Opinion
NO. 09-11-00157-CR
04-25-2012
MICHAEL ALLEN KISER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03503-CR
MEMORANDUM OPINION
Appellant, Michael Allen Kiser, was convicted by a jury of possession with intent to deliver a controlled substance, money laundering, and evading arrest, and was sentenced to confinement in the Texas Department of Criminal Justice for thirty-five years, ten years, and ten years, respectively, all sentences to run concurrently. On appeal, Kiser argues that his due process and due course of law rights were violated by the State's failure to preserve evidence, that the State engaged in improper jury argument, and that the evidence is factually insufficient to support the verdict. We affirm the judgments of the trial court.
In his first issue, Kiser argues that he was denied the constitutional protections of the Due Process Clause of the Fourteenth Amendment to the United States Constitution ("Due Process Clause") and the Due Course of Law Clause of the Texas Constitution ("Due Course of Law Clause") because the State failed to preserve evidence. See U.S. CONST. art. XIV; Tex. Const. art. I, § 19. Specifically, Kiser contends that law enforcement officers erased a video of an officer's attempt to stop Kiser for a traffic violation and his subsequent pursuit of Kiser. Kiser contends that the police video is material to his case "because it would show what actions [Kiser] had engaged in that created probable cause for the attempt to arrest as well as if he should have know[n] that Deputy Kellum was trying to detain him." Kiser further asserts that "the video would show if [Kiser] followed too closely and if Kellum had activated his lights and/or siren[,]" as well as "whether or not [Kiser] discarded anything" during the police pursuit as alleged by the State.
The failure to preserve potentially useful evidence does not amount to a denial of due process unless a defendant can show "the loss of the evidence resulted from 'bad faith on the part of the police.'" Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988)); see also Chandler v. State, 278 S.W.3d 70, 75 (Tex. App.—Texarkana 2009, no pet.). On appeal, Kiser argues that the Due Course of Law Clause in the Texas Constitution is broader in scope and affords him greater protection than the Due Process Clause, obviating the need for Kiser to establish that the evidence was destroyed in bad faith. The majority of Texas appellate courts to address this issue have held that the Due Course of Law Clause provides a defendant no greater protection than the Due Process Clause. See Ramirez v. State, 301 S.W.3d 410, 420-21 (Tex. App.—Austin 2009, no pet.) (cases cited therein). Therefore, most Texas courts have concluded that for a defendant to succeed on a due course of law claim for the State's failure to preserve evidence, the defendant must show bad faith. Id. at 420-21. Kiser urges us to follow the one Texas court that concluded that a due course of law violation may be found on the basis of the State's negligent failure to preserve potentially useful evidence. See Pena v. State, 226 S.W.3d 634, 651 (Tex. App.—Waco 2007), rev'd on other grounds, 285 S.W.3d 459, 465 (Tex. Crim. App. 2009) (Pena III). However, because Kiser failed to preserve this issue, we decline to address the merits of this argument.
For a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which states "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(a)(1)(A). Further, the complaining party must show the trial court "ruled on the request, objection, or motion, either expressly or impliedly[.]" Tex. R. App. P. 33.1(a)(2)(A). In Pena III, which Kiser urges us to follow, the Waco Court of Appeals recognized that "[t]here are generally three . . . remedies for the loss or destruction of evidence: (1) dismissal; (2) exclusion of related evidence; or (3) an adverse inference instruction." Pena III, 226 S.W.3d at 655; see, e.g., Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (motion to dismiss).
Kiser contends on appeal that because the actions of the State violated his due process and due course of law rights we should "reverse the verdict and dismiss the indictment." At trial, Kiser did not file a motion to dismiss the case based on the alleged violation of his federal and state constitutional rights. Kiser did not move to exclude evidence related to the events purportedly captured on the missing video. Kiser did not request an adverse inference instruction or any other jury instruction related to the missing video. Finally, Kiser did not file a motion for new trial or any other post-judgment motion.
Evidence regarding the missing video was presented at trial. Officer Jimmy Lee Kellum, who attempted to stop Kiser, testified at trial that typically there would be a police video of this type of offense, but he was not aware of any video in this case. He testified that the equipment "was malfunctioning or it wasn't activated that day." He testified that he had no reason to destroy or alter the video and that he did not destroy or alter the video. Defense counsel cross-examined Kellum regarding the missing video. Additionally, defense counsel presented witness testimony regarding the operation of the COBAN video system, as well as what he suspected happened to the video in this case. The patrol sergeant who testified explained how the COBAN system works, told the jury that through research on the system he was able to ascertain that a video had been made on the day in question during the relevant time frame, but the video had not been coded by Officer Kellum to allow it to be archived. On cross-examination, the testifying officer acknowledged that if Officer Kellum hit the default button, the video may have been erased instead of archived.
While Kiser developed the facts regarding the missing video at trial, he made no motions or requests that he contends were improperly denied by the trial court. Kiser did not raise his constitutional arguments in the trial court. Therefore, this issue is not preserved for review. Tex. R. App. P. 33.1. We overrule issue one.
In issue two, Kiser argues that the State engaged in improper jury argument, which violated his presumption of innocence and improperly shifted the burden of proof. During the State's closing argument the following exchange took place:
[STATE]: The money laundering. . . . What money did the defendant have? That's what $2,677 looks like. Defense has the same subpoena power. He mentioned subpoena power numerous times. I subpoenaed, I subpoenaed, I subpoenaed, I subpoenaed. Where was the defendant's boss?The trial court again sustained the objection. Defense counsel asked for a mistrial, which the trial court denied. On appeal, Kiser argues that the State's argument was so inflammatory that the prejudicial effect could not be removed by the trial court's instruction to disregard. Kiser's argument assumes the trial court correctly determined the State's argument was improper.
[DEFENSE]: Objection, Your Honor. That's improper argument, to ask for me to compel to bring witnesses. The burden of proof does not shift.THE COURT: I'll sustain the objection. The Jury will disregard the statement.[STATE]: If there was someone, shouldn't he be here?
[DEFENSE]: Objection, Your Honor. He's arguing the same thing.
The law is well-settled that the State may comment on a defendant's failure to produce testimony from sources other than himself when it is relevant to a disputed issue. See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); see also Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Harris v. State, 122 S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pets. ref'd). "[A] prosecutor's comment about the subpoena power of a defendant is proper if it refers to the defendant's failure to produce evidence from other sources." Harris, 122 S.W.3d at 884 (citing Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987)) (holding prosecutor's reference to defendant's subpoena power during closing argument was not an improper attempt to shift the burden of proof); see also Davis v. State, 967 S.W.2d 476, 479-80 (Tex. App.—Beaumont 1998, no pet.) (holding prosecutor's reference during closing argument to defendant's failure to call witnesses in support of his defensive theory was not an improper attempt to shift the burden of proof). Moreover, though the State maintains the burden of persuasion, a defendant has the burden of production with regard to his defensive theories. See Zulianiv. State, 97 S.W.3d 589, 594 & n.5 (Tex. Crim. App. 2003). Part of Kiser's defense to the money laundering charge was that he earned the $2677 found on his person, while working as a brick layer. The prosecutor's comments regarding Kiser's subpoena power and the fact that Kiser could have called his boss to testify in support of this defensive theory was not improper. We overrule issue two.
In his third issue, Kiser argues that the evidence was factually insufficient to support the jury's verdict. In Brooks, the Court of Criminal Appeals concluded that there is no meaningful distinction between legal sufficiency review and factual sufficiency review. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The Court held that "the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Id. at 912. Therefore, to determine the sufficiency of the evidence, we must review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court must give deference to the jury's responsibility to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. Having reviewed the record, we find the evidence sufficient to support the jury's verdict on all three charges. We overrule issue three.
Having overruled all of appellant's issues, we affirm the judgments of the trial court.
AFFIRMED.
CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.