NO. 07-09-0318-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D APRIL 28, 2010

__________________ ____________ MICHELLE E. MATLOCK, Appellant

v. THE STATE OF TEXAS, Appellee

__________________ _____________ FROM THE 121st DISTRICT COURT OF TERRY COUNTY; NO. 5826; HON. KELLY G. MOORE, PRESIDING

__________________ _____________ Memorandum Opinion

__________________ _____________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Michelle E. Matlock (appellant) appeals her conviction for possessing a controlled substance. Via a single issue, she contends that her due process rights were violated when the police destroyed evidenc e favorable to her case in bad faith. We affirm.2 Background Appellant was stopped for speeding. Subsequently, active arrest warrants were discovered, and appellant was placed under arrest . Consent to search the vehicle was granted. The arresting officer searched appe llant’s purse found in the floorboard behind the driver’s seat and found ba ggies containing methamphetamine. A passenger in the car was also searched, and she too was found to possess drugs. A pipe that could be used for ingesting drugs also was found in t he front passenger area of the vehicle. However, the officer determined that the pipe would not provide any additional evidence and then destroyed it on the si de of the road. Appellant was charged with and convicted of possession of methamphetami ne. She now appeals that conviction. Issue – Due Process Appellant contends in her sole issue t hat her due process rights were violated by the officer destroying evidence. She conte nds that the evidence was favorable to her case and it prevented her from pres enting her defense. We disagree. First, Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error, and states, in part: “(a) In General .--As a prerequisite to presenting a complaint for appellate review, the record must show tha t: (1) the complaint wa s made to the trial court by a timely request, objection, or moti on that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with su fficient specificity to make the trial court aware of the complaint, unle ss the specific grounds were apparent from the context.” T EX

. R. A PP

. P. 33.1. This rule encompasses the concept of "party responsibility." Pena v. State , 285 S.W.3d 459, 463 (Tex. Crim. App. 2009). The complaining party bears the re sponsibility of clearly conv eying to the trial judge the3 particular complaint, including the precise a nd proper application of the law as well as the underlying rationale. Id . at 463-64. “Error preserva tion does not involve a hypertechnical or formalistic use of words or phrases; instead, ‘[s]traight forward communication in plain Engl ish’ is sufficient.’” Id . at 464. “To avoid forfeiting a complaint on appeal, the party must ‘let t he trial judge know w hat he wants, why he thinks he is entitled to it, and to do so clearly enough for the j udge to understand him at a time when the judge is in the proper position to do something about it.’” Id . This gives the trial judge and the oppos ing party an opportunity to correct the error. Id . Whether a party's particular complaint is preserv ed depends on whether the complaint on appeal comports with the compla int made at trial. Id. In making this determination, we consider the context in which the comp laint was made and the parties' shared understanding at that time. Id. Here, the record shows that appellant di d not preserve her due process claim for appellate review. Although appellant filed a moti on for new trial, she failed to raise this claim at that time. Indeed, appellant stressed the fact that evidence was destroyed to the jury but as a means to cast doubt on appel lant’s guilt. Appellant was obligated to put the trial judge on notice of the specific legal theory that she intended to advocate, and because she did not, she failed to pres erve her complaint that her due process rights had been violated. 1 Therefore, we overrule her sole issue. Accordingly, we affirm the judgment of the trial court.

Brian Quinn Chief Justice Do not publish.

1 Appellant agrees with this conclusion but raised the issue for possible habeas use later.