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 evidence 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 appellant’s purse found in the floorboard behind 

the driver’s seat and found baggies 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 the 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 side of the road. Appellant was charged with and 

convicted of possession of methamphetamine. She now appeals that conviction. 

Issue – Due Process

 Appellant contends in her sole issue that her due process rights were violated by 

the officer destroying evidence. She contends that the evidence was favorable to her 

case and it prevented her from presenting 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 that: (1) the complaint was made to the trial 

court by a timely request, objection, or motion that: (A) stated the grounds for the ruling 

that the complaining party sought from the trial court with sufficient specificity to make 

the trial court aware of the complaint, unless the specific grounds were apparent from 

the context.” TEX. R. APP. 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 responsibility of clearly conveying to the trial judge the 
3 

particular complaint, including the precise and proper application of the law as well as 

the underlying rationale. Id. at 463-64. “Error preservation does not involve a hypertechnical or formalistic use of words or phrases; instead, ‘[s]traight forward 

communication in plain English’ is sufficient.’” Id. at 464. “To avoid forfeiting a 

complaint on appeal, the party must ‘let the trial judge know what he wants, why he 

thinks he is entitled to it, and to do so clearly enough for the judge 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 opposing party an opportunity to correct the error. Id. Whether a 

party's particular complaint is preserved depends on whether the complaint on appeal 

comports with the complaint made at trial. Id. In making this determination, we 

consider the context in which the complaint was made and the parties' shared 

understanding at that time. Id. 

Here, the record shows that appellant did not preserve her due process claim for 

appellate review. Although appellant filed a motion 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 appellant’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 preserve 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.