Ivan Piedra v. the State of Texas

AFFIRM AS MODIFIED; and Opinion Filed November 8, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00522-CR

IVAN PIEDRA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F20-75098-R

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith
A grand jury indicted appellant Ivan Piedra for murder. See TEX. PENAL CODE

ANN. §19.02. A jury found him guilty of murder and assessed punishment at forty-

two years’ confinement. In two issues, appellant asserts that the trial court erred in

failing to instruct the jury on spoliation of evidence and the lesser included offense

of criminally negligent homicide. In a cross-issue, the State requests that we modify

the judgment to reflect appellant’s correct plea, that his trial was before a jury, and

that he did not enter into a plea agreement with the State. For the following reasons,

we modify the trial court’s judgment and affirm the judgment as modified.
Background

The evidence at trial showed that appellant fired multiple gunshots at

eighteen-year-old Mark Lemmons’s car. One of the bullets entered the car’s front

windshield and pierced Lemmons’s head. Lemmons died fourteen days later.

The evening of January 4, 2020, Lemmons and his girlfriend Abril Altamira

drove by appellant’s house. Altamira testified that, at the time, they were on the way

to a tire shop. Lemmons received a call from appellant’s cousin Johnny and told

Altamira that he “was going back to talk to Johnny.” After they left the tire shop,

Lemmons drove by appellant’s house again and “burn[ed] out” in an intersection at

the end of appellant’s street. Altamira saw appellant running toward the car, and

Lemmons told her to put her head down. As she lowered her head, she saw that

Lemmons had been shot. Altamira testified that neither she nor Lemmons had a gun.

She knew that Lemmons and appellant “had a problem,” but did not think it was so

serious that appellant would take Lemmons’s life.

Police determined that one bullet pierced the front windshield of Lemmons’s

car on the driver’s side, and another entered the lower rear passenger-side door.

According to a Dallas Police Department (DPD) crime scene analyst, unfired

cartridges and fired cartridge casings recovered from the scene matched the same

make and model of casings and cartridges found in appellant’s house. Police did not

recover the gun used by appellant or any other gun at the crime scene.

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DPD Detective Timothy Johnson testified that he executed a search of

appellant’s house and seized a digital video recorder (DVR) connected to a home

surveillance system. He then obtained a search warrant for the DVR’s contents and

extracted video recordings from it. The State offered, and the jury viewed, copies

of the recordings. Detective Johnson testified that the recordings showed

Lemmons’s vehicle “burning off” or “peeling out” at the intersection of Fair Vista

and Military Parkway followed by appellant running approximately thirty yards

towards the intersection, “post[ing] up, punch[ing] out with the weapon and fir[ing]

multiple times.” Still holding the gun, appellant ran back to his house and, moments

later, left in a vehicle.

Appellant testified that he sold Lemmons a car in early 2019, but Lemmons

made only one payment. After appellant told Lemmons’s brother about the debt,

Lemmons paid in full, but he was offended that appellant had contacted his brother.

Thereafter, whenever Lemmons saw appellant “out in the street,” Lemmons would

“bully” appellant by revving his car engine, cutting appellant off in traffic, “throwing

his car at [appellant], rushing [appellant], getting in front of [appellant], braking,”

tailgating, or burning out nearby. Lemmons also did “donuts” at the end of

appellant’s street.

Appellant testified that, around 10:20 p.m. on January 4, 2020, he heard three

or four gunshots as Lemmons drove by his house. Appellant knew Lemmons was

driving by because his car made a distinct sound. Appellant’s house was equipped

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with a DVR and, at “that same moment,” he reviewed the cameras, so he knew

Lemmons had fired shots into the air.

Appellant retrieved his .45 caliber handgun from under his mattress, loaded

it, went outside, and “shot the ground twice.” He testified that he fired the shots

“just to let [appellant] know that I have a gun as well. So if I have use [sic] it, I will.

Basically, self-defense, you know . . . warning shots as well.” Appellant believed

Lemmons was going to try to “hurt” or “do something to” him. Appellant knew of

a prior incident in which Lemmons had pulled a gun on someone.

Appellant’s cousin Johnny called Lemmons and asked him to not drive by

again because he was “scaring us [and] scaring the kids.” Lemmons, however,

“sp[un] back around,” and his car, about half a block away, was facing appellant’s

house. Appellant believed Lemmons was “coming back.” Fearing for his life and

the lives of his friends and family inside the house, appellant ran down the street

with “no plan,” just trying to “scare [appellant] away.” He fired three shots.

Appellant explained that, although Lemmons’s car was facing him, he aimed his gun

at the car’s back tires because he knew it was “reckless to shoot up in the air.”

According to appellant, the gun’s caliber was “so powerful” that it recoiled, and

recoil caused one of the bullets to enter the windshield and Lemmons’s head.

Not knowing at the time that he had shot Lemmons, appellant ran back to his

house, left, and never returned to get his belongings. He never called the police and

learned that Lemmons died about three weeks after the shooting.

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The jury charge contained instructions on murder, the lesser included offense

of manslaughter, self-defense, and defense of third persons. Appellant requested

additional instructions on spoliation of evidence and the lesser included offense of

criminally negligent homicide, but the trial court denied his requests. The jury found

appellant guilty of murder and sentenced him to forty-two years’ confinement, the

trial court signed a judgment, and this appeal followed.

Jury Instruction Error

In two issues, appellant contends the trial court erred in rejecting his requested

instructions on spoliation and criminally negligence homicide. The trial court must

submit a charge to the jury “distinctly setting forth the law applicable to the case.”

Alcoser v. State, 663 S.W.3d 160, 164–65 (Tex. Crim. App. 2022) (citing TEX. CODE

CRIM. PROC. arts. 36.13, 36.14). When an appellant challenges the charge, we first

determine whether it is erroneous. Id. at 165. If so, we decide whether the appellant

was harmed by the erroneous charge. Id.

1. Spoliation Instruction

In appellant’s first issue, he complains that he was entitled to a spoliation

instruction because the DPD placed his home surveillance DVR in a compromised

location and it “was destroyed by ransomware.”

The State has a duty to preserve evidence in its possession “that might be

expected to play a significant role in [a] suspect’s defense.” Arthur v. State, No. 05-

18-00075-CR, 2019 WL 3729499, at *7 (Tex. App.—Dallas Aug. 7, 2019, no pet.)

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(mem. op., not designated for publication). A spoliation instruction is a possible

sanction for the State’s improper loss or destruction of evidence. Id. at 8; see

Guzman v. State, 539 S.W.3d 394, 401–02 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d). When a defendant asserts that lost or destroyed evidence might have

exonerated him, the evidence in question is “potentially useful.” Arthur, 2019 WL

3729499, at *8 (citing Ex parte Napper, 322 S.W.3d 202, 231, 238 (Tex. Crim. App.

2010)). To receive a spoliation instruction related to potentially useful evidence, the

defendant bears the burden of establishing bad faith on the part of the State. Id. In

this context, bad faith is more than being aware that one’s action or inaction could

result in the loss of evidence. Id. It “involves an improper motive, such as personal

animus against the criminal defendant or a desire to prevent the criminal defendant

from obtaining potentially useful evidence.” Id. There must be some evidence from

which an inference of bad faith can be drawn. Id.

Appellant asserts that his DVR should have recorded Lemmons discharging a

gun into the air shortly before appellant shot him, contradicting testimony at trial

that Lemmons had no gun. Because “the police failed to investigate his version of

events and then deliberately placed his evidence in a digital location [that] turned

out to be insecure,” appellant contends that “a juror could infer that the police

intended to hide this evidence” from him.

Appellant, however, did not request a spoliation instruction based on the

DVR’s loss or destruction. Instead, he requested a spoliation instruction “related to

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the apparent erasure of Abril Altamira’s initial interview by the police after this

incident.” To preserve error for appellate review, a defendant must make a timely

request, objection, or motion stating the grounds for the ruling he seeks with

sufficient specificity to make the trial court aware of his complaint, unless the

specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a). The

defendant need not use “specific words” but must “let the trial court know what he

wants and why he feels himself entitled to it clearly enough for the judge to

understand him.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016).

Whether a particular complaint on appeal is preserved depends on whether it

comports with the complaint made at trial. Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009). Because appellant never argued in the trial court that a spoliation

instruction was warranted because his DVR or its recordings were lost or destroyed,

he has not preserved the complaint for our review. See Vega v. State, 394 S.W.3d

514, 519 (Tex. Crim. App. 2013) (“A defendant cannot complain on appeal about

the trial judge’s failure to include a defensive instruction that he did not preserve by

request or objection: he has procedurally defaulted any such complaint.”).

Even had appellant preserved his challenge, we find no error on this record.

DPD crime analyst Nicole Mejia testified that, at the time of trial, DPD’s computer

systems were down due to a ransomware attack. Without access to the computer

systems, they were not able to determine the location of evidence in the property

room where DPD stored all of its evidence. Mejia noted that she had not been asked

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to bring any evidence to trial, but if it had been necessary for use at trial, she might

have been able to find it. Detective Johnson testified that appellant’s DVR was in

the property room, but Johnson did not know, because of the computer issues,

whether they had the ability to locate it there. He also did not know how “far back”

appellant’s DVR recorded on January 4, 2022. He testified that, if the DVR recorded

events leading up to the shooting, they should be on the DVR. Appellant testified

that it would have been important for his case to have the DVR, but acknowledged

that he and his attorney could have asked to see it during the two years his case was

pending before trial.

Appellant did not demonstrate that the State acted with an improper motive,

such as personal animus against him or a desire to prevent him from obtaining useful

evidence. Appellant and his attorney could have, but did not, request the DVR prior

to the ransomware attack. Further, the evidence showed that, even at the time of

trial, DPD might have been able to locate the DVR in the property room.

Accordingly, we conclude that appellant did not carry his burden to show bad faith

and the trial court did not err in rejecting a spoliation instruction. See Arthur, 2019

WL 3729499, at *8; Guzman, 539 S.W.3d at 402 (concluding spoliation instruction

was not required where defendant failed to establish potentially useful evidence

destroyed in bad faith). We overrule his first issue.

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2. Criminally Negligent Homicide Instruction

In a second issue, appellant contends that the trial court erred in refusing to

instruct the jury on the lesser included offense of criminally negligent homicide. We

apply a two-step test to determine whether a defendant is entitled to a lesser-included

offense instruction. Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App.

2018). We first compare the statutory elements of the alleged lesser offense with

the statutory elements of the greater offense and any descriptive averments in the

indictment. Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). If the

lesser offense differs from the offense charged only in the respect that a less culpable

mental state suffices to establish its commission, the first step has been satisfied.

TEX. CODE CRIM. PROC. art. 37.09(3). Under the second step, we determine whether

there is evidence from which a rational jury could find the defendant guilty of only

the lesser offense. Ritcherson, 568 S.W.3d at 671.

Appellant was charged with murder, the trial court instructed the jury on both murder

and manslaughter, and the jury convicted appellant of murder. A person commits

an offense of criminally negligent homicide if he causes the death of an individual

by criminal negligence. TEX. PENAL CODE § 19.05(a). Criminally negligent

homicide is a lesser included offense of murder because the only difference in the

offenses is that the lesser culpable mental state of criminal negligence suffices to

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establish its commission.1 See id. § 19.02(b)(1), (2) (providing that a person

commits murder if he intentionally or knowingly causes the death of an individual

or intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual); Cardenas v. State, 30 S.W.3d 384,

392–93 (Tex. Crim. App. 2000) (“[w]e have recognized that manslaughter,

criminally negligent homicide and aggravated assault are lesser-included offenses of

murder”). Accordingly, the first step is satisfied in this case.

The second step of the test is satisfied “if there is (1) evidence that directly

refutes or negates other evidence establishing the greater offense and raises the lesser

included offense or (2) evidence that is susceptible to different interpretations, one

of which refutes or negates an element of the greater offense and raises the lesser

offense.” Ritcherson, 568 S.W.3d at 671. The evidence need not be controverted or

even credible. Id. We consider all the evidence admitted at trial, and if there is more

1
Culpable mental states are classified according to relative degrees from highest to lowest as follows:
(1) intentional; (2) knowing; (3) reckless; and (4) criminal negligence. TEX. PENAL CODE § 6.02(d). The
culpable mental state for murder is intentional or knowing, the culpable mental state for manslaughter is
recklessness, and the culpable mental state for criminally negligent homicide is criminal negligence. See
id. §§ 19.02, 19.04, 19.05. The penal code defines criminal negligence as follows:

A person acts with criminal negligence, or is criminally negligent, with respect to . . . the
result of his conduct when he ought to be aware of a substantial and unjustifiable risk that
. . . the result will occur. The risk must be of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the actor’s standpoint.

Id. § 6.03(d). A person acts intentionally, or with intent, with respect to the result of his conduct when it is
his conscious objective or desire to cause the result. Id. § 6.03(a). A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain
to cause the result. Id. § 6.03(b). A person acts recklessly, or is reckless, with respect to the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result
will occur. Id. § 6.03(c).
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than a scintilla of evidence raising the lesser offense and negating or rebutting an

element of the greater offense, the defendant is entitled to an instruction on the lesser

offense. Id.

To support a conviction for criminally negligent homicide, the evidence must

establish that (1) the defendant’s conduct caused the death of an individual; (2) the

defendant ought to have been aware that there was a substantial and unjustifiable

risk of death from his conduct; and (3) his failure to perceive the risk constituted a

gross deviation from the standard of care an ordinary person would have exercised

under like circumstances. Montgomery v. State, 369 S.W.3d 188, 192–93 (Tex.

Crim. App. 2012). We view the circumstances from the defendant’s standpoint at

the time that the allegedly negligent act occurred. Queeman v. State, 520 S.W.3d

616, 623 (Tex. Crim. App. 2017). “Criminal negligence does not require proof of

[a defendant’s] subjective awareness of the risk of harm, but rather [the defendant’s]

awareness of the attendant circumstances leading to such a risk.” Id. at 622 (quoting

Montgomery, 369 S.W.3d at 193). “The key to criminal negligence is not the actor’s

being aware of a substantial risk and disregarding it, but rather it is the failure of the

actor to perceive the risk at all.” Id. Thus, for the second step to be met in this case,

the record must contain some evidence to raise an issue of whether appellant ought

to have, but did not, perceive a substantial and unjustifiable risk from his conduct.

Appellant directs the Court to his testimony that he was trying to shoot only

the tires on Lemmons’s car. Appellant’s testimony, however, does not raise an

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inference that he was not, but ought to have been, aware of a substantial and

unjustifiable risk in his conduct. Instead, the evidence shows that appellant was

familiar with guns, knew how to use them, and understood that they were dangerous.

He kept his own handgun, which he described as having a “powerful” caliber,

unloaded and under his mattress. He understood that his gun recoiled. Appellant

acknowledged that “it’s reckless to shoot up in the air,” and when he initially fired

“warning shots,” he fired into the ground. Nevertheless, he ran towards Lemmons’s

car minutes later and, assuming Lemmons was in the car, “post[ed] up” in a firing

stance and fired his gun. Afterwards, appellant left the scene, never returned to his

house, and never contacted the police.

Considering all of the evidence at trial, we cannot conclude that appellant’s

testimony shows that he failed to perceive the substantial and unjustified risk that

aiming and discharging his gun at Lemmons’s car—even towards the car’s tires—

could result in Lemmons’s death. See Thomas v. State, 699 S.W.2d 845, 850 (Tex.

Crim. App. 1985) (“Evidence that a defendant knows a gun is loaded, that he is

familiar with guns and their potential for injury, and that he points a gun at another

indicates a person who is aware of a risk created by that conduct and disregards the

risk.”), abrogated on other grounds by Najar v. State, 618 S.W.3d 366, 371–72 (Tex.

Crim. App. 2021); Taylor v. State, No. 05-17-00658-CR, 2018 WL 3640467, at *10–

11 (Tex. App.—Dallas Aug. 1, 2018, no pet.) (mem. op., not designated for

publication) (evidence that defendant brandished a loaded gun and fired a “warning

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shot” to intimidate spectators shows that she was aware that she was, at least,

committing an act clearly dangerous to human life and therefore the trial court did

not err by denying criminally negligent homicide instruction); Trujillo v. State, 227

S.W.3d 164, 168 (Tex. App.—Houston [1st Dist. 2006], pet ref’d) (concluding that

defendant’s conduct in brandishing a loaded gun to frighten off some men with

whom he was in an altercation shows that he either perceived or knew the risk of

having a loaded gun). Furthermore, the evidence does not refute or negate that

appellant either knowingly or recklessly caused Lemmons’s death. Because there is

no evidence from which a rational jury could find appellant guilty only of criminally

negligent homicide, we further conclude that the trial court did not err in rejecting

appellant’s request for an instruction on the lesser included offense. We overrule

appellant’s second issue.

Modifications to Judgment

In a cross-point, the State requests that we modify the judgment to reflect

appellant’s correct plea, that his trial was before a jury, and that he did not enter into

a plea agreement with the State. The record reflects that appellant rejected the

State’s final plea offer and entered a plea of not guilty before the jury, and the jury

then found him guilty and assessed punishment. The judgment, however,

erroneously reflects that appellant entered into a plea agreement, waived a jury trial,

and entered a plea of guilty.

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When the record provides the necessary information to correct inaccuracies in

the trial court’s judgment, we have the authority to reform the judgment to speak the

truth. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d). Accordingly, we will modify the judgment to reflect that this was not a

plea bargain case, appellant pleaded not guilty to the charge against him, and he was

tried by jury. We sustain the State’s cross-point.

Conclusion

Having overruled appellant’s issues and sustained the State’s cross-point, we

affirm the judgment of the trial court as modified.

/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
230522F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

IVAN PIEDRA, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-23-00522-CR V. Trial Court Cause No. F20-75098-R.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Pedersen, III, and Garcia
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

(1) to replace “Judgment of Conviction by Court—Waiver of Jury Trial”
with “Judgment of Conviction by Jury”;

(2) to replace “Guilty” with “Not Guilty” in the section entitled “Plea
to Offense”; and

(3) to remove “42 Years TDCJ No Fine” from section entitled “Terms
of Plea Bargain”.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 8th day of November, 2024.

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