Opinion issued January 26, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00557-CR

———————————

JORDAN LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 81st District Court

Wilson County, Texas

Trial Court Case No. 13-11-205-CRW

MEMORANDUM OPINION

Appellant, Jordan Lewis, was found guilty by a jury of the offenses of 

aggravated robbery1and aggravated assault.2 Appellant pleaded true to two 

 

1 See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2), (3) (Vernon 2011), 

§ 31.03(a) (Vernon Supp. 2015).
2

enhancement paragraphs, and the trial court assessed Appellant’s punishment at 50 

years in prison for each offense with the sentences to run concurrently. In two 

issues on appeal, Appellant (1) complains that “[t]he trial court erred in denying 

[his] First Amended Plea of Double Jeopardy” and (2) asserts that the trial court 

erred when it did not include his requested jury instruction on spoliation of 

evidence.3 

We affirm. 

Background

In 2012, Appellant was incarcerated in the Wilson County jail. At that time, 

Appellant worked in the jail’s kitchen as an inmate trustee, helping to prepare 

meals for the other inmates. On the morning of March 3, 2012, Appellant obtained 

a knife, which had an eight-inch blade, from the jail employee in charge of the 

kitchen for the purpose of cutting up tomatoes. After he had been given the knife, 

Appellant and the jail employee took the trash outside the jail building. While 

outside, Appellant fled the jail on foot, sprinting across a field. 

 

2 See TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon Supp. 2015), § 22.02(a)(2) 

(Vernon 2011).

3 This appeal, originally filed in the Fourth Court of Appeals, San Antonio, Texas, 

was transferred by the Supreme Court of Texas, pursuant to its docket equalization 

authority, to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE 

ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
3

Appellant ran to a nearby gas station. There, seventy-two-year-old Carolyn 

Orth was sitting in her parked SUV, waiting for her son, who had gone into the 

station to purchase some food. 

Appellant opened the passenger door of Orth’s SUV and got into the vehicle. 

Displaying what Orth later described as a “butcher knife,” Appellant told Orth to 

drive. When Orth did not comply, Appellant ordered her out of the SUV. Orth got 

out of the vehicle, but her cell phone and purse remained in the SUV as Appellant 

drove away from the gas station. Orth ran for help, and her son called 9-1-1. The 

police had already been alerted to Appellant’s jail escape and quickly arrived on 

the scene. 

Meanwhile, Appellant fled on the highway in Orth’s SUV with the police in 

pursuit. As he drove, Appellant used Orth’s cell phone to call his mother and 

another person. Appellant lost control of the vehicle at an intersection, crashing 

the SUV. He was then apprehended by law enforcement. 

On November 22, 2013, Appellant was charged in a two-count indictment 

with the offenses of aggravated robbery and aggravated assault. The indictment 

read as follows: 

[O]n or about the 3rd day of March, 2012, . . . Jordan Lewis . . . did 

then and there:
4

COUNT I, PARAGRAPH A

While in the course of committing theft of property and with intent to 

obtain or maintain control of said property, intentionally or knowingly 

threaten or place, Carolyn Orth, a person 65 years of age or older, in 

fear of imminent bodily injury or death;

COUNT I, PARAGRAPH B

While in the course of committing theft of property and with intent to 

obtain or maintain control of said property, intentionally or knowingly 

threaten or place Carolyn Orth in fear of imminent bodily injury or 

death, and the defendant did then and there use or exhibit a deadly 

weapon, to-wit: a knife;

COUNT II

[I]ntentionally and knowingly threaten Carolyn Orth with imminent 

bodily injury and did then and there use or exhibit a deadly weapon, 

to-wit: a knife, that in the manner of its use and intended use was 

capable of causing death or serious bodily injury, during the

commission of said assault.

On March 24, 2014, trial began on the indictment, and a jury was selected. 

That same day, Appellant filed a special plea of double jeopardy. The following 

day he filed an amended verified special plea. In the plea, Appellant alleged that 

he “was convicted in this Court and sentenced to 22 months in a State Jail Felony 

Facility on January 13, 2014, for the offense of Unauthorized Use of a Motor 

Vehicle for acts committed during the same incident which has resulted in the 

charge of Aggravated Robbery.” Appellant pointed out that unauthorized use of 

motor vehicle can be a lesser included offense of aggravated robbery and that 

“[g]reater-inclusive and lesser-included offenses are the same offenses for double 
5

jeopardy purposes.” Appellant asserted, “[T]his trial is barred by the double 

jeopardy clauses of the Fifth and Fourteenth Amendments to the United States 

Constitution, Article I, Section 14 of the Texas Constitution, and Article 1.10 of 

the Texas Code of Criminal Procedure.” In his prayer, Appellant requested the 

trial court “[to] dismiss the [aggravated-robbery offense] with prejudice, or, 

alternatively, enter an order authorizing the submission of such issue to the trier of 

fact.” Although the amended special plea was verified, Appellant did not offer the 

indictment, the judgment of conviction or any other papers from the unauthorized 

use of a motor vehicle (“UUMV”) proceeding. 

Before opening statements, the trial court conducted a hearing on 

Appellant’s amended special plea. The State pointed out that the indictment for 

the aggravated-robbery offense did not specifically charge Appellant with the theft 

of Orth’s motor vehicle. Rather, the indictment charged Appellant with the theft of 

Orth’s “property.” The State informed the trial court that the evidence would show 

that Appellant had also taken Orth’s cell phone and her purse, which were in the 

SUV. During the hearing, the trial judge mentioned that she had not been the 

judge to preside over the UUMV proceeding. 

At the conclusion of the hearing, the trial court stated that the special plea 

was denied. After presentation of the State’s evidence, Appellant re-urged his 

special plea of double jeopardy, which the trial court again denied. 
6

Although he had requested it in in his amended special plea, the special plea 

of double jeopardy was not submitted to the jury. At the charge conference, 

Appellant did not submit a requested charge on double jeopardy nor did he object 

to the charge on that basis. 

Appellant did, however, request that the jury charge include a spoliation-ofevidence instruction. In support of his request, Appellant pointed to the testimony 

of the sheriff’s department official, J. Deagen, who was in charge of the Wilson 

County jail. Deagen testified that, on the day of Appellant’s escape, there had been 

two video-recording cameras in the jail’s kitchen. Deagen stated that, when he 

went to retrieve the video taken by the kitchen’s cameras, the system had already 

purged the video made on the day of the escape. 

Whether Appellant used or exhibited a knife was elemental to the 

aggravated-assault charge. At trial, Appellant disputed that he had a knife when he 

entered Orth’s vehicle. The investigating police officer testified at trial that no 

knife was ever recovered from the SUV or from the area searched by law 

enforcement. However, the jail employee in charge of the kitchen testified that an 

inventory of the knives, following Appellant’s escape, showed that one knife was 

missing from the kitchen. The trial court denied Appellant’s request for a 

spoliation instruction. 
7

The jury found Appellant guilty of both the aggravated robbery and 

aggravated assault offenses. Appellant chose to have the trial court sentence him. 

At the conclusion of the sentencing hearing, Appellant again objected that his 

“rights against double jeopardy [were] violated.” Appellant pleaded true to two 

enhancement allegations, and the trial court sentenced him to 50 years in prison for 

each offense with the sentences to run concurrently. 

Appellant now appeals, raising two issues.

Double Jeopardy

Appellant frames his first issue as follows: “The trial court erred in denying 

[his] First Amended Plea of Double Jeopardy.” As stated, in his special plea, 

Appellant requested the trial court to dismiss the aggravated-robbery charge with 

prejudice, or, alternatively, submit the issue of double jeopardy to the jury. On 

appeal, Appellant requests that the aggravated-robbery conviction be vacated. He 

makes no argument that the issue of double jeopardy should have been submitted 

to the jury.

Articles 27.05 and 27.07 of the Code of Criminal Procedure govern special 

pleas of double jeopardy. Article 27.05 provides, “A defendant’s only special plea 

is that he has already been prosecuted for the same or a different offense arising 

out of the same criminal episode that was or should have been consolidated into 

one trial, and that the former prosecution . . . resulted in conviction.” TEX. CODE 
8

CRIM. PROC. ANN. art. 27.05(1) (Vernon 2006). Under Article 27.07, the trial court 

must submit to the jury all issues of fact presented by a special plea unless, after 

assuming the facts averred to be true, the court determines that the plea is legally 

insufficient to raise a valid jeopardy claim. See TEX. CODE CRIM. PROC. ANN. art. 

27.07 (Vernon 2006); Arredondo v. State, 582 S.W.2d 457, 459 (Tex. Crim. App.

1979). That is, “if conceding the facts averred in the special plea to be true, the 

plea in bar would not be good in law, the trial court may overrule it and decline to 

submit it to the jury.” Arredondo, 582 S.W.2d at 459; see also Kelson v. State, 167 

S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.) (discussing function of 

special plea).

In his special plea, Appellant requested the trial court to vacate the 

aggravated-robbery charge on the basis that he had been previously prosecuted for 

the lesser-included offense of unauthorized use of a motor vehicle. At trial and on 

appeal, the focus of Appellant’s double-jeopardy claim is to secure a dismissal of 

the aggravated-robbery charge. At the hearing on the special plea, Appellant 

argued that “to have him stand trial again for the same offense is a violation of his 

right against double jeopardy.”

We note that a pre-trial writ of habeas corpus, not a special plea, is the usual

procedural vehicle by which a defendant raises a double-jeopardy claim in which 

he asserts that he is being re-tried for the same offense. See Gonzalez v. State, 8 
9

S.W.3d 640, 643 n.9 (Tex. Crim. App. 2000) (“We have decided that a pretrial writ 

of habeas corpus is usually the procedural vehicle by which a defendant should 

raise a ‘successive prosecutions for the same offense’ double jeopardy claim.”); 

Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) (holding that a 

special plea afforded no protection against “twice being put to trial”). A defendant 

may file a special plea of double jeopardy pursuant to Article 27.05, however, the 

special plea serves only the limited function of preventing successive punishments, 

not successive prosecutions. See Apolinar, 820 S.W.2d at 794; Kelson, 167 

S.W.3d at 591–93. Although a claim for double jeopardy may be raised “‘at the 

inception of the prosecution under attack,’” the facts underlying the special plea 

must be determined during trial on the merits. Apolinar, 820 S.W.2d at 794 

(quoting Robinson v. Wade, 686 F.2d 298, 302 n.3 (5th Cir. 1982)). The special 

plea of double jeopardy is submitted to the jury only after all the evidence has been 

heard. See Ex parte Walker, 813 S.W.2d 570, 571 (Tex. App.—Corpus Christi 

1991, pet. ref’d) (observing that determinations on a special plea of double 

jeopardy may not be made in advance of trial). Thus, a special plea cannot be 

determined before trial to stop the prosecution in question. State v. Lara, 924 

S.W.2d 198, 202 (Tex. App.—Corpus Christi 1996, no pet.).

Requiring a defendant to complete a trial before appealing a successive 

prosecutions claim is not, however, consistent with the double jeopardy guarantee 
10

against the State trying him successively for the same offense. Kelson, 167 S.W.3d 

at 591 (citing Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982)). 

The same considerations would not apply to a multiple punishments claim because 

the reviewing court can “fully vindicate” the claim on appeal following final 

judgment. Id.

In any event, we note that the San Antonio Court of Appeals has recognized 

that a trial court may choose to treat a special plea as a habeas application.4 See Ex 

parte Cantu, 913 S.W.2d 701, 704 (Tex. App.—San Antonio 1995, pet. ref’d). 

And we are mindful that a double-jeopardy claim may be reviewed for the first 

time on appeal when “the undisputed facts show the double jeopardy violation is 

clearly apparent on the face of the record and when enforcement of usual rules of 

procedural default serves no legitimate state interests.” Gonzalez, 8 S.W.2d at 643; 

see also Shaffer v. State, 477 S.W.2d 873, 875–76 (Tex. Crim. App. 1971).

“A double-jeopardy claim is apparent on the face of the trial record if 

resolution of the claim does not require further proceedings for the purpose of 

introducing additional evidence in support of the double-jeopardy claim.” Ex 

Parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). The critical inquiry

is whether the record before the reviewing court clearly reflects a double jeopardy 

 

4 When an appeal is transferred, we apply the law of the transferor court to the 

extent required by Texas Rule of Appellate Procedure 41.3. See TEX. R. APP. P.

41.3.
11

violation. Roy v. State, 76 S.W.3d 87, 93 (Tex. App.—Houston [14th Dist.] 2002, 

no pet.).

The Double Jeopardy Clause of the United States Constitution is applicable 

to the states through the Fourteenth Amendment, and it protects an accused from 

impermissible multiple punishments or successive prosecutions for the same 

offense after an acquittal or conviction. Ex parte Amador, 326 S.W.3d 202, 205 

(Tex. Crim. App. 2010); see U.S. CONST. amend. V, cl. 2, XIV. Here, Appellant 

asserts that his rights under the federal double jeopardy clause were violated 

because he was subjected to successive prosecutions for the same offense after 

conviction. Specifically, he asserts that that the State’s prosecution of him for 

aggravated robbery violated his federal double-jeopardy rights because he was 

convicted two months earlier of the lesser-included offense of UUMV. In so 

doing, he correctly points out that the offense of UUMV can be a lesser-included 

offense of aggravated robbery. See Griffin v. State, 614 S.W.2d 155, 158 n.4 (Tex.

Crim. App. 1981); Roy, 76 S.W.3d at 96. Appellant also correctly indicates that, 

for double-jeopardy purposes, a lesser-included offense is legally the same as a 

greater offense, and is wholly subsumed by the elements of the greater offense, 

unless the potential lesser-included offense requires proof of a fact not required to 

establish the greater offense. See Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 
12

2221, 2227 (1977); Ex Parte Castillo, 469 S.W.3d 165, 168 (Tex. Crim. App. 

2015); Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).

To determine if an offense is a lesser included of another, a court employs

the cognate-pleading approach, which requires us to compare the elements of the 

greater offense as pled to the statutory elements of the potential lesser-included 

offense in the abstract. Castillo, 469 S.W.3d at 169. This analysis is a legal 

question and does not depend on the evidence offered at trial. Id.

If the offenses are legally the same, the next step is to determine whether the 

offenses are factually the same. Id. (citing Ex parte Benson, 459 S.W.3d 67, 72 

(Tex. Crim. App. 2015)). We determine factual sameness by determining the 

allowable unit of prosecution and reviewing the trial record to establish how many 

units have been shown. Id. The allowable unit of prosecution of an offense turns 

on statutory construction and usually requires ascertaining the gravamen, or 

gravamina, of the offense. Id. After reviewing the record, if a court concludes that 

the offenses are based on the same unit of prosecution, then the offenses are 

factually the same for successive prosecution purposes. Id. To prevail, the 

claimant must prove legal sameness and factual sameness. Id.

Here, however, we cannot determine whether the offenses are factually the 

same. Whether one crime is a lesser-included offense of another depends upon the 

offense charged, its statutory elements, and the surrounding facts and 
13

circumstances of the crimes. See Campbell v. State, 149 S.W.3d 149, 155–56 

(Tex. Crim. App. 2004). That is, not only are the elements of the crime as 

described in the penal statute influential, but so is the time and place of the crimes, 

the identities of the victim and the accused in each, and the manner and means by 

which each crime was committed. See id. at 155.

Appellant did not include the charging instrument from the UUMV case. 

Nor did Appellant include any other filings from the UUMV proceeding, including 

the judgment of conviction. Although the UUMV offense was purportedly tried in 

the same court as the instant aggravated-robbery offense, the judge in this case 

stated on the record that she had not been the presiding judge in the UUMV

proceeding. Appellant did not request the trial court to take judicial notice of the 

UUMV proceedings, nor did the State stipulate to the contents of the charging 

instrument from that case. Cf. Roy, 76 S.W.3d at 94, 99 (holding that convictions 

for both UUMV and aggravated robbery constituted double jeopardy because 

unauthorized use was a lesser included offense of aggravated robbery in that case; 

court acknowledged that the record was “fully developed” because Appellant 

“presented a complete record of [the] trial” and “[t]he appellate record contain[ed]

two separate indictments—one for unauthorized use of motor vehicle and the other 

for aggravated robbery”).
14

Appellant did file a certified special plea in which he stated that he “was 

convicted in this Court and sentenced to 22 months in a State Jail Felony Facility 

on January 13, 2014, for the offense of Unauthorized Use of a Motor Vehicle for 

acts committed during the same incident which has resulted in the charge of 

Aggravated Robbery.” However, a special plea “should contain the pleadings of 

the former prosecution, show the result of the former proceedings and some final 

disposition of the case.” Lara, 924 S.W.2d at 202 (emphasis added); see also 

Goins v. State, 841 S.W.2d 527, 529 (Tex. App.—Houston [1st Dist.] 1992, pet. 

ref’d) (concluding that defendant must present evidence in support of his claim of 

double jeopardy; asserting plea of double jeopardy constitutes only pleading and 

does not establish as true issues of fact alleged in the plea). Appellant’s plea did 

not contain the charging instrument or any filings from the UUMV proceeding. 

In a double jeopardy challenge, the defendant bears the burden to provide a 

record that both establishes the commonality of the offenses and shows that the 

State will be relying on the same instances of misconduct for which the accused 

was previously convicted or acquitted. Ex parte Infante, 151 S.W.3d 255, 262 

(Tex. App.—Texarkana 2004, no pet.). In other words, it is an accused’s burden to 

establish a double jeopardy violation, Anderson v. State, 635 S.W.2d 722, 725 

(Tex. Crim. App. 1982), and to show that he is entitled to the relief he seeks. 

Hoang v. State, 810 S.W.2d 6, 8 (Tex. App.—Dallas 1991), aff’d, 872 S.W.2d 694 
15

(Tex. Crim. App. 1993). Here, Appellant did not meet that burden. Appellant has 

not provided a complete record from which we can determine whether the 

convictions for unauthorized use of a motor vehicle and aggravated robbery 

implicate double jeopardy in this case.5

As a result, we overrule Appellant’s first issue.

Spoliation Instruction

In his second issue, Appellant, asserts that “[t]he trial court erred in denying 

[his] specifically requested charge on spoliation of evidence” with respect to the 

purged video recorded by the camera in the jail’s kitchen on the day of Appellant’s 

escape. He asserts that the video “would have significantly bolstered [his] theory 

that no knife was employed if he would have been able to access the purged 

video.” 

A. Standard of Review

We review alleged jury charge error in two steps. First, we determine 

whether error exists, and if error exists, we review for harm. Ngo v. State, 175 

S.W.3d 738, 743 (Tex. Crim. App. 2005); Howard v. State, 239 S.W.3d 359, 365 

(Tex. App.—San Antonio 2007, pet. ref’d). 

 

5 We note that the Court of Criminal Appeals has addressed double-jeopardy claims 

in post-trial applications for writ of habeas corpus. See, e.g., Ex parte Jefferson, 

681 S.W.2d 33, 34 (Tex. Crim. App. 1984) (determining claim of double jeopardy 

arising from successive convictions for unauthorized use of a vehicle and theft of 

the same vehicle).
16

B. Legal Principles

Spoliation of evidence concerns the loss or destruction of evidence. Torres 

v. State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). 

When the spoliation concerns potentially useful evidence, the defendant bears the 

burden of establishing that the State lost or destroyed the evidence in bad faith. 

See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); Castilla v. 

State, 374 S.W.3d 537, 541 (Tex. App.—San Antonio 2012, pet. ref’d); Torres, 

371 S.W.3d at 319. 

The Court of Criminal Appeals has recognized that “‘[p]recisely what 

constitutes ‘bad faith’ is not clear.’” 322 S.W.3d at 231 (quoting George E. Dix 

and Robert O. Dawson, 42 TEXAS PRACTICE, 2d ed., § 22.63 (2001)). However, 

the court also recognized that bad faith is “more than simply being aware that 

one’s action or inaction could result in the loss of something that is recognized to 

be evidence.” Id. at 238. Bad faith requires a showing of “some sort of improper 

motive, such as personal animus against the defendant or a desire to prevent the 

defendant from obtaining evidence that might be useful.” Id.

In Napper, the court explained that “[b]ad faith cannot be established by 

showing simply that the analyst destroyed the evidence without thought, or did so 

because that was the common practice, or did so because the analyst believed 

unreasonably that he was following the proper procedure.” Id. When conduct can, 
17

at worst, be described as negligent, the failure to preserve evidence does not rise to 

the level of a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 58, 

109 S. Ct. 333, 337 (1988).

C. Analysis

Here, Appellant did not show that the kitchen video had been purged in bad 

faith. To the contrary, the sheriff’s department official, J. Deagen, who was in 

charge of the Wilson County jail, testified on direct examination, “The system had 

already purged that [kitchen] video for some reason. When I went to try to capture 

it was already purged off the system.” Deagen also stated, “After so many days 

[the system] overrides and when I went to capture [the video] I didn’t realize it was

past that limit and had already been purged.”

On cross-examination, Deagen stated that the videos were kept for 15 days 

before the system purged them. He acknowledged that he had waited more than 15 

days after Appellant’s escape to view the kitchen video, even though he had been 

investigating the escape since shortly after it occurred. 

On re-direct examination, the State elicited the following testimony from 

Deagen:

Q. Was it error on your part for you not to pull the kitchen video prior 

to the 15 days?

A. Yes, that was a mistake on my part.

Q. You wish you had pulled that video before 15 days?
18

A. Why sure I wished I would. There’s a lot of things I wished I 

would have done.

In his brief, Appellant avers that bad faith was shown because Deagen 

“knowingly let [the video] be purged by the system.” However, Appellant offered 

nothing to controvert Deagen’s testimony that he had simply made a mistake in 

failing to check the video until after it had been purged. 

We conclude that the trial court could have reasonably determined that 

Appellant did not meet his burden to show that the kitchen video was purged in 

bad faith. See Napper, 322 S.W.3d at 229 (holding defendant must show evidence 

was lost or destroyed by State in bad faith). We hold that the trial court did not 

abuse its discretion in denying Appellant’s request for a spoliation instruction. 

We overrule Appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).