Opinion
No. 10-07-00363-CR
Opinion delivered and filed January 20, 2010. DO NOT PUBLISH.
Appealed from the 19th District Court, McLennan County, Texas, Trial Court No. 2007-297-C2. Affirmed.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
OPINION ON REMAND
On original submission, the Court, in a plurality opinion and in reliance on Pena v. State, 226 S.W.3d 634, 656 (Tex. App.-Waco 2007), held that Steven Douglas Freeman preserved his due course of law complaint by requesting a spoliation instruction. See Freeman v. State, 276 S.W.3d 630, 633-34 (Tex. App.-Waco 2008). Having reversed Pena, the Court of Criminal Appeals vacated our judgment in Freeman and remanded. See Freeman v. State, 286 S.W.3d 370, 370-71 (Tex. Crim. App. 2009); see also Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). The sole issue on remand is whether Freeman preserved his complaint for appellate review. See Freeman, 286 S.W.3d at 371. We affirm. Freeman was convicted of felony driving while intoxicated. Before trial, the tape of the field sobriety tests was recorded over pursuant to department policy. The trial court denied Freeman's request for a spoliation instruction. In Pena, the Court of Criminal Appeals held that Pena failed to preserve his due course of law claim because, even though he invoked the Texas due course of law provision, he at no time argued that the provision affords greater protection than the federal Due Process Clause. See Pena, 285 S.W.3d at 464. In this case, Freeman sought a spoliation instruction, but urged no constitutional or statutory support for his position. In light of Pena, Freeman's complaint is not preserved for appellate review. Id.; see Rodriguez v. State, No. 13-07-00494-CR, 2009 Tex. App. LEXIS 6981, at *12-14 (Tex. App.-Corpus Christi Aug. 31, 2009, no pet.) (not designated for publication). We overrule Freeman's sole issue and affirm the judgment.