i 

No. 03-13-00794-CR

In the 

Court of Appeals for the Third District of Texas 

at Austin 

___________________________ 

No. 12-0204-K26 

In the 26th Judicial District Court 

Williamson County, Texas 

____________________________ 

FRED YAZDI 

Appellant 

v.

THE STATE OF TEXAS 

Appellee 

_____________________________ 

STATE’S BRIEF IN RESPONSE 

_____________________________ 

Jana Duty 

District Attorney 

Williamson County, Texas 

John C. Prezas 

State Bar No: 24041722 

Assistant District Attorney 

405 Martin Luther King, Box 1 

 Georgetown, Texas 78626 

 (512) 943-1234 

 (512) 943-1255 (fax) 

 jprezas@wilco.org

ORAL ARGUMENT REQUESTED 

ACCEPTED

03-13-00794-CR

4973121

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/21/2015 2:43:47 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/21/2015 2:43:47 PM JEFFREY D. KYLE Clerk
ii

I. STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, Appellant

has requested oral argument in this case. Therefore, to preserve its right to argue, 

the State requests oral argument although the State believes that the facts and legal 

arguments are adequately presented in the briefs and record, and that the decision

process would not be significantly aided by oral argument.

II. IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State 

wishes to supplement the parties listed in Appellant’s brief as follows:

Presiding Judge at Trial

 The Honorable Bert Richardson (presiding by assignment), 368th Judicial 

District Court, Williamson County, Texas.

Attorneys for the State

 Mr. John C. Prezas, Appellate Counsel, Assistant District Attorney for 

Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.
iii

 Mr. Daniel Sakaida, Special Prosecutor/Postgraduate Fellow assisting 

Appellate Counsel for the Williamson County District Attorney, 405 Martin 

Luther King, Georgetown, Texas 78626.
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III. TABLE OF CONTENTS

I. STATEMENT REGARDING ORAL ARGUMENT ...................................... ii

II. IDENTIFICATION OF THE PARTIES .......................................................... ii

III. TABLE OF CONTENTS ............................................................................... iv

IV. INDEX OF AUTHORITIES ............................................................................v

V. STATEMENT OF FACTS ................................................................................1

VI. SUMMARY OF THE ARGUMENT...............................................................2

VII. ARGUMENT ................................................................................................3

A. OUR CURRENT LAW DOES NOT ALLOW FOR A RIGHT TO 

PURSUE INSTRUCTION.....................................................................................3

B. APPELLANT IS NOT ENTITLED TO A FAILURE TO PRESERVE 

EVIDENCE INSTRUCTION................................................................................9

1. APPELLANT DOES NOT MEET THE CIVIL STANDARD FOR A 

SPOILATION INSTRUCTION ........................................................................9

2. APPELLANT DOES NOT MEET THE YOUNGBLOOD STANDARD 

IN CRIMINAL LAW FOR SHOWING A DUE PROCESS VIOLATION...11
v

IV. INDEX OF AUTHORITIES

Cases

Arizona v. Youngblood 488 U.S. 51 (1988)...................................................... 12, 13

Brookshire Bros., Ltd. V. Aldridge, 438 S.W.3d 9 (Tex. 2014) ................... 9, 10, 11

Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.—El Paso 2000, pet. ref’d)......6

Cisneros v. State, 747 S.W.2d 946, 949 (Tex. App.—San Antonio 1988, no pet.) ..5

Cook v. State, No. 07-98-0296-CR, 1999 Tex. App. LEXIS 3871, at *14-15 (Tex. 

App.—Amarillo May 21, 1999, pet. ref’d) (mem. op., not designated for 

publication) ............................................................................................................5

Fonseca v. State, No. 04-03-00398-CR 2004 Tex. App. LEXIS 9916 at *9-10, 

(Tex. App.—San Antonio Nov. 10, 2004, pet dism’d) (mem. op., not designated 

for publication).......................................................................................................7

Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex. Crim. App. 1998) .......................6

Hunter v. State, 137 Tex. Crim. 289, 295, 128 S.W.2d 1176, 1180 (1939)..............3

McGowan v. State, 188 S.W.3d 239, 241-242 (Tex. App.—Waco 2006) ................7

Philen v. State, 683 S.W.2d 440, 445 (Tex. Crim. App. 1984).................................4
vi

See Whipple v. State, 281 S.W.3d 482, 503-04 (Tex. App.—El Paso 2008) ............6

Smith v. State, 411 S.W.2d 548, 553 (Tex. Crim. App. 1967) ..................................3

Taylor v. State, 947 S.W.2d 698, 705 (Tex. App.—Fort Worth 1997, no pet.)........5

Thompson v. State, 101 Tex. Crim. 587, 593, 276 S.W. 699, 702-03 (1925) ...........3

United States v. Silva, 714 F.3d 1168 (9th Cir. 2013)..............................................12

Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007)...............................7

Wingate v. State, No. 14-97-00096-CR, 1999 Tex. App. LEXIS 3768, at *13-14 

(Tex. App.—Houston [14th Dist.] May 20, 1999, pet. ref’d) (mem. op., not 

designated for publication) ....................................................................................7

Statutes

Acts 1973, 63rd Leg., ch. 399 (S.B. 34), § 1, effective January 1, 1974...................3

Tex. Penal Code §9.31 ...............................................................................................3
1

TO THE HONORABLE COURT OF APPEALS:

V. STATEMENT OF FACTS

Because Appellant’s recitation of the facts is missing certain facts the State 

believes are crucial to a proper analysis of this case, the State offers the following 

supplement.

As described in Appellant’s brief, Appellant’s trial counsel cross-examined 

the State’s witnesses vigorously regarding the very failure to collect evidence 

about which Appellant now complains. Despite the trial court’s denial of the 

requested jury instruction, Appellant’s trial counsel spent a significant portion of 

his closing arguments to the jury addressing his cross-examination on this issue 

and the implications of the steps Appellant and his counsel(s) believe should have 

been taken. R.R. vol. 13 p. 47, 56, 60-62.

Further, after cross examination about a failure to collect fingerprints from 

various surfaces, Detective Jennings testified on re-direct that it was raining the 

night of the murder, making it impossible to fingerprint various areas since the 

fingerprinting process uses powders to detect oils from human skin. R.R. vol. 10 

p. 230-231. Detective Jennings also testified that swabs were taken of certain 

stains about which Appellant’s attorney asked and those swabs were not positive 
2

for blood. R.R. vol. 10 p. Detective Jenning did concede on cross-examination that 

there were some places at the scene, such as the wood, doorknob, windows, and 

under the car, that were dry, could have been examined for fingerprints or fibers 

and were not. R.R. vol. 10 p. 233-234. Appellant’s trial counsel cross-examined 

Detective Israel as well about fibers, bodily oils, and blood spatter evidence that 

was not collected. R.R. vol. 11 p. 69-71

Yet, for all of this questioning and arguing, nowhere in the record is there

any evidence to suggest that police acted in bad faith or deliberately chose not to 

collect some evidence. No questions or arguments in the record are directed 

toward, nor do they reveal, any bad faith or intentional hiding or destruction of any 

evidence.

VI. SUMMARY OF THE ARGUMENT

There is no right to pursue under the penal code and special, non-statutory 

instructions cannot be included in the court’s charge to the jury. The civil standard 

for “spoliation” of evidence does not apply here and Appellant does not meet that 

standard even if it did apply. The established rule in criminal law is that failing to 

preserve evidence only results in a denial of due process when the defendant can 
3

show bad faith on the part of law enforcement. There is no evidence of bad faith in 

this case. Therefore, the trial court was correct to deny both requested instructions.

VII. ARGUMENT

A. OUR CURRENT LAW DOES NOT ALLOW FOR A RIGHT TO 

PURSUE INSTRUCTION

The two cases Appellant cites for his claim that the jury should have been 

instructed on a “right to pursue” the victim in this case, Thompson v. State, 101 

Tex. Crim. 587, 593, 276 S.W. 699, 702-03 (1925); Hunter v. State, 137 Tex. 

Crim. 289, 295, 128 S.W.2d 1176, 1180 (1939), are outdated and inapplicable.

This Court need not delve into the factual analysis required by these cases

because neither Hunter nor Thompson have any current precedential value. Both 

Hunter and Thompson were decided under a now-defunct version of the Penal 

Code, with that old version being entirely replaced in 1974 by the version which is 

in effect with various amendments to this day. See Acts 1973, 63rd Leg., ch. 399 

(S.B. 34), § 1, effective January 1, 1974. The new definition of the justification of 

self-defense may be found in Tex. Penal Code §9.31. One of the last cases to 

interpret a requested self-defense charge under the old Penal Code was Smith v. 

State, 411 S.W.2d 548, 553 (Tex. Crim. App. 1967).
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After the new Penal Code took effect, the Court of Criminal Appeals

discarded the applicability of Smith and similar cases, stating, 

Be that as it may, we need not belabor the facts of this case to 

determine the applicability of these cases decided under the former 

Penal Code. We observe that appellant's objection and special 

requested charge apparently sought to invoke the law of self-defense 

regarding the right to shoot and continue to shoot as it existed under 

the 1925 Penal Code. No reference is made to the 1974 Penal Code 

and its provisions.

Philen v. State, 683 S.W.2d 440, 445 (Tex. Crim. App. 1984).

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The court in Philen upheld the trial court’s refusal to enter a further 

instruction on self-defense, stating that it was sufficient to protect the defendant’s 

right that the jury was instructed, “in effect that regardless of when or where the 

fatal shots were fired, the appellant should be acquitted if he was acting in selfdefense.” Id. Case law after Philen conflated various similar interpretations of 

self-defense under the old Penal Code, such as the “right to pursue” and the “right 

to continue shooting,” to reach the conclusion that Philen stands for the proposition 

that no error exists where the trial court simply instructs the jury generally on selfdefense, without a further instruction on such “rights” under the new Penal Code. 

See Cisneros v. State, 747 S.W.2d 946, 949 (Tex. App.—San Antonio 1988, no 

 

1

Part of the Philen opinion rests on the fact that the new penal code, in 1974, required the 

defendant to retreat if a reasonable person in his position would have done so, which was a 

“drastic change” from the old standards. However, this reasoning appears distinct and not clearly 

linked to the adoption of a new standard under the new Penal Code regarding jury instructions. 
5

pet.). After Philen, the lower courts viewed such instructions as repetitious to the 

general self-defense instruction, and therefore, unnecessary. Id.; see also, as 

illustrative of this reasoning, Cook v. State, No. 07-98-0296-CR, 1999 Tex. App. 

LEXIS 3871, at *14-15 (Tex. App.—Amarillo May 21, 1999, pet. ref’d) (mem. 

op., not designated for publication) (holding that “an instruction informing the jury 

that a person who is attacked, or who believes he is under attack, with unlawful 

deadly force may respond with deadly force ‘by any means at his command to the 

degree that he reasonably believes immediately necessary . . . to protect himself’ 

sufficiently addresses the matters of ‘right to continue to pursue’ and ‘right to 

continue shooting’”). 

It is true that the Forth Worth court of appeals reached a different conclusion 

in 1997 and relied on Thompson, Hunter, and the prior statute in requiring a “right 

to pursue” instruction where the evidence provided a basis for such an instruction. 

See Taylor v. State, 947 S.W.2d 698, 705 (Tex. App.—Fort Worth 1997, no pet.). 

However, there do not appear to be any decisions citing the Taylor court for that 

particular portion of the opinion. Further, the Court of Criminal Appeals has since 

held that any defense not recognized by the legislature should not be presented to 

the jury. 

Furthermore, because the authority to establish what constitutes a 

defense rests solely with the Legislature, this Court concludes a 
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defense which is not recognized by the Legislature as either a defense 

or as an affirmative defense does not warrant a separate instruction. 

Sanders v. State, 707 S.W.2d at 80-81. The term defense should not be 

used for an issue that has not been specifically labeled as such by the 

Legislature. Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App. 

1982); Willis v. State, 790 S.W.2d at 315; and Sanders v. State.

Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex. Crim. App. 1998).

At least one appellate court went on to apply this general rule directly to the 

“right to pursue:”

With regard to Castaneda's right to arms, right to shoot to scare, and 

right to pursue requests, we find the trial court was correct in refusing 

any separate instructions. In Giesberg v. State, the Texas Court of 

Criminal Appeals held that any defensive theory not recognized or 

specifically labeled either a defense or an affirmative defense by the 

legislature does not warrant a separate instruction. The Texas Penal 

Code recognizes the general defenses of insanity, mistake of fact, 

mistake of law, intoxication, duress, entrapment, and age affecting 

criminal responsibility. Chapter Nine outlines justifications absolving 

a defendant of criminal responsibility, such as public duty, necessity, 

self-defense, and defense of third persons. Castaneda has not shown, 

nor do we find, that "right to arms," "right to shoot to scare," and 

"right to pursue," are defenses recognized by the Texas Penal Code. 

Accordingly, under Giesberg, Castaneda was not entitled to such 

instructions. 

Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.—El Paso 2000, pet. ref’d). 

After Giesberg several intermediate appellate courts have also applied this 

logic, and some or all of the above precedent, to a variety of requests for jury 

instructions in both binding, and merely persuasive, opinions. See Whipple v. State, 

281 S.W.3d 482, 503-04 (Tex. App.—El Paso 2008) (denying requested 
7

instructions for the "right to arm and seek an explanation," "right to possess arms," 

and "right to continue shooting"); Wingate v. State, No. 14-97-00096-CR, 1999 

Tex. App. LEXIS 3768, at *13-14 (Tex. App.—Houston [14th Dist.] May 20, 

1999, pet. ref’d) (mem. op., not designated for publication) (denial of requested 

jury instruction on “the right to continue stabbing.”); McGowan v. State, 188 

S.W.3d 239, 241-242 (Tex. App.—Waco 2006) (denial of requested “right to arm”

jury instruction); Fonseca v. State, No. 04-03-00398-CR 2004 Tex. App. LEXIS 

9916 at *9-10, (Tex. App.—San Antonio Nov. 10, 2004, pet dism’d) (mem. op., 

not designated for publication) (agreeing with Geisberg and Castaneda regarding 

“right to arm” jury instruction).

Finally, the Court of Criminal Appeals reaffirmed this line of reasoning in 

2007, specifically stating that the “policies reflected in the 1974 Penal Code and in 

the Giesberg line of cases, persuade us that special, non-statutory instructions, 

even when they relate to statutory offenses or defenses, generally have no place in 

the jury charge.” Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007). 

The Court also made clear that after the 1974 Penal Code was enacted it had 

revaluated previous precedent and determined that, “instructions on defensive 

theories not set out in the 1974 Penal Code were inconsistent with the Legislature's 
8

intent.” Id at 209. The court then cited Giesberg and several of its previous 

opinions2as support for its conclusion that:

in a series of more recent cases, we have held that if the defensive 

theory is not explicitly listed in the penal code--if it merely negates an 

element in the State's case, rather than independently justifying or 

excusing the conduct--the trial judge should not instruct the jury on it.

Id.

Applying these precedents, and the logic behind them, to the instant case

reveals that the requested “right to pursue” is a reformulation of the types of jury 

instructions rejected by Texas courts after the enactment of the 1974 Penal Code. 

Thus, the requested instruction is unauthorized because it is simply a forbidden 

departure from the authorized, existing statutory language regarding self-defense, 

which was included in the trial court’s charge to the jury. It would have been 

erroneous for the trial court in this case to grant Appellant’s request to instruct the 

jury on a claimed “right to pursue.” Therefore, the trial court did not error in 

denying Appellant’s request for such a charge. 

 

2 Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) (denying a requested charge on 

accident); Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986) (denying a requested 

charge on good faith); Barnetet v. State, 709 S.W.2d 650, 652 (Tex. Crim. App. 1986) (denying a 

requested charge on alternative cause); Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 

2001) (denying a requested charge on independent impulse); Ortiz v. State, 93 S.W.3d 79, 92 

(Tex. Crim. App. 2002) (denying a requested charge on the question of suicide).
9

B. APPELLANT IS NOT ENTITLED TO A FAILURE TO PRESERVE 

EVIDENCE INSTRUCTION

1. APPELLANT DOES NOT MEET THE CIVIL STANDARD 

FOR A SPOILATION INSTRUCTION

The Supreme Court of Texas has recently reiterated the standard for 

obtaining a jury instruction regarding spoliation of evidence to which Appellant 

refers in his brief. See Brookshire Bros., Ltd. V. Aldridge, 438 S.W.3d 9 (Tex. 

2014) (wrongful spoliation instruction was an abuse of trial court’s discretion and 

cause for reversal). The Supreme Court of Texas did set forth the standard for 

obtaining a spoliation instruction as follows: 

a spoliation analysis involves a two-step judicial process: (1) the trial 

court must determine, as a question of law, whether a party spoliated 

evidence, and (2) if spoliation occurred, the court must assess an 

appropriate remedy. To conclude that a party spoliated evidence, the 

court must find that (1) the spoliating party had a duty to reasonably 

preserve evidence, and (2) the party intentionally or negligently 

breached that duty by failing to do so.

Id at 14.

The Supreme Court then cautioned as to how extreme a remedy is the 

spoliation instruction:

While the spectrum of remedies that may be imposed range from an 

award of attorney's fees to the dismissal of the lawsuit, the harsh 

remedy of a spoliation instruction is warranted only when the trial 
10

court finds that the spoliating party acted with the specific intent of 

concealing discoverable evidence, and that a less severe remedy 

would be insufficient to reduce the prejudice caused by the spoliation. 

This intent requirement is congruent with the presumption underlying 

a spoliation instruction—that the evidence would have hurt the 

wrongdoer. A failure to preserve evidence with a negligent mental 

state may only underlie a spoliation instruction in the rare situation in 

which a nonspoliating party has been irreparably deprived of any 

meaningful ability to present a claim or defense.

Id.

Thus, even if it were appropriate to apply this standard, arising from civil 

law and clearly formulated with civil procedure and civil burdens of proof in mind, 

the evidence in this case would not warrant such an instruction. The only evidence 

in the record, from both direct and cross examination of the relevant witnesses, is 

that the police focused on what they believed to be the most relevant evidence as 

they understood it. The fact that law enforcement did not collect some evidence 

the defense wishes they had collected does not, in itself, show any kind of 

negligence or breach of a duty. Further, as discussed below, precedent from the

Supreme Court of the United States’ analysis of our criminal law and procedure 

makes clear the police do not have a duty to collect a particular piece of evidence 

that Appellant might wish they had collected. 

To the extent that the collected evidence would have been inclupatory, 

Appellant benefits from the lack of collection. To the extent that such evidence 
11

would have been mitigating or inconsistent with the State’s evidence, or would go 

to fit a defensive theory, Appellant’s attorney achieved those goals by crossexamining the State’s witnesses about this issue and by arguing it to the jury. The 

nature of the closing arguments of Appellant’s trial attorney made clear

Appellant’s desire that the jury draw inferences and conclusions favorable to 

Appellant from the fact that such evidence was not collected. Even in a civil 

courtroom, Appellant would not be entitled to the requested instruction.

2. APPELLANT DOES NOT MEET THE YOUNGBLOOD 

STANDARD IN CRIMINAL LAW FOR SHOWING A DUE 

PROCESS VIOLATION

The Brookshire opinion contains a lengthy examination of the history and 

development of the spoliation law in Texas, not a word of which ever mentions its 

applicability in the context of a criminal case. Brookshire Bros., Ltd. V. Aldridge, 

438 S.W.3d 9, 16-19 (Tex. 2014). The State is unaware of any case directly 

applying the civil spoliation standard in the context of a criminal case. There is a 

federal case from the 9th Circuit holding that the negligent destruction of evidence

after a court order issued to preserve it (as opposed to merely failure to collect or 

preserve) may warrant a jury instruction. United States v. Silva, 714 F.3d 1168 (9th
12

Cir. 2013) (no showing of bad faith necessary for a jury instruction on destruction 

of evidence). Clearly, that case does not apply to these facts.

The appropriate standard applicable here comes from the Arizona v. 

Youngblood opinion where the Supreme Court of the United States held that unless 

a criminal defendant can show bad faith on the part of law enforcement, the mere 

failure to preserve evidence does not rise to the level of a due process of law 

violation. Arizona v. Youngblood 488 U.S. 51 (1988)3. The Court in Youngblood

reached this conclusion by distinguishing the standard for failure to preserve 

evidence from the standard in failure to disclose evidence under Brady v. Maryland

where it is not necessary to show bad faith to show a constitutional violation. Id. 

The Court applied this standard to find that where the police collected clothing and 

rectal swabs the night of the sexual offense but failed to refrigerate the clothing 

and perform tests for semen samples, the police were, at worst, negligent and thus 

there was no due process violation. Id at 58-59. 

The fact that the Youngblood court held that bad faith, and not mere 

negligence, is required to rise to the level of a due process violation cuts directly 

 

3

It is true that after remand, the Arizona Court of Appeals ruled that Arizona case law and 

Arizona Due Process would have required the officers to preserve the semen samples in 

question. State v. Youngblood, 164 Ariz. 61 (Ct. App. 1989). However, that opinion was later 

overturned by the Arizona Supreme Court, which correctly applied the bad faith test. State v. 

Youngblood, 173 Ariz. 502 (1993).
13

against inserting into criminal law the spoliation standard from civil law as 

articulated by the Texas Supreme Court in Brookshire, since the latter relies in part 

on the civil negligence standard. There appears to be no authority for such an 

insertion, apart from Appellant’s desire that this Court do so.

In Youngblood, the Supreme Court of the United States clearly described the

issue with Appellant’s assertions when it said:

The Arizona Court of Appeals also referred somewhat obliquely to the 

State’s inability to quantitatively test certain semen samples with the 

newer P-30 test. If the court meant by this statement that the Due 

Process Clause is violated when the police fail to use a particular 

investigatory tool, we strongly disagree. The situation here is no 

different than a prosecution for drunken driving that rests on police 

observation alone; the defendant is free to argue to the finder of fact 

that a breathalyzer test might have been exculpatory, but the police do 

not have a constitutional duty to perform any particular tests.

Id at 58-59 (internal citations omitted).

Here, as in Youngblood, the police had no duty to collect the particular 

pieces of evidence that Appellant might wish they had. Because there is no 

evidence in the record of bad faith, Appellant’s only legally cognizable strategy in 

this regard was the one his trial counsel gave him, that of cross-examination and 

argument to the jury about the lack of said evidence in the context of the State’s 

burden of proof. Thus, the court was correct to deny the requested instruction and 

would have erred had it granted Appellant’s request.
14

PRAYER

Wherefore, the State respectfully requests that this Court affirm the 

conviction.

Respectfully submitted,

Jana Duty

District Attorney

Williamson County, Texas

 /s/ John C. Prezas 

John C. Prezas

State Bar No: 24041722

Assistant District Attorney

405 Martin Luther King, Box 1

Georgetown, Texas 78626

(512) 943-1234

(512) 943-1255 (fax)

jprezas@wilco.org

CERTIFICATE OF COMPLIANCE

I certify that, after allowable exclusions, the State’s brief contains 3401

words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.

__/s/ John C. Prezas______________

John C. Prezas

CERTIFICATE OF SERVICE

I certify that a copy of the State’s brief has been e-filed on April 21, 2015,

and sent to the attorney for Appellant, Linda Icenhauer-Ramirez at ljir@aol.com, 

via e-service.

_/s/ John C. Prezas_______________

JOHN C. PREZAS