Strutz v. State

• Decision Date: 25 April 2018
• Docket Number: NO. 03-16-00666-CR,03-16-00666-CR
• Parties: Jason Allen Strutz, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Jason Allen Strutz, Appellant v. The State of Texas, Appellee

NO. 03-16-00666-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 25, 2018

FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT

NO. CR-15-0705, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Jason Allen Strutz guilty of evading arrest with a motor vehicle and evading arrest with a previous evading conviction, see Tex. Penal Code § 38.04(a), (b)(1)(A), (2)(A), and assessed his punishment, enhanced pursuant to the habitual offender provisions of the Penal Code, at confinement for 43 years in the Texas Department of Criminal Justice and a $10,000 fine, see id. § 12.42(d), and confinement for 20 years in the Texas Department of Criminal Justice and a $10,000 fine, see id. §§ 12.425(b), 12.33. On appeal, appellant asserts that the trial court erred in denying his requested jury charge instruction, admitting testimony relating to his prior evading conviction, refusing to allow him to take a witness on voir dire, and admitting hearsay evidence during the punishment phase. Finding no reversible error, we affirm the trial court's judgments of conviction.

BACKGROUND¹

The jury heard evidence that Charles Goodwin, a gas station attendant at H.E.B. supermarket, observed a brown car fueling at one of the pumps. The car started to leave without paying, so Goodwin exited the booth, approached the car, and asked the driver to pay for the gas. Goodwin said that the driver ignored him, and, as the car drove off, Goodwin banged on the roof of the car and yelled at the driver.

Corporal Sam Myers, a patrol officer with the San Marcos Police Department, testified that he was driving by the H.E.B. and observed a "commotion" at the gas pumps—a gas station attendant banging his hand on a gold-colored Plymouth Breeze and yelling at the driver. Corporal Myers said that he entered the parking lot as the car sped off. He followed the car out of the parking lot onto the street, activating his emergency lights. According to Corporal Myers, as he pursued, the car ran a stop sign while turning right at a nearby intersection. Corporal Myers continued pursuit and, after following for some distance, activated his siren. Corporal Myers testified that the pursuit "continued on" until the car slowed down, and the driver jumped out of the car while it was still moving. The driver then scaled a fence to a nearby apartment complex.

Casey Tennant, a Texas State University police officer, also testified, stating that he heard the call for aid over the police scanner and assisted in the search for the fleeing driver. He said that he went to the apartment complex and observed an individual matching the description of thedriver grab a bike parked near a banister and ride toward him. Officer Tennant stated that he directed the person to come to him, which he did, and ordered the person off of the bike. According to Tennant, the rider complied with that order and the next order to place his hands behind his back. However, Officer Tennant said that when he tried to hand cuff the rider, the rider broke away and ran. Officer Tennant pursued the rider and tased him. Eventually, with the assistance of another San Marcos police officer, the rider was subdued and taken into custody.

After his apprehension, appellant was identified as the person driving the car and riding the bike. He was subsequently charged with two counts of evading arrest: evading arrest with a vehicle and evading arrest with a previous evading conviction.

DISCUSSION

Appellant raises four points of error. First, he complains about the trial court's refusal to include his requested spoliation instruction in the jury charge. Second, he asserts that the trial court erred by admitting testimony about a prior 2004 evading arrest/detention conviction because the arresting officer lacked personal knowledge. Third, appellant claims that the trial court erred in refusing to allow him to take the arresting officer on voir dire in order to determine whether the officer was qualified to testify about the finality of appellant's 2004 evading arrest/detention conviction. Finally, appellant contends that the trial court erred in admitting hearsay evidence related to his criminal history during the punishment phase.

Requested Jury Charge Instruction

No video of the police pursuit was available for the jury. Corporal Myers testified that his patrol car was equipped with a dashboard camera that automatically records upon activation of the patrol car's emergency lights. He explained that officers then upload such video recordings to a server from which officers can later review, but not alter or delete, such video evidence. In his testimony, the officer expressed his understanding that the videos then remained on the server for a certain time period, which he believed to be 180 days, unless "somebody wants to hold it longer." He indicated that he is not in charge of the retention of files he uploads to the server, stating that "[o]nce it's uploaded, I don't have anything to do with it." Corporal Myers further testified that he reviewed the video recording of the pursuit in this case after he uploaded it to the server. He was unaware, as he testified at trial, of whether the video recording had been copied to a disc prior to being purged from the server. Regarding the fact that the video was missing, the officer explained, "I don't have possession of it, I don't know where it went. I don't have access to it."

Chase Stapp, the San Marcos Chief of Police, testified about the department's policy regarding retention of digital evidence. He stated that the police server is set to retain videos for varying lengths of time depending on how the video is designated.² The chief testified that, according to the system records, the missing video in this case was burned to a compact disc. However, Chief Stapp testified that he learned later that the recording burned to the disc did not contain the video of the pursuit but only a one-minute scene a short time later. The chief explained,

For whatever reason, I think it was a technical error, that's sort of a conclusion I've drawn, but I can't say that for sure, but there's really no other explanation that only one of the two videos [in this case] ended up on that disk when we handed it over to the DA's office.

Chief Stapp continued, explaining that the mistake was discovered only after it was too late to burn another disc:

[M]uch later, several months later, it appeared that for whatever reason [the video recording of the pursuit] didn't get burned properly on the disk or something along those lines and the DA's office made another request to our agency to produce it again. At that time, it had already been purged off of our server and wasn't available to be re-burned onto a disk.

According to Chief Stapp, the missing video had apparently been purged earlier than the planned retention time due to a storage capacity shortage. The police chief testified that burning a CD copy generally avoids any problems that the purge would otherwise create, except in some instances, such as in this case, where if a CD needs replacing, the purged video is not available.

At trial, during the charge conference, appellant requested the following instruction in the court's jury charge:

The State of Texas, through the San Marcos Police Department, had a duty to retain evidence in this present case, specifically, the video of the stop of the Defendant. The San Marcos Police Department acknowledged the existence of this evidence yet destroyed it. You may consider that this evidence would have been unfavorable to the State of Texas on the issue of whether Jason Strutz committed the alleged offense.

The trial court denied the request for the instruction. In his first point of error, appellant argues that the trial court's refusal to include the requested spoliation instruction in the charge violated his right to due course of law under the Texas Constitution.

We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing Almanza, 686 S.W.2d at 171). If the jury charge error has been properly preserved by an objection or request for instruction, as it was here, reversal is required if the appellant has suffered "some harm" from the error. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing Almanza, 686 S.W.2d at 171); see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is required if the error 'is calculated to injure the rights of the defendant,' which we have defined to mean that there is 'some harm.'" (quoting Almanza, 686 S.W.2d at 171)).

Appellant contends that the trial court's refusal to give his requested spoliation instruction was error because, according to appellant, the due course of law provision of the Texas Constitution provides greater protection than the federal due process clause regarding the State's loss or destruction of evidence or failure to preserve evidence in a criminal prosecution. Consequently, appellant maintains that a showing of negligence, rather than bad faith, suffices to show aconstitutional violation, thus entitling him to the spoliation instruction. Specifically, appellant acknowledges that the State's loss, destruction, or failure to preserve "potentially useful evidence" in a criminal trial, does not violate federal due process unless a defendant ...