      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00371-CR



                                    Douglas Farirayi, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
       NO. D-1-DC-11-206200, HONORABLE JIM CORONADO, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Douglas Farirayi appeals his conviction for the offense of felony driving while

intoxicated. See Tex. Penal Code §§ 49.04, .09(b). In one issue, he contends that his due process

rights were violated because the prosecution destroyed exculpatory evidence. See U.S. Const.

amends. V, XIV, § 1. For the reasons that follow, we affirm.1


                                         BACKGROUND

                On November 19, 2011, at around 2:00 a.m., a police officer initiated a traffic stop

after observing the vehicle that appellant was driving cross into the oncoming lanes of traffic “[f]or

at least three blocks” before it returned to the correct lanes of traffic. After observing appellant at



       1
          Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
the traffic stop, the officer called for assistance from the “DWI enforcement unit.” An officer from

that unit arrived and performed field sobriety tests on appellant. Appellant was arrested for DWI

and agreed to give a blood sample.

               Appellant was indicted, and the matter proceeded to jury trial in April 2013. The

State’s witnesses were the officer who initiated the traffic stop, the officer who administered the

field sobriety tests, the phlebotomist who drew appellant’s blood, and the forensic chemist who

testified about the results of appellant’s blood test that showed “0.194 grams of ethanol per 100

milliliters of blood.” See Tex. Penal Code § 49.01(2) (defining “intoxicated” as “having an alcohol

concentration of 0.08 or more”). The exhibits admitted at trial included the video recording of the

field sobriety testing of appellant. The video recording of the initial stages of the traffic stop,

however, no longer existed. The officer who initiated the traffic stop testified that the department

“had VHS tapes at the time and the tape wasn’t deemed evidentiary in value. And it was only

retained for 90 days and then wiped out.” The officer testified that, at that time, recordings began

when the overhead lights were activated and “did not back up” and that he did not activate his

overhead lights until the vehicle had crossed back into the correct lanes of traffic “so there was no

recording of [appellant] being over in the oncoming lanes.”

               Appellant’s defensive theory at trial was that he was not intoxicated, and he testified

in his own defense. According to appellant, he drank one beer that evening and had difficulty with

the field sobriety tests, not because he was intoxicated, but because he did not understand the

officer’s instructions and because he was nervous and afraid of the police. He explained that the

reason he crossed over into the oncoming lanes of traffic was because he “saw an object in the road,



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it was a small object, and [he] just dodged it,” and he confirmed that, by doing so, he ended up on

the wrong side of a concrete divider. He also challenged the accuracy of the blood test results

through cross examination of the State’s witnesses about the procedures and testing of his blood

samples and his own testimony that he drank only one beer that evening and agreed to give a

blood sample.

                The jury found appellant guilty, assessed his punishment at confinement for a term

of eight years, and recommended that the imposition of sentence be suspended and that appellant

be placed on community supervision. The trial court thereafter rendered judgment, and this

appeal followed.


                                           ANALYSIS

                In one issue, appellant contends that his due process rights were violated because

the prosecution destroyed the video recording of the initial stages of the traffic stop. See

U.S. Const. amend. V, XIV.2 Appellant urges that the “officer determined that the video was of no

value because it did not support his narrative” and that “the evidence would be exculpatory, and

therefore favorable to the defense.”




       2
          Although appellant cites article I of the Texas Constitution, he does not provide separate
analysis or contend that the protections afforded under that article are greater than that afforded
under the federal due process clause concerning lost or destroyed evidence. See Tex. Const. art. I,
§§ 10 (rights of accused in criminal prosecutions), 19 (due course of law); Jones v. State,
437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref’d) (collecting cases that hold that “the
Due Course of Law Clause [of Texas Constitution] provides no greater protection than the Due
Process Clause regarding the State’s loss or destruction of evidence in a criminal prosecution”).
Thus, we limit our analysis to the federal standard.

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               We conclude that appellant has failed to demonstrate reversible error on this record.

Moreover, he does not show that he preserved his issue by making this argument to the trial court.

Although he was aware that the video recording of the initial stages of the traffic stop no longer

existed and questioned the State’s witnesses about it, he failed to raise his due process argument

before the trial court. See Tex. R. App. P. 33.1(a)(1) (generally requiring complaint to be made

to trial court as prerequisite to presenting complaint for appellate review); Neal v. State,

150 S.W.3d 169, 175, 178 (Tex. Crim. App. 2004) (concluding that due process claim not preserved

because appellant failed to raise claim before trial court).

               Appellant also analyzes his issue under the wrong standard. Appellant analyzes his

issue under the framework of Brady v. Maryland, 373 U.S. 83 (1963).3 But the standard concerning

lost or destroyed “potentially useful evidence” applies here. See Illinois v. Fisher, 540 U.S. 544,

547–48 (2004); Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Under that standard, the State’s

failure to preserve “potentially useful evidence” does not constitute a denial of due process unless

a defendant can show bad faith on the part of the State. See Fisher, 540 U.S. at 547–48;

Youngblood, 488 U.S. at 58; see also Gutierrez v. State, 419 S.W.3d 547, 552 (Tex. App.—San

Antonio 2013, no pet.) (noting distinction drawn by United States Supreme Court between “material

exculpatory evidence” and “potentially useful evidence”).




       3
          Under the framework of Brady, “the suppression by the prosecution of evidence favorable
to a defendant violates due process if the evidence is material either to guilt or punishment, without
regard to the good or bad faith of the prosecution.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.
App. 2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).

                                                  4
                Appellant has not alleged and did not offer evidence before the trial court that would

support a finding that the police acted in “bad faith” concerning the video recording. Although the

video recording of the initial stages of the traffic stop might conceivably have been useful to the

defense’s theory that appellant was not intoxicated because it would have allowed the jury to

observe appellant prior to the field sobriety testing and to compare those observations with the

officer’s description of appellant’s conduct during that time period, the evidence showed that the

tape containing the video recording was erased after being retained for 90 days in accordance with

the department’s retention policy.

                The officer who initiated the traffic stop testified at trial that he turned the tape that

contained the recording in to the evidence room. The officer further explained the department’s

retention policy as follows:


        Everything was retained at the time for at least a period of 90 days. Had it been
        deemed evidentiary, it could have been retained and that would have been from the
        court system or the DWI unit or anybody else. I’m not the final judge of whether
        it was evidence or not. My decision could be overridden if it had been deemed
        necessary.


Consistent with the retention policy, the officer testified that the tape containing the video recording

was retained for 90 days and then “wiped out” after “the tape wasn’t deemed evidentiary in value.”

The officer explained that the recording did not begin until after appellant’s vehicle had returned

to the correct lanes of traffic so it did not capture the traffic violation. Appellant also did not

challenge the legality of the traffic stop and admitted during his testimony that his vehicle crossed

into the oncoming traffic lanes.



                                                    5
               On this record, we conclude that appellant failed to show “bad faith” by the police

and, therefore, that the State’s failure to preserve the video recording did not deprive appellant of

his right to due process. See Jones v. State, 437 S.W.3d 536, 540–41 (Tex. App.—Texarkana 2014,

pet. ref’d) (concluding that defendant’s due process rights were not violated because “no allegation

or evidence that the State acted in bad faith” when it failed to preserve video recording); Jackson

v. State, 50 S.W.3d 579, 588–89 (Tex. App.—Fort Worth 2001, pet. ref’d) (concluding that

appellant failed to show a due process violation because he failed to prove that State acted in bad

faith when it failed to preserve evidence); Williams v. State, 906 S.W.2d 58, 61 (Tex. App.—Tyler

1995, pet. ref’d) (determining that appellant did not offer any evidence of bad faith where

prosecutor testified that video tape was destroyed pursuant to policy).


                                         CONCLUSION

               Because we conclude that appellant has failed to demonstrate reversible error, we

overrule his issue and affirm the judgment of conviction.



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: June 23, 2015

Do Not Publish




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