DNA Just Is: A Close Look at Article 38.43

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Tuesday, January 20th, 2015
DNA Just Is: A Close Look at Article 38.43

I. Introduction

The proliferation of research and investigation into DNA—that fundamental building block of all living (and some non-living) things—brought with it the unequivocal assertion that DNA simply “is.” What DNA precisely is, however, differs slightly from the scientific community to the legal community. In both groups, DNA offers the promise of revelation—be it a revelation of who and what we are as human beings, or the revelation of truths significant to the outcome and disposition of criminal cases, even long after the initial verdict.

Article 38.43 of the Code of Criminal Procedure addresses evidence containing biological material. Every criminal lawyer should read and be familiar with the implications of Article 38.43. After all, considering the revelations that evidence containing biological material can offer, its collection, storage, preservation, and testing are immensely important.

II. Legislative History

The importance of DNA testing and preservation in the criminal justice system cannot be overstated. As of January 4, 2015, there have been 325 post-conviction DNA exonerations in United States history; 52 of those exonerations have come from Texas.2 The stories and sheer multitude of exonerations are familiar to all of us, as they should be.

The Texas Legislature took note of that in 2001 and passed Senate Bill 3—which created Article 38.39—for post-conviction DNA testing.3 The clear import of Senate Bill 3 was to assure that post-conviction DNA testing would be possible in certain cases via the procedural mechanisms contained in Chapter 64 of the Code of Criminal Procedure:

The importance of using DNA evidence to prove a prison inmate’s guilt or innocence after the inmate has been convicted and sentenced by a court is illustrated by the more than 70 people in the United States who have been exonerated and released from prison because of DNA testing. In Texas, post-conviction DNA testing has led to at least six persons being pardoned or freed from prison since 1997.4

In 2011, there were several important and notable revisions and additions to Article 38.39 by way of Senate Bill 1616.5 Most noticeably, the article was renumbered to what is now Article 38.43. Substantively, however, “biological evidence” is now defined in the statute; the statute defines who is charged with responsibility for preserving the evidence under the law; and the statute requires the Department of Public Safety to adopt standards to comply with the requirements of evidence preservation.

Again, as with Senate Bill 3, there is no question that Senate Bill 1616 is the legislature’s response to the multitude of DNA exonerations that deservedly enjoyed much widespread media attention. Specifically, in his statement of intent, the bill’s author, Royce West, said:

While Texas leads the nation in the number of persons found to have been wrongfully convicted, imprisoned, and later exonerated of crimes, mostly based on biological evidence, the state is largely without uniform standards or established best practices regarding the collection, retention, and storage of these materials. More than half of persons exonerated in Texas were convicted of offenses in Dallas County. This was possible because Dallas County had reliable, established policies and practices regarding the collection and storage of biological evidence.6

Senate Bill 1616 passed unanimously and became effective as soon as it was signed into law by the governor on June 17, 2011.

In 2013, the legislature added subsections (i) through (m) to address evidence containing biological material in capital cases. The specific statutory provisions are discussed, infra.

III. Statutory Provisions

A. What is biological evidence?

As previously stated, Senate Bill 1616 created several significant additions to Article 38.43. One of those additions was the definition of “biological material.” Previously, no definition of the term had been codified. Understandably, this lack of codification bred confusion and noncompliance with the statute’s very intention. Now, by definition, “biological evidence” means:

(1) the contents of a sexual assault examination kit; or
(2) any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of an investigation of an alleged felony offense or conduct constituting a felony offense that might reasonably be used to:

(A) establish the identity of the person committing the offense or engaging in the conduct constituting the offense; or
(B) exclude a person from the group of persons who could have committed the offense or engaged in the conduct constituting the offense.7

B. Who is charged with the responsibility?

With the passage of Senate Bill 1616, Article 38.43 now defines which individuals and entities are charged with the responsibility under Article 38.43. Of great note, defense lawyers are the one party excepted from the obligations imposed by Article 38.43. By its very terms, Article 38.43 applies specifically to:

. . . a governmental or public entity or an individual, including a law enforcement agency, prosecutor’s office, court, public hospital, or crime laboratory, that is charged with the collection, storage, preservation, analysis, or retrieval of biological evidence.8

Additionally worth mentioning, the statute imposes no duty on anyone to anticipate the development of new scientific testing techniques.9 It therefore logically follows that the statute is not violated if scientific testing likely enough to produce the requested results develops soon after conviction.10 Further, failure of a person in possession of such evidence to exercise rea­sonable care in predicting whether such new testing techniques will become available does not constitute a violation of the statute.11

C. What is the duty and how long does it last?

Absent a waiver of Article 38.43 rights, evidence covered by the statutory duty is to be preserved, as a general rule, for not less than 40 years.12 If there is an “unapprehended actor associated with the offense,” however, it must be preserved until the applicable statute of limitations has expired.13 If there are no “unapprehended actor[s]” involved and the defendant has been convicted or placed on deferred adjudication community supervision for a capital offense, the evidence must be preserved until the person dies, completes the sentence, is released on parole or mandatory release, or completes the term of community supervision.14

D. When, if ever, is it permissible to destroy the evidence?

Regarding destruction of evidence containing biological material, Article 38.43 provides the following:

The attorney representing the state, clerk, or other officer in possession of biological evidence described by Subsection (a) may destroy the evidence, but only if the attorney, clerk, or other officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:

(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.15

Accordingly, if a written objection is not received from the defendant, his attorney, or the court within 91 days from receipt of the notice to destroy, then destruction is permissible under the statute. However, if such an objection is timely filed then destruction is impermissible. Curiously, Article 38.43 neither provides a remedy in the trial court for a violation of the latter scenario nor does it authorize an appeal to a court of appeals. It thus appears to be a rule without any enforcement mechanism; a rule without teeth.

E. How do you do it?

Article 38.43 never specifically articulates what constitutes “preservation of evidence” or how the task is to be accomplished. Rather, of upmost importance, the article requires the Department of Public Safety to adopt standards and rules to specify the collection, storage, preservation, and retrieval of biological evidence. Specifically:

The Department of Public Safety shall adopt standards and rules, consistent with best practices, relating to a person described by Subsection (b), that specify the manner of collection, storage, preservation, and retrieval of biological evidence.16

The statute allows counties with a population less than 100,000 to comply with the preservation requirements by promptly delivering the evidence to DPS for storage.17

F. Capital cases

As previously stated, in 2013, the legislature specifically addressed biological evidence in the context of capital cases in which the state is seeking death and added several subsections.

Subsection (i) requires the state to have collected all biological evidence that was collected in a capital case. Either the Department of Public Safety or an accredited lab is authorized to conduct the testing. Interestingly, the laboratory that performs the testing bears the cost associated with the testing.

A pretrial conference about the biological evidence is required under subsection (j) as soon as practicable after the defendant is charged with a capital offense for which the state has not affirmatively waived, in writing, the death penalty. If the state and defense agree which materials should be tested, there is no hearing and the testing proceeds in accordance with the statute. However, if there is disagreement among the parties as to what material should be tested, then a hearing is held. At the hearing, there is a rebuttable presumption that the biological material that the defense wants tested constitutes biological evidence that is required to be tested under subsection (i).

Subsection (k) addresses what is required statutorily if biological evidence is lost or destroyed as a result of DNA testing. If that happens, then the laboratory that tested the evidence is required to provide to the defendant—note that the state is not included in this notice—any bench notes prepared that are related to the testing of the subject evidence.

The obvious and logical question is what happens if biological evidence that should be tested pursuant to Article 38.43 is not tested. Subsection (l) provides the answer—the “exclusive remedy . . . is to seek a writ of mandamus from the court of criminal appeals. . . .” It is up to the defense lawyer to seek this remedy.

Finally, subsection (m) addresses additional testing of biological material. Specifically, any accredited laboratory may perform additional testing on biological evidence. Consistent with case law, the statute provides that the defense may make an ex parte showing of “good cause” to the court to request the additional testing of biological material. However, when the defense seeks this testing, the defense is required to bear the burden of this cost if the defendant is not indigent.

IV. Decisional History

As a result of its relatively recent passage, there has not been much decisional law addressing Article 38.43. As of February 10, 2014, a Westlaw search yields only 26 appellate cases, both published and unpublished, that cite and/or reference Article 38.43. The cases that are “most on point” are as follows:

Watson v. State, 96 S.W.3d 497 (Tex. App.—Amarillo 2002, pet. ref’d)
The court of appeals lacked jurisdiction to order the defendant released from incarceration due to the state’s failure to preserve DNA evidence in prosecution for rape, insofar as statute governing preservation of biological evidence did not authorize appeal and statute authorizing release of a convicted person was limited to the convicting court. Statute became effective April 5, 2001, and evidence at issue related to a trial held in 1997.

Brewer v. State, No. 05-02-00136, 2002 WL 31445286 (Tex. App.—Dallas 2002, no pet.)
Even presuming Article 38.43 created a liberty interest for the defendant, such testing conducted following de­fendant’s conviction for sexual assault afforded him all procedural due process he deserved; after conducting tests on biological matter obtained from victim’s skirt, DPS concluded that the defendant could not be excluded as a contributor to matter.

Johnston v. State, 99 S.W.3d 698 (Tex. App.—Texarkana 2003, pet. ref’d)
State did not act in bad faith in destroying evidence, possibly containing testable biological material, from defendant’s prosecution for aggravated assault, where evidence was destroyed in routine course of business along with evidence from other cases. The article itself does not provide a remedy when the state destroys evi­dence without following the procedure outlined in the statute. Therefore, the court of appeals lacked jurisdiction to grant the relief where the applicable provision of the Code of Criminal Procedure did not provide for such a remedy.

Johnson v. State, No. 14-02-01012, 2003 WL 751021 (Tex. App.—Houston [14th Dist.] 2003, no pet.)
Defendant’s post-conviction claim that he was deprived of his constitutional rights by the state’s failure to preserve DNA evidence for testing amounted to a request for habeas relief and was improperly raised by way of motion for post-conviction forensic DNA testing.

Chavez v. State, 132 S.W.3d 509 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Defendant’s allegation that the state destroyed material DNA evidence amounted to a request for habeas relief over which claim court of appeals had no jurisdiction; defendant, who was convicted by no contest plea to ag­gra­vated sexual assault of a child, alleged that his due pro­cess rights were violated when the state purportedly destroyed material DNA evidence, which claim amounted to request for habeas relief.

Cruz v. State, No. 09-04-511-CR, 2005 WL 3610242 (Tex. App.—Beaumont 2005, no pet.)
Appellant argued that the trial court did not have proper evidence upon which to decide to deny DNA testing be­cause the requested exhibits could not be found. How­ever, the record contains evidence that there are no ex­hib­its to test as such were destroyed years earlier in ac­cor­dance with Article 38.43. Appellant alternately argued that the exhibits were prematurely destroyed. However, he did not show or demonstrate that the exhibits were improperly or prematurely destroyed. Judgment affirmed.

Cormier v. State, No. 10-04-000236-CR, 2006 WL 408411 (Tex. App.—Waco 2006, no pet.)
The biological evidence in this case had all either been released or destroyed in accordance with Article 38.43. Appellant’s counsel filed an Ander’s brief, the court of appeals reviewed the record, and the judgment was affirmed.

Romero v. State, No. 07-05-0348-CR, 2006 WL 1911388 (Tex. App.—Amarillo 2006, no pet.)
The motion for DNA testing was properly dismissed with­out a hearing since there were no facts asserted to support the testing. Appellant was not entitled, as a matter of law, to a hearing on his motion for DNA testing, prior to obtaining testing. Neither can Appellant’s motion be construed as a post-trial plea of actual innocence. Finally, while the 2001 version of Article 64.01(c) would have required the appointment of counsel for a request for DNA testing, the current version applicable to this case only requires it if the convicting court finds there are reasonable grounds for the motion to be filed. In this case, there were not.

In re Bowman, No. 03-06-00183-CR, 2006 WL 2852495 (Tex. App.—Austin 2006, pet. ref’d)
Appellant filed a motion for appointment of counsel to pursue a motion for post-conviction DNA testing. Ap­pel­lant subsequently filed a pro se motion for DNA test­ing. Article 64.01(c) requires the appointment of coun­sel only if the trial court finds reasonable grounds for a testing motion to be filed. Appellant’s motion stated no such grounds. The trial court’s order dismissing, and effectually denying, Appellant’s motion for DNA testing is affirmed.

Woodall v. State, No. 2-06-101-CR, 2007 WL 117704 (Tex. App.—Fort Worth 2007, pet. ref’d)
Appellant challenges the denial of his motion for post-conviction DNA testing. The state contends that al­though it did have such evidence it was destroyed in ac­cor­dance with Article 38.43 as it would not have established the identity of the assailant or excluded Appellant as a suspect. In this case, identity was never an issue. There­fore, the trial court’s order denying the motion for DNA testing was affirmed.

Johnson v. State, No. 14-06-00317-CR, 2007 WL 925704 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
The trial court’s denial of a post-conviction motion for DNA testing is affirmed. The case occurred in 1978. The motion for DNA testing was filed in 2004. The state filed affidavits indicating it had searched for DNA evidence and none existed.

Pena v. State, 226 S.W.3d 634, 648 (Tex. App.—Waco 2007, rev’d, Pena v. State, 285 S.W.3d 459 (2009)
An adverse inference instruction was appropriate for the state’s destruction of plant material alleged to be marijuana.

Newby v. State, 229 S.W.3d 412, 414 (Tex. App.—Texarkana 2009, no pet.)
Clarifying that the legislature intended that post-conviction DNA testing be limited to determining the identity of a person, not a plant. In this appeal, Appellant wanted to retest the “marijuana” evidence; he asserted that testing would show the plants were “Texas State Hybiscus” plants rather than marijuana.

State v. Vasquez, 230 S.W.3d 744, 753 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
This appeal involves the state’s destruction of Appellant’s blood sample prior to his intoxication manslaughter trial. The court of appeals held that the due course of law clause of the state constitution provides the same protection as the due process clause of the federal constitution regarding the state’s destruction of potentially useful evidence in a criminal prosecution. Finding that the state’s destruction of the blood sample prior to trial in this case did not violate Appellant’s rights under the due course of law provision, the court of appeals held that “[n]ot all failures to preserve evidence in criminal cases result in the deprivation of constitutional rights.”

In re Kennard, No. 03-07-00308-CR, 2008 WL 899606 (Tex. App.—Austin 2008, no pet.)
The motion for post-conviction DNA testing was properly denied here because there were no issues as to Appellant’s identity as the perpetrator of the sexual assault for which he was convicted. Appellant admitted that he had sexual intercourse with the complainant on the night in question but asserted that it was a consensual act in exchange for drugs. Appellant conceded that identity was not an issue. Appellant argued only that if the DNA tests showed that the second spermatozoa contributor was someone other than the complainant’s fiancé, her credibility would be undermined.

Hurley v. State, No. 05-07-00597, 2008 WL 2454675 (Tex. App.—Dallas 2008, no pet.)

Hurley v. State, No. 05-06-00034-CR, 2006 WL 3528668 (Tex. App.—Dallas 2006, no pet.)
Appellant pleaded guilty to burglary of a habitation with intent to commit aggravated rape in 1977. In 2006, Ap­pel­lant filed a pro-se motion for DNA testing under chapter 64. The state represented that there was no evidence remaining that could be subjected to DNA testing. The trial court and the court of appeals found that biological evidence no longer existed. In response to Appellant’s argument that if there was no longer any evidence to test then it was destroyed in violation of Article 38.43, the court of appeals noted that Article 38.43 “does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals.”

Westfall v. State, No. 2-08-242, 2008 WL 4052960 (Tex. App.—Fort Worth 2008, no pet.)
This appeal, by a pro se inmate, was dismissed for want of jurisdiction. Article 38.43 provides that the state may destroy DNA evidence if it does not receive an objection within 91 days after giving notice to the defendant, defense counsel, and the convicting court. The statute does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals.

In re Bowman, No. 03-06-00183, 2009 WL 3400993 (Tex. App.—Austin 2009, pet. ref’d)
Request for appointment of counsel in connection with an anticipated post-conviction motion for DNA testing was properly denied.

Garcia v. State, 327 S.W.3d 269, 272 (Tex. App.—San Antonio 2010, pet. ref’d)
Identity that must be at issue for convicting court to order forensic DNA testing pursuant to Chapter 64 is that of the perpetrator, not that of the victim.

Quinn v. State, 2011 WL 3795233 (Tex. App.—Fort Worth 2011, pet. ref’d)
Appellant was convicted in 1995. Years later he filed a post-conviction motion for forensic DNA testing of evidence pursuant to Article 64.01 of the Texas Code of Criminal Procedure. However, since his conviction the DNA evidence had been destroyed. Because Article 38.39 (now 38.43) went into effect on April 5, 2001, Appellant had no recourse.

Napper v. Thaler, No. H-10-3550, H-10-3551, 2012 WL 1965679 (S.D.Tex.2012)

Ex parte Napper, 322 S.W.3d 202, 205 (Tex. Crim. App. 2010)
The state and federal appeals both concern post-conviction DNA testing and the widespread problems with the Houston police department crime lab. In his state appeal, the trial court initially recommended granting relief. However, the Texas Court of Criminal Appeals hesitated to find that the evidence at issue was potentially useful to Appellant and concluded that, while mistakes were made during the testing process, there was no proof that evidence was destroyed with “bad faith.” The court concluded that “[w]here exculpatory results were unlikely, an inference can be drawn that the DNA analyst was probably not acting with the intent to deprive the defendant of exculpatory evidence when he destroyed the sample.”
      As soon as the state appeal was denied, Applicant filed a petition for writ of habeas corpus under 28 U.S.C. Section 2254. He contended that the state violated his right to due process because two Houston police department crime laboratory workers consumed or destroyed “potentially useful” DNA evidence without affording the defense an opportunity to conduct independent testing. However, Applicant’s failure to show that the evidence (potentially useful or otherwise) was destroyed in bad faith was fatal to his federal claim under Arizona v. Youngblood, 488 U.S. 51, 56 (1988).

Lawrence v. State, 2013 WL 5948112 (Tex. App.—Texarkana 2013, no pet.)
Appellant was convicted of burglary of a habitation with the intent to commit aggravated sexual assault and sentenced to life in prison. He sought to have the trial court order post-conviction DNA testing pursuant to Chapter 64 on the gloves and boots worn by the perpetrator and the bed rail. Only the bed rail was available for testing. However, Appellant failed to carry his burden under Article 64.03(a). In denying Appellant’s motion for testing, the court of appeals noted that it would be impossible to determine whether any DNA on the bed rail came from the assailant or from someone who merely had access to the bed rail in some fashion.

State v. Swearingen, No. AP-77,020 (Tex. Crim. App. 2014)
The trial court granted Appellee’s fourth motion for post-conviction DNA testing. The state brings this appeal. The Court of Criminal Appeals reverses the trial court’s order finding that Appellee had not established that biological evidence exists or that, where it does, exculpatory test results would have affected his trial.
      The Attorney General has also been sought out for an opinion regarding Article 38.43. In 2012, the Harris County District Attorney sought an Attorney General opinion regarding preservation requirements of blood evidence under Article 38.43 in certain DWI cases.18 Seemingly, the Harris County District Attorney’s office was seeking approval for a trial court to destroy blood evidence seized in connection with an intoxication-related offense that had been concluded. However, they received no such approval. The AG opinion concludes that a court does not have authority to order the destruction of blood collected during the investigation of an intoxication-related misdemeanor offense after the underlying case has been finally resolved.

V. Sister Statutes

It would be impossible to analyze Article 38.43 and its implications without also mentioning the interplay it has with both the Michael Morton Act and Chapter 64 of the Code of Criminal Procedure.

A. Michael Morton Act

Even before the dawn of the Michael Morton Act (SB 1611) on January 1, 2014, Article 39.14 of the Code of Criminal Procedure provided that certain physical evidence was discoverable. Now, however:

. . . as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection . . . [of] objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.19

The Michael Morton Act, thus, made two significant changes with regard to the discovery of physical evidence. First, the discovery provisions are triggered by a request from the de­fendant. By its very terms, Article 39.14 does not necessitate an order from the trial court. Therefore, it is imperative to file a specific request for discovery in every case as soon as practicable. Second, and importantly, the discovery provision applies to the state as well as any person under contract with the state. This means the state cannot simply say the evidence is not subject to inspection because it is housed elsewhere.

Additionally, even though Article 38.43 does not impose an obligation on the defendant, in certain cases it is probably worthwhile to file a motion to preserve evidence. Such a motion is obviously in anticipation that evidence might not be preserved or might be destroyed before trial. In that instance, having filed such a motion at the inception of the case would give credence to the defensive argument that the destruction was done intentionally and with bad faith and also might convince the trial court to include a spoliation instruction in the jury charge.20

Biological evidence, as long as it is properly preserved and the chain of custody is maintained, can be retested, reevaluated, reweighed, etc. The obvious caution in retesting any evidence is making the state aware that such evidence was, in fact, retested. For example, a blood test in a DWI case that is retested may yield a lower alcohol concentration but still may be over the legal limit. In that scenario, the arguments that retesting is cost prohibitive or that the performance on the field sobriety tests does not match the resultant number will not work. It is imperative that all motions and orders to retest evidence be ex parte, under seal, and with explicit directions to the agency exercising care, custody, and control of the evidence.

B. Chapter 64

Chapter 64 is the procedural mechanism through which evidence containing biological material can be tested post-conviction. Specifically, Chapter 64 allows a convicted person to “submit to the convicting court a motion for forensic DNA testing of evidence containing biological material.”21 This motion may request testing of evidence that was secured in relation to the offense compromising the underlying conviction and was in the possession of the state during the trial but either was not previously tested or, although previously tested, can be tested with newer techniques that can likely provide more accurate and probative results.22 A convicting court may order testing if the evidence in question:

i. still exists and is in a condition making DNA testing possible; and
ii. has been subjected to a chain of custody sufficient to es­tablish it has not been substituted, tampered with, re­placed, or altered in any material respect; and
iii. identity was or is an issue in the case.23

The convicted person has the burden of proof to show by a preponderance of the evidence that:

the person would not have been convicted if exculpatory results had been obtained through DNA testing; and the request for the proposed DNA testing is not made to unreasonably delay the execution of the sentence . . .24

Prior to legislative amendments in 2011, there was a requirement under Chapter 64 that the lack of previous testing had not been the convicted person’s fault. This proved to be quite an onerous requirement. That is no longer such a requirement.25

VI. Conclusion

Biological evidence is, has been, and will continue to be a vital part of the criminal justice system. Ideally, it is used to convict the guilty and exonerate the innocent. As science continues to develop and evolve, biological evidence becomes not only more commonplace in criminal investigations; it also becomes more critical. As science pushes forward, we come to understand that some past methods of scientific evaluation and testing are no longer the unassailable juggernauts that we once believed them to be—they can be controverted, disproven, and cast aside by new methods. It is precisely for this reason that evidence containing biological material be properly collected, stored, preserved, and analyzed. Article 38.43 is a merely a means of accomplishing that end.

Endnotes

1. Richard Dawkins, River Out of Eden: A Darwinian View of Life, 133 (1995) (“DNA neither cares nor knows. DNA just is. And we dance to its music.”)

2. The Innocence Project, available at www.innocenceproject.org .

3. See Acts 2001, 77th Leg., ch. 2, § 1, eff. April 5, 2001.

4. SB 3, House Research Organization Bill Analysis (March 21, 2001); available at www.hro.house.state.tx.us/pdf/ba77r/sb0003.pdf#navpanes=0 .

5. See Acts 2011, 82nd Leg., ch. 91, § 27.002(1) (eff. Sept. 1, 2011), ch. 1248, § 1 (eff. June 17, 2011).

6. SB 1616, by West, Criminal Justice (August 25, 2011), available at www.capitol.state.tx.us/tlodocs/82R/analysis/pdf/SB01616F.pdf#navpanes=0 .

7. Tex. Code Crim. Proc. art. 38.43(a).

8. Id., art. 38.43(b).

9. Dix & Schmolesky, Texas Practice Series, Criminal Practice and Procedure, Thomson West, Vol. 43B, Section 60:07, p. 896 (3rd ed. 2011).

10. Id.

11. Id.

12. Tex. Code Crim. Proc. art. 38.43(c).

13. Id., art. 38.43(c)(1).

14. Id., art. 38.43(c)(2).

15. Id., art. 38.43(d).

16. Id., art. 38.43(g).

17. Id., art. 38.43(f).

18. Tex. Atty. Gen. Op. GA-0992 (March 12, 2013), 2013 WL 2996993.

19. Tex. Code Crim. Proc. art. 39.14(a).

20. See State v. Vasquez, 230 S.W.3d 744 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that the Texas Constitution in this instance provides no more protection than the federal constitution, and that the defendant must prove that the intentional destruction of potentially useful evidence was done in bad faith); Pena v. State, 166 S.W.3d 274 (Tex. App.—Waco 2005) (Pena I), pet. granted, judgment vacated, 191 S.W.3d 133 (Tex. Crim. App. 2006) (the Texas constitutional requirement of due course of law provided more protection for the destruction of evidence than the federal constitutional requirement of due process. The Court of Criminal Appeals, in Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009) (Pena II), held that the issue had not been preserved for appeal).

21. Tex. Code Crim. Proc. art. 64.01(a-1).

22. Id., art. 64.01(b).

23. Id., art. 64.03(a)(1).

24. Id., art. 64.03(a)(2).

25. See Act of May 23, 2011, 82nd Leg., R.S., § 1, 2011 Tex. Gen. Laws 366.