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Click here for the full text of this decision FACTS:Appellant was charged with possession of marijuana. Before trial, he requested an independent analysis of the evidence. It was discovered that the alleged marijuana had been destroyed and, except for a lab report, all records documenting the testing of the evidence were lost. Appellant objected, contending that admission of the lab report after the physical evidence had been destroyed would violate due process under the 14 Amendment to the United States Constitution and due course of law under the Texas Constitution.His objections were overruled, the lab report was admitted, and appellant was ultimately convicted. On appeal, appellant contended that the trial court “erred in admitting testimony of test results concerning alleged marijuana when this material evidence and the original file concerning this evidence had been destroyed or lost prior to trial and without independent testing.” In support of his claim, appellant relied upon federal case law addressing the due process implications of destroying potentially exculpatory evidence. He did not claim that the Texas Constitution conferred broader protection than that articulated in the federal cases. The state’s brief likewise discussed the federal standard and argued that appellant had not made the requisite “bad faith” showing. On its own, the court of appeals decided to address whether the Texas Constitution’s due course of law provision grants defendants greater protection than the United States Constitution. The appellate court held that the Texas Constitution requires the state to preserve evidence that has apparent exculpatory value when comparable evidence is not reasonably available to the defendant. The state filed a petition for discretionary review. HOLDING:Vacated and remanded. Appellate courts are free to review “unassigned error” � a claim that was preserved in the trial below but was not raised on appeal. “We recognize that many, if not most, of the types of error that would prompt sua sponte appellate attention need not be assigned because the error involved constitutes an obvious violation of established rules. Novel constitutional issues are a different matter.” Addressing an issue that was not originally briefed may be necessary, because the case’s outcome necessarily depends upon the issue’s resolution. Nevertheless, the principle of deciding novel constitutional questions only when necessary also informs how courts should go about deciding those issues. When the issue is a novel one of constitutional dimension that threatens to overturn the acts of another branch or department of government, the court should exercise special care in deliberating on the matter. Some rules � constitutional or otherwise � are already firmly established through prior litigation, having already passed through the fires of adversarial testing. And rules that do not expand the reach of the federal or state constitutions can be overturned by the Legislature; although the cost of mistakes regarding those types of rules is high, a remedy exists. But a novel rule that expands the reach of a constitutional provision can hamstring the Legislature as well as frustrate trial courts and prosecutors who relied upon the rule that was previously in effect. The court of appeals decided on its own to expand the reach of the Texas Constitution without first requesting briefing from the parties. The court holds that the court of appeals’ failure to afford the parties an opportunity to brief the issue was error. OPINION:Keller, P.J.; Price, Johnson, Holcomb and Cochran, JJ., joined. Womack, J., filed a concurring opinion. Meyers, J., filed a dissenting opinion. Hervey, J., filed a dissenting opinion in which Keasler, J., joined. CONCURRENCE:Womack, J. “Because I agree with the principle that appellate courts should give the parties notice of, and an opportunity to brief, issues that no party has raised on appeal, I join the judgment of the Court. “I also agree with the principle that courts should avoid the decision of constitutional issues that are not necessary to the resolution of cases. But, because I do not agree with the Court’s discussion of the relationship of that principle to the former principle (ante at Part II), I do not join the opinion of the Court.” DISSENT:Meyers, J. “Based on the totality of the circumstances, I would have affirmed the Court of Appeals’ decision that the State’s notice was untimely. However, after undertaking a Rule 44.2(b) analysis of Appellant’s non-constitutional claim, I would have concluded that the untimely notice was cured by the trial court’s one-week recess. Given that the majority has conflated issues of timeliness and notice in an analysis that unnecessarily relies on due process and that is unresponsive to the issue granted in the State’s petition for discretionary review, I can only concur in its decision.” DISSENT:Barbara P. Hervey, J.; Keasler, J., joined. “Though appellant generally mentioned the state constitution in the trial court proceedings, he did not specifically indicate how the state constitutional due course of law provision differed from its federal counterpart so as to inform the trial court and the other party of the need to respond to this claim. See id.; see also Tex. R. App. Proc. 33.1(a)(1) (to preserve error for appellate review, complaining party must make objection stating the grounds “with sufficient specificity as to make the trial court aware of the complaint”). This case should be controlled by our decision in Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Cr.App. 2002).”

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