JAMES PATRICK SHEEHY v. THE STATE OF TEXAS--Appeal from 25th District Court of Gonzales County

NUMBER 13-02-310-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JAMES PATRICK SHEEHY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court of Gonzales County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Ya ez

Appellant, James Sheehy, was convicted of two counts of aggravated assault of a peace officer with a deadly weapon and was sentenced to thirty years in prison. // By three issues, he challenges his conviction. The record contains the trial court s certification that this case is not a plea-bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

Expert Testimony

In his first issue, appellant argues that the trial court abused its discretion by excluding the testimony of his expert, David Lysek, that contact marks and the absence of smudge marks on appellant s vehicle showed the vehicle could not have struck Officer Onofre.

We review a trial court s admission or exclusion of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Montgomery, 810 S.W.2d at 380.

Under Texas Rule of Evidence 702, an expert may testify in the form of an opinion or otherwise, if the witness is qualified as an expert by knowledge, skill, experience, training, or education and if it assists the trier of fact in understanding evidence or to determine a fact in issue. See Tex. R. Evid. 702. The trial court must determine whether the proffered scientific testimony is relevant and reliable in helping the jury reach an accurate result. See Kelley v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).

The Texas Court of Criminal Appeals has held that rule of evidence 702 requires that a three-part reliability test for the admission of scientific evidence must be satisfied: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. See id. at 573.

Here, appellant complains that the trial court erroneously excluded Lysek s testimony that the contact marks on appellant s vehicle and the absence of smudge marks established that the vehicle could not have struck Onofre. When questioned on the basis of his opinion, Lysek responded that if there was dust on a car and someone touched it, dust will be removed. The trial court determined that the underlying theory was unreliable since it was impossible to tell precisely when any such contact marks or lack of smudge marks were placed on appellant s vehicle in relation to the accident itself. Because a trial court s decision regarding the admissibility of scientific evidence should not be disturbed absent an abuse of discretion, we hold that the trial court did not abuse its discretion in excluding the testimony. See Hinojosa v. State, 4 S.W.3d 240, 251 (Tex. Crim. App. 2000). We overrule appellant s first issue.

Extraneous Offenses

By appellant s second issue, he argues that the trial court abused its discretion by admitting evidence of appellant s prior extraneous offenses. Specifically, the State presented testimony that appellant had stated he would not go back to prison and would run or do whatever it took to get away from the authorities. Appellant objected to this testimony at the pre-trial hearing, but failed to object at trial. An objection to evidence at a motion-in-limine hearing does not preserve error. See Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). To preserve error for review, appellant must object to the evidence when the State offers it at trial. See Tex. R. App. P. 33.1; see Geuder v. State, 115 S.W.3d 11, 15 (Tex. Crim. App. 2003). Appellant s second issue is overruled. Exculpatory Evidence

In his third issue on appeal, appellant argues that the State s intentional destruction of exculpatory evidence violated his right to due process. The record reflects that the police released appellant s vehicle the alleged deadly weapon to a tow truck company only four days after the incident occurred without taking precautions to ensure the vehicle was maintained in its post-accident condition. As a result, the tow truck company removed some parts of the vehicle for sale to a third party, and thus, allegedly failed to preserve the evidentiary value of appellant s vehicle.

The State has an affirmative duty to disclose evidence material to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). To find reversible error under Brady and its progeny, an appellant must show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable; and (3) the evidence was material either to guilt or punishment. See id. Favorable evidence is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal. See Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Evidence is considered material if a reasonable probability exists that, had the evidence been disclosed, the result of the proceeding would have been different. See Ex Parte Krimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Texas has adopted the federal standard in Brady and its progeny for analyzing error in destruction-of-evidence cases. See Butler v. State, 736 S.W.2d 668, 670 (Tex. Crim. App. 1987). Accordingly, we apply those standards.

Here, the record reflects that the State was negligent in turning appellant s vehicle over to West Motors; however, it does not establish that the State suppressed evidence. Appellant has also failed to show that the evidence was both favorable and material. The record reflects that appellant s own expert opined that the evidence could have been favorable, which fails to conclusively establish favorability and ignores materiality. Further, although appellant characterized his claim as a Brady claim, we conclude it is more properly considered as a Trombetta // claim, as the issue is the State s failure to preserve evidence rather than its destruction of evidence. See California v. Trombetta, 467 U.S. 479 (1984). In Trombetta, the United States Supreme Court held that the duty to preserve evidence is limited to that evidence which has an apparent exculpatory value before destruction. See Trombetta, 467 U.S. at 489. Here, the state of the vehicle may have been crucial to appellant s defense, which the State reasonably should have known upon releasing the vehicle to West Motors. Although the State acted negligently in releasing the vehicle, we conclude that the record does not support that the exculpatory nature of the vehicle was apparent before its release. See id.

The Supreme Court has also held that an appellant must show that the State acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1998). The record reflects that the State was uncooperative and negligent in failing to assist with the location of appellant s vehicle. Appellant s attorney s legal assistant called the police daily for approximately two weeks and did not receive a direct response regarding location of the vehicle. The legal assistant testified at trial that the police told her they did not know the location of the vehicle and were too busy to assist in determining its location. Although the evidence clearly supports that the State acted negligently, it is insufficient to establish that the State acted in bad faith. See id. Without more evidence showing the State was aware of the exculpatory nature of appellant s vehicle before destruction and that it nonetheless acted in bad faith, we conclude that the appellant was not denied due process. Accordingly, appellant s third issue is overruled.

The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed this the

29th day of July, 2004.