Greco v. State

Daniel Greco, Appellant v. The State of Texas

No. 02-19-00383-CR

Court of Appeals of Texas, Second District, Fort Worth

August 12, 2021

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 431st District Court Denton County, Texas Trial Court No. F16-1287-431

Before Kerr, Bassel, and Wallach, JJ.

MEMORANDUM OPINION

DABNEY BASSEL JUSTICE

I. Introduction

Forty-year-old Anjanette Harris (Anjie) was found dead in an unincorporated area of Denton County known as Hilltown.^[1] Appellant Daniel Greco confessed to strangling Anjie to death and dumping her body in Hilltown. Anjie was approximately eighteen weeks' pregnant with Appellant's unborn child at the time of her death.^[2] The unborn child, who was a boy, also died. The amended indictment charged Appellant with capital murder as follows:

[Appellant] . . . on or about the 6th day of March[] 2016 and anterior to the presentment of this Indictment, in the county and state aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely, [Anjie] by strangling [Anjie] with [his] hand or [a] piece of rubber or a belt or an object unknown or by cutting or stabbing [Anjie] with a knife, and did then and there intentionally or knowingly cause the death of another individual, namely [the] unborn child of [Anjie], by causing the death of [Anjie], while said unborn child was in gestation of said [Anjie], and both murders were committed during the same criminal transaction[.]

A jury convicted Appellant of the offense of capital murder as charged in the amended indictment but declined to impose the death penalty. See Tex. Penal Code Ann. § 19.03(a)(7). As a result, Appellant was sentenced to life imprisonment without parole.

Appellant raises two issues on appeal arguing that (1) the trial court erred by not dismissing the case with prejudice due to the spoliation of evidence by state actors or, alternatively, by not "at the least issuing a spoliation instruction to the jury" and (2) the evidence of causation and mens rea is insufficient to warrant a conviction for capital murder. Appellant's spoliation arguments present a battle of the experts, requiring deference to the trial court's credibility determination, and a showing of bad faith, which is not present. Regarding Appellant's sufficiency challenges, the record contains expert testimony supporting the causation element and Appellant's confession that references his knowledge of Anjie's pregnancy, which has been held sufficient to support the "knowingly" element of a capital-murder conviction. Thus, we affirm.^[3]

II. Alleged Spoliation of Evidence

Prior to trial, Appellant filed a motion to dismiss due to destruction of evidence. Appellant argued that the State had destroyed biological material from

Anjie's neck and biological evidence from the unborn child^[4] and that testing of these items could have exonerated him. Over the span of four days, the trial court held a pretrial hearing on the motion to dismiss due to destruction of evidence. Additionally, Appellant filed a brief in support of his motion, the State filed a response, and Appellant filed a reply. The trial court ultimately denied the motion.

In his first issue, Appellant argues that the trial court erred by denying his motion to dismiss the case or, alternatively, by not giving a spoliation instruction. The crux of Appellant's argument is that because the State discarded or destroyed the placenta and various types of biological evidence from the unborn child, ^[5] his case should therefore have been dismissed. Because this presented a battle of the experts-with experts from both sides opining on whether such evidence was even available-we must defer to the trial court's credibility determinations. And because, as explained below, Appellant has not shown bad faith on the part of the State in failing to retain nonexistent or additional biological materials from the unborn child and the placenta, we cannot say that the trial court erred by denying Appellant's motion to dismiss.

A. Standard of Review

When reviewing a trial court's decision on a motion to dismiss, we apply a bifurcated standard, giving almost total deference to the trial court's findings of fact that are supported by the record, as well as any mixed questions of law and fact that rely upon the credibility of witnesses. See State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011); Tope v. State, 429 S.W.3d 75, 79 (Tex. App.-Houston [1st Dist.] 2014, no pet.). For pure questions of law or mixed questions that do not depend on credibility determinations, our review is de novo. See Krizan-Wilson, 354 S.W.3d at 815.

B. Law on Spoliation

Spoliation concerns the loss or destruction of evidence. Guzman v. State, 539 S.W.3d 394, 401 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd). In addressing the failure to preserve evidence in a criminal trial, there is a distinction between "material exculpatory evidence" and "potentially useful evidence." Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337 (1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010). That difference informs our analysis when deciding whether the State's failure to disclose or preserve evidence violates a defendant's guarantee of due process of law. See Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 1201-02 (2004).

If the State withholds material exculpatory evidence, a federal due process violation occurs regardless of whether the State acted in bad faith. Id. at 547, 124 S.Ct. at 1202. Thus, a Brady^[6] claim requires proof that the sought-after evidence was both material and favorable to the defendant such that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).

By contrast, to prove a federal due process violation based on a state's destruction of merely "potentially useful evidence," a defendant must show that the State acted in bad faith in destroying the evidence. Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202; Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337. Youngblood described potentially useful evidence as "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." 488 U.S. at 57, 109 S.Ct. at 337. "Although courts occasionally blur the distinction between Youngblood and Brady, Youngblood is properly applied to cases in which the government no longer possesses the disputed evidence, whereas Brady is properly applied to cases in which exculpatory evidence remains in the government's possession." Moody v. State, 551 S.W.3d 167, 170 (Tex. App.-Fort Worth 2017, no pet.) (mem. op.) (footnote omitted) (citing Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999)).

Here, Appellant contends that the State, acting through the Tarrant County Medical Examiner's Office, discarded or destroyed the placenta and biological evidence from the unborn child. Appellant's brief states that "the biological evidence is material, thus a showing of bad faith by the State is not needed." Although Appellant phrases his complaint as a Brady complaint, it is more properly considered as a complaint under Youngblood for the destruction of "potentially useful evidence" because it is uncontroverted that the State does not possess the desired evidence. See id.; Rodriguez v. State, 491 S.W.3d 18, 31 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (treating a Brady claim about a lost surveillance video as a Youngblood claim); see also Youngblood, 488 U.S. at 58, 109 S.Ct. at 337-38 (holding that the police's failure to preserve potentially useful evidence was not a denial of due process of law absent the defendant's showing of bad faith on the part of the police). Such a claim requires a showing of bad faith. Fisher, 540 U.S. at 547-48, 124 S.Ct. at 1202.

C. What the Record Shows

At the pretrial hearing, Ashleigh Berg, a forensic investigator working in the Denton County Sheriff's Office, testified that she had been told by Troy Taylor, a death investigator for the Denton County branch of the Tarrant County ME's Office, that there should be two blood cards (one from Anjie and one from the unborn child) because an autopsy had been performed on Anjie and on the unborn child and because it was standard procedure to obtain a blood card from each. Berg went to the ME's Office to collect the two blood cards. When Berg arrived, there was only one blood card; it was from Anjie. Berg reported that fact to Taylor. Taylor said that he would look into it and would report back to her. Taylor consulted with the ME's Office and reported back to Berg that no blood card had been collected from the unborn child during the autopsy, but Taylor did not have an explanation for why none was collected.

Farah Plopper, a forensic DNA analyst at the University of North Texas Center for Human Identification, had read notes stating that there were two different blood cards that would come from the ME's Office. Plopper later received an email stating that was not correct and that there was only a blood card for Anjie. When asked whether she receives fetal blood for testing, she responded, "Not very often."

Dr Marc Krouse, the Deputy Chief Medical Examiner who assisted Dr. Allison Mautone^[7] with the autopsy of Anjie and the unborn child, said that the autopsy was done according to standard operating procedures. Dr. Krouse agreed that the physician's guidelines that he and Dr. Mautone were required to follow state that in homicide cases, all tissues, bodily fluids (including vitreous, blood, urine, and gastric contents), and any other fluid shall be retained...