Francisco Muniz v. the State of Texas

NUMBER 13-24-00502-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

FRANCISCO MUNIZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 357TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and West
Memorandum Opinion by Justice West

A jury convicted appellant Francisco Muniz of murder, a first-degree felony (Count

1) and aggravated assault, a second-degree felony (Count 2). TEX. PENAL CODE

§§ 19.02(c), 22.02(b). Appellant was sentenced to forty years’ imprisonment on Count 1

and twenty years’ imprisonment on Count 2; the trial court ordered the sentences to run
concurrently. By two issues, appellant argues his convictions should be reversed

because: (1) the trial court wrongfully denied him appointment of a testifying expert

witness under Ake v. Oklahoma, 470 U.S. 68, 86 (1985), and (2) the State’s investigation

was so deficient that his due process rights were violated under Arizona v. Youngblood,

488 U.S. 51, 59 (1988). We affirm.

I. BACKGROUND

Appellant lived next door to Juan Perez. A six-foot fence with horizontal slats

spaced by two and a half inch gaps separated their houses. Appellant had problems with

Perez because Perez smoked marijuana, and appellant thought Perez could be engaged

in other illegal activity. On the night at issue, appellant fired three shots toward Perez and

Perez’s stepson, Fabian Lopez. Perez died as a result.

Lopez testified that appellant frequently sat in his front yard, drinking and shooting

firearms into the air. According to Lopez, appellant was sitting in his front yard drinking

on the night of the shooting. Lopez testified that he and Perez exited the Perez house to

smoke marijuana. Lopez further testified that appellant said something confrontational to

them in Spanish, but he could not fully make out what appellant said. Perez then laughed,

giggled, and said, “What the [expletive] is wrong with this dude?” Lopez testified that

appellant was angered by Perez’s laugh, approached the fence, and fired shots in their

direction. He testified that appellant is a tall man and reached over the fence to shoot. He

further testified that appellant shot once, paused briefly and then fired more shots. Lopez

also testified that he and Perez were unarmed and did not threaten appellant.

After the shooting, appellant went into his house and discarded his firearm

between a gap in his home’s staircase such that it fell behind stored personal items

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underneath the stairs. Appellant testified that he discarded it under the stairs to prevent

scaring his wife by approaching her with a gun. Then, he went upstairs and told his wife

that he was sorry and “I [expletive]ed up. I [expletive]ed up.” When she asked what

happened, appellant responded that he shot Perez after Perez came at him with a

machete. When police arrived at the scene, appellant similarly told them he messed up

by shooting at Perez and that Perez came at him with a machete.

Afterward, appellant was interviewed at the police station. Appellant stated several

times that he “messed up” and that the shooting should not have happened. He stated

that he saw Perez move his hands to his waist and thought Perez was grabbing for a

weapon. Appellant was asked several times if he actually saw a weapon, and each time

he responded that he just saw Perez do the reaching motion.

At trial, appellant testified that Perez did not come at him with a machete but that

he had seen Perez carry a knife around sometimes. He further testified he thought Perez

had a gun, although he never actually saw one. No guns or machetes were recovered

from Perez’s person or residence. After the jury’s conviction, this appeal ensued.

II. AKE EXPERT

In his first issue, appellant asserts he was entitled to an expert who could speak to

the “the reasonableness of his belief that deadly force was immediately necessary to

protect himself.” More specifically, he explains that a ballistics expert could have

“determine[d] the trajectory of shots, the distance between parties, the positions of the

parties during the shooting, and whether the shots were fired with intent or recklessly.”

An Ake claim is a request by an indigent criminal defendant for state-funded expert

assistance. See Ake v. Oklahoma, 470 U.S. 68, 83 (1985). Ake claims are not preserved

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by informal requests. Ex parte Jimenez, 364 S.W.3d 866, 882 (Tex. Crim. App. 2012).

Rather, preservation of such claims requires: (1) a written motion, and (2) a formal ruling

from the trial court. Id. Here, the only written motion in the clerk’s record is appellant’s

September 6, 2024 motion requesting permission to conduct a ballistics test on the

firearm collected by police. At the hearing on that motion, appellant’s trial counsel

asserted appellant was not seeking a testifying expert but merely the ability to test the

firearm at issue at a shooting range. The trial court granted that request. While the parties

discussed ballistics expert testimony at various status hearings preceding September 6,

2024, the record does not contain a written motion or ruling from the trial court related to

a request for a testifying expert. Thus, appellant failed to preserve his Ake claim. See id.

Even assuming the issue was preserved, a motion for an expert under Ake

requires that a claimant articulate his defensive theory and present affidavits or other

evidence supporting his need for expert assistance. Id.; Diez v. State, 693 S.W.3d 899,

921 (Tex. App.—Austin 2024, pet. ref’d), cert. denied, No. 25-5969, 2026 WL 79736, __

U.S. __, __ (2026). We find no affidavits or other evidence in the record supporting the

need for a testifying expert.

We overrule appellant’s first issue.

III. YOUNGBLOOD DUE PROCESS

In his second issue, appellant asserts that the police investigation was so deficient

that his due process rights were violated under Youngblood because police did not create

a crime scene sketch and failed to collect or did not test DNA, fingerprint, and ballistics

evidence. 488 U.S. at 52.

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Youngblood directs our analysis of due process claims when the state fails to

properly collect, preserve, or test potentially exculpatory evidence. Id. at 58. Potentially

exculpatory evidence is “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.” Id. To establish a due process violation, the appellant must prove the

evidence was uncollected or untested because of bad faith. Id. at 57; State v. Villarreal,

692 S.W.3d 844, 850 (Tex. App.—Corpus Christi–Edinburg 2024, pet. ref’d). “[B]ad faith

entails some sort of improper motive, such as personal animus against the defendant or

a desire to prevent the defendant from obtaining evidence that might be useful.” Ex parte

Napper, 322 S.W.3d 202, 238 (Tex. Crim. App. 2010). Even crime scene sloppiness does

not, on its own, equate to bad faith. See Brecheen v. State, 372 S.W.3d 706, 711 (Tex.

App.—Eastland 2012, pet. ref’d) (holding there was no bad faith even where officers

admitted they made mistakes by failing to secure the scene, allowing non-officers to enter

the scene, one officer washing his hands in the sink at the scene, and failing to seize an

air rifle present at the scene); Sossamon v. State, No. 10-02-00231-CR, 2004 WL

2610434, at *6 (Tex. App.—Waco Nov. 17, 2004, pet. ref’d) (mem. op., not designated

for publication). In Youngblood, the United States Supreme Court held that the State’s

failure to (1) preserve all collected semen stains and (2) conduct all possible laboratory

tests on semen samples could at most be characterized as negligent, falling below the

bad faith standard. 488 U.S. at 58. The Court further noted that no evidence was

concealed from the defendant, but rather the evidence was available to the defendant if

he wanted to conduct independent testing. Id. The Court rationalized that the State’s

ability to prosecute does not hinge on compliance with “an undifferentiated and absolute

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duty to retain and to preserve all material that might be of conceivable evidentiary

significance in a particular prosecution.” Id. (emphasis added).

Here, appellant failed to prove bad faith by showing an improper motive or personal

animus toward him by law enforcement. See Ex parte Napper, 322 S.W.3d at 238.

Further, no evidence was concealed from appellant, and appellant was not denied the

ability to independently test any of the complained-of evidence. See Youngblood, 488

U.S. at 58. The State has no constitutional or statutory duty to gather, preserve, or test

all potential evidence. See id. Investigation of a criminal defendant’s defensive theories

is a duty of defense counsel, not the State. 1 Ex parte Welborn, 785 S.W.2d 391, 395

(Tex. Crim. App. 1990) (holding defense “counsel is charged with making an independent

investigation of the facts of the case, eschewing wholesale reliance in the veracity of his

client’s version of the facts”); Menefee v. State, 211 S.W.3d 893, 904 (Tex. App.—

Texarkana 2006, pet. ref’d) (providing “[t]he State has no duty to seek out exculpatory

information independently on the defendant’s behalf”); see also Mitchell v. State, No. 01-

23-00251-CR, 2024 WL 187385, at *5 (Tex. App.—Houston [1st Dist.] Jan. 18, 2024, no

pet.) (mem. op., not designated for publication) (explaining “a prosecutor does not have

an independent duty to investigate a defendant’s version of events”). Accordingly, our

discovery statute is intended to assist defense counsel’s ability to conduct her own

independent investigation. See TEX. CODE CRIM. PROC. art. 39.14. The defense’s failure

to test potential evidence related to its case-in-chief cannot be faulted to the State. See

Youngblood, 488 U.S. at 58; Menefee, 211 S.W.3d at 904. Likewise, the State is not

required to create evidence. In re State, 659 S.W.3d 1, 14 (Tex. App.—El Paso 2020,

1 We note that appellant did not assert an ineffective assistance of counsel issue.

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orig. proceeding); Coleman v. State, 577 S.W.3d 623, 634 (Tex. App.—Fort Worth 2019,

no pet.). And appellant presents no argument that the State did anything to prevent him

from creating a crime scene sketch, if he felt one was necessary. See Youngblood, 488

U.S. at 58.

Moreover, appellant has failed to explain how his complaints about the

investigation, if cured, “might exonerate him.” See id. at 57–58; Sossamon, 2004 WL

2610434, at *6 (explaining that uncollected or untested evidence that does not potentially

exculpate the appellant is unprejudicial). Appellant admitted to being the shooter.

Accordingly, DNA, fingerprint analysis, and crime scene integrity was unnecessary to link

appellant to the firearm.

Thus, we hold that appellant failed to show both (1) bad faith and (2) any untested

or uncollected evidence was potentially exonerating. See Youngblood, 488 U.S. at 57.

We overrule appellant’s second issue. 2

IV. CONCLUSION

We affirm the trial court’s judgment.

JON WEST
Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed on the
7th day of May, 2026.

2 Appellant also complained that the crime scene was unsecure because a family member he was

unfriendly with found shell casings away from the scene of the shooting at a nearby house. Appellant
additionally complained that an officer who responded to the scene later resigned for running his ex-
girlfriend’s license plate number. Appellant provides no explanation as to how these complaints equate to
police’s bad faith regarding alleged lack of collecting or testing potentially exculpatory evidence in this case.
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