Pena v. State

¶1dissenting.

¶2“As a dog returns to its vomit, so a fool repeats his folly.” Proverbs 26:11. As the majority did in 2005, see Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005) (“Pena I”), vacated, 191 S.W.3d 133 (Tex.Crim. App.2006), the majority again reverses Pena’s conviction, and holds that the trial court erred in overruling Pena’s objections to the testimony of Texas Department of Public Safety criminologist Charles Mott and related evidence without giving a jury instruction unknown to Texas law, see Pena v. State, 226 S.W.3d 634 (Tex.App.Waco 2007, no pet. h.) (op. on remand) (“Pena II”). We ordered rebriefing in Pena’s case, as the Texas Court of Criminal Appeals directed in vacating and remanding the majority’s earlier judgment. See Pena, 191 S.W.3d at 138; Pena v. State, 192 S.W.3d 684 (Tex.App.-Waco 2006, order) (per curiam), disp. on merits, Pena II, 226 S.W.3d 634. Pena’s brief on remand adds nothing, but merely regurgitates the majority’s analysis in Pena I. The majority’s opinion conflicts with the applicable decisions of the Court of Criminal Appeals, the Texas Supreme Court, and the other courts of appeals. The majority again seeks improperly and unjustifiably to “extend” the law. See In re B.L.D., 56 S.W.3d 203, 211 (Tex.App.-Waco 2001), rev’d, 113 S.W.3d 340 (Tex.2003) (termination of parent-child relationship); In re A.V., 57 S.W.3d 51, 57 (Tex.App.Waco 2001), rev’d, 113 S.W.3d 355 (Tex.2003) (termination of parent-child relationship). I dissent.

¶3The majority’s opinion glosses over two properly dispositive parts of the analysis, namely preservation of error and harm, in less than a page each, in order to publish its thirty-six page, mediocre law-review article on the merits of Pena’s issues under the Texas Constitution. We should instead decide the case on one of those two proper bases, since “[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Pena, 191 S.W.3d at 136 (quoting Clinton v. Jones, 520 U.S. 681, 690, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997)). Even if the majority’s analysis of the merits were correct, Pena’s failure to preserve his complaint is fatal to his issue; and the majority’s harm analysis is utterly insufficient, while a proper harm analysis would probably find that any error was harmless.

¶4I. PRESERVATION OF ERROR

¶5The majority’s analysis of the preservation of error is as follows, in its entirety:

The State argues that Pena has not preserved this aspect of his first issue for appellate review because he did not argue in the trial court that the Texas Constitution provides greater rights than the federal constitution. We disagree. Pena argued to the court that his rights under the Due Course of Law provision of the Texas Constitution were violated by the admission of this evidence. If, as the State contends, the federal and state provisions are synonymous, then Pena’s objection under the Texas Constitution was meaningless.

Pena specifically objected to the trial court that the admission of Mott’s testimony and the lab report would violate his right to due course of law under article I, section 19 of the Texas Constitution because the State had destroyed the seized plant material. This was sufficient to preserve this issue for appel*658late review. See Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983) (rejecting court of appeal’s holding that “open courts” complaint was not preserved by plaintiffs objection that statute violated the “due process provisions of the United States and Texas Constitutions”); ef. Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App.2004) (holding state constitutional issue not preserved because of, among other things, “counsel’s failure to cite to the state constitution”).

¶6[sic] Pena II, at 637-38 (majority op.). The majority, in preference to the recent cases of the Court of Criminal Appeals to the effect that general objections do not preserve error, cites a twenty-five-year-old Texas Supreme Court case. See id., at 637 (citing Sax, 648 S.W.2d at 664); but compare, recently, Hyundai Motor Co. v. Vazquez, 189 S.W.3d 743, 759-60 (Tex.2006) (error not preserved); In re K.A.F., 160 S.W.3d 923, 928 (Tex.2005) (termination of parent-child relationship) (constitutional error not preserved).

¶7Pena argues that he “preserved for appellate review his contention that the Due Course of Law Clause of Article I, Section 19 of the Texas Constitution provides defendants with a greater level of protection with regard to lost or destroyed evidence than does the Due Process Clause of the Fourteenth Amendment.” (Br. at 4 (citing U.S. Const, amend. XIV; Tex. Const, art. I, § 19).) It is undeniable that Pena did not apprise the trial court that Pena believed that the Texas Constitution’s protections differed in any way from the United States Constitution’s. From the record, it is manifest that no person, neither the trial court, the State’s attorneys, nor Pena himself, understood Pena to make such an argument.

¶8“As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. ...” Tex.R.App. P. 33.1(a); see Griggs v. State, 213 S.W.3d 923, 927 (Tex.Crim. App.2007) (reversing this Court); Buchanan v. State, 207 S.W.3d 772, 775 (Tex.Crim. App.2006); Keeter v. State, 175 S.W.3d 756, 759-61 (Tex.Crim.App.) (reversing this Court), cert. denied, 546 U.S. 852, 126 S.Ct. 114, 163 L.Ed.2d 124 (2005); Loredo v. State, 159 S.W.3d 920, 923-24 (Tex. Crim.App.2004) (reversing this Court); Sanchez v. State, 120 S.W.3d 359, 364-65 (Tex.Crim.App.2003); Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002) (reversing this Court). “[I]n order to preserve an issue for appeal, a timely objection must be made that states the specific ground for objection, if the specific ground was not apparent from the context.” Buchanan at 775 (citing Heidelberg, 144 S.W.3d at 537). “Generally speaking, a party’s complaint is adequately specific if the party lets the trial judge know what he wants and why he is entitled to it, and a party’s complaint is timely if the party makes the complaint as soon as the grounds for it become apparent.” Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992); Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991)).

¶9“Preservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond or cure them.” *659Loredo, 159 S.W.3d at 923. “There are two main purposes behind requiring a timely, specific objection: 1) to inform the judge of the basis of the objection and give him the chance to make a ruling on it, and 2) to give opposing counsel the chance to remove the objection or provide other testimony.” Garza v. State, 126 S.W.3d 79, 82 (Tex.Crim.App.2004) (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977)). “A general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel.” Buchanan, 207 S.W.3d at 775 (citing Heidelberg, 144 S.W.3d at 539-43) (emphasis in Buchanan). “When the objection is not specific, and the legal basis is not obvious, it does not serve the purpose of the contemporaneous-objection rule for an appellate court to reach the merits of a forfeitable issue that is essentially raised for the first time on appeal.” Id.(citing Aldrich v. State, 104 S.W.3d 890, 894 (Tex.Crim.App.2003)) (emphasis in Buchanan).

¶10“Whichever party complains on appeal about the trial judge’s action must, at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule in question and its precise and proper application to the evidence in question.” Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App.2005) (quoting 1 Stephen Goode et al„ Texas PRactice: Guide to the Texas Rules of Evidence; Civil and CRIMINAL § 103.2 (2d ed.1993) (emphasis omitted in Reyna)). “[I]t is not enough to tell the judge that evidence is admissible” or inadmissible. Reyna at 177. The appellant “must have told the judge why the evidence was admissible” or inadmissible in order to preserve a complaint for appeal.1Id.A complaint that thus fails to apprise the trial court of the claim procedurally defaults the claim. Sanchez, 120 S.W.3d at 364-65; Wilson v. State, 7 S.W.3d 136, 145 (Tex.Crim.App.1999); Dixon v. State, 928 S.W.2d 564, 565 (Tex.Crim.App.1996) (per curiam).

¶11What may arguable constitute preservation of Pena’s issues is as follows.

¶12Pena contends that “[i]nitially Pena’s counsel, in a pretrial motion, sought to suppress physical evidence the State intended to offer at trial as a violation of Federal and State Constitutions.” (Br. [on remand] at 4.) Pena does not cite to the record. The only such motion I see in the record is part of Pena’s Omnibus Pretrial Motions:

The Defendant requests a hearing outside the jury’s presence to determine the admissibility of any physical evidence recovered during the investigation of this case 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.

¶13(I C.R. at 94.) That motion — if it is an objection — would not preserve Pena’s corn-*660plaint for appellate review.2

¶14The court heard Pena’s pretrial motions “in chambers,” and the appellate record does not contain a reporter’s record of the hearing. (See 3 R.R. at 3.)

¶15In a pretrial hearing on the record, the trial court ruled on the motion as follows, in colloquy with Pena’s attorney, Brent J. Cahill.

THE COURT: The defendant requests a hearing outside the jury’s presence to determine the admissibility of any physical evidence recovered during the investigation. Well, if you’re — I don’t know what evidence you’re talking about here. If you’re talking about physical evidence, as I understand it, it has been misplaced or lost.

MR. CAHILL: Judge, to my knowledge the only evidence that existed in the case was the alleged marijuana which the State does not have, and I don’t know that there is anything else but—

THE COURT: So that is denied then.

MR. CAHILL: There could be.

¶16(3 R.R. at 6.)

¶17Later in the same pretrial hearing, Pena continued, in colloquy with the District Attorney, Ray Montgomery:

MR. CAHILL: We do need to address the motion to suppress and get on the record what the Court is going to do with that. The objections in the — I would add to those objections Section 481.160 of the Health and Safety Code dealing with destruction of evidence wherein under the new law in this section that was enacted that the State is required to keep five samples, five representative samples to be made available to defense for purposes of discovery. And that along with the constitutional objections and custody objections under the laws of the State of Texas and Constitution of the United States and the State of Texas I would add into that motion that under 38.22 of the Code of Criminal Procedure that nothing that arose out of that evidence that was taken by the State and destroyed by the State and tested by the State should be admissible in this proceeding.

THE COURT: Okay. And I would note that under the case law, as I understand it, it is the burden of proof of the defendant to prove that the destruction of the evidence was done willfully and that — and it is further your burden to show that the retention of the evidence would be favorable to your case. So, therefore, the Court is going to carry that motion along with the trial of this case. But that is your burden, your burden of proof as I understand the law. Does anybody have any comment they would like to make on that?

MR. MONTGOMERY: That’s our understanding as well, Judge.

MR. CAHILL: Judge, I do because additionally we have — and I will add to the motion the confrontation issue under the Sixth Amendment and Fourteenth Amendment of the United States Constitution and Article One, Section 9 of the Texas Constitution, that offends the confrontation clause. And in the case that the State relies on I would distinguish that for the Court in that that was a— and the cite is in my file. I would be *661glad to provide that to the Court. The Court has been provided a copy of that case to my understanding. That ease was about the destruction of blood evidence that was procured by a hospital, not a representative of the State of Texas or an arm of the State of Texas. It was not gathered in preparation for litigation such as this was. It was not examined and tested in preparation for litigation such as in the case at hand here. And the person that got up and testified about it was an independent lab technician from an independent lab that had no contact with law enforcement, either in preparation for trial or in an adversarial process. And, therefore, the Court ruled that that person could testify and that that report could come in and that that destruction was not then because of anything that the State did. That any of that comes in.

In this case the alleged marijuana was taken by the State, it was tested by the State. It was done in an adversarial proceeding and in anticipation of an adversarial position of the parties in preparation for litigation. And then it was lost or destroyed or something happened to it by the State in direct contravention of the Rules that they keep the evidence.

[[Image here]]

THE COURT: I need to hear the evidence before I rule on this. But citing these cases, the United States versus Valenzuela, Bemaul and the Mahaffey case, a showing that the lost evidence might have been favorable does not have the — does not meet the materiality standard. And then California versus Trombarro, again Mahaf-fey. When an accused complains of lost evidence he must show that the evidence lost is both material and favorable to him.We are going to carry this notion along with the case....

¶18[sic] (3 R.R. at 9-12) (ellipses added); see U.S. Const, amends. VI, XIV; California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); United States v. Valenzuela-Bemal, 458 U.S. 858,102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); Tex. Const. art. I, § 9; Tex.Code CRiM. PROC. Ann. art. 38.22 (Vernon 2005); Tex. Health & Safety Code Ann. § 481.160 (Vernon Supp.2006); Mahaffey v. State, 937 S.W.2d 51 (Tex. App.-Houston [1st Dist.] 1996, no pet.); e.g., Durrett v. State, 36 S.W.3d 205 (Tex. App.-Houston [14th Dist.] 2001, no pet.).3

¶19During trial, outside the presence of the jury, Pena objected as follows, in colloquy with an assistant district attorney, Whitney P. Smith:

MR. CAHILL: The other issue that we have before we bring the[] in is whether or not the results of anything that he tested based on the fact — and I will object under the Sixth Amendment of the United States Constitution and Article One, Section Nine of the Constitution of the State of Texas, under the right of confrontation that there is no way that I can adequately cross examine and confront this expert on alleged marijuana that no longer exists.

Additionally, the objection would be under the due process of rights of the accused and due course of law, which would be the Fifth and Sixth and Fourteenth Amendments.

THE COURT: Are you saying that the right of confrontation under the *662Constitution would apply to an object such as marijuana?

MR. CAHILL: Yes, Judge, I am. Because there is no way that I can adequately across—

THE COURT: Let me see your case on that.

MR. CAHILL: Judge, I don’t have a specific case on the actual issue.

THE COURT: The Court has always been under the opinion that right of confrontation applies to witnesses against a person.

MR. CAHILL: That’s correct, Your Honor.

THE COURT: And not an object.

MR. CAHILL: The problem here, Your Honor, if I could address it, is this witness is going to testify about an object.

THE COURT: Okay.

MR. CAHILL: That object is no longer in existence because of, we believe, this witness, which would like to get into next. And so that in itself does not allow me to adequately confront and cross examine him because I could never see what he’s talking about, touch what he’s talking about, have an independent lab test what he is talking about. He might as well say the gun that murdered the fellow, I looked at the gun, I saw it, I got fingerprints and, well, I don’t have any of that stuff but I will tell you all about it now.

THE COURT: I don’t believe right of confrontation reaches that far and you’re overruled on that point.

MR. CAHILL: I would address the due process rights of the accused and due course of law, additionally, Judge. But if you’re going to allow that in and allow—

THE COURT: I don’t know what I’m going to allow in. I don’t know what they are going to ask him to get in here. I guess you’re going to have the results of a lab report?

MR. SMITH: That’s right, Your Hon- or.

THE COURT: Is that all we are going to have?

MR. SMITH: That’s right, Your Hon- or. And we would like to also—

THE COURT: Get it out, get it marked so we know what we are talking about here.

MR. SMITH: Yes, sir.

¶20[sic] (3 R.R. at 95-98) (bracketed alteration added); see U.S. Const, amends. V-VI, XIV; Tex. Const, art. I, § 9. The exhibit marked was Mott’s lab report.

¶21After the State examined Mott on the testing of Pena’s marihuana and Mott’s report thereof, Pena stated:

MR. CAHILL: Judge, I don’t have anything. I would re-urge my objection. If the Court would like to allow me the opportunity to put it clearly on the record because — or make a decision whether this is going to come in when they don’t have any dope for to us test.

THE COURT: All right. Now, the Court understands that we have lost evidence here and in these type cases the defendant must show that the prosecution acted in bad faith when it failed to preserve the evidence to show violation of due process or due course of law. And the defendant also has to prove that the lost evidence would be material to the case. And there is no question here it would be material to the case. It is the essence of the case. And that the evidence would be favorable to the defendant. So I guess that’s my duty to rule on those kind of questions.

¶22[sic] (3 R.R. at 113-14) (ellipsis added).

¶23After further examination and cross-examination of Mott, the trial court found:

*663Then the Court is — the Court finds then that the evidence that was lost is material but the Courts fails to find how it could be favorable to the defendant if it had been brought here into Court. And also the Court does not find that there was any bad faith on the part of the State or wilful misconduct on the part of the State in losing this evidence insofar as this witness is concerned.

¶24[sic] (3 R.R. at 124-25.)

¶25After further colloquy on the source of authority to destroy the marihuana, Pena continued, and the trial court ruled:

MR. CAHILL: And I would again just — if I understand the Court going to let this testimony in, that this was tested as marijuana, that it was marijuana and the weight of the marijuana, and when the Court found that it wasn’t done purposefully by the laboratory, be it the State of Texas, that puts defense counsel in a posture, Judge, where we are forced to assume the burden and prove a negative.

THE COURT: I know that, Mr. Ca-hill. But you know, I didn’t write the law.

MR. CAHILL: I understand that, Judge.

THE COURT: I’m just trying to follow the law and that’s what these cases say. I realize it puts the defendant in a predicament. And you’re doing just what I would do if I was in your shoes. But I didn’t write the law. I have got to follow the law that the courts write for me and that’s what I’m trying to do and that’s what they told me to do so I’m doing it.

MR. CAHILL: I think that, Judge, when there is other evidence or substantial evidence that an offense was committed — and I think that is why we don’t see it in the law because this just insults justice so much, Judge.

THE COURT: Right, I understand. That really goes to the jury, though, more than to me because I took an oath to follow this law and I’m going to follow it. If you have got a case that says I’m wrong let me have it and I will follow that case.

MR. CAHILL: I would have made you ten copies already, Judge, if I did.

THE COURT: Okay.

MR. CAHILL: For the purposes of this. And when we bring back the jury, Judge, I would like at this time to be allowed to re-urge my previous objection, make sure it’s clear. And when the jury comes in if I can just say, Judge, I re-urge or something to protect the appellate record.

THE COURT: Right. I want you to protect the appellate record.

MR. CAHILL: I think we know where it’s going.

THE COURT: Whatever we need to do in that regard let’s do it.

MR. CAHILL: I would re-urge everything as set out in the motion to suppress. Along with that I would re-urge under Section 481.10 or 160 of the Health and Safety Code, Texas Controlled Substance Act. I would also re-urge — it’s not in the motion, along with that under 38.22 that anything that came out of this after it has been destroyed be suppressed, Judge.

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 *664Ten 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. If the Court is going to allow — those would address the issue of this nonexistent evidence being presented.

[[Image here]]

... Those are my objections to that. And the only one I would add would be that I might ask the trial court, since he is coming in as an expert testifying about — although until he says he actually did something that now no longer exists under 705(a) and (d), I believe, under 705 of the Rules of Evidence. I would like the Court to take into consideration that and do a balancing test and put it on the record and give the jury a limiting instruction that’s it’s not to be used for any purpose other than to say well, at one time it may have existed but not for the facts asserted on the underlying test that we cannot — we can’t cross him on, Judge.

THE COURT: I wouldn’t know how to do what you’re asking me to do.

MR. CAHILL: All right. That’s all I have on the issue of the nonexistent evidence.

THE COURT: Then you have clearly stated your objection and the Court has heard them and you have stated them well. However, the Court overrules those objections.

¶26[sic] (3 R.R. at 126-30) (ellipses added); see U.S. Const, amends. V-VI, XIV; Tex. Const, art. I, §§ 9-10, 19; Tex.Code CRiM. PROC. Ann. arts. 1.04, 1.051, 1.06 (Vernon 2005), art. 38.22; Tex. Health & Safety Code Ann. § 481.160; Tex.R. Evid. 705. Before the jury, Pena objected:

Judge, of course my previous objection that was urged prior to this I just re-urge it again now and that I urged at the beginning of the testimony.

¶27(3 R.R. at 146.) The trial court admitted Mott’s report.

¶28Although Pena used the words “due course of law” and cited Texas Constitution Article I, Section 19 — although not in proximity to each other — nowhere does Pena apprise the trial court that due course of law under the Texas Constitution had any different bearing on his case than did due process of law under the United States Constitution. Pena frankly acknowledged to the trial court that he had no case authority for the propositions that Pena was advocating.4 To say that an appellant must have presented authority for arguments “is not to say that [an] appellant may not make a novel argument for which there is no authority directly on point. However, in making such an argument, [an] appellant must ground his contention in analogous case law or provide the [c]ourt with the relevant jurisprudential framework for evaluating his claim.” Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000) (op. on orig. submission). Pena did not do so; he did nothing more than recite the words “due course of law.” In holding that Pena preserved a complaint, the majority’s decision conflicts with the applicable decisions of the Court of Criminal Appeals.

¶29In holding that Pena preserved his complaint, the majority, as it did in Loredo v. Texas, “ignore[s] a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a *665time and in a manner so that it can be corrected.” See Loredo, 159 S.W.3d at 923. A party complaining of error bears a “burden to draw the trial court’s attention to the error so that the trial court may have the opportunity to make an error free ruling.” Id. at 924. A corollary of that principle is that the complaining party must correct erroneous statements on which the trial court’s ruling is based. In Loredo, the “Court of Appeals” (the same majority as here) “disregarded the fact that the trial court’s ruling was based ... on the judge’s erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary.” Id. at 923. Where “the defendant fail[s] to correct the trial court’s erroneous statement,” the defendant “therefore fail[s] to meet his burden to show the trial court that his” objection “should have been” sustained. Id. at 924. As in Loredo, where the “appellant failed to dispute the court’s recollection even when invited to do so,” here Pena failed to dispute the trial court’s statement of the law, which Pena now contends was erroneous, even when the trial court expressly invited Pena to do so at least three times.5 Thus, as in Loredo, Pena’s “silence resulted in his failure to inform the trial court of his complaint at a time and in a manner that it could be corrected, in violation of the basic requirements of Texas Rule of Appellate Procedure 33.1.” See id.

¶30Moreover, “‘shotgun’ objections, citing many grounds for the objection without argument, will not preserve points based on authority which is merely mentioned in the trial court.” Webb v. State, 899 S.W.2d 814, 817 (Tex.App.-Waco 1995, pet. refd); accord Holmes v. State, 135 S.W.3d 178, 185 (Tex.App.-Waco 2004, no pet.); McCullough v. State, No. 05-97-00950-CR, 1999 WL 31204, at *3, 1999 Tex.App. LEXIS 419, at *7 (Tex.App.-Dallas Jan. 27, 1999, no pet.) (not designated for publication); Ex parte Sullivan, No. 05-98-00016-CR, 1998 WL 205860, at *1, 1998 Tex.App. LEXIS 2042, at *3 (Tex.App.-Dallas Apr. 6, 1998, pet. refd) (not designated for publication); Ex parte Peyser, No. 05-97-01606-CR, 1997 WL 775612, at *3, 1997 Tex.App. LEXIS 6469, at *9 (Tex. App.-Dallas Dec. 17, 1997, pet. refd) (not designated for publication); Morgan v. State, No. 05-94-01135-CR, 1996 WL 223551, at *4, 1996 Tex.App. LEXIS 1728, at *13 (Tex.App.-Dallas Apr. 30, 1996, pet. ref'd) (not designated for publication); Lopez v. State, 651 S.W.2d 830, 835 (Tex.App.-San Antonio 1983, pet. refd); see In re Martinez, No. 09-05-493 CV, 2006 WL 2439752, at *2, 2006 Tex.App. LEXIS 7459, at *5 (Tex.App.-Beaumont Aug. 24, 2006, no pet.) (mem. op.) (mental commitment); Knipe v. Rector, 463 S.W.2d 769, 771 (Tex.Civ.App.-Fort Worth 1971, no writ). Pena’s objection is a typical shotgun objection. In holding that Pena’s objection preserved a complaint, the majority’s decision conflicts with other courts of appeals’ decisions.

¶31The majority holds, “If, as the State contends, the federal and state provisions are synonymous, then Pena’s objection un*666der the Texas Constitution was meaningless.” Pena II, 226 S.W.3d at 637 (majority op.). Pena’s objection may have been meaningless, for the reasons stated above, but would not have been for the reason stated by the majority. The majority’s statement, besides being fallacious, conflicts with the applicable decisions of the Court of Criminal Appeals. That Court has held that the conflation of argument under the United States and Texas Constitutions does not signify an argument that the one provides a higher degree of protection than the other. See Luquis v. State, 72 S.W.3d 355, 364 (Tex.Crim.App.2002). The majority’s argüment is a non sequitur, moreover, in that the citing of both the United States and Texas Constitutions does not signify that either provides greater protection than the other, any more than Pena’s also citing Texas statutes and rules signifies that the statutes and rules cited provide greater protections than the constitutions, or either of them. By the majority’s reasoning, it would not be possible to cite two co-equal authorities for a legal proposition; one would necessarily trump the other. Pena argued that the United States Constitution, as well as the Texas Constitution, barred the evidence of which he complains. In this he was incorrect, under the authoritative interpretation of the United States Constitution by the United States Supreme Court; but that does not signify that the Texas Constitution provides greater protection than the United States Constitution.

¶32For these reasons, we should overrule Pena’s issues on remand.

¶33II. Hakm

¶34Further, the majority conducts no effective harm analysis. The majority’s application of harmless-error law is as follows, in its entirety:

Having found a constitutional violation, we must next determine whether this error requires reversal. Under Rule of Appellate Procedure 44.2(a), such an error requires reversal “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. P. 44.2(a); see Pope v. State, 161 S.W.3d 114, 121 (Tex.App.-Fort Worth 2004), aff'd, 207 S.W.3d 352 (Tex. Crim.App.2006); Moore v. State, 143 S.W.3d 305, 323 (Tex.App.-Waco 2004, pet. refd); Fox v. State, 115 S.W.3d 550, 563 (Tex.App.-Houston [14th Dist.] 2002, pet. refd).

Here, the error impacted the determination of Pena’s guilt because it affected his ability to prove his contention that the plant material was something other than marihuana or that it amounted to a quantity less than charged in the indictment. Cf. Nowling [v. State ], 801 S.W.2d [182,] 184-85 [ (Tex.App.-Houston [14th Dist.] 1990, pet. refd) ]. Therefore, we cannot say beyond a reasonable doubt that the error did not affect Pena’s conviction or punishment.

¶35Pena II, 226 S.W.3d at 654-55 (majority op.).

¶36“In conducting a harm analysis, the court of appeals must hand down an opinion that although brief, ‘addresses every issue raised and necessary to final disposition of the appeal.’ ” Long v. State, 203 S.W.3d 352, 353 (Tex.Crim.App.2006) (quoting Tex.R.App. P. 47.1). The general rule is that “an appellate court must examine the record as a whole when engaged in a harmless-error review.” Miles v. State, 204 S.W.3d 822, 828 (Tex.Crim.App.2006), cert. denied, — U.S.-, 127 S.Ct. 1496, 167 L.Ed.2d 230 (2007); accord Davis v. State, 203 S.W.3d 845, 852 (Tex.Crim.App.2006), cert. denied, — U.S. -, 127 S.Ct. 2037, 167 L.Ed.2d 774 (2007); San*667chez v. State, 165 S.W.3d 707, 714 (Tex.Crim.App.2005); Rich v. State, 160 S.W.Sd 575, 577-78 (Tex.Crim.App.2005); Schutz v. State, 63 S.W.3d 442, 444-45 (Tex.Crim.App.2001); Llamas v. State, 12 S.W.3d 469, 471 (Tex.Crim.App.2000). “Indeed, ‘one can hardly evaluate the impact of an error upon a jury decision without considering the totality of the case before the jury.’ ” Miles at 828 (quoting W. LaFave ET AL., CRIMINAL PROCEDURE § 27.6(b), at 943 (2d ed.1999)). Moreover, “the evidence of the defendant’s guilt is a factor to be considered in any thorough harm analysis.” Motilla v. State, 78 S.W.3d 352, 358 (Tex.Crim.App.2002); accord Wall v. State, 184 S.W.3d 730, 746 (Tex.Crim.App.2006). “[W]e must ‘judge the magnitude of the error in light of the evidence as a whole to determine the degree of prejudice to the defendant resulting from that error.’ ” Jones v. State, 119 S.W.3d 766, 777 (Tex.Crim.App.2003) (quoting United States v. Polanco, 93 F.3d 555, 562-63 (9th Cir.1996)) (Miranda error). Moreover, in evaluating harm from constitutional error involving material, exculpatory evidence, the “constitutional standard of materiality must impose a higher burden on the defendant” than even the harmless-error rule. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis in orig.); see Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Turpin v. State, 606 S.W.2d 907, 916 (Tex.Crim.App.1980).

¶37In evaluating harm from constitutional error in the admission of evidence, “we review the entire record.” Simpson v. State, 119 S.W.3d 262, 269 (Tex.Crim.App. 2003). “In the case of the erroneous admission of evidence, ... the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing argument, voir dire, and whether the State emphasized the error.” Rich, 160 S.W.3d at 577-78 (citing Motilla, 78 S.W.3d at 355-56). For example, in the context of evaluating harm from the constitutionally erroneous admission of evidence, the Court of Criminal Appeals has held that reviewing courts “should consider”:

(1) “The importance of the” evidence “to the State’s case;”

(2) “Whether the ... evidence was cumulative of other evidence;”

(3) “The presence or absence of evidence corroborating or contradicting the” evidence “on material points;”

(4) “The extent of’ similar evidence “otherwise permitted;” and

(5) “The overall strength of the prosecution’s case.”

¶38Davis, 203 S.W.3d at 850 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684,106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)) (Confrontation-Clause error); see also Shuffield v. State, 189 S.W.3d 782, 791-92 (Tex.Crim.App.), cert. denied, — U.S. -, 127 S.Ct. 664, 166 L.Ed.2d 521 (2006); Byrd v. State, 187 S.W.3d 436, 444 (Tex.Crim.App.2005); Johnson v. State, 169 S.W.3d 223, 237 (Tex.Crim.App.2005), cert. denied, 546 U.S. 1181, 126 S.Ct. 1355, 164 L.Ed.2d 66 (2006).

¶39Moreover, if the question is one of the denial of a jury instruction (one not requested), an Almanza egregious-harm analysis is required. See Olivas v. State, 202 S.W.3d 137, 143-44 (Tex.Crim.App.2006); Ex parte Smith, 185 S.W.3d 455, 463-64 (Tex.Crim.App.2006) (orig. proceeding), rev’d on other grounds sub nom. Smith v. Texas, — U.S. -,- *668-, 127 S.Ct. 1686, 1697, 1698, 167 L.Ed.2d 632 (2007); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).

¶40The majority conducts no effective harmless-error review. In so failing, the majority’s decision conflicts with those of the Court of Criminal Appeals. I briefly note that a proper harm analysis would probably find any error harmless beyond a reasonable doubt. At several points in the majority’s opinion, the majority writes as though there were no evidence of Pena’s guilt other than the marihuana seized and Mott’s report. The majority states that exclusion of Mott’s testimony and report “would be tantamount to a an acquittal.” Pena II, 226 S.W.3d at 655 n. 26 (majority op.). However, disregarding the evidence that the majority would exclude, the other evidence is sufficient and damning. In particular, a proper harm analysis would consider the arresting officer’s expert testimony identifying the marihuana, and his photographs of the marihuana.6 “A police officer’s testimony, based on his experience and the characteristics of the substance, that the substance is marijuana is sufficient to establish the substance is marijuana as that term is defined in the Texas Controlled Substances Act.” Capuano v. State, No. 05-04-01832-CR, 2006 WL 321964, at *4, 2006 Tex.App. LEXIS 1151, at *12 (Tex.App.-Dallas Feb. 13, 2006, no pet.) (not designated for publication) (citing Carmouche v. State, 540 5.W.2d 701, 703 (Tex.Crim.App.1976)); accord Schillings v. State, No. 12-03-00069-CR, 2004 WL 1192634, at *3, 2004 Tex. App. LEXIS 4864, at *9 (Tex.App.-Tyler May 28, 2004, no pet.) (mem. op.) (not designated for publication); see Jackson v. State, 450 S.W.2d 616, 618 (Tex.Crim.App. 1970); Miller v. State, 168 Tex.Crim. 570, 572, 330 S.W.2d 466, 468 (Tex.Crim.App.1959); Walker v. State, No. 05-01-00904-CR, 2003 WL 147730, at *1, *2, 2003 Tex. App. LEXIS 582, at *3, *5 (Tex.App.-Dallas Jan. 22, 2003, pet. refd) (not designated for publication). The officer testified unequivocally based on his experience that the marihuana was marihuana. The officer testified to the marihuana’s weight, at over fifty pounds, the possession of which is a second-degree felony.7See Tex. Health & Safety Code Ann. § 481.121(b)(5) (Vernon 2003). The State charged Pena with the lesser included offense of possession of 23.46 pounds, based on Mott’s report of the dry weight of the marihuana. The other evidence of the marihuana and its weight would probably render any error in the admission of Mott’s testimony and report harmless beyond a reasonable doubt. For that reason, we should overrule Pena’s issues on remand.

¶41III. ErRor

¶42Although there are many parts of the majority’s error analysis with which I disagree, I limit myself to the following few brief comments.

¶43The majority’s opinion again contradicts the holdings of the Court of Criminal Appeals. Texas law to the effect that the *669inadmissibility of lost potentially favorable evidence is conditioned on a showing of bad faith long predates the United States Supreme Court’s interpretation of the United States Constitution to that effect in Youngblood in 1988 and affirmed as recently as 2004. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); see Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004); Turpin, 606 S.W.2d at 917; Nastu v. State, 589 S.W.2d 434, 441 (Tex.Crim.App. [Panel Op.] 1979); Lake v. State, 577 S.W.2d 245, 246 (Tex.Crim.App. [Panel Op.] 1979); Patterson v. State, 509 S.W.2d 857, 863 (Tex.Crim.App.1974); Penix v. State, 488 S.W.2d 86, 88-89 (Tex. Crim.App.1972). For example, in Lake v. Texas in 1979, the Court of Criminal Appeals held:

It is true, as appellant argues, that a defendant should be given access to contraband for the purpose of analysis when available. There are instances, however, when it is not available, such as when it is lost or is destroyed in the process of analysis. Under such circumstances it is not error to convict for possession of drugs absent the physical presence of the drug itself, providing the drug has been analyzed and the chain of custody explicated. See Montes v. State, Tex.Cr.App., 503 S.W.2d 241[, 242-43 (1974) ]. In the instant case, the chemist who made the analysis was present and available for questioning as were the officers who make the arrest and seizure and who could testify to the chain of custody. Of course, the state must not be allowed to purposefully or carelessly destroy evidence with an eye to harming a defendant, but there was no showing of bad faith on the state’s part in this case.

¶44Lake, 577 S.W.2d at 246 (emphasis in orig.) (some citations omitted). Here, as in Lake, the trial court found that the marihuana lost, that the marihuana had been analyzed, that the chain of custody was explained, and that there was no bad faith. It is for the jury to determine the credibility and weight of the oral testimony. See Tex.Code CRIM. PROC. Ann. art. 36.13 (Vernon 1981); Watson v. State, 204 S.W.3d 404, 407-410 (Tex.Crim.App.2006); Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim.App.2004); Weatherford v. State, 31 Tex.Crim. 530, 537, 21 S.W. 251, 252 (1893). In particular, “[w]ithout evidence of tampering, most questions concerning care and custody of a substance go to the weight attached, not the admissibility, of the evidence.” See Lagrone, 942 S.W.2d at 617. Likewise, in Turpin v. Texas, the Court of Criminal Appeals found that under Texas law the State’s failure to preserve specimens of the appellant’s breath for analysis of their alcohol concentration did not constitute a violation of “due process generally” under Texas law. Turpin, 606 S.W.2d at 915.8

¶45*670The majority also contradicts the holdings of the Texas Supreme Court. “While the Texas Constitution is textually different in that it refers to ‘due course’ rather than ‘due process,’ ” the Texas Supreme Court “regard[s] these terms as without meaningful distinction.” Nat’l Collegiate Athletic Ass’n v. Yeo, 171 S.W.3d 863, 868 n. 14 (Tex.2005) (quoting Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995)); see Mellinger v. City of Houston, 68 Tex. 37, 44-45, 3 S.W. 249, 252-53 (1887). “As a result, in matters of procedural due process,” that Court “ha[s] traditionally followed contemporary federal due process interpretations of procedural due process issues.” Yeo at 868 n.14 (quoting Than at 929); see Mellinger, 68 Tex. at 44-45, 3 S.W. at 252-53.

¶46Besides conflicting with the Court of Criminal Appeals’ and Supreme Court’s decisions, the majority’s opinion conflicts with the decisions of the other courts of appeals. Every court of appeals that has considered the matter since the majority’s vacated opinion has disapproved of that analysis. See Alvarado v. State, No. 07-06-0086-CR, 2006 WL 2860973, at *3, 2006 Tex.App. LEXIS 8696, at *8-*9 (Tex.App.Amarillo Oct. 9, 2006, no pet.) (not designated for publication) (mem. op.); In re Bowman, No. 03-06-00183-CR, 2006 WL 2852495, at *1-*2, 2006 Tex.App. LEXIS 8902, at *3-*4 (Tex.App.-Austin Oct. 6, 2006, pet. ref d) (not designated for publication) (mem. op.); Gutierrez v. State, No. 04-04-00790-CR, 2006 WL 542594, at *2, 2006 Tex.App. LEXIS 1761, at *5-*6 (Tex.App.-San Antonio Mar. 8, 2006, no pet.) (not designated for publication) (mem. op.); Garcia v. State, No. 04-05-00163-CR, 2006 WL 47046, at *2 n. 1, 2006 Tex.App. LEXIS 6816, at *6 n. 1 (Tex.App.-San Antonio Jan. 11, 2006, no pet.) (not designated for publication) (mem. op.); Salazar v. State, 185 S.W.3d 90, 92-93 (Tex.App.-San Antonio 2005, no pet.); see also McGee v. State, 210 S.W.3d 702, 705 (TexApp.-Eastland 2006, no pet.).

¶47Moreover, if, as Pena contends, he was in possession of “hemp,” not marihuana, then his objection is of no effect. As Mott testified, “Hemp is marijuana.” (3 R.R. at 119.) Such is the law, and such was the uncontradicted evidence at trial. “ ‘Marihuana’ means the plant Cannabis sativa L., whether growing or not,” but “does not include ... the mature stalks of the plant or fiber produced from the stalks.” Tex. Health & Safety Code Ann. § 481.002(26) (Vernon Supp.2006). “Marijuana ... is the dried leaves and flowering tops of a plant commonly known as hemp.” Capuano, 2006 WL 321964, at *3, 2006 Tex.App. LEXIS 1151, at *9; see Few v. State, 588 S.W.2d 578, 581-83 (Tex.Crim.App. [Panel Op.] 1979); Baker v. State, 123 Tex.Crim. 209, 210, 58 S.W.2d 534, 534 (1933); Capuano, 2006 WL 321964, at *3, 2006 Tex. App. LEXIS 1151, at *10. Pena did not suggest to the trial court, and does not suggest on appeal, how proof that his marihuana was “hemp” would have affected his guilt.

¶48Ex parte Lewis is a recent case in which the Court of Criminal Appeals decided that the Texas Constitution does not “impose[ ] a different standard than its ... counterpart” in the United States Constitution. Ex parte Lewis, 219 S.W.3d 335, 338 (Tex.Crim.App.2007) (orig. proceeding); see id. at 371. The majority treats Lewis as a *671prescription for what factors should be considered in such an analysis:

In Lewis, the Court of Criminal Appeals overturned its prior holding in Bauder v. State that the Double Jeopardy provision (article I, section 14) of the Texas Constitution provides more expansive protection in a case involving a prosecutor-induced mistrial than the Double Jeopardy Clause of the federal constitution. The Court in so doing considered: (1) the historical context in which article I, section 14 of the Texas Constitution was framed, including: English common law, nineteenth century decisions in other states, prior versions of the Texas Constitution, and nineteenth century decisions in Texas cases; (2) more recent decisions in Texas and other jurisdictions; and (3) practical considerations.

¶49Pena II, 226 S.W.3d at 638 (majority op.) (citing Lewis, 219 S.W.3d at 336-38 & passim); see U.S. Const, amend. V; Tex. Const, art. I, § 14; Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), overruled, Lewis, 219 S.W.3d 335. Although at least some of the factors that Lewis considers would no doubt be relevant, the Court of Criminal Appeals does not offer Lewis as a prescription for such an analysis. In any event, the majority’s analysis of “practical considerations” does not appear to be at all what the Court of Criminal Appeals has in mind by that term. Compare Pena II, 226 S.W.3d at 647-51 (majority op.) with Lewis at 353, 360-71. Moreover, I expect that, as the Court of Criminal Appeals sometimes finds in Lewis, that here “supporting evidence simply does not exist” as to some of the majority’s factors. See Lewis at 354. To whatever extent that due course of law expanded, it was because the expansion was in step with the expansion of due process of law. See 1 GeoRGE D. BRaden et al„ The Constitution of the State of Texas: An Annotated and Comparative Analysis 67-73 (1977). As the majority concedes, “The historical backdrop for the Due Course of Law provision in the Texas Constitution demonstrates that the framers intended for this provision to be interpreted consistent with the Due Process Clause of the federal constitution.” Pena II, 226 S.W.3d at 650 (majority op.). In light of that, most of the majority’s analysis appears superfluous.

¶50Lastly, we should probably not decide the matter of the remedy in the first instance, but should probably leave it to the trial court to decide. See Ex parte Rich, 194 S.W.3d 508, 515 (Tex.Crim.App.2006) (orig. proceeding.) Indeed, all of the cases that the majority cites for its remedy of a mandated instruction hold that the trial court has discretion in choosing a remedy. See State v. Fain, 116 Idaho 82, 774 P.2d 252, 266-67 (1989), limited on other grounds, State v. Paz, 118 Idaho 542, 798 P.2d 1, 12 (1990); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999); cf. Pena I, 166 S.W.3d at 282. The majority, however, prefers the legislative function of making law over the proper appellate judicial function of reviewing trial courts’ actions for error.

¶51CONCLUSION

¶52Accordingly, we should overrule Pena’s issues on remand and reach issues on original submission. Because the Court does otherwise, I dissent.