The State of Texas v. Jose Garcia Vasquez--Appeal from 400th District Court of Fort Bend County

Reversed and Remanded and Majority and Concurring Opinions filed June 28, 2007

Reversed and Remanded and Majority and Concurring Opinions filed June 28, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00381-CR

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THE STATE OF TEXAS, Appellant

V.

JOSE GARCIA VASQUEZ, Appellee

On Appeal from the 400th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 38,762

C O N C U R R I N G O P I N I O N

I concur in the result. Under Illinois v. Fisher and Arizona v. Youngblood, absent bad faith, destruction of Apotentially useful@ evidence does not constitute a violation of due process of law under the Federal Constitution. See 540 U.S. 544, 547B48, 124 S. Ct. 1200, 1202 (2004) (per curiam); 488 U.S. 51, 57B58, 109 S. Ct. 333, 337 (1988). As noted by the majority, most intermediate appellate courts interpreting the due course of law clause of the Texas Constitution hold the clause offers no greater protection than does the due process clause of the Federal Constitution. See majority op. at 10B11 (citing cases). Thus, I agree that suppression of the interpretive evidence is not constitutionally mandated in this case. I write separately, however, to express my concern about limited relief available to defendants who must confront expert testimony interpreting tests conducted by the State on physical evidence the State has lost or destroyed. It is my considered opinion that the trial court may exercise its broad discretion to employ a spoliation instruction in such cases.

The instant case arises at a time when Texas has achieved an international reputation for its flawed crime lab processes, misrepresented results, and lost or destroyed evidence. See, e.g., Amnesty International, USA(Texas): Death penalty/Legal concern, Willie Marcel Shannon (m), Nov. 2, 2006, http://web.amnesty.org/library/index/ENGAMR511672006?open&of=ENG USA (last visited June 13, 2007) (referring to Houston Police Department=s 1997 destruction of DNA evidence); Reprieve Annual Report 2004 at 10, http://www.reprieve.org.uk/images/Annual%20Report.pdf (last visited June 18, 2007) ( in report of United Kingdom charity protecting the human rights of people facing the death penalty, describing case of investigation raising further questions about reliability of DNA testing at Houston Crime Lab).[1] In this milieu, one cannot presume the reliability of the State=s evidence purporting to provide or interpret the results of forensic tests on tangible materials. See Ellen Marrus, Suspicious Finds B How to Make the Crime Lab Come Clean, Hous. Chron., June 16, 2006, http://www.chron.com/disp/story.mpl/editorial/outlook/4896319.html (last visited June 18, 2007) (arguing placement of crime labs within enforcement agencies is one factor contributing to falsification of evidence nationally). A defendant therefore has a legitimate interest in conducting his own tests on any sample the State may use to gain a conviction. He also has statutory authorization to do so. See Gabriel v. State, 900 S.W.2d 721, 722 (Tex. Crim. App. 1995) (citing Texas Code of Criminal Procedure article 39.14 for proposition, to rebut expert=s chemist=s conclusion all baggies contained cocaine, defendant could have conducted independent tests on substances contained in baggies not included in State=s random tests). If the State intends to use physical evidence it alone has tested, I join the majority in concluding the State has a responsibility to preserve that evidence.[2]

At present, however, the State has little incentive to prevent accidental loss or destruction of inculpatory evidence a defendant might want to subject to independent testing. Such evidence is deemed only potentially useful evidenceCAevidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.@ Youngblood, 488 U.S. at 57, 109 S. Ct. at 337. Under Fisher and Youngblood, the due process clause provides a defendant with no protection and no remedy when the State destroys or loses potentially useful evidence but does not act in bad faith. See Fisher, 540 U.S. at 547B48, 124 S. Ct. at 1202; Youngblood, 488 U.S. at 57B58, 109 S. Ct. at 337. Absent bad faith, a due process violation occurs only when the State loses or destroys material, exculpatory evidence. See Fisher, 540 U.S. at 547B48, 124 S. Ct. at 1202. Similarly, to be entitled to a spoliation instruction allowing the jury to infer lost or destroyed evidence would have produced a result favorable to the defense, a criminal defendant must affirmatively show the evidence was favorable and material to the defense. White v. State, 125 S.W.3d 41, 43B44 (Tex. App.CHouston [14th Dist.] 2003), pet. ref=d, 149 S.W.3d 159 (Tex. Crim. App. 2004).[3] Given these limitations, a spoliation instruction would rarely, if ever, be useful to a criminal defendant because, if the lost or destroyed evidence were material and exculpatory, he would have a more meaningful remedy under the due process clause.

A spoliation instruction, however, should not be limited to an adverse inference that the lost or missing evidence is favorable to the defendant. Although the evidentiary function is important, a spoliation instruction serves other purposes as well. As Justice Baker explained in the civil context: ARemedies for the spoliation of evidence serve three purposes. First, they punish the spoliator for destroying relevant evidence. Second, they deter future spoliators. And third, perhaps most importantly, they serve an evidentiary function.@ Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998) (Baker, J., concurring) (citations omitted).

Arguably, a trial court should give an adverse inference instruction only when there is some indication the spoliator acted in bad faith. See United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000) (AAn adverse inference drawn from the destruction of records is predicated on bad conduct.@); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (ANeither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction.@); see also State v. Hartsfield, 681 N.W.2d 626, 632C33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State=s actions were an admission evidence was unfavorable to its case); but see Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (AWhile allowing a court to hold a party accountable for negligent as well as intentional spoliation may appear inconsistent with the punitive purpose of remedying spoliation, it is clearly consistent with the evidentiary rationale supporting it because the remedies ameliorate the prejudicial effects resulting from the unavailability of evidence.@); Anderson v. Litzenberg, 694 A.2d 150, 156 (Md. 1997) (stating adverse presumption may arise against spoliator even if there is no evidence of fraudulent intent). Premising an adverse inference spoliation instruction on bad faith is consistent with the rationale underlying the instruction, i.e., that the destruction reflects consciousness of a weak case, an admission by conduct. See Langlet, 283 N.W.2d at 333.[4]

In consideration of the fact that the blood sample was destroyed long before Vasquez=s request for independent testing, the trial court cannot be faulted for finding an absence of bad faith in the instant case. At most the State was negligent. I would therefore not urge the court to give an adverse inference spoliation instruction.

In the exercise of its discretion, however, the trial court could, instruct the jury, when weighing the evidence in the case, to consider the State=s destruction of the blood sample and the defendant=s resultant inability to conduct his own independent test to assess the reliability of results produced by an agency of the State. In the trial court, the prosecutor acknowledged, as a result of the destruction of the blood sample, that defense counsel now had Aan argument to present to the jury . . . to perhaps put some doubt in someone=s mind that maybe he should have been able to test it, maybe they should doubt it or whatever.@ This argument is always available to a criminal defendant; however, I believe the trial court has an important role in fashioning spoliation remedies calculated to encourage or coerce the State to preserve the evidence.

A[T]he unique problems seen in Texas during the last decade provide considerable impetus toward a conclusion that >fundamental fairness= demands preservation of potentially exculpatory evidence.@ Pena v. State, ___ S.W.3d ___, No. 10-03-00109-CR, 2007 WL 1289426, at *13 (Tex. App.CWaco May 2, 2007, pet. filed). Indeed, the majority recognizes the State=s Aimportant duty to preserve evidence in its possession.@ Majority op. at 11. By punishing the State=s negligent conduct in failing to preserve the blood sample, a court might discourage or deter spoliation. See Trevino, 969 S.W.2d at 957 n.1 (Baker, J., concurring).

On remand, the trial court has discretion to include a spoliation instruction. See Wise, 221 F.3d at 156 (stating district court has discretion to admit evidence of spoliation and to instruct jury on adverse inferences); see also Trevino, 969 S.W.2d at 959, 960 (Baker, J., concurring) (stating, in civil context, trial courts have broad discretion in choosing appropriate sanction and in instructing juries). Such an instruction might include, but should not necessarily be limited to the following: (1) the State had a duty to preserve the blood sample; (2) the State failed to preserve the blood sample, thereby precluding the defendant from obtaining independent tests, and (3) when determining reliability of the State=s expert testimony, you may consider the fact that defendant was precluded from testing the blood sample.

Finally, I recognize that the issue of a spoliation instruction is not presented in this appeal. However, I have addressed this very important matter with the hope that our criminal jurisprudence will evolve and provide remedies sufficient to insure fundamental fairness, a proper goal of all courts.

/s/ Charles Seymore

Justice

Judgment rendered and Majority and Concurring Opinions filed June 28, 2007.

Panel consists of Justices Frost, Seymore, and Guzman. (Frost, J. Majority.)

Publish C Tex. R. App. P. 47.2(b).

[1] See also Pena v. State, ___ S.W.3d ___, No. 10-03-00109-CR, 2007 WL 1289426, at *10 (Tex. App.CWaco May 2, 2007, pet. filed) (citing examples of wrongful Texas convictions based on faulty DNA identification evidence); Roma Khanna & Steve McVicker, Doubt Cast on Hundreds More Cases from HPD Lab, June 14, 2007, at A1, A21 (describing events at the Houston Police Department Crime Lab from December 2002 until present); Jordan Smith, Anthony Graves Update: Evidence Reappears, The Austin Chron., May 11, 2007, http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid:473702 (last visited June 13, 2007) (describing discovery of cache of evidence in welded-shut jail cell); Jim Kennett, Houston Crime Lab=s Fake Results May Undermine Prosecutors, http://www.bloomberg.com/apps/news?pid=10000103&sid=aR0VRkE32Te0&refer=us (last visited June 13, 2007) (referring to investigator=s report of Afaked results@ by crime lab chemists); Barbara Bradley, Profile: DNA Testing in Crime Cases Causing Distrust in the Criminal Justice System, (NPR Morning Edition, Aug. 29, 2000), transcript available at 2000 WLNR 9636095 (describing destruction of fifty rape kits in Texas after prisoner was exonerated on basis of DNA tests).

[2] Commendably, the Texas Legislature has acknowledged and partially responded to problems with the testing of bodily material. Texas Code of Criminal Procedure chapter 64 provides for post-conviction DNA testing of evidence containing biological material. See Tex. Code Crim. Proc. Ann. arts. 64.01B.05 (Vernon 2006). AIn a criminal case in which a defendant is convicted,@ Texas Code of Criminal Procedure article 38.43 requires the State to Aensure the preservation of evidence@ containing biological material relating to the identity of the offender. Tex. Code Crim. Proc. Ann. art. 38.43(a) (Vernon Supp. 2006). Article 38.43 applies to evidence that (1) was in the State=s possession during prosecution of the case and (2) Aat the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not . . . establish the identity of the person committing the offense; or . . . exclude a person from the group of persons who could have committed the offense.@ Id. art. 38.43 (b). I have two responses to this legislation.

First, I interpret the State=s post-conviction duty to preserve evidence containing biological material, a fortiori, to create a duty to preserve such evidence prior to, and during, the prosecution of the case. Were it otherwise, Chapter 64 and article 38.43 would be hollow assurances indeed.

Second, I urge the legislature to extend the preservation duty to all physical evidence when (1) the State is the sole agency testing the evidence and (2) the evidence is essential to establishing an element of the offense. Establishing the elements of the offense and the defendant=s identity are equally part of the State=s case. See Jones v. State, 687 S.W.2d 430, 432 (Tex. App.CHouston [14th Dist.] 1985, no pet.) (stating first element of a crime is that there exist a person who commits the offense). I can think of no principled reason why the State=s duty to preserve evidence of the elements should differ from its duty to preserve evidence of identity.

[3] In the most recent legislature, Representative Turner introduced a bill requiring a trial court to give an adverse inference spoliation instruction when evidence was unavailable in a criminal case because the evidence was lost or destroyed while in the State=s possession. Tex. H.B. 1144, 80th Leg., R.S. (2007). The bill was referred to committee. H.J. of Tex. 80th Leg., R.S.414 (2007).

[4] Of course, limiting the adverse inference instruction to situations involving bad faith reduces its usefulness to a defendant in the same way as limiting it to situations involving favorable, material evidence.