Antwann Johnson v. The State of Texas--Appeal from 114th District Court of Smith County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2004 » Antwann Johnson v. The State of Texas--Appeal from 114th District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-03-00121-CR

Case Date: 11/24/2004

Plaintiff: Antwann Johnson

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:Jack Wayne Reeves v. The State of Texas--Appeal from
52nd District Court of Coryell County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-96-038-CR
JACK WAYNE REEVES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court # 13,813
O P I N I O N
On July 20, 1978, Sharon Reeves died of a single shotgun blast to the chest. At the time, her death was ruled a suicide.
However, on March 30, 1995, the Coryell County grand jury indicted Jack Reeves, her husband, for murder. After a
five day trial, a jury convicted him and assessed punishment of thirty-five years' incarceration. Reeves appeals from
the judgment, claiming, first, that the evidence is both legally and factually insufficient to support the jury's verdict;
second, that the court erred in failing to dismiss the indictment because the State had not preserved Sharon's alleged
suicide note; and, finally, that the court erred in failing to instruct the jury that it could infer that the facts in the note
were contrary to the State's interest due to State's failure to preserve the note. We affirm.
SUFFICIENCY OF THE EVIDENCE
STANDARDS OF REVIEW
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Reeves challenges the legal sufficiency of the evidence in his first point. In resolving the legal sufficiency-of-the-
evidence issue, we view the evidence in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.
Crim. App. 1988). "This standard is the same for both direct and circumstantial evidence cases." Green v. State, 840
S.W.2d 394, 401 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993); Geesa
v. State, 820 S.W.2d 154, 156-61 (Tex. Crim. App. 1991). Reconciliation of conflicts and contradictions in the
evidence is the fact-finders' role. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d
305, 309 (Tex. Crim. App. 1986). "[T]he evidence is not rendered insufficient simply because [Reeves] presented a
different version of the events." Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we
position ourselves as a final, due-process safeguard ensuring only the rationality of the fact finder. Moreno, 755
S.W.2d at 867. We have only the discretion to determine if any rational trier of fact, considering the evidence admitted
at trial, could have found the essential elements of the offense beyond a reasonable doubt. Id. We do not make our
own myopic determination of guilt from reading the cold record and do not disregard, realign, or weigh evidence. Id.
In his second point, Reeves argues that the jury's verdict is against the great weight and preponderance of the evidence.
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In resolving this point, we view all of the evidence without
the "in the light most favorable to the prosecution" prism and set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 129; Stone v. State, 823 S.W.2d 375,
381 (Tex. App. Austin 1992, pet. ref'd, untimely filed). We should sustain his point if the verdict is based on weak or
insufficient evidence or if the State's proof, although adequate if taken alone, is overwhelmed by Reeves' contrary
proof. Desselles v. State, 10-95-232-CR, slip op. at 9-10 (Tex. App. Waco, November 20, 1996, no pet. h.) (citing
William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515,
519 n.11 (1991)). However, if we are to reverse the judgment based on factual insufficiency of the evidence, we must
be able to "detail the evidence relevant to the issue in consideration and clearly state why" the jury's finding is not
supported by factually-sufficient evidence or we must be able to "state in what regard the contrary evidence greatly
outweighs the evidence in support of the verdict." Clewis, 922 S.W.2d at 135-36 (quoting Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986)).
THE EVIDENCE
The State called fourteen witnesses during its case-in-chief. In addition to the evidence adduced by cross examination
of the State's witnesses, Reeves called six witnesses in his defense. Through these witnesses, six main areas of
evidence were presented to the jury: (1) the initial, 1978 determination of the cause of Sharon's death; (2) Reeves'
relationship with Sharon; (3) Sharon's mental state just prior to her death; (4) Reeves' response to her death; (5)
forensic evidence consisting of autopsy results and bloodstain analysis; and (6) reenactments of Sharon's "suicide,"
presented by the State through in-court demonstrations and by Reeves using video tapes of the State's prior out-of-
court enactments. We will examine each area of evidence in turn.
Initial Ruling on the Cause of Sharon's Death
In 1978, a Coryell County Justice of the Peace ruled Sharon's death a suicide. Reeves showed this to the jury primarily
through two documents: Sharon's death certificate and the Justice of the Peace's inquest report. The death certificate
acknowledges the immediate cause of death to be a gunshot wound to her left chest. When asked to "describe how
injury occurred", the JP answered "appears subject placed gun to chest and triggered with right toe" and selected
"suicide" among the three choices of "accident," "suicide," and "homicide." The inquest report reflects a similar
conclusion:
The Chief of Police and the Detectives made a very thorough investigation. I talked with Detective Hunter and they
determined death was suicide caused by a gunshot wound which appears to be self inflicted.
I revoked the order of autopsy as the Chief Pathologist at Hood said the gun shot wound appeared to be self-inflicted
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triggered by the toe.
Relationship Between Reeves and Sharon
Through four witness, the State attempted to portray a marriage in trouble in the year leading up to Sharon's death.
John Behneman, a retired Colonel, testified that he and Sharon met through their work at Fort Hood. Apparently, they
began an extra-marital affair sometime in late 1977 and, in 1978, decided they wanted to marry. However, before
Sharon could obtain a divorce from Reeves, Behneman was assigned to Thailand. They continued their relationship
through the mail and occasional phone calls. Sharon filed for divorce from Reeves in February, 1978 with the intent of
marrying Behneman and joining him in Thailand.
Randall Reeves, the younger of Sharon and Reeves' two sons, testified that Reeves, who was in the U.S. Army, was
sent to Korea but returned home unannounced in early July 1978. At the time of Sharon's death, Randall was sleeping
outside the house because his mother and father had excluded him from the house while they talked. Randall testified
that only Reeves and Sharon were in the house. Ricky Reeves, Sharon and Reeves' oldest son, testified that he was
aware of his mother's affair with Behneman. According to Ricky, Reeves returned from Korea roughly two weeks
before Sharon's death. During that period, there was "a lot" of tension between Reeves and Sharon and some arguing.
In fact, Ricky was awakened by an argument between them the night before Sharon died. Although he could not
understand the words that were exchanged, he could hear that his mother's voice "was not raised" while Reeves was
"shouting at times."
Similarly, Larry Vaughn, Sharon's brother, testified that he heard Sharon and Reeves arguing one night while they
were visiting Sharon's parents in Wichita Falls approximately one week before her death. Vaughn "heard [Reeves]
load a gun and [Sharon] say Put that thing away'" during the course of the argument. Although Vaughn testified that
Reeves, Sharon, and both of their sons were there, Ricky Reeves stated that he did not go to Wichita Falls just prior to
his mother's death and did not recall the rest of the family going either.
The State also presented evidence about a note found by Reeves. According to Johnny Smith, the first Copperas Cove
police officer to arrive at the house, Reeves gave him a note that he claimed he found in the china cabinet. Without
going into the contents of the note, Smith characterized it as a "suicide note." However, Richard Carson, also a
Copperas Cove police officer at the time of Sharon's death, characterized the note as "an apology type note, referring
like to her husband as, Sorry, big Dick, things couldn't work out,' referring to that she may have had another lover, a
boyfriend or something. Kind of like she was torn between two lovers." Michael Galiana, then a reserve officer with
the Copperas Cove Police Department, recalled that the note was signed by Sharon and there was a reference to
conflicting feelings involving an affair on Sharon's part. Reeves attempted to establish that the note was no longer
available because it had been destroyed by the Copperas Cove police shortly after Sharon's death was ruled a suicide.
Finally, in the area of Reeves and Sharon's relationship, Reeves introduced the divorce case file into evidence.
According to those documents, Sharon filed for divorce on February 8, 1978. Reeves filed a waiver of citation on July
13 and a hearing was held on the same day. The court signed the divorce decree on July 19, 1978, the day before
Sharon's death. However, a joint motion for a new trial was filed and granted on July 21.
Sharon's State of Mind
The State also attempted to show Sharon's state of mind in the period shortly before her death. After Reeves returned
unexpectedly from Korea, Sharon called Behneman two or three times. She was upset that Reeves had returned. The
last time they spoke was within two days of her death. During that conversation, she indicated to Behneman that she
was "frightened about what had happened the night before." Sybil Frueh, Sharon's coworker, testified that Sharon was
a "vivacious" person, but that she changed in the weeks before her death. Frueh talked to Sharon on July 20, 1978, the
day of her death. Sharon was "very troubled, troubled, worried, fearful, she was having problems and difficulties[.]"
Ricky Reeves remembered that his mother was not her "normal talkative, happy self" during the two weeks Reeves
was back from Korea. Randall Reeves, however, recounted an incident which occurred during the time Reeves was
back from Korea. Reeves, Sharon, and Randall were at west Fort Hood in two cars. Randall remembered being
concerned that his mother was going to commit suicide so he asked if he could ride back to Copperas Cove with her.
When he told her why he wanted to ride with her, she became upset and drove off without him.
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Reeves' Response To Sharon's Death
Sometime around 7:00 p.m. on July 20, 1978, Reeves called the Copperas Cove Police Department and told them about
Sharon's shooting. Michael Galiana went to the scene. Once there, he monitored the front door of the house, ensuring
that no unauthorized persons entered. According to Galiana, Reeves was "cool and calm, nonconcerned[.]" Although
Reeves told Galiana that he had come home from Korea to try and save his marriage, Reeves also made inappropriate
comments to Galiana concerning the sexual activity of the U.S. servicemen in Korea. Richard Carson observed that
Reeves "was not upset, a grieving husband, no feelings or anything, it was just like normal everyday conversation he
was having with [another officer]."
Reeves attempted to show that the officers' impressions and recollections of his demeanor were inaccurate. Randall
Reeves testified that his father was upset and crying at the hospital where Sharon was taken. According to Ricky
Reeves, Reeves was visibly upset at the hospital. Dale Just, an officer in the army unit where Reeves worked, testified
that Reeves called him after Sharon's death and asked him to come to Reeves' house. Reeves was "very distraught"
when he called Just. Just went to the house and rode with Reeves to the hospital in an ambulance. During the ride,
according to Just, Reeves "put his head on [Just's] shoulder and [Reeves] was sobbing something to the effect, What
am I going to do,' or What can I do.'"
Forensic Evidence
Autopsy Results: After the police reopened the investigation into Sharon's death, her body was exhumed and sent to
the Dallas County Medical Examiner's office for an autopsy. Dr. Jeffrey Barnard, chief medical examiner for Dallas
County, performed the autopsy. He concluded that the facts surrounding Sharon's death were "suggestive of a
homicide." He also believed that it would have been "extremely difficult" for Sharon to have pulled the trigger on the
shotgun. Dr. Barnard acknowledged that he was presented with unique difficulties in performing the autopsy. Because
Sharon's body had been prepared for burial, he was unable to determine if the wound was a contact wound; thus, he
was unable to determine how far the weapon was from her body when it was discharged. However, based on the
"spread" of the shot and the absence of "stippling," // he did not believe that the weapon could have been more than
three feet away. He also determined that fluid found in her chest cavity, which he interpreted to be blood, was 0.08%
alcohol. He attributed part of the alcohol to decomposition, but he was unable to exclude the possibility that she
consumed alcohol prior to her death.
Bloodstain Analysis: According to the police photographer sent to the scene, some ten to twelve pictures were taken of
Sharon's body and the surrounding area. However, by the time of this prosecution, only one picture remained. The
State submitted that picture to Captain Tom Bevel of the Oklahoma City Police Department, a bloodstain analysis
expert. Based on his examination of the picture and the blood flow patterns it exhibited he concluded that Sharon was
standing when she was shot. He did not believe that she could have been sitting at the time of fatal shot.
He also believed that, based on the trajectory of the shot, Sharon's physical dimensions, the weapon's measurements,
and the location of Sharon's body and the shotgun, the facts were much more consistent with another person holding
the weapon than with a self-inflicted injury. In his "expert opinion" it was "highly improbable that [Sharon] was the
person who triggered" the shotgun.
Reeves submitted the picture to an expert, Max Courtney, lab director for Forensic Consultant Services of Fort Worth.
Courtney stated that relying on the single photograph for bloodstain analysis presented "a lot" of problems because it
was taken at an angle, the quality of the photograph was poor, and only one picture could not capture the entire scene.
He was able to conclude, however, that Sharon was not lying down when she was shot, that he would "disfavor" the
theory that she was sitting on the bed when she was shot, and that it was "certainly a possibility" that she was standing
when she was shot. Courtney believed that it would be unusual to find a single contact gunshot wound in a homicide
case because the victim was unlikely to "just stand there and let somebody shoot them." Finally, Courtney believed that
a person shooting another with a shotgun at such close quarters would likely get blood on themselves from the "back
spatter" of blood coming from the wound.
Reenactments
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Per the State's request, Gene Evans, Jr., an Arlington police officer, attempted to design a method for reconstructing a
possible suicide by Sharon. He obtained Sharon's arm, leg, and other body measurements from the medical examiner
and located a woman, Dana Parra, a legal secretary employed by the Tarrant County Narcotics Task Force, of
approximately the same size, although Parra's arms were one inch longer and her legs were two inches longer than the
measurements provided by the medical examiner. Greg Scarborough, an Arlington Police Department Crime Scene
Investigator, designed an apparatus to attach to the muzzle of a shotgun which was intended to make the angle of the
weapon consistent with the medical examiner's findings regarding the trajectory of the shot. Additionally, they
apparently put marks on Parra to show the location of the wound to ensure that the weapon was properly aimed at her
body.
During the trial, the State had Parra, with Evans and Scarborough's assistance, using the same model shotgun as was
found by Sharon's body, attempt to show the jury whether she could pull the trigger from various positions. Although
she had difficulty, Parra was able to pull the trigger on the shotgun with one or the other of her left or right toe from
several positions while seated. Apparently, the easiest position for her was sitting down, bending forward at the waist
with the butt of the shotgun resting on the floor. She was unable to pull the trigger with her toe on two in-court
attempts while standing. Evans testified that Parra was never able to pull the trigger while in a standing position during
the out-of-court attempts. However, on cross-examination he acknowledged that she was able to pull the trigger with
her finger while standing.
During Reeves' case-in-chief, he called Scarborough to the stand to sponsor and discuss two videotapes of the out-of-
court reconstruction efforts. Scarborough identified Defendant's Exhibits 4 and 5 as the videotapes of those
reenactments. Reeves played the tapes for the jury, asking Scarborough questions regarding their actions and
conclusions as shown by the tapes. The initial reconstruction attempt occurred on January 17, 1995. Reeves pointed out
that the reconstruction was done with a "youth" model of the shotgun rather than the "adult" model as found with
Sharon's body. During that session, the trigger guard was kept facing down on each of Parra's attempts to "fire" the
weapon. She was unable to fire the weapon regardless of her or the weapon's position. The next day, the trigger guard
orientation was altered, facing to Parra's left, right, and straight up. She was able to trigger the weapon in several
sitting positions. The second video tape portrayed reconstruction efforts performed on January 17, 1996. For this
second tape, the State had obtained the same model shotgun as had been found with Sharon's body. Again, the trigger
guard orientation was changed and Parra's success in triggering the weapon depended upon the way the guard faced
and how she positioned herself. Most importantly, though, she was able to trigger the weapon from both the standing
and sitting positions.
On cross-examination, the State brought Parra and Evans back into the courtroom and had Parra perform another in-
court demonstration. Scarborough explained that he had been able to determine the angle of the wound more precisely
since the out-of-court demonstrations on the videotapes and the in-court demonstrations performed as part of the
State's case-in-chief. Based on a photograph supplied by the medical examiner, in which a steel rod was placed into
the wound channel on Sharon's body, he was able to place marks on Parra indicating where the shot entered Sharon's
body as well as where the shot would have come out. Thus, he was able to determine the left-right and the up-down
angle of the shot. Under those circumstances, Parra was unable to pull the trigger of the shotgun while standing but
was able to fire the weapon when she was sitting down and bending at the waist.
LEGAL SUFFICIENCY OF THE EVIDENCE
Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that a rational trier of fact
could have found the essential elements of the offense charged beyond a reasonable doubt. Jackson, 443 U.S. at 318-
19, 99 S.Ct. 2788-89; Moreno, 755 S.W.2d at 867. All three of the experts agreed that Sharon was standing when she
was shot and both of the State's experts testified that, in their opinion, someone else pulled the trigger on the shotgun.
The State's final in-court demonstration apparently established that Sharon could not have triggered the weapon when
standing if the shotgun was held in a position most consistent with the wound she received. // According to Randall
Reeves, the only other person in the house was his father, Jack Reeves. We find this evidence legally sufficient to
support the jury's finding that Reeves murdered his wife. Thus, we overrule point one.
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FACTUAL SUFFICIENCY OF THE EVIDENCE
Reeves urges us to use the "reasonable hypothesis analytical construct" to review the factually sufficiency of the
evidence. See Geesa, 820 S.W.2d at 158; Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983), overruled, Geesa
v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). However, we have already rejected the argument that Clewis
somehow resurrected this standard of review. Desselles, No. 10-95-232-CR, slip op. at 9. Reeves does not present any
arguments that would cause us to reconsider this decision. Therefore, we review the evidence under the standard stated
above: we view all of the evidence without the "in the light most favorable to the prosecution" prism and set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, i.e. only
if the verdict is based on weak or insufficient evidence or if the State's proof, although adequate if taken alone, is
overwhelmed by Reeves' contrary proof. Clewis, 922 S.W.2d at 129; Desselles, 10-95-232-CR, slip op. at 9.
After reviewing all of the evidence in the record, we conclude that the jury's verdict is not against the overwhelming
weight of the evidence. Id. Although the Coryell County Justice of the Peace initially ruled that Sharon Reeves
committed suicide, that determination is not conclusive or binding on the jury. See Brooks v. State, 719 S.W.2d 259,
262-63 (Tex. App. Waco 1986, pet. ref'd). Given the haste with which the ruling was made, the jury was entitled to
discount the JP's opinion on the cause of her death. Reeves' expert opined that a person would not stand still and allow
herself to be shot with a shotgun, but other evidence indicated that Reeves had pulled a weapon on Sharon before.
Thus, the jury could reasonably have discounted the expert's opinion and believed that Sharon did not feel truly
threatened when Reeves pointed the shotgun at her. All of the experts agreed that Sharon was standing when shot, and
the in-court and video demonstrations showed that it was unlikely, although not impossible, for her to inflict the wound
on herself while standing. Finally, Reeves argues that the divorce file shows that the couple was in the process of
reconciliation, a development which would end his motive to kill his wife. Again, though, the evidence is conflicting
because the motion for a new trial was not filed until after Sharon died, calling into question the validity of the
anticipation of reconciliation implied by the motion. Considering all of the evidence in the record, we cannot find that
the jury's verdict is contrary to the overwhelming weight of the evidence, and, so, we overrule point two.
LOSS OF SHARON'S "SUICIDE" NOTE
In his third point, Reeves claims that the court erred when it denied his motion to dismiss the indictment based on the
State's failure to preserve the "suicide" note. Apparently, Reeves filed a pretrial motion to dismiss the indictment,
alleging that the State violated his rights by failing to preserve a copy of the "suicide" note turned over to the Copperas
Cove police at the time of Sharon's death. // Leaving aside the issue of whether the court had the authority to grant
Reeves his requested relief, we conclude that he has failed to show the court erred on the merits of his motion. Cf.
State v. Johnson, 821 S.W.2d 609, 612 & n.2 (Tex. Crim. App. 1991); State v. Morales, 844 S.W.2d 885, 889 (Tex.
App. Austin 1992, no pet.) (the court is not authorized to dismiss an information as a sanction for the State's failure to
preserve evidence).
The State's bad faith failure to preserve potentially useful evidence may constitute a denial of due process. Arizona v.
Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); San Miguel v. State, 864 S.W.2d 493,
495 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994). However, Reeves
specifically conceded at the hearing on his motion that he was not alleging bad faith on the part of the State. Reeves
argues, instead, that the State's failure to preserve the note should be evaluated based on the theory that its contents
were clearly exculpatory, which dispenses with the bad faith requirement. Thomas v. State, 841 S.W.2d 399, 402 & n.5
(Tex. Crim. App. 1992). However, to prevail on this theory, Reeves still must show that the State was involved in the
"suppression" of the evidence, or that the State has "withheld" the evidence. Brady v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Thomas, 841 S.W.2d at 402 n.5. That is to say, he must raise a claim that
is "based on loss of evidence attributable to the Government." Youngblood, 488 U.S. at 57, 109 S.Ct. at 337 (emphasis
added). According to the evidence presented at the pretrial hearing, the State returned the note to Reeves' divorce
attorney after Sharon's death was ruled a suicide. Thus, Reeves did not establish that the State was responsible for the
loss of the note. //
Moreover, "[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to
evidence . . . of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably
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available means." California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).
According to the evidence at the pretrial hearing, the State returned the note to Reeves' attorney. // Thus, under the
evidence before the court at the time of its ruling, the court could have reasonably concluded that Reeves could have
obtained comparable evidence by saving the note or a copy himself. Therefore, we do not believe that the court erred
when it refused to dismiss the indictment premised on the State's failure to preserve the "suicide" note. Point three is
overruled. //
JURY INSTRUCTION ON LOSS OF THE NOTE
At the conclusion of the trial, Reeves requested that the court instruct the jury regarding the loss of evidence. He
submitted the following proposed instruction:
If you find that the State of Texas has destroyed, caused to be destroyed, or allowed to be destroyed any evidence
whose contents or quality are in issue, you may infer that the true fact is against their interests.
In his fourth and final point, Reeves argues that the court erred when it refused to include this instruction in its jury
charge. His entire argument in his brief is:
This was essentially a charge required by the Supreme Court of Arizona in Arizona v. Willits, 393 P.2d 274 (Sup. Ct.
Ariz. 1964). It was held not to be a comment on the evidence, because it includes the language "if you find." Appellant
urges that while it cannot find any case directly on point in Texas, due process and due course of law under the U.S.
and State Constitution should require such an instruction in the alternative to the remedy of dismissal sought in Point
of Error Three for the loss or destruction of exculpatory evidence by the State. This instruction would be less extreme
than dismissal of the indictment, but would serve to guide the jury when such loss of exculpatory evidence has
occurred. Appellant urges that this Court remand this case to the trial court for a new trial accompanied by the
requested jury instruction.
At oral argument, Reeves referred to two additional authorities. He filed a post-submission letter brief which contained
those cites as set out here:
Concerning Point of Error Four, I cited to 40 A.L.R. 5th 113, 122 which discusses the type of jury instruction at issue
here. I additionally cited Pachecano v. State, 881 S.W.2d 537 (Tex. App. -- Fort Worth 1994). In Pachecano at 542
there is some discussion of a "spoliation" instruction.
We are of the opinion that he has not adequately briefed this important issue for our consideration. Tex. R. App. P.
74(f). At least one Texas court has apparently rejected a similar instruction in the criminal context. Ray v. State, 749
S.W.2d 939, 944 (Tex. App. San Antonio 1988, pet. ref'd); Franks v. State, 724 S.W.2d 918, 919-20 (Tex. App. San
Antonio 1987, no pet.). Additionally, we know that there is Texas civil case law addressing the spoliation issue that he
has not raised. E.g., Watson v. Brazos Elec. Power Corp., Inc, 918 S.W.2d 639, 642-43 (Tex. App. Waco 1996, writ
denied). Nor has he identified any federal opinions dealing with this issue or any analogous issues. E.g., United States
v. Jennell, 749 F.2d 1302, 1308 (9th Cir. 1985) (citing United States v. Loud Hawk, 628 F.2d 1139, 1146 (9th Cir.
1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980)); see also Loud Hawk, 628 F.2d at 1151,
1153 (Kennedy, J., concurring). He has failed to discuss the relevant Texas statutes, even though similar issues were
raised in the Arizona case he relies upon. E.g., Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1997).
Apparently, he believes that some of the cases discussed in the A.L.R. article referenced are relevant to his arguments
here; he has, however, failed to identify and discuss those out-of-state cases. In sum, we decline to brief this issue for
Reeves. See Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Broxton v. State, 909 S.W.2d 912, 924 n.2
(Tex. Crim. App. 1995); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 852,
114 S.Ct. 154, 126 L.Ed.2d 115 (1993). Thus, we overrule his fourth point.
Having overruled all of Reeves' points, we affirm his conviction.
REX D. DAVIS
Chief Justice
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Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
(Justice Vance concurring)
Affirmed
Opinion delivered and filed December 18, 1996
Do not publish
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