Opinion
No. 4-04-00790-CR
Delivered and Filed: March 8, 2006. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kerr County, Texas, Trial Court No. A03-361, Honorable Stephen B. Ables, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Ruben Jowell Gutierrez was indicted for driving while intoxicated. After a trial, Gutierrez was found guilty and was sentenced to seven-years confinement. He appeals, arguing that his right to due course of law under the Texas Constitution was violated by law enforcement officers destroying a potentially exculpatory videotape depicting his arrest. We disagree and affirm the judgment of the trial court.
Background
On August 9, 2003, Gutierrez was stopped by Trooper Stephen Brockman of the Texas Highway Patrol for speeding, failing to wear a seatbelt, and displaying an expired inspection sticker. Brockman testified that he suspected Gutierrez was driving while intoxicated because Gutierrez smelled of alcohol. According to Brockman, Gutierrez voluntarily consented to the administration of field sobriety tests and to a breathalyzer test. Gutierrez, however, testified that he had been coerced by Brockman into providing a sample for the breathalyzer test. According to Gutierrez, Brockman told him that if he refused to provide a sample for the test, he would be violating the terms and conditions of his parole. The breathalyzer test results showed approximately twice the legal limit of alcohol concentration. Brockman arrested Gutierrez for driving while intoxicated. A complete video and audio account of the traffic stop was recorded on a videotape located in Brockman's patrol vehicle. Before trial, it was discovered that the videotape of Gutierrez's arrest had been inadvertently erased. Pursuant to the Texas Highway Patrol's standard procedure, unless a videotape is requested, videotapes are recycled ninety days after an incident. Here, even though ninety days had not expired, Gutierrez's arrest had been taped over. During trial, Gutierrez objected to Brockman testifying about the incident, arguing that the videotape was the best evidence of the incident. On appeal, Gutierrez argues that the destruction of the videotape violated his right to due course of law under the Texas Constitution.Standard of Review
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990).Discussion
Gutierrez argues that "the destruction of the videotape in [this] case violated the Due Course of Law provision of the Texas Constitution warranting a reversal of [his] conviction." We disagree. Although Gutierrez argues on appeal that his right to due course of law was violated, he has not preserved this issue for appeal. Gutierrez did not object below that his right to due course of law under the Texas Constitution was violated; instead he objected to Trooper Brockman's testimony under the best evidence rule. Accordingly, he has failed to preserve the issue for review on appeal. See Tex.R.App.P. 33.1; Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995); see also Renken v. State, No. 13-01-818-CR, 2003 WL 21087982, *2 (Tex.App.-Corpus Christi 2003, no pet.). Moreover, even if Gutierrez had preserved the issue, his right to due course of law was not violated. Under the United States Constitution, the State has a duty to preserve evidence that possesses "an exculpatory value that was apparent before the evidence was destroyed." California v. Trombetta, 467 U.S. 479, 488-89 (1984); see Jackson v. State, 50 S.W.3d 579, 588-89 (Tex.App.-Fort Worth 2001, pet. ref'd); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Therefore, a defendant must demonstrate that the lost evidence is both favorable and material to his case. See Jackson, 50 S.W.3d at 589 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982)); Mahaffey, 937 S.W.2d at 53. A showing that the lost evidence might have been favorable does not meet the materiality standard. Jackson, 50 S.W.3d at 589. In addition, in order to show a violation of due process or due course of law, a defendant must show that the State acted in bad faith when it failed to preserve the evidence. Jackson, 50 S.W.3d at 589 (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988), for due process, and Mahaffey, 937 S.W.2d at 53, for due course of law). Here, Gutierrez argues that he did not need to prove that the State acted in bad faith because the Texas Constitution provides him more protection than the United States Constitution. For support, Gutierrez relies on Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005, pet. granted), in which the Waco Court of Appeals held that the Texas Constitution provides a greater level of protection than the United States Constitution. As such, the court held that even though there was no evidence of bad faith on the part of law enforcement officials, the trial court's denial of the motion to suppress should be reversed and remanded. We, however, have previously declined to follow the holding in Pena, explaining that the Texas Supreme Court has consistently held the due course of law provision of the Texas Constitution and the Due Process Clause of the United States Constitution to be equivalent. See Salazar v. State, No. 04-05-00162-CR, 2005 WL 3115847, at *2 (Tex.App.-San Antonio 2005, no pet.). Therefore, to show a violation of his right to due course of law under the Texas Constitution, Gutierrez had to show bad faith on the part of law enforcement officials. Here, Gutierrez has not demonstrated that the State acted in bad faith in failing to preserve the videotape. Trooper Brockman testified that the videotape was likely destroyed pursuant to the Texas Highway Patrol's policy of reusing or destroying a videotape every ninety days. According to Gutierrez, the videotape being destroyed within ninety days of the arrest shows bad faith. At trial, however, Trooper Brockman vehemently denied that it had been destroyed intentionally:Q: [Is there] a policy at the Department of Public Safety regarding those tapes?
A: Yes, sir.
Q: What is that policy as relevant to this issue?
A: Our tapes are either six-hour or eight-hour tapes. Once the tape has run out, we remove the tape from the VCR box in the trunk. It always has a start date and an end date and our unit number. Those tapes are then turned into an evidence box located at the DPS office. It's a locked box and the only persons who have access to it are my sergeant, John Stafford, and my corporal, Keith Olive. Once a week or every ten days, those tapes are then removed from the box and they are placed into a large closet that has different cabinets with the different troopers' names and the unit numbers, and those tapes are put in chronological order from the trooper.
Q: And the tapes would have multiple visual stops on it; is that correct?
A: Yes, sir, depending on how active you are during that week, a tape may last you one day. It may last you a week.
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Q: So the tapes that you turn in, including this tape, may have had multiple traffic stops on it, for instance, that is a routine traffic stop for any violation or any[time] you turn on those overhead lights?
A: Yes, sir, I say the average stop lasts seven, eight minutes. Some of them last a couple of hours, depending on what happens.
Q: And then to your knowledge, what happens to those tapes after they're turned in?
A: DPS policy states that our supervisor will retain those tapes for ninety days. At that point, the tapes are recirculated, meaning they are erased with a large magnet and then they [have] a new label [put] on them and they're recirculated. We typically use the tapes at least three times and then they're destroyed.
Q: However, if the tape has something to do with a criminal case, above and beyond a traffic ticket, for instance, and in a DWI case, for instance, those tapes are normally preserved; is that correct?
A: Yes, sir.
Q: In this case that was not done, for whatever reason; is that correct?
A: Yes, sir.
Q: Okay. Was it an intentional act?
A: No, sir, and once I turn the tape in, I don't have anything to do with that tape anymore. Any tapes that are forwarded to prosecutors or what have you, are recorded by our highway patrol secretary and our sergeant.
Q: And your knowledge of this situation with the tape, and I'm going to drop it after this, but do you have any reason to believe that anyone with the State, that is, the DPS, prosecution, anybody else, wanted this tape destroyed?
A: No.Besides Trooper Brockman, no one else testified about the videotape. Therefore, Gutierrez did not present any evidence showing that the State failed to preserve the videotape in bad faith.