author:
PRICE J.,
      COCHRAN, J., HOLCOMB, J.,

text:
    Darrell GRIFFITH, Appellant, v. The STATE of Texas.
    No. PD-1121-04.
    Court of Criminal Appeals of Texas.
    June 29, 2005.
    Randall J. Ayers, Houston, for Appellant.
    Amanda Peters, Asst. District Attorney, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

PRICE J.,

delivered the opinion of the Court,

in which KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The appellant pled guilty without a plea bargain to unlawfully carrying a weapon on a premise that is licensed to sell alcohol, a third-degree felony. The appellant expressly waived his right to the preparation of a presentenee investigation (PSI) report. The trial court deferred adjudication of guilt and placed the appellant on community supervision. Later, the State filed a motion to adjudicate guilt. The trial court found one of the allegations in the motion true. After the trial court decided to proceed with adjudication and before sentencing, the appellant requested the preparation of a PSI report. The trial court denied the request and, after hearing evidence, sentenced the appellant to four years’ imprisonment.

On direct appeal, the appellant complained that Code of Criminal Procedure Article 42.12, Section 9 required that the trial court have a PSI report prepared upon request. The Court of Appeals disagreed and affirmed the appellant’s sentence. It held that (1) the appellant may waive the preparation of a PSI report and (2)the waiver was effective for the sentencing proceedings. We granted review to determine whether the Court of Appeals was correct in holding that the trial court did not err under these circumstances. We affirm the Court of Appeals because, based on the plain meaning of the language in Article 42.12, the appellant could waive his right to the PSI report during the initial plea proceedings and the waiver was effective for the sentencing proceedings.

II. Analysis

To address the appellant’s grounds for review, we will first review Article 42.12, Section 9. In interpreting a statute, we adhere to our cardinal rule of statutory construction: We interpret a statute in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended. In statutory interpretation, we try to give effect to the whole statute, which includes each word and phrase, if possible.

A. A Defendant May Waive the Preparation of a PSI Report

Section 9 directs the trial court to have a community-supervision officer prepare a PSI report before sentencing unless one of the enumerated exceptions apply. The section provides that, unless requested by the defendant in a felony case, the trial court is not required to order the report prepared if

(1) punishment is to be assessed by a jury;
(2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder;
(3) the only available punishment is imprisonment; or
(4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.

In Whitelaw v. State, we interpreted this provision to mean that, in a felony case, the trial court should have a PSI report prepared (1) if the defendant or his attorney request it and (2) if the defendant is eligible for court-ordered community supervision, even if the defendant does not request it.

The section provides two exceptions in a misdemeanor case (1) if the defendant requests that a report not be made and the judge agrees to the request and (2) if the judge finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record. In a misdemeanor case, the trial court have a report prepared unless one of the two exceptions is met.

The appellant argues that these two subsections, when read together, mean that the preparation of a PSI report in a felony case may not be waived if the defendant is eligible for court-ordered community supervision. The Court of Appeals disagreed and cited Code of Criminal Procedure Article 1.14 for the proposition that “the defendant in a criminal prosecution for any offense may waive any right secured to him by law ...” We will address the appellant’s argument.

Section 9 requires a PSI report more often in a felony case than in a misdemean- or case. But, there is nothing in Section 9 that prevents the defendant in a felony case from waiving the preparation of the report. Because the legislature did not address this in Section 9, Article 1.14 controls and allows a defendant to waive the preparation of the report. We hold that a defendant in a felony case may waive his right to the preparation of a PSI report, even when he is eligible for community supervision.

The appellant in this case waived his right to the report during his initial plea. We must determine whether that waiver was effective for the sentencing proceedings.

B. The Appellant’s Waiver Was Effective During the Sentencing Proceedings

The Court of Appeals held that the appellant’s waiver continued and was effective during the sentencing proceedings. It relied on its holding in McClendon v. State. In that case, the Court of Appeals held that, because adjudication proceedings are a continuation of the initial plea proceedings in which the trial court deferred adjudication, a valid waiver of the PSI report at that time continues throughout the later proceedings. McClendon predated legislative changes that we addressed in Whitelaw. The Court of Appeals concluded that, because we did not address deferred adjudication cases in Whitelaw, there was no reason to retreat from its prior holding in McClendon. ,

The appellant acknowledges the Court of Appeals’s holding in McClendon, but argues that the legislative changes and Whitelaw call McClendon into question. He also attempts to distinguish McClen-don on the basis that the trial court in that case had a great deal of information to consider during punishment.

The appellant argues that Section 9 requires that the trial court have the report prepared because he requested it. He cites Buchanan v. State, in which the Texarkana Court of Appeals held that the trial court should have had a PSI report prepared prior to sentencing and after adjudication because none of the exceptions in Section 9 applied in the case.

We note that the appellant’s reliance on Buchanan is misplaced because there is no indication that the defendant in that case waived his right to a PSI report during the initial plea proceedings. The issue in the appellant’s case is what effect, if any, the appellant’s waiver had on the appellant’s later request for the report. Buchanan is not persuasive authority that applies to the facts in the appellant’s case.

The State argues that Whitelaw does not apply to the appellant’s case because it does not address or purport to overrule the line of cases dealing with deferred adjudication proceedings. The State cites cases from four of the Courts of Appeals that have explicitly addressed the issue and have held that a request for a PSI in the context of a felony adjudication hearing is different than in traditional felony proceedings. According to the State, the reasoning in those cases follows the reasoning of the Court of Appeals in this case. These cases predate our opinion in White-law.

Once agáin, our inquiry begins with a review of Section 9. The relevant portion of Section 9 says that:

Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case, ... the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. It is not necessary that the report contain a sentencing recommendation, but the report must contain a proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.

The statute directs the trial judge to have the report prepared before the imposition of the sentence. It also dictates that the report must contain a proposed plan for community supervision in the event that the trial court suspends the defendant’s sentence and places him on community supervision. We must interpret this section in the context of all of Article 42.12.

Strictly speaking, when the trial court defers adjudication and places the defendant on community supervision, it has not imposed a sentence, even though the defendant is placed on community supervision. According to Article 42.12, Section 5(b), the case stops just before the trial court finds the defendant guilty. “After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” The sentence is imposed only after the trial court revokes deferred-adjudication community supervision and adjudicates the defendant guilty. Functionally, it is all one proceeding, and if the trial court decides to adjudicate guilt, the proceedings continue as if no time had elapsed between the plea and the sentencing.

In Whitelaw, we held that the legislature’s changes to Article 42.12, Section 9 indicated that the trial courts were required in felony cases to have a PSI prepared unless one of the statutory exceptions applied. These changes did not affect the nature of deferred adjudication proceedings, however.

We agree with the Court of Appeals in this ease. Because the initial plea and the adjudication and sentencing were really one legal proceeding, the appellant’s waiver continued to be effective. This interpretation is not ambiguous and does not «oduce absurd results. The legislature Bad not require a PSI report every time there is an option to place a defendant on community supervision, and it is not an absurd result that a defendant’s waiver in one portion of a single proceeding remain in effect during another part of the proceeding. We hold that the appellant’s waiver remained effective after adjudication occurred.

We are mindful that a new PSI report when a defendant is eligible for regular community supervision (upon revocation of deferred adjudication community supervision) would probably be helpful to the trial court in assessing punishment. A defendant may be put on deferred-adjudication community supervision for a period of up to ten years. A lot can happen during that time, and it would be helpful for the trial court to have information to determine whether community-based options are appropriate in a given case.

We want to make clear that we are not holding that the trial court was unauthorized to have a PSI report prepared in this case. We are holding that the plain meaning of the language of Section 9, when read in the context of the entirety of Article 42.12, does not require that the trial court have a report prepared under the circumstances of this case.

III. Conclusion

We conclude that the Court of Appeals was correct in holding that the trial court did not err in this case. We affirm the judgment of the Court of Appeals.

COCHRAN, J., filed a concurring opinion.

HOLCOMB, J., filed a dissenting opinion.

COCHRAN, J.,

concurring.

I join the majority opinion. I add these comments only to suggest that the defendant at a motion to adjudicate or motion to revoke probation hearing normally does not need a presentence investigation (PSI) report. The probation officer will almost always be a testifying witness in the courtroom. All of the topics that might usefully be included in a written PSI may be addressed by the probation officer on the witness stand. Additional evidence may be offered by the live testimony of defense witnesses or the defendant.

Article 42.12, section 9, of the Texas Code of Criminal Procedure sets out the topics that should be addressed in a written PSI report:

• the circumstances of the underlying offense;
• the amount of restitution;
• the criminal and social history of the defendant;
• any other information relating to the defendant or the offense requested by the judge;
• a description of community supervision programs and sanctions available to the defendant.

These topics may be fully addressed by the probation officer and other witnesses who are all subject to cross-examination and appropriate inquiry by the trial court during a motion to adjudicate hearing.

A defendant is entitled to present mitigating evidence during the hearing on the motion to adjudicate. If a defendant wishes to present any evidence that would normally be included in a PSI report, this is the time and place to do so.

In this case, appellant expressly waived his statutory right to a written PSI report during the original plea hearing. He did not, however, thereby waive his right to present mitigating evidence, including the type of information normally included in a PSI report, during the motion to adjudicate hearing. But appellant does not argue or demonstrate that the trial court prevented him from offering any such testimony at the hearing. With these comments I join the majority opinion.

HOLCOMB, J.,

dissenting.

I respectfully dissent. I would hold that the trial court erred in not ordering preparation of a presentence investigation report (PSI), that appellant’s request for a PSI preserved the trial court’s error for appellate review, and that this case should be remanded to the court of appeals for a harm analysis.

The relevant facts are as follows. On June 6, 2001, a Harris County grand jury presented an indictment that charged appellant with unlawfully carrying a weapon on premises where alcoholic beverages were sold. See Tex. Pen.Code § 46.02. The offense alleged was a third-degree felony. On August 17, 2001, appellant pled guilty to the offense alleged, and on that same day the trial court deferred an adjudication of guilt and placed appellant on community supervision for three years. See Tex.Code Crim. Proc. art. 42.12, § 5(a). At the time appellant pled guilty, he purported, in writing, to “waive any right” that he might have to the preparation of a PSI. See Clerk’s Record at 12.

On June 6, 2002, the State filed a motion to revoke appellant’s community supervision and adjudicate his guilt of the primary offense. In its motion, the State alleged that appellant had violated the terms of his community supervision by, among other things, unlawfully possessing a controlled substance. On January 27, 2003, the trial court heard evidence on the State’s motion and found that appellant had, in fact, violated the terms of his community supervision. Immediately thereafter, appellant requested the preparation of a PSI, but the trial court denied the request without providing a clear explanation for the denial. Immediately after that, the trial court adjudicated appellant guilty of the primary offense and sentenced him to imprisonment for four years.

On direct appeal, appellant, citing Article 42.12, § 9, of the Texas Code of Criminal Procedure, argued that the trial court erred in denying his request for a PSI:

The Texas Code of Criminal Procedure clearly requires that before the imposition of sentence in a felony case, a PSI report must be prepared and submitted to the trial judge for consideration. The only time such a report is not required to be prepared [in a felony case] is when it is not requested by the defendant and either punishment is to be assessed by a jury, or in a capital murder case, or when the only available punishment is imprisonment, or where there is a plea bargain for imprisonment which the judge intends to follow. Significantly, while a defendant may statutorily waive the preparation of a PSI report in a misdemeanor case, no such waiver is provided in a felony case.

(Emphasis in original; citations omitted.)

The Fourteenth Court of Appeals rejected appellant’s argument, holding that, in accordance with Article 1.14 of the Texas Code of Criminal Procedure, he “waived his right” to a PSI at the August 17, 2001, plea proceeding and that that waiver “also applie[d] to the [January 27, 2003] punishment hearing.” Griffith v. State, 135 S.W.3d 337, 338 (Tex.App.-Houston [14th Dist.] 2004). This Court now affirms the court of appeals’ holding and reasoning.

I agree with appellant and conclude that the trial court erred in denying the request for a PSI that he made at the January 27, 2003, hearing. Appellant never “waived” his “right” to a PSI. By its plain terms, Article 42.12, § 9, does not create a “right” that can be “waived” by a criminal defendant. Rather, the article is a directive from the Legislature to trial courts that PSI’s are mandatory in felony cases except in very limited circumstances, none of which apply to this case. Indeed, under the article, a defendant in a felony case can not even request that a PSI not be made, although a defendant in a misdemeanor case can request that a PSI not be made. See generally G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure §§ 38.177 (2d ed.2001). As we stated in Whitelaw v. State, 29 S.W.3d 129, 134, under Article 42.12, § 9, “a PSI is now mandatory in all criminal cases unless one of the statutory exceptions is satisfied, and for felony cases, no statutory exceptions apply if the defendant timely requests a PSI.” Whether this is good public policy is not for us to decide; it is the law.

In my view, the Legislature could not have been clearer when it drafted Article 42.12, § 9. I think we have to follow the statute as written. Because the majority does not do so, I respectfully dissent.

      . Griffith v. State, 135 S.W.3d 337, 340 (Tex.App.-Houston [14th Dist.] 2004).

      . Id. at 339-40. The Court of Appeals also held that a defendant may not withdraw his waiver of the PSI report. Because the appellant does not challenge this holding, we will not address it.

      . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

      . Nguyen v. State, 1 S.W.3d 694, 696 (Tex.Crim.App.1999).

      . Tex.Code Crim. Proc. Art. 42.12, § 9(a).

      . Tex.Code Crim. Proc. Art. 42.12, § 9(g).

      . Whitelaw v. State, 29 S.W.3d 129, 131-32 & n. 13 (Tex.Crim.App.2000).

      . Tex.Code Crim. Proc. Art. 42.12, § 9(b).

      . Griffith, 135 S.W.3d at 339 (citing Tex.Code Crim. Proc. Art. 1.14(a)).

      . 784 S.W.2d 711 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd).

      . Id. at 713. Accord Daniel v. State, 877 S.W.2d 75, 77 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d).

        . Griffith, 135 S.W.3d at 339.

      . McClendon, 784 S.W.2d at 714. In White-law, we explained that the amount of information the trial court had received from a full punishment hearing did not exempt the trial court from Section 9's requirements, though it might have an impact on the finding of harm in the event that the trial court erred. Whitelaw, 29 S.W.3d at 132.

      . 68 S.W.3d 136 (Tex.App.-Texarkana 2001, no pet.).

      . Id. at 139. The Court of Appeals also held that Buchanan did not preserve error and that he was not harmed. Id. at 140.

      . Id. at 138.

      . The State cites Fisher v. State, Nos. 05-96-01968-CR & 05-96-01969-CR, 1999 WL 652499, 1999 Tex.App. LEXIS 6483, (Tex.App.-Dallas 1999, no pet.) (not designated for publication); Guzman v. State, 923 S.W.2d 792, 798 (Tex.App.-Corpus Christi 1996, no pet.); Daniel, 877 S.W.2d at 76-77; McClendon, 784 S.W.2d at 711.

      . TexCode Crim Proc Art. 42.12, § 9(a).

      . Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004).

      . Tex.Code Crim. Proc. Art. 42.12, § 5(b).

      . Ibid.

      . Whitelaw, 29 S.W.3d at 134.

      . The defendant may always issue a subpoena to ensure that the probation officer is present with his file and prepared to testify to the defendant's probation record and suitability for community-based programs.

      . See Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984) ("Fairness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of probation’ and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity”); see also Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992) (per curiam) (holding that "when a trial court finds that an accused has committed a violation as alleged by the State and adjudicates a- previously deferred finding of guilt, the court must then conduct a second phase to determine punishment”; under art. 42.12, § 5(b), "the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence”) (emphasis in original); but see Hardeman State, 1 S.W.3d 689, 690-91 (Tex.Crim.App.1999) (stating that Issa does not require separate sentencing hearing after a defendant’s guilt has been adjudicated if the defendant was provided an opportunity during the adjudication hearing to present mitigating evidence).

      . The relevant portion of the hearing on the motion to adjudicate proceeded as follows:
      Defense Counsel: We would request a PSI. The court does have discretion to grant one. The State: State is opposed, Your Honor.
      Trial Court: I think that's probably inappropriate with the number of matters we had and the fact that the earlier times [sic], so I would decline that request for a PSI at this time.


source: Caselaw Access Project

author: HERVEY, J.,

license: Public Domain

text:
    Ex parte Steven DUNLAP, Applicant.
    No. AP-75028.
    Court of Criminal Appeals of Texas.
    June 29, 2005.
    David B. Frank, Austin, for Appellant.
    Holly E. Taylor, Asst. District Attorney, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

Tex. Gov’t Code § 501.0081 requires an “inmate who alleges that time credited on the inmate’s sentence is in error” to first present this claim to the Texas Department of Criminal Justice (TDCJ) office of time credit resolution. See Ex parte Stokes, 15 S.W.3d 532, 532-33 (Tex.Cr.App.2000). Applicant was incarcerated in a county jail awaiting transfer to the TDCJ to serve a 3-year sentence for an indecency with a child conviction when he filed a habeas corpus application in the convicting court seeking more than 3 years of time-credit on this sentence. We filed and set this case and also ordered the parties to brief the issue of whether an applicant, “who is in county jail awaiting transfer to the [TDCJ] when he files an application, is an ‘inmate’ for purposes of [§ 501.0081] and, thus, subject to its administrative exhaustion requirement.” The TDCJ also accepted this Court’s invitation to submit a brief on this issue.

The TDCJ claims that applicant is not an “inmate” for purposes of § 501.0081 because he was not in TDCJ custody when he filed his writ. The TDCJ claims that the term “inmate” in § 501.0081 is ambiguous and that its legislative history is not instructive on the issue. The TDCJ also asserts that it implemented § 501.0081 through its Administrative Directive AD-04.83 with the assumption that the procedures set out in AD-04.83 would apply only to inmates in TDCJ’s custody. Applicant claims in a reply letter brief that this Court should defer to this administrative determination by the TDCJ. See Tex. Gov’t Code § 311.023(6) (in construing ambiguous or nonambiguous statute, a court may consider the administrative construction of the statute); Tarrant Appraisal District v. Moore, 845 S.W.2d 820, 823 (Tex.1993) (construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute).

In Russell, we decided that an applicant, who was on mandatory-supervision release when he filed a writ containing a time-credit claim, was not an “inmate” for purposes of § 501.0081. See Russell, 60 S.W.3d at 876-77. Russell applied familiar rules of statutory construction and gave effect to the plain meaning of the term “inmate” by referring to other legislative provisions using this term and to its general legal definition as a “person confined to a prison, penitentiary, or the like.” See id.

This approach supports a decision that the term “inmate” in § 501.0081 is not ambiguous and that it plainly applies to applicant. Tex. Gov’t Code § 508.081(2)(C)(I) defines “inmate,” for purposes of representation of inmates, as a person confined in a county jail awaiting transfer to the TDCJ. See Russell, 60 S.W.3d at 877 n. 2. Tex. Pen.Code § 38.06(c)(2) makes it a third-degree felony for a person to escape from a “secure correctional facility” whose definition includes a county jail and a TDCJ confinement ' facility. See Tex. Pen.Code § 1.07(a)(45)(A),(B). Webster’s II New College Dictionary defines the term “inmate” as one “confined to an institution, as a prison or hospital.” See Webster’s II New College Dictionary 570 (1995); see also Russell, 60 S.W.3d at 877 (“inmate” is a “person confined to a prison, penitentiary, or the like”). This dictionary includes the terms “jail” and “penitentiary” in its definition of the term “prison.” See Webster’s II New College Dictionary 880 (1995) (also defining “prison” as a “place for confining people awaiting trial or for punishment after trial and conviction” and as “an institution for confining people convicted of major crimes”). The Roget’s Desk Thesaurus also includes the term “jail” in its list of synonyms for “penitentiary” and “prison.” See Roget’s Desk Thesaurus 395, 419 (2001). We conclude that applicant is an “inmate” for purposes of § 501.0081.

The writ is, therefore, dismissed. See Stokes, 15 S.W.3d at 533.

      . See Ex parte Russell, 60 S.W.3d 875, 877 n. 4 (Tex.Cr.App.2001) (applicant’s status at the time of filing the writ controls).

      . However, our review of AD-04.83 indicates that it is ambiguous on whether it applies to someone like applicant. For example, AD-04.83 does not clearly express a policy that someone like applicant is not considered an "inmate” for purposes of § 501.0081. And, its express definition of "offender” literally includes such a person. "Offender” is defined in AD-04.83 as:
      "Offender” is a person who was convicted of an offense and sentenced to the TDCJ whether incarcerated pursuant to a warrant of arrest, parole violator warrant, or proclamation of revocation and warrant of arrest.


author: HOLCOMB, J.,

text:
    John Anthony SAENZ, Appellant, v. The STATE of Texas.
    No. PD-61-04.
    Court of Criminal Appeals of Texas.
    June 29, 2005.

      Roderick B. Glass, San Antonio, for Appellant.
    Daniel Thornberry, Asst. District Attorney, San Antonio, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HOLCOMB, J.,

delivered the opinion of the Court, in which

KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, and COCHRAN, JJ., joined.

Appellant had agreed to sell an amount of cocaine for a supplier but. ended up consuming most of it in a three-day drug binge. When appellant’s supplier found out that appellant had consumed most of the cocaine, he went to appellant’s house with two companions. Anticipating trouble, appellant had two armed cohorts laying in wait. Appellant allowed the supplier and his companions into the home. The supplier demanded either the money for the cocaine or the cocaine. Appellant gave him what was left of the cocaine. Believing that the supplier had given a signal to his companion, appellant then alerted his two cohorts, and they shot and killed all three victims — appellant shot the supplier, and appellant’s cohorts shot the supplier’s companions.

Appellant was charged with capital murder in a three count indictment. Each count alleged the murder of a different victim, and each count alleged the murder of the two other victims as aggravating circumstances. The jury convicted appellant of three counts of capital murder. Under each count, the jury found that appellant would not be a future danger and imposed life imprisonment for each count.

On direct appeal, appellant complained that the three convictions of capital murder violated his right against the imposition of multiple punishments under the Fifth Amendment’s double jeopardy clause. The court of appeals agreed and acquitted appellant of the two capital murders based on party liability (the capital murder convictions of the supplier’s companions) but upheld appellant’s conviction of the capital murder of the supplier, whom appellant himself had shot to death. Saenz v. State, 131 S.W.3d 43, 53 (Tex. App.-San Antonio 2003). We granted the State’s petition for discretionary review on the following single question: “Did the Court of Appeals err in holding that the appellant had been subjected to multiple punishments for the same offense in violation of the Double Jeopardy clause, when separate judgments for the offense of capital murder were entered for each victim of a multiple murder committed in the same criminal transaction?” We hold that the court of appeals did not err.

Discussion

The Double Jeopardy Clause protects against multiple punishments for the same offense. U.S. Const, amend. V; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds by, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865(1989). The Fifth Amendment’s multiple punishments prohibition is violated when a defendant “is eonvieted of more offenses than the legislature intended.” Ex Parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App.1999) (citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740(1985)).

The Legislature is endowed with the power to establish and define criminal offenses. Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.Crim.App.1999). The Double Jeopardy Clause puts little, , if any, limitation on this power. Id. In determining whether a particular course of conduct involves one or more distinct offenses under a single statute, we must ascertain the “allowable unit of prosecution” under the statute. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Hawkins, 6 S.W.3d at 556. Thus, our task here is to decide whether the Legislature intended that three “units of prosecution” be charged under the capital murder statute. See Hawkins, 6 S.W.3d at 556-57.

The relevant factors to be considered in determining the legislative intent concerning the allowable unit of prosecution are statutory construction, see id. at 559, and whether the statute’s legislative history expresses an intent to treat the crimes as the same offense rather than separate and severally punishable offenses. See Ervin, 991 S.W.2d. at 814.

Statutory Construction

A plain reading of Penal Code § 19.03(a)(7)(A) shows that, at a minimum, one intentional or knowing murder is required under Penal Code § 19.02(b)(1), and that one additional murder be committed during the same criminal transaction. Tex. Pen.Code Ann. § 19.03(a)(7)(A). Thus, in order to violate Section 19.03(a)(7)(A) and be subject to capital punishment, a defendant must kill “more than one person.” Id. Unlike other violent offenses, for which the allowable unit of prosecution is each individual victim, see Phillips v. State, 787 S.W.2d 391, 394-95 (Tex.Crim.App.1990)(assault), ex Parte Rathmell, 717 S.W.2d 33, 36 (Tex.Crim.App.1986)(voluntary manslaughter), the capital murder statute under subsection (a)(7)(A) requires, at minimum, two victims. Thus, an accused may not be charged under the capital murder statute absent “more than one” homicide.

We have said, “[a]s a predicate to charging capital murder, the Penal Code requires that a defendant commit murder as defined under Section 19.02(b)(1).” Graham v. State, 19 S.W.3d 851, 853 (Tex.Crim.App.2000). “The predicate murder is then aggravated to capital murder where any one of eight additional circumstances are [sic] present.” See id. With the exception of the circumstance listed in Section 19.03(a)(7)(B) (multiple murders comr mitted during different transactions but as part of the same course of conduct), which was added to the Code along with Section 19.03(a)(7)(A), all other cases in which capital murder may be charged allow for the charging of a single capital murder per circumstance, as they all may apply in situations where only one -victim has been killed. The aggravating circumstance for a capital murder prosecution under Section 19.03(a)(7)(A), however, is the murder of “more than one person during the same criminal transaction.” Tex. Pen.Code Ann. § 19.03(a)(7)(A). Thus, in order to invoke Section 19.03(a)(7)(A) at all, two murders must have been committed. The commission of at least one murder, then, which is in addition to the predicate murder, is the aggravating circumstance required by Section 19.03(a)(7)(A). Just as the clear allowable unit of prosecution under Section 19.03(a)(8) is the murder of one individual under six years of age, the allowable unit of prosecution for Section 19.03(a)(7)(A) is the commission of any additional murders. Thus, we conclude the statute reflects that the killing of at least two persons allows the State to charge a single count of capital murder under Section 19.03(a)(7)(A).

Legislative History

The present version of Section 19.07(a)(7)(A) is the result of Texas House Bill 8, 69th Leg., R.S. (1985) [hereinafter H.B. 8]. H.B. 8 was the legislative response to the State’s inability to seek the death penalty as punishment for the concomitant murders of six Dallas nightclub patrons by Abdelkrim Belachheb. See Hearing on Tex. H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985). The “glaring loophole” in the Penal Code sought to be closed by H.B. 8, was the inability of the State to seek the death penalty against Belachheb and other mass murderers. See id.

The legislative record does not suggest that, in addition to creating a means for the State to seek the death penalty against mass murderers, H.B. 8’s authors intended to create a means for the State to seek multiple death penalties against mass murderers. Rather, much of the legislative commentary on the bill focused on the Legislature’s goal of making it possible for the State to execute mass murderers.

In their discussion of the bill’s purpose, its authors and supporters also shed light on their view of the allowable unit of prosecution under the statutory change to be enacted by H.B. 8. Throughout House and Senate floor debates and committee hearings, the rhetoric of H.B. 8’s co-authors and supporters belies an understanding that the statute would allow for more than one capital murder charge per criminal transaction, regardless of the number of victims killed. For example, during a Senate floor debate, an unidentified Senator characterized the bill as an “attempt to punish the very serious offense of multiple killings.” See Senate Floor Debate on H.B. 8, April 1, 1985. Clearly then, H.B. 8’s supporters understood the statute to allow for a single capital murder prosecution when the allowable unit of prosecution of “more than one” murder was met.

Holding

The most reasonable interpretation of the statute and its legislative intent is that, under the circumstances presented here, the statute allows only a single capital murder conviction. Accordingly, we hold that the Double Jeopardy Clause of the Fifth Amendment was violated when, the State charged appellant with three separate counts of capital murder under Section 19.03(a)(7)(A) because the charges rely on the same three murders for each charge. We affirm the judgment of the court of appeals.

HERVEY, J., did not participate.

      . See Tex. Pen.Code §§ 19.03(a)(l-6, 8) (defining eight other aggravating circumstances that would otherwise constitute intentional or knowing murder under Section 19.02(b)(1), but may be charged as capital murder; i.e., murder of an on-duty peace officer or firefighter, murder committed in the course of the commission of certain other offenses, murder for hire, murder during escape from prison, murder by a prisoner of a prison employee or as part of the activities of a prison gang, murder of a prisoner by certain other prisoners, and murder of a child under six years of age).

      . See Belachheb v. State, 699 S.W.2d 709 (Tex. App.-Fort Worth 1985)(pet.refd).

      . Testifying before the House Committee on Criminal Jurisprudence in support of H.B. 8, the Belachheb trial prosecutor explained that the citizens of Dallas were dissatisfied with Belachheb’s life sentences because they had "wanted to see the price paid” for Belach-heb’s crimes. Hearing on Tex. H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985)(testimony of Dallas County Assistant District Attorney Rider Scott).

      . (bill introduction by Committee Chair Rep. Terral Smith).

      . Senator Parmer, the bill’s co-sponsor, told his colleagues on the Senate Criminal Justice Committee that "it makes no sense at all to have capital punishment for anybody unless you’re going to apply that supreme penalty for the person who takes multiple lives.” See Hearing on Tex. H.B. 8 before the Senate Comm, on Crim. Justice, 69th Leg. (March 26, 1985). Also, when H.B. 8’s co-author presented his bill to the House Criminal Jurisprudence Committee, he emphasized that the goal of the legislation was to insure that "if a person murders more than one person, they at least ought to be eligible for the death penalty.” See Hearing on H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985)(speech of Rep. Tony Polum-bo); see also, Debate on H.B. 8 on the Floor of the House of Representatives, 69th Leg., R.S. (March 11, 1985) ("All we simply do with House Bill 8 is say that any person that's committed of [sic] a multiple murder such as mass murders ... should at least be eligible for the death penalty.”) (speech of Rep. Tony Polumbo).

      . Similarly, testifying before the House Criminal Jurisprudence Committee, George Lam-bright, a Harris County Assistant District Attorney, spoke of a case in Houston in which four members of a family were murdered during the same incident. According to Lam-bright, "that murder does not fit within one of the enumerated sections within our current capital murder statute that would elevate that offense to capital murder.” Hearing on Tex. H.B. 8 before the House Crim. Jur. Comm., 69th Leg., R.S. (Feb. 11, 1985) (testimony of Harris County Assistant District Attorney George Lambright).


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    Jose PENA, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00109-CR.
    Court of Appeals of Texas, Waco.
    April 27, 2005.

      Frank Blazek, Smither, Martin & Henderson, Huntsville, for appellant.
    Ray Montgomery, Leon County Dist. Atty., Centerville, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Jose Pena was charged with possession of marihuana. Before trial, Pena requested an independent analysis of the evidence. Thereafter, it was discovered that the alleged marihuana had been destroyed and all records documenting the testing of the evidence were lost excepting a lab report. The trial court denied Pena’s motion to suppress the lab report, and Pena was convicted.

Because we conclude that the due course clause of the Texas Constitution provides a greater level of protection with respect to lost or destroyed evidence than does the United States Constitution, we will reverse and remand, even though the record contains no evidence of bad faith on the part of the law enforcement officials involved in Pena’s case.

Pena argues that (1) the trial court erred by denying his motion to suppress the lab report; (2) the trial court erred by denying his motion for new trial based upon his counsel’s failure to assert a speedy trial claim; (3) his trial counsel provided ineffective assistance by failing to assert a speedy trial claim; (4) the trial court erred by denying his motion for new trial based upon his counsel’s failure to request a jury instruction on mistake of fact; (5) his trial counsel provided ineffective assistance by failing to request a jury instruction on mistake of'fact; and (6) he was denied due process because the State failed to provide an accurate copy of a videotape depicting the circumstances of his stop and arrest.

Destruction of Evidence and Missing Files

Pena argues in his first issue that he was denied due process and due course of law because the trial court erred by denying his motion to suppress.

In September 1998, State Trooper Mike Asby stopped Pena for a traffic violation. When Asby approached the vehicle, he smelled the odor of raw marihuana. Asby looked inside Pena’s van and saw freshly cut marihuana covering the entire cargo area. Though Pena repeatedly told Asby that the plant material was not marihuana, Asby arrested Pena. In the patrol ear, Pena again claimed that the plants were not marihuana and asked Asby to make sure that the plants were tested for marihuana in a lab. Asby took the plants to Charles Mott, who tested them and reported in February 1999 that the plant material yielded 28.46 pounds of usable marihuana.

In March 2002, Pena filed a motion to independently examine the plant material, which the trial court granted. Thereafter it was discovered that the plant material and all records relating to the material had been destroyed. All that remained was a lab report stating that the plant material was marihuana, signed by Mott, and sent from the lab to Asby.

Subsequently, Pena filed a motion to suppress Mott’s report. At a pre-trial hearing on Pena’s motion, Mott testified that he personally tested the material and found that it was 23.46 pounds of marihuana. Yet, he was unable to recall the material’s weight from memory, how the material was contained, or how he took samples for testing. He also could not recall when it was tested.

Based upon a computer entry, Mott testified that he received a notice to dispose of the evidence in February of 2000 and that it was entirely destroyed in March of that year. However, Mott conceded that he did not know who sent the notice and stated that not only was the plant material destroyed, but the entire file containing the notice to destroy, the original worksheet, reports, letters, and submission forms was lost. He admitted that this had never occurred before or since, but he attributed the cause of the missing files to his lab’s recent move to a new building.

The trial court took judicial notice of the fact that there was no destruction order from the trial court in the clerk’s file. The district attorney, Ray Montgomery, testified that he did not order or sign an order for the destruction of the evidence. Asby, the only other person that Mott believed could have requested the destruction, testified that he did not remember signing such an order.

Pena argued to the trial court that the report, and all testimony concerning the report, should be suppressed because the destruction of the marihuana violated his due process rights guaranteed by the United States and Texas Constitutions. The trial court denied Pena’s motion.

The Youngblood Standard

The loss or destruction of exculpatory evidence can deny a criminal defendant due process of law under the Fourteenth Amendment. U.S. Const, amend. XIV. Therefore, the State has a duty to preserve exculpatory evidence. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984); Jackson v. State, 50 S.W.3d 579, 588-589 (Tex.App.-Fort Worth 2001, pet. refd). However, this duty is limited to evidence that (1) possesses an- exculpatory value that was apparent before the evidence was destroyed and (2) is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 488-89, 104 S.Ct. at 2534; McDonald v. State, 863 S.W.2d 541, 543 (Tex.App.Houston [1st Dist.] 1993, no pet.).

Once the duty to preserve is established, we then turn to the standard articulated by the United States Supreme Court in Arizona v. Youngblood. 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In 1985, a ten year old boy was abducted and molested. Id. at 52, 109 S.Ct. at 334. Swabs of blood and semen samples were preserved, but the boy’s clothing which also contained samples was not. Id. at 53, 109 S.Ct. at 335. The boy identified Youngblood as his attacker, and he was arrested. Id. The tests on the preserved samples proved inconclusive, and Young-blood was convicted on the boy’s identification alone. Id. at 54, 109 S.Ct. at 335. Youngblood argued to the Arizona Court of Appeals that he was denied due process because the police did not preserve the evidence on the boy’s clothing. Id. The Court agreed, reversed his conviction, and the Arizona Supreme Court denied the State’s petition. Id. at 55, 109 S.Ct. at 336.

The United States Supreme Court reversed the Arizona Court of Appeals, holding that a defendant must show bad faith on the part of the police in order for a court to find that the destruction of potentially useful evidence is a denial of due process. Id. at 58, 109 S.Ct. at 337. Following Brady, the Court reasoned that if the destroyed evidence is material and exculpatory, then whether the evidence was destroyed in good or bad faith is irrelevant. Id. at 57, 109 S.Ct. at 337 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963)). However, if the destroyed ■ evidence is merely “potentially useful,” the accused must show that the State acted in bad faith when it failed to preserve the evidence in order to show a violation of due process of law. Id. at 58, 109 S.Ct. at 337; Jackson, 50 S.W.3d at 588-589. Furthermore, if evidence is destroyed in good faith and in accord with normal police procedures, there is no due process violation. See Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533.

Justice Stevens in his concurring opinion stated that while he agreed that Young-blood was not denied due process, he disagreed with the rule of law set forth by the majority as too broad. Youngblood, 488 U.S. at 60-61, 109 S.Ct. at 339. “In- my opinion, there may well be cases in which the defendant is unable to prove that the State acted in bad faith, but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” Id. Justice Stevens’s concerns about the fundamental fairness of the proceedings was soon echoed by states choosing to reject the Youngblood standard when interpreting their respective due process clauses. Likewise, we will decide whether the Youngblood analysis applies to the due course clause of the Texas Constitution.

The Due Course Clause of the Texas Constitution

The Texas constitution must be interpreted independently of the U.S. Constitution. Hulit v. State, 982 S.W.2d 431, 437 (Tex.Crim.App.1998). In doing so, it may be found that the Texas Constitution’s protections are greater, lesser, or the same as those offered by the federal constitution. See Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991) (stating Texas constitution is not dependent on federal constitution for purposes of search and seizure protections); Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Crim.App.1986) (construing the Texas right against self-incrimination more broadly than .the correlative federal provision, but restricting this holding to the specific issues before the court). Indeed, “the language of the Texas [due course] constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982); see contra, Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995).

In interpreting the protections of the Texas due course clause when the State loses or destroys evidence, we look at other jurisdictions that have interpreted their state constitutions more broadly than its federal counterpart.

The Rejection of Youngblood by Other Jurisdictions

Shortly after the Youngblood decision, a number of states rejected applying the Youngblood, standard. One of the many reasons promulgated for a rejection of Youngblood is the practical impossibility of proving bad faith on the part of the police. While bad faith has not been specifically defined by the Supreme Court, many states have used the dicta in Trombetta in formulating a working definition. Bad faith is found when an officer demonstrates “official animus” towards the accused, or “a conscious effort to suppress exculpatory evidence.” Rodriguez v. State, No. 03-97-00180-CR, 1998 WL 303873, 1998 Tex.App. Lexis 3602 at *10 (Tex.App.-Austin June 11, 1998, no pet.) (not designated for publication) (citing Trombetta, 467 U.S. at 488, 104 S.Ct. at 2533). Given this standard, it is clear why the states rejecting Youngblood despaired in ever finding a due process violation. “Short of an admission by the police, it is unlikely that a defendant would ever be able to make the necessary showing to establish the required elements for proving bad faith.” Lolly v. State, 611 A.2d 956, 960 (Del.1992); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999) (finding that proving bad faith is extremely difficult).

Also, because of the difficulty in proving bad faith, some states found that Young-blood has the immediate result of being ineffective in preventing the intentional destruction of useful evidence, and thus not only loses its deterrent effect, but encourages the designed loss of evidence. Alaska has found that the Youngblood standard could give the police an incentive to destroy potentially useful evidence in order to bolster the State’s case at trial. “The Youngblood decision could have the unfortunate effect of encouraging the destruction of evidence to the extent that evidence destroyed becomes merely potentially useful since its contents would be unprovable.” Thome v. Dept, of Public Safety, 774 P.2d 1326, 1331, n. 9 (Alaska 1989⅜.-

Another reason touted by the states rejecting Youngblood is that the requirement of bad faith operates as a litmus test mandating no due process violation even when serious questions exist concerning the fundamental fairness of the trial. Youngblood “permits no consideration of the materiality of the missing evidence, or its effect on the defendant’s case.... [It] substantially increases the defendant’s burden, while reducing the prosecution’s burden at the expense of the defendant’s fundamental right to a fair trial.” Ferguson, 2 S.W.3d at 916-17.

Even if a defendant’s case approaches bad faith, such as adequate proof of gross negligence or reckless disregard, a due process violation cannot be found. Delga- dillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, 2004 Tex.App. LEXIS 5455, *11 (Tex.App.-El Paso, June 17, 2004, pet. refd) (not designated for publication) (finding that police actions were “clearly negligent,” but no bad faith); Hebert v. State, 836 S.W.2d 252, 254 (Tex.App.Houston [1st Dist.] 1992, pet. refd) (holding that proof of negligence does not amount to bad faith).

The Delaware Supreme Court found that such a scenario would place the court in a difficult position.

The court must either find bad faith and dismiss the charges, despite facts which support only a finding of gross negligence, or find no bad faith and deny the defendant the benefit of a favorable inference, despite the loss of material evidence due to the State’s negligence. In such a situation, the court is left with an all or nothing proposition leading to two equally unsatisfactory results.

Lolly, 611 A.2d at 960.

It was this reasoning that led the Delaware Supreme Court to employ a balancing test of certain factors, the implementation of which both assures the preservation of convictions for the State and addresses those borderline situations otherwise without a remedy. See id. In agreeing 'with its sister state, Vermont held:

Youngblood is both too broad and too narrow. It is too broad because it would require the imposition of sanctions even though a defendant has demonstrated no prejudice from the lost evidence. It is too narrow because it limits due process violations to only those cases in which a defendant can demonstrate bad faith, even though the negligent loss of evidence may critically prejudice a defendant.

State v. Gibney, 175 Vt. 180, 825 A.2d 32, 42-43 (2003).

We find the reasoning of these jurisdictions persuasive. Our research has found only two cases in Texas finding bad faith. Ex parte Brandley, 781 S.W.2d 886, 894 (Tex.Crim.App.1989) (finding the cumulative effect of the investigative procedure deprived the defendant of due process of law); Robles v. State, No. 13-98-154-CR, 1999 WL 812295, 1999 Tex.App. LEXIS 7566 at -, 15-17 (Tex.App.-Corpus Christi, Oct.7, 1999, no pet.) (not designated for publication) (finding bad faith on the part of the prosecution in withholding potentially useful evidence).

Other scholars researching federal case law have also found few post-Youngblood cases finding bad faith. See Elizabeth A. Bawden, Here Today, Gone Tomorrow— Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent Exculpatory Value, 48 Clev. St. L.Rev. 335, 349 n. 71, (2002) (citing U.S. v. Bohl, 25 F.3d 904, 911-13 (10th Cir.1994) (finding bad faith because the facts and evidence in the case, “in the absence of - any innocent explanation offered by the government, [gave] rise to a logical conclusion of bad faith”); U.S. v. Cooper, 983 F.2d 928, 931 (9th Cir.1993) (finding bad faith because the government “[left] unchallenged the district court’s conclusion that the police acted in bad faith by allowing the [evidence] to be destroyed while assuring [the defendant] and his attorney that it was being held as evidence”)).

Also, the recent findings of negligence in the handling of evidence by crime labs across the country, resulting in hesitation and concern for those individuals whose convictions were connected with the work of those labs, demands that courts exercise caution when analyzing lost or destroyed evidence. See Bennett L. Gershman, Forensics Symposium: The Use and Misuse of Forensic Evidence; Misuse of Scientific Evidence by Prosecutors, 28 Okla. City U.L.Rev. 17 (2003) (detailing the problems uncovered in the nation’s crime labs).

In this regard, the problems in several Texas crime labs cannot be ignored. Sylvia Moreno, Police Lab’s Troubles Grow, Problems in Houston Lead to Moratorium on Executions, Washington Post A3 (October 2, 2004); Deanna Boyd, Experts Cite Problems with Police Crime Lab, Fort Worth Star Telegram 1 (April 18, 2003). In recounting problems with crime labs in Phoenix, Florida, Kansas, New York, and Houston, the Baton Rouge Advocate quoted Ken Melson, U.S. attorney in eastern Virginia, as stating, “No one wants a Houston in their state.” Robert Tanner, Crime Lab Problems Fuel Call for More Regulation, The Baton Rouge Advocate A1 (July 7, 2003). It is also clear that the negligence found in crime labs in Texas has resulted in the incarceration of innocent citizens and convictions based on faulty evidence. See Andrew Tilghman, DA Says Flawed Labwork Led to Rape Conviction, Houston Chronicle (2004). What is more, it is entirely possible that the Youngblood standard may have contributed to the negligent actions of these crime labs. See Matthew H. Lembke, The Role of Police Culpability in Leon and Youngblood, 76 Va. L.Rev. 1213, 1240 (1990) (“The Youngblood test provides no incentive for police departments to adopt standard operating procedures that ensure the proper collection and preservation of evidence.”).

Whether in cases involving contraband or those containing DNA evidence, it is clear that science is becoming increasingly capable of answering life or death questions with the alacrity of Caesar’s thumb. As a result, it is imperative that we consider the loss or destruction of evidence carefully. Therefore, because of the increasing reliance of law enforcement upon the advances of science, and because of the reasons articulated by the jurisdictions cited above, we join our sister states in rejecting Youngblood as persuasive when interpreting the due course clause of the Texas Constitution.

The Balancing Test and Analysis

Today, we hold that under the due course clause of the Texas Constitution the State has a duty to preserve evidence that has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is potentially useful to the defense. In either case, the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. See Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534; see also Ill. v. Fisher, 540 U.S. 544, 548, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004). The loss or destruction of such evidence results in a breach of this duty.

In the case of the loss or destruction of exculpatory evidence, due process requires that the consequences of such a breach be a dismissal of the State’s case. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Conversely, the loss of potentially useful evidence requires a consideration of several factors to determine what consequences, if any, should flow from such a breach. Ferguson, 2 S.W.3d at 917.

Keeping in mind the central objective of protecting the defendant’s right to a fundamentally fair trial, a trial court should consider: (1) the degree of negligence involved; (2) the significance of the destroyed evidence considered in light of the probative value and reliability of secondary evidence that remains available; and (3) the sufficiency of the other evidence used at trial to support the conviction. Id.; Hammond v. State, 569 A.2d 81, 86 (Del.1989). If after considering these factors, the trial court concludes that a trial without the missing evidence would be fundamentally unfair, the court may then determine the appropriate measures needed to protect the defendants rights. For example, the trial court could instruct the jury that they may infer that the missing evidence would have been favorable to the defense, or dismiss the charges. Ferguson, 2 S.W.3d at 917 (finding either dismissal of a jury instruction appropriate).

This test adequately balances the defendant’s due course concerns with the State’s interests because the fundamental fairness of the proceedings is evaluated in the context of the entire record and the nature of the State’s conduct is balanced against the degree of prejudice to the defendant. Hammond, 569 A.2d at 87. Further, while the conduct of the State’s agents is a relevant consideration, it is not determinative. Id. “Equally relevant is a consideration of the importance of the missing evidence, the availability of secondary evidence, and the sufficiency of the- other evidence presented at trial.” Id.

We now examine Pena’s case under these parameters. A defendant has an absolute right to an independent chemical analysis of alleged contraband in possession cases. Terrell v. State, 521 S.W.2d 618, 619 (Tex.Crim.App.1975). Yet because the plant material was not independently tested, the evidence is merely potentially useful. Nothing more may be said of the missing marihuana than that it could have been subjected to an independent test. Fisher, 540 U.S. at 548, 124 S.Ct. at 1202 (finding unpreserved evidence potentially useful because the defense could have subjected it to a fifth test). Also, given the material’s complete destruction, it is clear that Pena was unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. Therefore, the State had a duty to preserve the plant material, and as it was not preserved, the State has breached this duty.

We now turn to the consequences of this breach. It is evident from the record that the plant material was not destroyed with the intent to deprive Pena of due course. The destroyed plant material and accompanying missing files were most likely the result of two acts of simple negligence. Mott testified that the files were most likely lost during the lab’s relocation, and the plant material was destroyed because a destruction order was sent. Yet it is odd that while the evidence could have been destroyed within the boundaries of police procedure, all persons connected with the evidence possessing the authority to legally order its destruction testified that they did not. This negligence compounded with the lack of acceptance of responsibility in light of Pena’s liberty concerns is troubling and borders on gross negligence.

The plant material being the sole cause for Pena’s arrest was of paramount significance, and became more so after the files documenting the testing of the material became lost. Consequently, the lab report, exclusively relied upon at trial, is the only evidence recording that the destroyed plant material was tested, and it stands-unsupported by documentation and unverified by human memory. Had the plant material not been destroyed, the missing files would have no significance because the material could be tested again. Yet, this is not the case.

Regarding the third factor, the sufficiency of the other evidence, the pictures of the plant material in the van and Ashy’s testimony might support Pena’s conviction. See Ward v. State, 659 S.W.2d 643, 644-45 (Tex.Crim.App.1988) (finding that despite no chemical analysis, officer’s testimony that leafy substance was marihuana was sufficient). However the other factors, the significance of the evidence and the amount of negligence involved, weigh heavily in Pena’s favor. -

Therefore, keeping in mind the fundamental fairness of the proceeding, we find that Pena was denied due course of law under the Texas Constitution. See State v. Osakalumi 194 W.Va. 758, 461 S.E.2d 504, 512 (1995); Deberry v. State, 457 A.2d 744, 758 (Del.1983). Accordingly, we sustain Pena’s first issue.

Conclusion

Because Pena’s first issue is dispositive of his appeal, we need not address his other issues. Therefore, we reverse the judgment of the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

As the Court of Criminal Appeals is accustomed to by now, the majority has decided to reverse a conviction on a theory not argued by the appellant; that is, that the Texas due course of law provision offers more protection than the federal due process clause. It will serve no useful purpose for me to pontificate on the similarities or distinctions between the due process clause of the United States Constitution and the due course of law provision of the Texas Constitution as my colleagues do. The opinion has the requisite two votes to become the law of this district, so I will not delay the disposition of Pena’s appeal. See In the Interest of S.A.P., 135 S.W.3d 165, 177. (Tex.App.-Waco 2004) (Gray, C.J., dissenting), rev’d, 156 S.W.3d 574 (Tex.2005); Jacobo v. Bimar, 70 S.W.3d 330, 339-344 (Tex.App.Waco 2002) (Gray, J., dissenting), rev’d, 135 S.W.3d 646 (Tex.2004).

But I must, nevertheless, comment on several things that struck me as I went through the majority’s opinion, the briefs, and the record. The majority opinion states that “Pena argues in his first issue that he was denied due process and due course of law because the trial court erred by denying his motion to suppress.” Pena did not argue that the court erred in denying his motion to suppress — he argued that the trial court erred in admitting evidence. There is a difference.

Was there a motion to suppress filed? Sort of — it was a canned motion included within various other requests. The whole “motion,” in this record, is as follows

The Defendant requests a hearing outside the jury’s presence to determine the admissibility of any physical evidence recovered during the investigation of this cause and which the District Attorney intends to offer as evidence herein, and would request that the Court suppress this evidence if the Court determines that the evidence was obtained in violation of the United States Constitution or the Texas Constitution.

Did Pena argue the due course of law clause in that motion? Clearly, no. Did he argue any distinction between the United States and Texas Constitutions in that motion? Clearly, no.

Okay, then, was there a heariñg and what happened there? Counsel for Pena brought up the motion at a pre-trial hearing, but the trial court decided to carry it with the trial. At that time, at the pretrial hearing, the trial court still did not know Pena was making an argument under the due course of law provision of the Texas Constitution.

During the trial, when the court decided the qualifications of the expert testifying about the seized marijuana, outside the presence of the jury, Pena brought up additional objections about the admissibility of the testimony about the marijuana. Counsel stated, “Additionally, the objection would be under the due process rights of the accused and due course of law, which- would be the Fifth and Sixth and Fourteenth Amendments.” Note counsel’s specifically referenced amendments are all federal, constitutional references. After the trial court next overruled a confrontation clause objection, counsel stated, “I would address the due process rights of the accused and due course of law, additionally, Judge.” Note this was not an objection, and so no ruling was made. At that point, the parties began questioning the expert who tested and weighed the marijuana.

After the expert’s testimony, the trial court noted that “the defendant must show that the prosecution acted in bad faith when it failed to preserve the evidence to show [a] violation of due process or due course of law.” Further testimony was taken, but no arguments were made. No discussion was had of the standard under the due course of law provision and whether it was any more stringent than the due process provision. The trial court ruled that the lost evidence was material but that there was no bad faith or willful misconduct on the part of the State in losing the evidence.

Pena then “re-urge[d] everything set out in the motion to suppress.” In this record, that wasn’t much. Of course, there was no “physical evidence recovered” that was being introduced, so there was nothing to suppress. After re-urging his motion, then counsel added

The confrontation clause, I think, is a big issue here from the defense standpoint. So I would object under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article One, Section Nine of the Texas Constitution under due process. Article One, Section Nineteen of the Texas Constitution and the Fifth and' Fourteenth Amendments to the U.S. Constitution under the rights of the accused, and Article One, Section Ten of the Texas Constitution and the Sixth Amendment of the U.S. Constitution.
I would object under due course of law and object under 1.04,1.051 and 1.06 of the Code of Criminal Procedure .... [Tjhose would address the issue of this nonexistent evidence being presented.

The trial court overruled Pena’s objections. The court did not specifically rule on the motion to suppress.

So the words “due course of law” and section 19 of the Texas Constitution were used. It did not notify the court of anything more than the general ground of the complaint; nothing specific. It did not notify me of anything more than that either. But it certainly would not have put anyone on notice that the Texas Constitution’s due course of law provision provided broader protection than the United States Constitution’s due process clause.

Pena claims in his brief that his counsel “based his objections on due process rights guaranteed under both the U.S. and Texas Constitutions, ...”. He mentioned both in his objection, but he did not argue that the two were any different. He did not make this argument at trial, and he did not make this argument in his brief.

Although Pena claims on appeal that he was denied due process and due course of law by the State’s failure to provide material evidence before and during trial, he does not present any argument or authority as to the protection of the Texas Constitution or how that protection differs in any way from that offered by the United States Constitution. Only three Texas cases are cited by Pena in his brief and none discuss the due course of law provision. In fact, Pena specifically argues that his case falls within the parameters of Youngblood, a federal due process standard. Without argument or any briefing, the majority takes it upon itself to raise the possibility of a difference in the level of protection between the Texas and United States Constitutions and proceeds to determine the expansiveness of the due course of law provision in the Texas Constitution.

What are we doing? We’ve been told not to reverse convictions on theories not raised on appeal or in the court below. Hailey v. State, 87 S.W.3d 118 (Tex.Crim. App.2002); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App.2003). Yet we continue to do so. See Hackett v. State, 2005 Tex.App. LEXIS 1116 (Tex.App.-Waco March 10, 2005, no pet. h.) (Gray, C.J., concurring, Feb. 9, 2005); Olivas v. State, 153 S.W.3d 108 (Tex.App.-Waco 2004, no pet.) (Gray, C.J., dissenting); Conde v. State, 135 S.W.3d 252 (Tex.App.-Waco 2004, no pet.) (Gray, C.J., concurring).

And, where a party fails to argue a distinction between the Texas and United States Constitutions, the Court of Criminal Appeals routinely declines to make the argument for the party in that situation. Luquis v. State, 72 S.W.3d 355, 364 (Tex.Crim.App.2002) (“Appellant makes no distinction between his rights under the Texas and federal constitutions. Therefore we will treat them as being the same in this context.”); Smith v. State, 898 S.W.2d 838, 847 (Tex.Crim.App.1995) (“Appellant proffers no argument or authority of how the protection offered by the Texas Constitution differs from the protection guaranteed by the U.S. Constitution, [citations omitted]. We are not inclined to make appellant’s arguments for him.”); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992) (“We decline to pursue appellant’s Texas Constitutional arguments for him.”). So should we.

I dissent.

      . Ex Parte Gingo, 605 So.2d 1237, 1241 (Ala. 1992) (adopting Youngblood with a “Stevens” exception: no showing of bad faith required if the loss or destruction of the evidence is so critical to the defense as to make a criminal trial fundamentally unfair); Thome v. Dept, of Public Safety, 774 P.2d 1326, 1330-31 (Alaska 1989) (balancing test); State v. Morales, 232 Conn. 707, 657 A.2d 585, 591-92 (1995) (balancing test); Lolly v. State, 611 A.2d 956, 960 (Del.1992) (three-part balancing test); State v. Matafeo, 71 Haw. 183, 787 P.2d 671, 673 (1990) (adopting Youngblood with a “Stevens” exception); Williams v. State, 118 Nev. 536, 50 P.3d 1116, 1126 (2002) (defendant must prove bad faith or undue prejudice); State v. Chouinard, 96 N.M. 658, 634 P.2d 680, 683 (1981) (three-part test); State v. Barnett, 543 N.W.2d 774, 777-778 (N.D.1996) (adopting Youngblood with a “Stevens” exception and an exception-if there is a "systemic disregard” of the State's duty to preserve evidence); 156 Or.App. 245, 966 P.2d 1200, 1204 (1998); State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300, 307 (2001) (adopting Youngblood with an exception if the defendant cannot obtain other evidence of comparable value); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999) (adopting the "Delaware” test); State v. Gibney, 175 Vt. 180, 825 A.2d 32, 42-43 (2003) (adopting the "Delaware” test); State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504, 512 (1999) (adopting the "Delaware” test).

      . Nothing demonstrates this point more than the case of Mr. Youngblood himself. After the Supreme Court denied Youngblood the relief he sought, he waited seventeen years until his request was granted to have the unpreserved clothing of the abducted boy tested using new serological techniques. The tests proved that Youngblood was not the assailant, and he was set free. See Barbara Whitaker, DNA Frees Inmate Years After Justices Reject Plea, N.Y. Times A12 (Aug. 11, 2000) (quoting forensics scientist Dr. Edward Blake, "We now have before us a flawed legal precedent that stands on the shoulders of an innocent man_”).

      . http://www.chron.com/cs/CDA/ssisto-ry.mpl/special/crimelab/ 2823261.

      . The Delaware Supreme Court found this instruction appropriate:
      In this case the court has determined that the State failed to collect/preserve certain evidence which is material to the defense. The failure of the State to collect/preserve such evidence entitles the defendant to an inference that if such evidence were available at trial it would be exculpatory. This means that, for purposes of deciding this case, you are to assume that the missing evidence, had it been collected/preserved, would not have incriminated the defendant and would have tended to prove the defendant not guilty. The inference does not necessarily establish the defendant's innocence, however. If there is other evidence presented which establishes the fact or resolves the issue to which the missing evidence was material, you must weight that evidence along with the inference. Nevertheless, despite the inference concerning the missing evidence, if you conclude after examining all the evidence that the State has proven beyond a reasonable doubt all elements of the offense(s) charged, you would be justified in returning a verdict of guilty.

        Lolly, 611 A.2d at 961-62 n. 6.

      . I do note, notwithstanding that it arises in a different context, that the due course of law provision of the Texas Constitution and the due process clause of the United States Constitution have been compared in the past and the Texas Supreme Court has consistently held the two provisions to be equivalent. See Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex.2004) ("[W]e generally construe the due course clause in the same way as its federal counterpart.”); United States Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex.1997) ("[W]e have traditionally followed contemporary federal due process interpretations of procedural due process issues in applying our state constitutional guarantee of due course of law.’’); University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995) ("While the Texas Constitution is textually different in that it refers to 'due course’ rather than 'due process’, we regard these terms as without meaningful distinction.”). Even the interpretive commentary from the Texas Constitution views the provisions as the same. Tex Const. Ann. art. I, § 19 (Vernon 1997) (Interpretive Commentary) at pg 100 ("It has been held by Texas courts that the clause of the Texas Constitution, to the extent that it is identical with the fourteenth amendment, has placed upon the powers of the state legislature the same restrictions as those which have been held to be imposed by the language of that amendment of the Federal Constitution. Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887).”). I find no reason to depart from that interpretation.


author: TOM GRAY, Chief Justice,

text:
    The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. The ESTATE OF Darla BLACKMON, By its Beneficiary Sheila SHULTZ and Sheila Shultz Individually, Appellees.
    No. 10-03-00093-CV.
    Court of Appeals of Texas, Waco.
    April 27, 2005.
    Harry Deckard, Asst. Atty. General-Tort Litigation Div., Austin, for appellant.
    Stephen A. Khoury, Dallas, for appel-lees.
   TOM GRAY, Chief Justice,

dissenting opinion to order granting rehearing.

It is frequently said that the shortest route between two points is a straight line. We have completed that journey in that case. Six months ago, we issued an opinion that fully disposed of this appeal. The motion for rehearing was timely filed to which a response was not requested until five months after the disposition of the case. I am extraordinarily reluctant to withdraw an opinion and judgment of this Court when I have been provided nothing upon which to base that decision. By this, I do not mean that we have not received argument in a motion for rehearing, but rather that we normally do not withdraw an opinion without simultaneously substituting another opinion in its place.

I see no reason to withdraw an opinion unless and until we have decided, drafted, and are ready to issue such an opinion, I believe it is ill-advised to withdraw a previously issued opinion which garnered support from a majority of the justices on the court.

Accordingly, I dissent from the Order Granting Rehearing which results in the withdrawal of the opinion and judgment of this Court dated October 13, 2004.