Fred Yazdi v. State ( 2015 )

ACCEPTED
03-13-00794-CR
4973121
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/21/2015 2:43:47 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00794-CR
In the FILED IN
3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
at Austin 4/21/2015 2:43:47 PM
___________________________ JEFFREY D. KYLE
Clerk
No. 12-0204-K26
In the 26th Judicial District Court
Williamson County, Texas
____________________________
FRED YAZDI
Appellant
v.
THE STATE OF TEXAS
Appellee
_____________________________
STATE’S BRIEF IN RESPONSE
_____________________________
Jana Duty
District Attorney
Williamson County, Texas
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
jprezas@wilco.org
ORAL ARGUMENT REQUESTED
i
I. STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, Appellant
has requested oral argument in this case. Therefore, to preserve its right to argue,
the State requests oral argument although the State believes that the facts and legal
arguments are adequately presented in the briefs and record, and that the decision
process would not be significantly aided by oral argument.
II. IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State
wishes to supplement the parties listed in Appellant’s brief as follows:
Presiding Judge at Trial
 The Honorable Bert Richardson (presiding by assignment), 368th Judicial
District Court, Williamson County, Texas.
Attorneys for the State
 Mr. John C. Prezas, Appellate Counsel, Assistant District Attorney for
Williamson County, 405 Martin Luther King, Georgetown, Texas 78626.
ii
 Mr. Daniel Sakaida, Special Prosecutor/Postgraduate Fellow assisting
Appellate Counsel for the Williamson County District Attorney, 405 Martin
Luther King, Georgetown, Texas 78626.
iii
III. TABLE OF CONTENTS
I. STATEMENT REGARDING ORAL ARGUMENT ...................................... ii
II. IDENTIFICATION OF THE PARTIES .......................................................... ii
III. TABLE OF CONTENTS ............................................................................... iv
IV. INDEX OF AUTHORITIES ............................................................................v
V. STATEMENT OF FACTS ................................................................................1
VI. SUMMARY OF THE ARGUMENT ...............................................................2
VII. ARGUMENT ................................................................................................3
A. OUR CURRENT LAW DOES NOT ALLOW FOR A RIGHT TO
PURSUE INSTRUCTION.....................................................................................3
B. APPELLANT IS NOT ENTITLED TO A FAILURE TO PRESERVE
EVIDENCE INSTRUCTION ................................................................................9
1. APPELLANT DOES NOT MEET THE CIVIL STANDARD FOR A
SPOILATION INSTRUCTION ........................................................................9
2. APPELLANT DOES NOT MEET THE YOUNGBLOOD STANDARD
IN CRIMINAL LAW FOR SHOWING A DUE PROCESS VIOLATION ...11
iv
IV. INDEX OF AUTHORITIES
Cases
Arizona v. Youngblood 488 U.S. 51 (1988) ...................................................... 12, 13
Brookshire Bros., Ltd. V. Aldridge, 438 S.W.3d 9 (Tex. 2014) ................... 9, 10, 11
Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.—El Paso 2000, pet. ref’d) ......6
Cisneros v. State, 747 S.W.2d 946, 949 (Tex. App.—San Antonio 1988, no pet.) ..5
Cook v. State, No. 07-98-0296-CR, 1999 Tex. App. LEXIS 3871, at *14-15 (Tex.
App.—Amarillo May 21, 1999, pet. ref’d) (mem. op., not designated for
publication) ............................................................................................................5
Fonseca v. State, No. 04-03-00398-CR 2004 Tex. App. LEXIS 9916 at *9-10,
(Tex. App.—San Antonio Nov. 10, 2004, pet dism’d) (mem. op., not designated
for publication).......................................................................................................7
Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex. Crim. App. 1998) .......................6
Hunter v. State, 137 Tex. Crim. 289, 295, 128 S.W.2d 1176, 1180 (1939) ..............3
McGowan v. State, 188 S.W.3d 239, 241-242 (Tex. App.—Waco 2006) ................7
Philen v. State, 683 S.W.2d 440, 445 (Tex. Crim. App. 1984) .................................4
v
See Whipple v. State, 281 S.W.3d 482, 503-04 (Tex. App.—El Paso 2008) ............6
Smith v. State, 411 S.W.2d 548, 553 (Tex. Crim. App. 1967) ..................................3
Taylor v. State, 947 S.W.2d 698, 705 (Tex. App.—Fort Worth 1997, no pet.) ........5
Thompson v. State, 101 Tex. Crim. 587, 593, 276 S.W. 699, 702-03 (1925) ...........3
United States v. Silva, 714 F.3d 1168 (9th Cir. 2013) ..............................................12
Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007) ...............................7
Wingate v. State, No. 14-97-00096-CR, 1999 Tex. App. LEXIS 3768, at *13-14
(Tex. App.—Houston [14th Dist.] May 20, 1999, pet. ref’d) (mem. op., not
designated for publication) ....................................................................................7
Statutes
Acts 1973, 63rd Leg., ch. 399 (S.B. 34), § 1, effective January 1, 1974...................3
Tex. Penal Code §9.31 ...............................................................................................3
vi
TO THE HONORABLE COURT OF APPEALS:
V. STATEMENT OF FACTS
Because Appellant’s recitation of the facts is missing certain facts the State
believes are crucial to a proper analysis of this case, the State offers the following
supplement.
As described in Appellant’s brief, Appellant’s trial counsel cross-examined
the State’s witnesses vigorously regarding the very failure to collect evidence
about which Appellant now complains. Despite the trial court’s denial of the
requested jury instruction, Appellant’s trial counsel spent a significant portion of
his closing arguments to the jury addressing his cross-examination on this issue
and the implications of the steps Appellant and his counsel(s) believe should have
been taken. R.R. vol. 13 p. 47, 56, 60-62.
Further, after cross examination about a failure to collect fingerprints from
various surfaces, Detective Jennings testified on re-direct that it was raining the
night of the murder, making it impossible to fingerprint various areas since the
fingerprinting process uses powders to detect oils from human skin. R.R. vol. 10
p. 230-231. Detective Jennings also testified that swabs were taken of certain
stains about which Appellant’s attorney asked and those swabs were not positive
1
for blood. R.R. vol. 10 p. Detective Jenning did concede on cross-examination that
there were some places at the scene, such as the wood, doorknob, windows, and
under the car, that were dry, could have been examined for fingerprints or fibers
and were not. R.R. vol. 10 p. 233-234. Appellant’s trial counsel cross-examined
Detective Israel as well about fibers, bodily oils, and blood spatter evidence that
was not collected. R.R. vol. 11 p. 69-71
Yet, for all of this questioning and arguing, nowhere in the record is there
any evidence to suggest that police acted in bad faith or deliberately chose not to
collect some evidence. No questions or arguments in the record are directed
toward, nor do they reveal, any bad faith or intentional hiding or destruction of any
evidence.
VI. SUMMARY OF THE ARGUMENT
There is no right to pursue under the penal code and special, non-statutory
instructions cannot be included in the court’s charge to the jury. The civil standard
for “spoliation” of evidence does not apply here and Appellant does not meet that
standard even if it did apply. The established rule in criminal law is that failing to
preserve evidence only results in a denial of due process when the defendant can
2
show bad faith on the part of law enforcement. There is no evidence of bad faith in
this case. Therefore, the trial court was correct to deny both requested instructions.
VII. ARGUMENT
A. OUR CURRENT LAW DOES NOT ALLOW FOR A RIGHT TO
PURSUE INSTRUCTION
The two cases Appellant cites for his claim that the jury should have been
instructed on a “right to pursue” the victim in this case, Thompson v. State, 101
Tex. Crim. 587, 593, 276 S.W. 699, 702-03 (1925); Hunter v. State, 137 Tex.
Crim. 289, 295, 128 S.W.2d 1176, 1180 (1939), are outdated and inapplicable.
This Court need not delve into the factual analysis required by these cases
because neither Hunter nor Thompson have any current precedential value. Both
Hunter and Thompson were decided under a now-defunct version of the Penal
Code, with that old version being entirely replaced in 1974 by the version which is
in effect with various amendments to this day. See Acts 1973, 63rd Leg., ch. 399
(S.B. 34), § 1, effective January 1, 1974. The new definition of the justification of
self-defense may be found in Tex. Penal Code §9.31. One of the last cases to
interpret a requested self-defense charge under the old Penal Code was Smith v.
State, 411 S.W.2d 548, 553 (Tex. Crim. App. 1967).
3
After the new Penal Code took effect, the Court of Criminal Appeals
discarded the applicability of Smith and similar cases, stating,
Be that as it may, we need not belabor the facts of this case to
determine the applicability of these cases decided under the former
Penal Code. We observe that appellant's objection and special
requested charge apparently sought to invoke the law of self-defense
regarding the right to shoot and continue to shoot as it existed under
the 1925 Penal Code. No reference is made to the 1974 Penal Code
and its provisions.
Philen v. State, 683 S.W.2d 440, 445 (Tex. Crim. App. 1984).1
The court in Philen upheld the trial court’s refusal to enter a further
instruction on self-defense, stating that it was sufficient to protect the defendant’s
right that the jury was instructed, “in effect that regardless of when or where the
fatal shots were fired, the appellant should be acquitted if he was acting in self-
defense.” Id. Case law after Philen conflated various similar interpretations of
self-defense under the old Penal Code, such as the “right to pursue” and the “right
to continue shooting,” to reach the conclusion that Philen stands for the proposition
that no error exists where the trial court simply instructs the jury generally on self-
defense, without a further instruction on such “rights” under the new Penal Code.
See Cisneros v. State, 747 S.W.2d 946, 949 (Tex. App.—San Antonio 1988, no
1
Part of the Philen opinion rests on the fact that the new penal code, in 1974, required the
defendant to retreat if a reasonable person in his position would have done so, which was a
“drastic change” from the old standards. However, this reasoning appears distinct and not clearly
linked to the adoption of a new standard under the new Penal Code regarding jury instructions.
4
pet.). After Philen, the lower courts viewed such instructions as repetitious to the
general self-defense instruction, and therefore, unnecessary. Id.; see also, as
illustrative of this reasoning, Cook v. State, No. 07-98-0296-CR, 1999 Tex. App.
LEXIS 3871, at *14-15 (Tex. App.—Amarillo May 21, 1999, pet. ref’d) (mem.
op., not designated for publication) (holding that “an instruction informing the jury
that a person who is attacked, or who believes he is under attack, with unlawful
deadly force may respond with deadly force ‘by any means at his command to the
degree that he reasonably believes immediately necessary . . . to protect himself’
sufficiently addresses the matters of ‘right to continue to pursue’ and ‘right to
continue shooting’”).
It is true that the Forth Worth court of appeals reached a different conclusion
in 1997 and relied on Thompson, Hunter, and the prior statute in requiring a “right
to pursue” instruction where the evidence provided a basis for such an instruction.
See Taylor v. State, 947 S.W.2d 698, 705 (Tex. App.—Fort Worth 1997, no pet.).
However, there do not appear to be any decisions citing the Taylor court for that
particular portion of the opinion. Further, the Court of Criminal Appeals has since
held that any defense not recognized by the legislature should not be presented to
the jury.
Furthermore, because the authority to establish what constitutes a
defense rests solely with the Legislature, this Court concludes a
5
defense which is not recognized by the Legislature as either a defense
or as an affirmative defense does not warrant a separate instruction.
Sanders v. State, 707 S.W.2d at 80-81. The term defense should not be
used for an issue that has not been specifically labeled as such by the
Legislature. Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.
1982); Willis v. State, 790 S.W.2d at 315; and Sanders v. State.
Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex. Crim. App. 1998).
At least one appellate court went on to apply this general rule directly to the
“right to pursue:”
With regard to Castaneda's right to arms, right to shoot to scare, and
right to pursue requests, we find the trial court was correct in refusing
any separate instructions. In Giesberg v. State, the Texas Court of
Criminal Appeals held that any defensive theory not recognized or
specifically labeled either a defense or an affirmative defense by the
legislature does not warrant a separate instruction. The Texas Penal
Code recognizes the general defenses of insanity, mistake of fact,
mistake of law, intoxication, duress, entrapment, and age affecting
criminal responsibility. Chapter Nine outlines justifications absolving
a defendant of criminal responsibility, such as public duty, necessity,
self-defense, and defense of third persons. Castaneda has not shown,
nor do we find, that "right to arms," "right to shoot to scare," and
"right to pursue," are defenses recognized by the Texas Penal Code.
Accordingly, under Giesberg, Castaneda was not entitled to such
instructions.
Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.—El Paso 2000, pet. ref’d).
After Giesberg several intermediate appellate courts have also applied this
logic, and some or all of the above precedent, to a variety of requests for jury
instructions in both binding, and merely persuasive, opinions. See Whipple v. State,
281 S.W.3d 482, 503-04 (Tex. App.—El Paso 2008) (denying requested
6
instructions for the "right to arm and seek an explanation," "right to possess arms,"
and "right to continue shooting"); Wingate v. State, No. 14-97-00096-CR, 1999
Tex. App. LEXIS 3768, at *13-14 (Tex. App.—Houston [14th Dist.] May 20,
1999, pet. ref’d) (mem. op., not designated for publication) (denial of requested
jury instruction on “the right to continue stabbing.”); McGowan v. State, 188
S.W.3d 239, 241-242 (Tex. App.—Waco 2006) (denial of requested “right to arm”
jury instruction); Fonseca v. State, No. 04-03-00398-CR 2004 Tex. App. LEXIS
9916 at *9-10, (Tex. App.—San Antonio Nov. 10, 2004, pet dism’d) (mem. op.,
not designated for publication) (agreeing with Geisberg and Castaneda regarding
“right to arm” jury instruction).
Finally, the Court of Criminal Appeals reaffirmed this line of reasoning in
2007, specifically stating that the “policies reflected in the 1974 Penal Code and in
the Giesberg line of cases, persuade us that special, non-statutory instructions,
even when they relate to statutory offenses or defenses, generally have no place in
the jury charge.” Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007).
The Court also made clear that after the 1974 Penal Code was enacted it had
revaluated previous precedent and determined that, “instructions on defensive
theories not set out in the 1974 Penal Code were inconsistent with the Legislature's
7
intent.” Id at 209. The court then cited Giesberg and several of its previous
opinions2 as support for its conclusion that:
in a series of more recent cases, we have held that if the defensive
theory is not explicitly listed in the penal code--if it merely negates an
element in the State's case, rather than independently justifying or
excusing the conduct--the trial judge should not instruct the jury on it.
Id.
Applying these precedents, and the logic behind them, to the instant case
reveals that the requested “right to pursue” is a reformulation of the types of jury
instructions rejected by Texas courts after the enactment of the 1974 Penal Code.
Thus, the requested instruction is unauthorized because it is simply a forbidden
departure from the authorized, existing statutory language regarding self-defense,
which was included in the trial court’s charge to the jury. It would have been
erroneous for the trial court in this case to grant Appellant’s request to instruct the
jury on a claimed “right to pursue.” Therefore, the trial court did not error in
denying Appellant’s request for such a charge.
2
Will. v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) (denying a requested charge on
accident); Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986) (denying a requested
charge on good faith); Barnetet v. State, 709 S.W.2d 650, 652 (Tex. Crim. App. 1986) (denying a
requested charge on alternative cause); Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App.
2001) (denying a requested charge on independent impulse); Ortiz v. State, 93 S.W.3d 79, 92
(Tex. Crim. App. 2002) (denying a requested charge on the question of suicide).
8
B. APPELLANT IS NOT ENTITLED TO A FAILURE TO PRESERVE
EVIDENCE INSTRUCTION
1. APPELLANT DOES NOT MEET THE CIVIL STANDARD
FOR A SPOILATION INSTRUCTION
The Supreme Court of Texas has recently reiterated the standard for
obtaining a jury instruction regarding spoliation of evidence to which Appellant
refers in his brief. See Brookshire Bros., Ltd. V. Aldridge, 438 S.W.3d 9 (Tex.
2014) (wrongful spoliation instruction was an abuse of trial court’s discretion and
cause for reversal). The Supreme Court of Texas did set forth the standard for
obtaining a spoliation instruction as follows:
a spoliation analysis involves a two-step judicial process: (1) the trial
court must determine, as a question of law, whether a party spoliated
evidence, and (2) if spoliation occurred, the court must assess an
appropriate remedy. To conclude that a party spoliated evidence, the
court must find that (1) the spoliating party had a duty to reasonably
preserve evidence, and (2) the party intentionally or negligently
breached that duty by failing to do so.
Id at 14.
The Supreme Court then cautioned as to how extreme a remedy is the
spoliation instruction:
While the spectrum of remedies that may be imposed range from an
award of attorney's fees to the dismissal of the lawsuit, the harsh
remedy of a spoliation instruction is warranted only when the trial
9
court finds that the spoliating party acted with the specific intent of
concealing discoverable evidence, and that a less severe remedy
would be insufficient to reduce the prejudice caused by the spoliation.
This intent requirement is congruent with the presumption underlying
a spoliation instruction—that the evidence would have hurt the
wrongdoer. A failure to preserve evidence with a negligent mental
state may only underlie a spoliation instruction in the rare situation in
which a nonspoliating party has been irreparably deprived of any
meaningful ability to present a claim or defense.
Id.
Thus, even if it were appropriate to apply this standard, arising from civil
law and clearly formulated with civil procedure and civil burdens of proof in mind,
the evidence in this case would not warrant such an instruction. The only evidence
in the record, from both direct and cross examination of the relevant witnesses, is
that the police focused on what they believed to be the most relevant evidence as
they understood it. The fact that law enforcement did not collect some evidence
the defense wishes they had collected does not, in itself, show any kind of
negligence or breach of a duty. Further, as discussed below, precedent from the
Supreme Court of the United States’ analysis of our criminal law and procedure
makes clear the police do not have a duty to collect a particular piece of evidence
that Appellant might wish they had collected.
To the extent that the collected evidence would have been inclupatory,
Appellant benefits from the lack of collection. To the extent that such evidence
10
would have been mitigating or inconsistent with the State’s evidence, or would go
to fit a defensive theory, Appellant’s attorney achieved those goals by cross-
examining the State’s witnesses about this issue and by arguing it to the jury. The
nature of the closing arguments of Appellant’s trial attorney made clear
Appellant’s desire that the jury draw inferences and conclusions favorable to
Appellant from the fact that such evidence was not collected. Even in a civil
courtroom, Appellant would not be entitled to the requested instruction.
2. APPELLANT DOES NOT MEET THE YOUNGBLOOD
STANDARD IN CRIMINAL LAW FOR SHOWING A DUE
PROCESS VIOLATION
The Brookshire opinion contains a lengthy examination of the history and
development of the spoliation law in Texas, not a word of which ever mentions its
applicability in the context of a criminal case. Brookshire Bros., Ltd. V. Aldridge,
438 S.W.3d 9, 16-19 (Tex. 2014). The State is unaware of any case directly
applying the civil spoliation standard in the context of a criminal case. There is a
federal case from the 9th Circuit holding that the negligent destruction of evidence
after a court order issued to preserve it (as opposed to merely failure to collect or
preserve) may warrant a jury instruction. United States v. Silva, 714 F.3d 1168 (9th
11
Cir. 2013) (no showing of bad faith necessary for a jury instruction on destruction
of evidence). Clearly, that case does not apply to these facts.
The appropriate standard applicable here comes from the Arizona v.
Youngblood opinion where the Supreme Court of the United States held that unless
a criminal defendant can show bad faith on the part of law enforcement, the mere
failure to preserve evidence does not rise to the level of a due process of law
violation. Arizona v. Youngblood 488 U.S. 51 (1988)3. The Court in Youngblood
reached this conclusion by distinguishing the standard for failure to preserve
evidence from the standard in failure to disclose evidence under Brady v. Maryland
where it is not necessary to show bad faith to show a constitutional violation. Id.
The Court applied this standard to find that where the police collected clothing and
rectal swabs the night of the sexual offense but failed to refrigerate the clothing
and perform tests for semen samples, the police were, at worst, negligent and thus
there was no due process violation. Id at 58-59.
The fact that the Youngblood court held that bad faith, and not mere
negligence, is required to rise to the level of a due process violation cuts directly
3
It is true that after remand, the Arizona Court of Appeals ruled that Arizona case law and
Arizona Due Process would have required the officers to preserve the semen samples in
question. State v. Youngblood, 164 Ariz. 61 (Ct. App. 1989). However, that opinion was later
overturned by the Arizona Supreme Court, which correctly applied the bad faith test. State v.
Youngblood, 173 Ariz. 502 (1993).
12
against inserting into criminal law the spoliation standard from civil law as
articulated by the Texas Supreme Court in Brookshire, since the latter relies in part
on the civil negligence standard. There appears to be no authority for such an
insertion, apart from Appellant’s desire that this Court do so.
In Youngblood, the Supreme Court of the United States clearly described the
issue with Appellant’s assertions when it said:
The Arizona Court of Appeals also referred somewhat obliquely to the
State’s inability to quantitatively test certain semen samples with the
newer P-30 test. If the court meant by this statement that the Due
Process Clause is violated when the police fail to use a particular
investigatory tool, we strongly disagree. The situation here is no
different than a prosecution for drunken driving that rests on police
observation alone; the defendant is free to argue to the finder of fact
that a breathalyzer test might have been exculpatory, but the police do
not have a constitutional duty to perform any particular tests.
Id at 58-59 (internal citations omitted).
Here, as in Youngblood, the police had no duty to collect the particular
pieces of evidence that Appellant might wish they had. Because there is no
evidence in the record of bad faith, Appellant’s only legally cognizable strategy in
this regard was the one his trial counsel gave him, that of cross-examination and
argument to the jury about the lack of said evidence in the context of the State’s
burden of proof. Thus, the court was correct to deny the requested instruction and
would have erred had it granted Appellant’s request.
13
PRAYER
Wherefore, the State respectfully requests that this Court affirm the
conviction.
Respectfully submitted,
Jana Duty
District Attorney
Williamson County, Texas
/s/ John C. Prezas
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
jprezas@wilco.org
CERTIFICATE OF COMPLIANCE
I certify that, after allowable exclusions, the State’s brief contains 3401
words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.
__/s/ John C. Prezas______________
John C. Prezas
CERTIFICATE OF SERVICE
I certify that a copy of the State’s brief has been e-filed on April 21, 2015,
and sent to the attorney for Appellant, Linda Icenhauer-Ramirez at ljir@aol.com,
via e-service.
_/s/ John C. Prezas_______________
JOHN C. PREZAS
14