      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00420-CR



                                  Mark Lee Martin, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-08-205228, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Following the denial of his motion to suppress evidence, appellant Mark Lee Martin

pleaded guilty to the offense of possession of a controlled substance, methamphetamine, in

an amount more than four grams but less than two-hundred grams. The district court entered an

order placing Martin on deferred adjudication community supervision for a period of five years. In

two issues on appeal, Martin challenges the district court’s ruling on his motion to suppress,

asserting that the State failed to preserve exculpatory evidence in violation of his rights under the

United States and Texas Constitutions. We will affirm the order of deferred adjudication.


                                         BACKGROUND

               At the hearing on Martin’s motion to suppress, the district court heard evidence that

on the night of August 29, 2008, Deputy Darren Jennings of the Travis County Sheriff’s Office

conducted a traffic stop on a vehicle that, according to Jennings, had failed to signal a left turn.
When Jennings approached the vehicle and began speaking with the driver, later identified as Martin,

Jennings “could smell an odor of marihuana coming from inside the vehicle.” Jennings then asked

Martin to get out of the vehicle. After Martin did so, Jennings observed him put his hands in his

pants pockets. Jennings proceeded to perform a pat-down search for weapons and felt an item in

Martin’s “watch pocket” that he believed to be a razor blade. Jennings instructed Martin to empty

that pocket, and Martin pulled out “a small plastic bag with crystals in it” that Jennings “recognized

through experience and training to be meth, methamphetamine.” Jennings then placed Martin under

arrest, searched his vehicle incident to arrest, and found marihuana and additional methamphetamine

inside the vehicle. Jennings also testified that Martin made statements to him at some point

following his arrest in which he admitted that the substance found in his pocket and vehicle was

methamphetamine.

               On September 11, 2008, Martin’s attorney sent Jennings a letter via certified mail

requesting that he “preserve any and all videos which were made regarding [the traffic stop

and arrest] and any videos made by you or any officer, which were made prior to and during the

arrest and transportation to jail of Mark Lee Martin on August 29, 2008.” In addition to the letter,

two subpoenas were also issued seeking production and delivery of all evidence in the case,

including “all videos and dispatch calls” from the incident. The first subpoena was directed to the

“Travis County Sheriff’s Custodian of Records” in September 2008. The second subpoena was

directed specifically to Jennings in October 2009.

               At the suppression hearing held in November 2009, Jennings testified that the hearing

was “the first time” he had seen the letter. As for the subpoenas, Jennings acknowledged that he



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had been served with the October 2009 subpoena but was unsure whether he had seen the other

subpoena. Martin then proceeded to question Jennings as to the availability of any video recordings

of the traffic stop. The following testimony was elicited:


       Q:      [I]s your car equipped with a video recording device?

       A:      Yes, sir.

       Q:      Okay. And was it so equipped on the evening of August 29, 2008, whatever
               day it was?

       A:      Twenty-ninth, [2008]. At this time, I—I’d like to say yes. But as far as
               whether or not it was or it was working, I have no clue.

       ....

       Q:      Well, let me ask you this: You had a video in your car, correct?

       A:      Yes, sir.

       ....

       Q:      Well, let me ask you this: Was the video from that evening preserved?

       A:      No, sir.

       Q:      And why was it not preserved?

       A:      Since I didn’t put it in my report it wasn’t preserved because I didn’t believe
               it had any type of evidential value.


               Martin then asked Jennings if he was aware of the policies and procedures of the

Travis County Sheriff’s Office regarding mobile videotaping equipment, a copy of which had been

admitted into evidence. The State objected on the basis of relevance, and Martin responded, “Well,

it’s very relevant because the officer destroyed evidence that would be pertinent to this hearing. And

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under the appropriate case law, Your Honor, I think we’re entitled to dismissal [or] suppression

because the officer didn’t preserve the evidence of the video.” The district court allowed Martin to

proceed, but inquired, “Is there testimony that [the video] ever existed? You said it was destroyed.”

Martin then asked Jennings the following:


       Q:      Well, are the cameras automatically—you turn on your overhead lights and
               the cameras come on?

       A:      Yes, sir.

       Q:      So there would have been a video made of this particular stop and Mr. Martin
               being extracted from the vehicle, correct?

       A:      Yes, sir, if it worked.

       Q:      And would we know if it worked by the preservation of the tape, or the Hi8
               tape, or whatever it would have been?

       A:      It would have been preserved if I marked it as evidence, if I believed it was
               evidence at the time. By looking at my report, I believed it had no evidential
               value so I saw no reason to mark it as evidence.

       Q:      What does the sheriff’s department policy say about preserving tapes?

       A:      If it has evidence on it.

       Q:      Well does it not say that all tapes are to be preserved for 30 days, regardless
               of whether they have evidence on them?

       A:      Yes, sir. If they’d like me to clarify, I will.

       Q:      Sure.

       A:      We’re able to make that decision on whether or not the tape is to be saved for
               evidence or not. All our videotapes, once at the end, we turn them in to our
               supervisors. And our supervisors at the time place them in a secure room,
               and they are stored there for the 30 days, like it [is] required. And what they



                                                   4
       did with it after that, I have no clues because, once I turn it in, it’s out of my
       hands.

....

Q:     When you—you end the shift—or at least on patrol units—you take the video
       out of the camera and turn it in?

A:     No, sir.

Q:     What do you do with it?

A:     It stays in the unit . . . unless it runs out, and then it’s taken out and given to
       the supervisor.

Q:     You mean . . . if the tape empties, if it’s completely full, you put in a new
       blank tape and give the old one to the supervisor?

A:     Yes, sir, unless—like I said . . . if I believed it had any type of evidential
       value, then it would have been marked right then and there.

....

Q:     Okay. And so . . . how often would [the camera] not function?

A:     With those, if it’s the one that I think I had at the time, the weather played a
       role, the humidity played a role, all kinds of things played a role. We had a
       lot of problems with our videotapes, and still do.

Q:     Okay. So did you know whether or not this video was working that evening?

A:     I don’t recall, sir.

....

Q:     Okay. But you’re supposed to check it before you start your shift and at the
       end of your shift, are you not, sir?

A:     Yes, sir.

Q:     And you have no notation in your file that you determined that this video was
       not working on this evening?

                                           5
       A:      No, sir, I don’t.


On cross-examination, the State elicited additional testimony from Jennings on this issue:


       Q:      . . . . My question is this: Do you recall if the video camera in the vehicle
               that you were in on the [date of the offense] was working?

       A:      No, sir, I do not. I wish I could.

       ....

       Q:      —[Y]ou stated that [the video] remains in the vehicle; is that right?

       A:      Yes, sir.

       Q:      Okay. And if it remains in the vehicle and it’s not taken out, what happens
               to that video?

       A:      The [video]—remains in the vehicle until it runs out, and then it’s replaced
               with a new tape.

       Q:      Okay. My question is, is there any way that it stays in the vehicle and it’s just
               taped over?

       A:      No, sir. It . . . can’t be retaped over while it’s inside the vehicle.


Finally, on redirect, the following testimony was elicited:


       Q:      But, at the end of the shift, you turn in the tape?

       A:      No, sir.

       Q:      At the end, when the tape is used up, then you turn it in?

       A:      Yes, sir.

       Q:      What if it’s not at the end of the shift, what if [it’s] at the beginning? Say it’s
               an hour into the shift, what do you do? Get a replacement tape? And you put

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               it in there, and then . . . the tape gets full, and then you give it to your
               supervisor?

       A:      Yes, sir. We call our supervisor and let him know that the video is full and
               meet up with them and exchange tapes.

       Q:      But, apparently, your opinion is . . . that if you feel that it doesn’t have
               evidentiary value, you don’t have to turn it in or you don’t have to preserve
               it, or whatever, correct?

       A:      Yes, sir, that was my understanding at the time.

       Q:      So it’s very possible that . . . you just decided in your mind that it didn’t have
               any evidential value, that . . . you didn’t preserve the video?

       A:      Yes, sir.

       Q:      And the only way to know if there was a video that properly recorded the
               events of that evening would be if you had preserved that video, correct?

       A:      Yes, sir.


               Following Jennings’s testimony, the proceedings were recessed. When the hearing

was continued on a later date, Martin presented additional evidence “on the issue of how subpoenas

and letters get delivered to the correct people.” Michael LaSorsa, a paralegal with the Travis County

Sheriff’s Office, testified that when he receives a subpoena, he “figure[s] out who the named person

is,” scans the subpoena into a computer scanner, and then sends an email to that person with the

subpoena as an attachment. Although LaSorsa recognized the 2009 subpoena, he did not have a

record of the 2008 subpoena, which was apparently issued before he began working at the office.

However, LaSorsa testified that he had no knowledge that the procedures for delivering subpoenas

were different in 2008 than they were in 2009.




                                                   7
                Alonzo White, a Travis County mail clerk who had signed for the certified letter

that was addressed to Jennings, testified that he picks up mail from the post office, stamps the mail

with his name if it is certified, logs it into “our log sheet,” and then gives it to his supervisor. The

supervisor also logs in the certified mail and then gives it to a mail carrier, who delivers it to the

individual named in the address. White testified that the letter addressed to Jennings “should have

been” delivered, but he did not know if it had been because “[a]fter we log it, it’s out of our hands.”

                Finally, Martin took the stand and testified as to his recollection of the night in

question. Martin was unsure of whether he had failed to use his turn signal as Jennings had claimed.

He testified, “I think I turned it on but it didn’t work at that time.” When asked if his taillights had

worked that evening, he answered, “I believe that they did but the switch had gone bad.” Martin also

provided testimony regarding the search of his person and his subsequent arrest.

                At the conclusion of the hearing, Martin argued that “the officers intentionally

destroyed the video and thereby put[] exculpatory evidence as far as the search is concerned or

evidence favorable to the accused out of the reach of the accused. We feel that for no other reason

the search is invalid and any evidence found as a result of that search should be suppressed.” The

district court took the matter under advisement, and later denied the motion to suppress. Martin then

pleaded guilty to the charged offense and was placed on deferred adjudication. This appeal followed.


                                    STANDARD OF REVIEW

                A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse

of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The trial court is given

almost complete deference in its determination of historical facts, especially if those are based on

                                                   8
an assessment of credibility and demeanor. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.

App. 2008). The same deference is afforded the trial court with respect to its rulings on application

of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 108-09

(Tex. Crim. App. 2006). However, for mixed questions of law and fact that do not fall within

that category, a reviewing court conducts a de novo review. Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007).

                At the suppression hearing, the trial court is the sole and exclusive trier of fact and

judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses’

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Unless the trial court abuses

its discretion by making a finding unsupported by the record, we defer to the trial court’s findings of

fact and will not disturb them on appeal. Miller v. State, 335 S.W.3d 847, 854 (Tex. App.—Austin

2011, no pet.). When the trial court fails to make explicit findings of fact, we imply fact findings

that support the trial court’s ruling so long as the evidence supports these implied findings.

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007).


                                             ANALYSIS

                In his first issue, Martin asserts that the district court abused its discretion in

denying his motion to suppress because, in Martin’s view, “the destruction of the video recording

of the stop containing exculpatory evidence” violated his due process rights under the United States

Constitution. See U.S. Const. amends. V, XIV. In response, the State argues that the recording did

                                                   9
not contain exculpatory evidence and that, even if it did, the police “did not act in bad faith by not

preserving the videotape.”

                We agree with the State that the record supports a finding by the district court that

the police did not act in bad faith. The United States Supreme Court has held that “unless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

“‘Precisely what constitutes ‘bad faith’ is not clear.’” Ex parte Napper, 322 S.W.3d 202, 231

(Tex. Crim. App. 2010) (quoting George E. Dix and Robert O. Dawson, 42 Texas Practice, 2nd ed.,

§ 22.63 (2001)). However, it is “more than simply being aware that one’s action or inaction could

result in the loss of something that is recognized to be evidence.” Id. at 238. “[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.” Id. When police conduct “can at worst

be described as negligent,” the failure to preserve evidence does not rise to the level of a due process

violation. Youngblood, 488 U.S. at 58.

                In this case, the district court would not have abused its discretion in finding that

the police conduct did not rise to the level of bad faith. First, there was evidence that the existence

of any recording for police to preserve was speculative. Jennings testified that he had “no clue”

whether his video camera was working on the night of the traffic stop. He added, “We had a lot of

problems with our videotapes, and still do.” When asked by the State on cross-examination if he

recalled whether the video camera was working on the night in question, Jennings answered, “No,

sir, I do not. I wish I could.” The district court would not have abused its discretion in crediting



                                                  10
Jennings’s testimony and finding that the State’s inability to produce a recording was possibly due

to Jennings failing to ensure that his video camera was working properly on the night in question.

                Furthermore, even if there was a recording, the district court would not have abused

its discretion in finding that the apparent failure to preserve it was not due to any bad faith on the part

of the police. Although Martin characterizes the police conduct as “destruction of the videotape,”

the record supports a finding by the district court that this is not what actually occurred. In fact,

Jennings testified that the video “can’t be retaped over while it’s inside the vehicle.” Instead,

according to Jennings, the video “remains in the vehicle until it runs out, and then it’s replaced

with a new tape.” If the tape “runs out” during an officer’s shift, Jennings explained, “We call our

supervisor and let him know that the video is full and meet up with them and exchange tapes.”

Jennings also testified, “All our videotapes, once at the end, we turn them in to our supervisors. And

our supervisors at the time place them in a secure room, and they are stored there for the 30 days,

like it [is] required. And what they did with it after that, I have no clues because, once I turn it in,

it’s out of my hands.” There is no indication in the record that Jennings or his supervisors handled

the videotape in question any differently than they handled other videotapes. Nor is there any

indication in the record that the tape was not preserved because of any improper motive on the

part of Jennings or other officers. See Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston

[1st Dist.] 1996, no pet.).

                Martin places significance on Jennings’s testimony that he did not mark the tape as

evidence because Jennings had made a determination that it did not have “any type of evidential

value.” According to Martin, this is evidence of bad faith. On this record, however, the district court



                                                    11
would not have abused its discretion in finding otherwise. Jennings provided no testimony

suggesting that his decision to not mark the tape as evidence was done for a bad-faith purpose. At

worst, Jennings’s testimony is evidence of negligence. For example, the district court could have

reasonably inferred that if the video camera was not working properly at the time of the stop, which

Jennings testified was a possibility, it might not have properly recorded the traffic stop and arrest.

Thus, Jennings might have determined that the recording had no “evidential value” for that reason.

The district court would not have abused its discretion in finding that such a determination would

not rise to the level of bad faith. See Lovitt v. True, 403 F.3d 171, 187 (4th Cir. 2005) (holding that

although there may have been “a serious error in judgment” in failing to preserve evidence, “there

existed no evidence of bad faith on anyone’s part”).

               Martin also argues that failure to follow police procedure is evidence of bad faith.

See McGee v. State, 210 S.W.3d 702, 704 (Tex. App.—Eastland 2006, no pet.). However, it is

not necessarily evidence of bad faith; it could just as easily be evidence of negligence. See

United States v. Garza, 435 F.3d 73, 76 (1st Cir. 2006) (no bad faith even though “it was not

the ‘normal’ procedure to destroy evidence in cases that were still open”); United States v. Deaner,

1 F.3d 192, 200 (3d Cir. 1993) (“While a showing that the government did not follow standard

procedure could provide some evidence of bad faith, we have not held that an improper procedure

in and of itself implies bad faith. While it may permit such an inference, it does not syllogistically

imply the presence of bad faith as a matter of deductive logic.”). Moreover, the district court could

have found that in this case, police procedures were not necessarily violated. Jennings testified that

although police procedures require the videotapes to be preserved for 30 days in all cases, it also



                                                  12
allows officers “to make that decision on whether or not the tape is to be saved for evidence or not.”

The district court could have reasonably inferred from this testimony that there is a department

policy giving officers discretion to determine whether the tapes have evidentiary value and that

Jennings did not violate that procedure by determining that the videotape in this case did not.1

               Finally, Martin argues that bad faith can be inferred from the failure of the department

to comply with either the subpoenas that were issued or the letter that Martin wrote requesting

preservation of the evidence. Regarding the letter, the district court would not have abused its

discretion in crediting Jennings’s testimony that he had not seen it prior to the suppression hearing,

particularly in light of Alonzo White’s testimony that he did not know if the letter had been delivered

to Jennings. Regarding the subpoenas, Jennings acknowledged being served with the subpoena that

was directed to him in October 2009. But this was well beyond the time period required to preserve

the videotape, and the district court would not have abused its discretion in finding that failing

to preserve the videotape beyond that period was not evidence of bad faith. As for the subpoena

that was issued in September 2008, it was directed to the “Travis County Sheriff’s Custodian of

Records,” not Jennings. Martin produced no evidence of who specifically received this subpoena.

Michael LaSorsa, the paralegal who handles subpoenas for the Travis County Sheriff’s Office, had

no knowledge of how the September 2008 subpoena was handled or who received it, and no other

witness provided testimony on the subject. On this record, the district court would not have


       1
          We note that the record is not entirely clear on the specific procedures the department
has established regarding the preservation of videotapes. Although a copy of the “Travis County
Sheriff’s Office Policies and Procedures” regarding “Mobile Video Taping” was admitted into
evidence as Defense Exhibit 2, only the first page of this three page document has been included in
the reporter’s record of the proceedings.

                                                  13
abused its discretion in finding that the apparent failure of Jennings and others in the department

to preserve the evidence as requested in the letter and the subpoenas was not due to bad faith. Cf.

Illinois v. Fisher, 540 U.S. 544, 548 (2004) (“We have never held or suggested that the existence of

a pending discovery request eliminates the necessity of showing bad faith on the part of police.”).

Moreover, even if this was some evidence of bad faith, the district court would not have abused its

discretion in finding that it was outweighed by other evidence in the record, discussed above, tending

to show, at worst, negligence. See United States v. Smith, 534 F.3d 1211, 1224-25 (10th Cir. 2008)

(listing several factors that courts may consider when determining whether government acted in

bad faith). Because the record supports a finding that the police did not act in bad faith, we cannot

conclude that the district court abused its discretion in denying the motion to suppress on federal

due process grounds. We overrule Martin’s first issue.

               In his second issue, Martin asserts that the State’s failure to preserve the

recording violated his rights under the Due Course of Law provision of the Texas Constitution. See

Tex. Const. art. I, § 19. Citing to the decision of the Waco Court of Appeals in Pena v. State, Martin

argues that the Texas Constitution provides greater protection on this issue than the United States

Constitution. See 166 S.W.3d 274, 281-82 (Tex. App.—Waco 2005), vacated, 191 S.W.3d 133,

145-46 (Tex. Crim. App. 2006), on remand, 226 S.W.3d 634, 655 (Tex. App.—Waco 2007),

rev’d on other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009). However, this Court and the

majority of Texas courts of appeals have repeatedly held that the Due Course of Law provision

provides the same protection in this area of the law as the federal Due Process Clause. See, e.g.,

Salazar v. State, 298 S.W.3d 273, 279 (Tex. App.—Fort Worth 2009, pet. ref’d); State v. Vasquez,



                                                 14
230 S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2007, no pet.); McGee, 210 S.W.3d at 705;

Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); State v. Rudd,

871 S.W.2d 530, 532-33 (Tex. App.—Dallas 1994, no pet.); Saldana v. State, 783 S.W.2d 22,

23 (Tex. App.—Austin 1990, no pet.). As this Court has previously explained, the reasoning of

Pena “does not persuade us that we should depart from our holding in Saldana and the majority

of our sister courts.” State v. White, No. 03-07-00041-CR, 2010 Tex. App. LEXIS 6766, *25-26

(Tex. App.—Austin Aug. 19, 2010, no pet.) (mem. op. on remand, not designated for publication).

Accordingly, for the same reasons that we overruled Martin’s first issue, we overrule his

second issue.


                                         CONCLUSION

                We affirm the order of deferred adjudication.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 10, 2011

Do Not Publish




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