory evidence and potentially useful evidence. To determine

whether the loss or destruction of potentially useful evidence violates the Due

Course of Law Clause, the Pena III court adopted the legal standard employed by

the Delaware Supreme Court for the due process protections of the Delaware

Constitution. See id. at 650-653. Under this standard, to determine if the state has

violated the defendant's right to due process under the state constitution, courts

balance the following factors:5

(1) whether the evidence would have been subject to discovery or disclosure,

(2) if so, whether the state had a duty to preserve the evidence, and

(3) 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:

(1) the degree of negligence or bad faith involved,

(2) the importance of the lost evidence, and

(3) 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 then6

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.

State v. Vasquez, 230 S.W.3d 744 (Tex.App.-Houston (14th Dist.) 2007).

During the motion to suppress hearing, the States called four witnesses to

testify. Detective Kubricht acknowledged that the white Cadillac was the crime

scene and a piece of evidence which he consented to being released to A&M

Automotive without placing a hold on it. Detective Arredondo testified that he

asked Kubricht if the Cadillac was available for release to A&M Automotive, and

Kubricht told Arredondo that it was, without any special instructions. (RR 15 at

53). Abraham Mejorado testified that he is the owner of A&M Automotive and he

was given no special instructions with regard to holding the Cadillac. (RR 15 at

59-61). Mejorado testified that the Cadillac was auctioned off after 90 days. (RR

15 at 61). Crime scene investigator, Chris Bronsell testified that the Cadillac was

the crime scene. (RR 15 at 69). Bronsell also testified that there was spatter in

other parts of the vehicle that weren't kept as evidence, such as the headliner and

door posts. (RR 15 at 75). In addition, Bronsell testified that in his opinion and7

based upon his training, in a double homicide case, all evidence should be kept

until the disposition of the case and that the time frame makes no difference. (RR

15 at 75-76). Bronsell also testified that a hold could be placed on a vehicle which

is removed to another wrecker company’s lot and that this is typical. (RR 15 at

78). Appellant’s expert, Louis Akin testified that the Cadillac was primary, critical

evidence and he was unable to conduct his analysis because of the poor quality of

the photographs and the absence of the crime scene. (RR 15 at 100-101). Akin

testified that because of the absence of the Cadillac, his hypotheses were impaired.

(RR 15 at 104). Middleton (appellant’s co-counsel): “Okay. So, can I summarize

your testimony that, with the seats being removed and being separated, it creates a

disadvantage or impacts your analysis because of the spatial information that is

--

that has now been removed from your analysis?” Akin: “Yes. As I think I said if I

were to have the car available, I would have sat in the back right seat and see what

I could see from there. I would have sat in the other seats and see what it's like to

turn

– one of the things I would like to know is how fast I could turn and leap from

the driver's seat into the position where he wound up. Was it possible that he tried

to spin around and grab the gun, and that's how he got shot? You can't tell those

things like that from the photographs.” (RR 15 at 108).

Applying the legal standard as quoted in Pena III, the State violated

appellant's right to due process under the state constitution. The State had a duty to8

preserve both material exculpatory evidence and potentially useful evidence which

was the Cadillac. The Cadillac was subject to discovery, the State had a duty to

preserve the vehicle, especially in a case such as this and this duty was obviously

breached.

Applying the element of Pena III

, to determine if the state violated the Due

Course of Law Clause, the State failed to justify Kubricht’s conduct of releasing

the vehicle, by basically relying on photographs in a case of this magnitude.

Furthermore, defense expert, Akin, testified that the Cadillac was primary, critical

evidence and he was unable to conduct his analysis because of the poor quality of

the photographs and the absence of the crime scene. Moreover, Akin testified that

because of the absence of the Cadillac, his hypotheses were impaired.

There was a substantial degree of negligence involved with regard to

Kubricht’s actions. Kubricht not only acknowledged his department policy of

preserving evidence, but the gravity of this case, yet he consented to the release of

the vehicle.

Appellant respectfully urges this Court to follow Pena III because of the

lack of remedies available to an accused and the absurd results that follow under

Vasquez

. In addition, Appellant relies on language in Pena I to show the

difficulties for an accused when the State has lost evidence, such as, the practical9

impossibility of proving bad faith on the part of the police, "Short of an admission

by the police, it is unlikely that a defendant would ever be able to make the

necessary showing to establish the required elements for proving bad faith." Lolly

v. State, 611 A.2d 956, 960 (Del.1992); State v. Ferguson, 2 S.W.3d 912, 917

(Tenn.1999) (finding that proving bad faith is extremely difficult). The

Youngblood decision could have the unfortunate effect of encouraging the

destruction of evidence to the extent that evidence destroyed becomes merely

potentially useful since its contents would be unprovable." Thorne v. Dept. of

Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989). Another reason touted by

the states rejecting Youngblood is that the requirement of bad faith operates as a

litmus test mandating no due process violation even when serious questions exist

concerning the fundamental fairness of the trial. Youngblood "permits no

consideration of the materiality of the missing evidence, or its effect on the

defendant's case.... [It] substantially increases the defendant's burden, while

reducing the prosecution's burden at the expense of the defendant's fundamental

right to a fair trial." Ferguson, 2 S.W.3d at 916-17.

Even if a defendant's case approaches bad faith, such as adequate proof of

gross negligence or reckless disregard, a due process violation cannot be found.

Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App.

LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. ref'd) (not designated for10

publication). The Delaware Supreme Court found that such a scenario would

place the court in a difficult position.

The court must either find bad faith and dismiss the charges, despite facts

which support only a finding of gross negligence, or find no bad faith and deny the

defendant the benefit of a favorable inference, despite the loss of material evidence

due to the State's negligence. In such a situation, the court is left with an all or

nothing proposition leading to two equally unsatisfactory results. Lolly, 611 A.2d

at 960.

Youngblood is both too broad and too narrow. It is too broad because it

would require the imposition of sanctions even though a defendant has

demonstrated no prejudice from the lost evidence. It is too narrow because it limits

due process violations to only those cases in which a defendant can demonstrate

bad faith, even though the negligent loss of evidence may critically prejudice a

defendant. Pena v. State

, 166 S.W.3d 274.

Argument and Authorities in Support of Ground One Sub Issue

The Court of Appeals incorrectly affirmed the trial court decision in not

giving Appellant a jury instruction on adverse- inference as requested by

Appellant. Based upon Appellant’s Motion to Suppress and the testimony at trial,11

the trial court should have found that harmful constitutional error occurred and

provided the potential remedy of an adverse-inference jury instruction, based upon

the motion to suppress and testimony at trial violating the Due Course Clause.

Again citing Pena III

, 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

.

From the dialogue mentioned above from the motion to suppress hearing,

the Appellant clearly had shown through Akin’s testimony that the Cadillac would

have been favorable and material to his analysis.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant, Christopher

Camacho, prays that this Court grant the Petition for Discretionary Review for

Appellant, order briefing on this cause, and set it for submission at the earliest12

possible date. Moreover, upon submission and review of the appellate record and

the briefs and arguments of counsel, the Court find reversible error in the

judgments of the Fourteenth Court of Appeals in appeal number 14-13-00626-CR

and of the 400 th District Court of Fort Bend County, Texas, cause number 06-

DCR-045165A. In accordance with this Court’s finding of reversible error,

appellant also requests that the Court then issue its opinion and judgment reversing

the judgments of the Fourteenth Court of Appeals and the 400th District Court of

Fort Bend County, Texas, remand this cause to the 400th District Court of Fort

Bend County, Texas, assess all costs of the appeal against Appellee, and order

execution of its judgment in accordance with its opinion.

Respectfully submitted,

/s/Michael C. Diaz

Michael C. Diaz

20228 Hwy. 6

Manvel, Texas 77578

Telephone: 281-489-2400

Facsimile: 281-489-2401

State Bar No. 00793616

Attorney for Appellant13 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing

document, Appellant’s Petition for Discretionary Review, filed on January 23,

2015, has 3581 words, based upon the word count under Microsoft Word.

/s/ Michael C. Diaz

Michael C. Diaz

20228 Hwy. 6

Manvel, Texas 77578

Telephone: 281-489-2400

Facsimile: 281-489-2401

Texas Bar No. 00793616

E-mail: mjoeldiaz@sbcglobal.net

Attorney for Appellant

CERTIFICATE OF SERVICE

In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a

true and correct copy of the foregoing Petition for Discretionary Review has been

served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422

Heimann Circle, 2 nd Floor, Richmond, Texas 77469, on this the 23rd day of

January, 2015.

/s/Michael C. Diaz14 Michael C. Diaz

APPENDIX15Affirmed and Memo randum Opinion filed October 7 , 2014

In The



## Fourteenth Court of Appeals

NO. 14

- 13

- 00626

- CR

CHRISTOPHER CAMACHO , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 06

- DCR

- 045165A

M E M O R A N D U M O P I N I O N

A jury convicted Christopher Camacho of capital murder of multiple

persons

, 1 and the trial court assessed his punishment at life impr iso nment.

Appellant contends that the trial court committed reversible error in denying

appellant’s (1) m otion to suppress ; and (2) proposed adverse

- inference jury

instruction. We affirm.

1 See Tex. Penal Code Ann. § 19.03(a)(7) (Vernon Supp. 2014 ).2 B ACKGROUND

Pedro Cortez discovered a white Cadillac sedan parked in a n empty field in

Fort Bend County on the morning of January 21, 2004

. Cortez observed a woman

later ident ified as Vivian Michelle Moreno in the front passenger’s seat jumping up

and down and gasping for air. Kneeling before her , also on the front passen ger’s

side, was a m an later identified as Michael Montalvo . Cortez believed Moreno to

be gravely injured and Montalvo to be dead . He called emergency dispatch.

Soon after receiving Cortez’s call, Fort Bend County Sheriff’s Department

deputies and medical personnel arrive d on the scene . The em ergency responders

extracted Moreno from the vehicle and rushed her to a nearby hospital . Once at

the hospital , Moreno was pronounced dead from a gunshot wound to the head

. She

also exhibited multiple s tab wounds on the right side of her face.

D eputies at the crime scene determined that Montalvo died from a gunshot

wound to the head

. T hey photograph ed the car with Montalvo’s body inside ; t hey

also photographed the ground immed iately surrounding the car and collected

evidence including a bullet found on the front driver’s side floor.

The Cadillac was t owed t o the sheriff’s department headquarters for

additional processing after Montalvo’s body was removed

. Once a t headquarters

,

additional photographs of the interior and exterior of the car were taken . T he F ort

Bend County Sheriff’s Department took approximately 100 photographs of the car,

48 of which were admitted at trial. These photographs show, among other things,

pooled blood on the back passenger’ s side floor ; they also show blood splatter on

the front seats and front center console. Additionally, the p hotographs show a

large crack in the front driver’s side window.

In addition to taking photographs , the sheriff ’s department also dusted the3

car for finger prints, vacuumed the car to collect trace evidence, and examined the

car for gunsho t residue. The sheriff’s department found gunshot residue on the

interior car door surfaces and on the front headrests

.

I nves tigators at the sheriff’s department removed many of the interior

structural items of the car to check for additional trace evidence. They removed

the front driver’s seat, which was connected to the center console; the front

passenger’s seat; the rear seat; the carpet; the vents located on the dash; and the

steering wheel. After separating these items and performing evidentiary tests, the

investigators placed these items in an enclosed evidence storage unit

. The

investigators covered the se items with plastic. The rest of the Cadillac ’s bo dy was

stored separately in an outdoor sheriff’s department storage lot, where it remained

for the next four years.

Fort Bend County Sh er iff’s Department D etective Michael Kubricht

received a call in 2008 from a fellow detective, Carlos Arredondo, notifying him

that the sheriff’ s department vehicle storage lot was full. Detective Arredondo

asked for permission to transfer the Cadillac to a third

- party storage lot. Detective

Kubricht agreed, and the car w as transferred to the third

- party lot in January 2008.

The sheriff’s department has a policy of keeping all evidence in a homicide

case u ntil the case is completely closed

. Detective Kubricht testified in the trial

court that he believed the third

- party s torage lot used by the Fort Bend County

Sheriff’ s Department held vehicles until needed. He previously had worked with

ano ther sheriff’s department that used a third

- party storage lot to hold vehicles

indefinitely. Unbeknown st to Detective Kubricht

, the third

- party storage lot u sed

by the Fort Bend County She riff’s Department typically auctioned off cars after 90

days. Pursuant to this policy , the car Detectives Kubricht and Arredondo sent to

the third

- party s torage lot was auctioned off in 2008. Its whereabouts remain4

unknown.

A ppellant was indicted for the capital murders of Moreno and Montalvo in

2010 . Before trial, appellant moved to su ppress all evidence from the Cadillac and

testimony concerning such evidence because the Cadillac’s body was unavailable

for his independent inspection . The trial court held a hearing on the matter and

d enied appellant’s motion.

T rial commenced in 2013

. Before the jury was charged, a ppellant’s counsel

requested an adverse

- inference jury instruction, which the t rial court denied. The

jury found appellant guilty of the capital murder s of Moreno and Montalvo . This

appeal followed.

A NALYSIS

Appellant’s two appellate issues are intertwined . Appellant contends that his

state constitutional rights were violated by the loss of the Cadillac’s body because

further testing of it could have provide d exculpatory evidence. Appellant argues

the trial court should have excluded related evidence or given an adverse

- i nference

jury instruction

. 2

2 In issue one, appellant additionally asserts that the trial court erred in denying his

motion to dismiss. Neverthele ss, appellant does not argue or ask for dismissal in his brief to this

court, nor does he cite relevant legal authority or the record to support dismissal. An appellant’s

brief must contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record. Tex. R. App. P. 38.1(i). An unargued point is

considered waived. Parker Cnty

. Appraisal Dist. v. Francis

, 436 S.W.3d 845, 848 n.2 (Tex.

App.

— Fort W orth 2014, no. pet. ). Because ap pellant has not argued or asked for dismissal, and

has not cited relevant authority or the record, we hold appellant has waived his challenge to the

trial court’s denial of his motion to dismiss. See Robinson v. Tex

. Const r . Serv s. Corp.

, No. 14

-

12

- 00723

- CV, 2014 WL 1673821 , at *5 (Tex. App.

— Houston [14th Dist.] A pr. 24, 2014, no

pet.) (mem. op.) (finding an appellant waived his challenge to the legal and factual sufficiency

supporting the trial court’s finding by not providing any argument, analysis, or citations to the

record or legal authority); San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323, 338 (Tex.

App.

— Houston [14th Dist.] 2005, no pet.) (overruling an appellant’s issue as insufficiently

argued where the appellant asserted only that there are additional grounds for reversal and that5

I. Motion to Suppress

Appellant contends in his first issue that the trial court erred in denying his

motion to suppress evidence relating to the preserved portions of t he Cadillac ’s

interior

.

We review a trial court’s ruling on a motion to suppress for abuse of

discretion and will overturn the trial court ’ s decision only if it lies outside the z one

of reasonable disagreement. Martinez v. State , 348 S.W.3d 919, 922 (Tex. Crim.

App. 2011) . We apply a bifurcated standard of review ; we give almost complete

deference to the trial court’s determinations of credibility and historical facts, but

review de novo the trial court’s appli cation of the law to the facts. State v. McLain

,

337 S.W.3d 268, 271 (Tex. Crim. App. 2011) ; Hubert v. State , 312 S.W.3d 554,

559 (Tex. Crim. App. 2010)

. Where, as here, the trial court does not make explicit

findings of fact, w e presume the trial court made implicit findings supported in the

record that buttress its conclus ion. Carmouche v. State, 10 S.W.3d 3 23, 3 27

- 28

(Tex. Crim. App. 2000).

The Texas Constitution provides du e process protection through the Due

Cou rse of Law Clause, which states, “ No citizen of this State shall be deprived of

life, liberty, property, privileges or immunities, or in any manner dis franchised,

except by the due course of the law of the land. ” Tex. Const. art. I, § 19

. The Due

Course of Law Clause is comparable to the Due Process Clause of the United

Stat es Constitution, which provides, “ No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property , without due

process of law

. . . . ” U.S. Const. amend. XIV § 1. While the two cla uses are

textually similar, appellant insist s that the Due Course of Law Clause provides a

reversal would avoid i njustice).6

broader level of protection than the federal Due Process Clause

.

A ppellant relies exclusively on Pena v. State

, 226 S.W.3d 634, 653 (Tex.

App.

— Waco 2007), rev ’ d

, 285 S.W.3d 459 (Tex. Crim. App. 20 09)

. Pena

concluded that the Due Course of Law Clause standard provides greater protection

than the Due Process Clause to defendants faced with the State’s loss or

destruction of potentially exculpatory evidence. Id. at 651

- 56. Key t o this

standard is a balancing test. Id. at 651. Pena focused on (1) whether the evidence

would have been subject to discovery or disclosure; (2) whether the S tate had a

duty to preserve the evidence; and (3) if there was a duty, whethe r the duty was

breached and what consequences should flow. Id. In turn, the third element

focused on (1) the degree of negligence or bad faith involved; (2) the importance

of the lost evidence; and (3) the sufficiency of the other evidence adduced at tri al

to sustain the conviction. Id. Applying this test, Pena held that a due course of

law violation existed based on the State’s destruction of potentially exculpatory

evidence. Id. at 653

- 56. The Court of Cr iminal Appeals reversed, holding that the

defendant failed to preserve for review his due course of law claim. Pena , 285

S.W.3d at 464.

Appellant misplaces his reliance on Pena because binding precedent in this

court reject s the Pena standard

. See State v. Vasquez

, 230 S.W.3d 744, 7 48

- 5 1

(Tex. App.

— Houston [14th Dist.] 2007, no pet.)

. W e stated, “ [T] he Due Course of

Law Clause provides the same protection as the Due Pro cess Clause regarding the

State ’ s destruction of potentially useful evid ence in a criminal prosecution .” Id.

We reached this conclusion by analyzing the nearly identical language of the state

and federal c lauses

. I

d. at 749

- 50; see also Univ. of Tex

. Med. Sch. at Houston v.

Than , 901 S.W.2d 926, 929 (Tex. 1995) (“ While the Texas Constitution is

textually diffe rent in that it refers to ‘ due course ’ rather than ‘ due process, ’ we7

regard these terms as without meaningful distinction. ” ). Vasquez has not been

overruled by a higher court or this court sitting en banc , nor has there been an

intervening and material ch ange in statutory law. Accordingly, Vasquez controls

here. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp. , 309 S.W.3d

619, 630 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) ( “ Absent a decision

from a higher court or this court sitting en banc that is on point and contrary to the

prior panel decision or an intervening and material change in the statutory law, this

court is bound by the prior holding of another panel of this court. ”). 3

Under Vasquez , the State must preserve material, exculpatory evidence. See

Vasquez , 230 S.W.3d at 747 ; see also California v. Trombetta , 467 U.S. 479, 488

(1984)

. A ppellant does not contend that the Cadillac’s body constitutes material,

exculpatory evidence.

Where lost or destroyed evidence is merely “potentially useful

, ” due process

is not violated “unless a criminal defendant can show bad fa ith on the part of the

police.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988) ; see also Illinois v. Fisher,

540 U.S. 544, 547

- 48 (2004) (reaffirming the Youngblood standard). “ Potentially

useful ” evidence is “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

- 58

. Appellan t’s expert testified that the

Cadillac’s disappearance prevented him from determining whether evidence

3 N o other Texas appellate court has adopted the due course of law standard discussed in

Pena ; at least six courts of appeals, including this one, have applied the federal due process

standard for determining whether a defendant’s state constitutional rights have been violated by

the State’s failure to preserve potentially exculpatory evidence. Se e Jones v. State

, 437 S.W.3d

536, 540 (Tex. App.

— Texarkana 2014, no. pet.); Higginbotham v. State , 416 S.W.3d 921, 926

(Tex. App.

— Houston [1st Dist.] 2013, no pet.); Vasquez , 230 S.W.3d at 751; 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.) ; see also Alvarado v. State

, No. 07

– 06

– 0086

– CR, 2006

WL 2860973, at *3 (Tex. App.

— Amarillo Oct. 9, 2006, no pet.) ( mem. op., not designated for

publication)

.8

contained in the car’s shell was exculpatory or inculpatory. Therefore, the

Cadillac’s b od y is at most pote ntially useful evidence.

Th e trial court did not make findings of fact; it orally rejected appellant’s

motion to suppress after a hearing on the matter

. Where the trial court does not

make explicit findings of fact, we review the evidence in the light most favorable

to the trial court’s ruling. Carmouche , 10 S.W.3d at 327

- 28. In other words, we

assume the trial court made implicit findings of fact supported in the record that

buttress its conclusion s

. Id. Viewing t he record in this light, we conclude that the

evidence supports the trial court’ s implicit finding that the State did not lose or

destroy the bod y of the car in bad faith.

Fo rt Bend County Sheriff’s Department detectives testified that they

mistakenly transferred the vehicle at issue in this case to a third

- party storage lot

,

which di d not have a procedure for preserving vehicles indefinitely

. D etective

Kubricht testified that he approved the transfer while under the mistaken belief that

the vehicle would be preserved. Detective Arredondo testified that he had no

knowledge of this ca se at the time he transferred the vehicle, nor did he know of

the importance of the vehicle to the case . Both indi vid uals testified that they held

no animus towards appellant when they transferred the vehicle . Viewing the

evidence in the light most favor able to t he trial court’s ruling, we hold that the

record adequately supports the trial court’s implied finding that the State did not

act in bad faith in failing to preserve potentially useful evidence.

A ccordingly, we hold that the trial court did not abuse its discretion in

denying appellant’s motion to suppress. See Vasquez , 230 S.W.3d at 747

- 48

(affirming denial of motion to sup press blood

- test results performed on an accused

intoxicant’s blood sample where the trial court fo und that the blood sample was not

destroyed i n bad faith).9

II. Jury Instruction

Appellant argues in his second issue that the trial court erred by failing to

include an adverse

- inference jury instruction in the charge

.

Article 36.14 of the Texas Code of Cr iminal Procedure requires the trial

court to give the jury a written charge , setting forth the law applicable to the case.

Tex. C ode Crim. Proc. art. 36.14 ( Vernon 20 07 ). We review a claim of jury charge

error using the two

- step procedure set out in Almanza v. State

, 686 S.W.2d 157,

171 (Tex. Crim. App. 198 4 ). See Barrios v. State

, 283 S.W.3d 348, 350 (Tex.

Crim. App. 2009). We first determine whether there is error in the charge. Id.

Then, if error is found, we analyze that error for harm. Celis v. State

, 416 S.W.3d

419, 423 (Tex. Crim. App. 2013)

.

A ppellant requested an adverse

- inference jury instruction , which the trial

court denied. The jury charge did not include any instruction on presumptions the

jury may or must m ake regarding the State’s failure to produce the Cadillac ’s body

for appellant’s independent inspection. Citing Pena , 226 S.W.3d at 655, appellant

contends that an adverse

- in fer ence instruction was mandated to cure a due course

of law violation.

Appellant has not established a due c ourse of law violation; thus, he has no t

established entitlement to an adverse

- inference jury instruction. More over

, Pena

does not control. S ee Vasquez

, 230 S.W.3d at 7 48

- 51 . U nder binding precedent,

the trial court did not err in refusing appellant’s adverse

- inference instruction

. A

criminal defendant requesting a n adverse

- inference instruction allowing the jury to

infer lost or destroyed evidence would have produced a result favorable to the

defendant must show that the evidence was favorab le and ma terial

. White v. State,

125 S.W.3d 41, 43

- 44 (Tex. App.

— Houston [14th Dist.] 2003), pet. ref ’ d ).

A ppellant has not shown that the lost Cadillac body was favorable or material to10

his defense; he has shown, at most, that the evidence contained in the car’s shell

was potentially useful. Accordingly, the trial court did not err in refusing an

adverse

- inference instruction. See id. at 44 (trial court did not err in refusing a n

adverse

- inference instruction where the defendant could show only that the

unprese rved evidence might have been favorable to his defense).

W e overrule appellant’ s second issue

. See Celis , 416 S.W.3d at 42 ( when

there is no charge error, the court need not conduct a harm analysis)

.

C ONCLUSION

Having overruled appellant’s two issues, we affirm the trial court’s

judgment.

/s/ William J. Boyce

Justice

Pan el consists of Justices Boyce, Busby

, and Wise

. Do Not Publish

— Tex. R. App. P. 47.2(b).