Opinion filed September 15, 2011




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-10-00276-CR
                                         __________

                  MARIO JARAMILLO GUTIERREZ, Appellant
                                   V.
                         STATE OF TEXAS, Appellee


                           On Appeal from the 142nd District Court
                                   Midland County, Texas
                               Trial Court Cause No. CR33008



                            MEMORANDUM OPINION
       Mario Jaramillo Gutierrez appeals his conviction by a jury of the offense of possession of
cocaine. The trial court assessed his punishment at two years in the Texas Department of
Criminal Justice, State Jail Division, with the sentence suspended and Gutierrez placed on
community supervision for five years and confinement in a substance abuse felony treatment
facility for an indefinite term of not more than one year or less than six months. The judgment
also provides for a jail term of seventy-five days as a condition of community supervision or
until Gutierrez is transferred to a substance abuse felony treatment facility. He contends in a
single issue on appeal that the trial court erred in denying a jury instruction on spoliation because
the State destroyed video evidence before trial but after the filing of his request to discover the
evidence. We affirm.
       Midland police officers stopped Gutierrez’s vehicle after receiving information that
Gutierrez had committed a traffic violation when leaving a Midland motel. According to an
arresting officer, Gutierrez consented to a search of his vehicle.                              Gutierrez denied having
consented to the search of his vehicle. In searching Gutierrez’s vehicle, officers found a rock of
crack cocaine. The stop was probably recorded by the squad car’s videotaping system and then
downloaded to the police department’s computer server. Despite the filing of a felony offense
and despite the fact that Gutierrez had obtained a discovery order granting him access to the
video, the video was destroyed in accordance with the police department’s policy of periodically
erasing stored video material.
       The duty to preserve evidence is limited to evidence that possesses an exculpatory value
that was apparent before the evidence was destroyed. White v. State, 125 S.W.3d 41, 43 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d). An appellant must affirmatively show that the lost
evidence was favorable and material to his defense. Id. at 44. Here, Gutierrez can only argue
that the video may have shown that he did not consent to a search of his vehicle. Gutierrez
acknowledges that the video was destroyed in accordance with the police department’s policy of
periodically erasing stored video material. Inasmuch as there is no showing of bad faith on the
part of the State, the trial court did not err in denying Gutierrez’s request for a jury instruction on
spoliation. See id.
       Gutierrez contends that bad faith can be shown by conduct that is in reckless disregard of
a party’s obligation to comply with a court order. See Marrocco v. Gen. Motors Corp., 966 F.2d
220, 224 (7th Cir. 1992). However, Gutierrez fails to refer us to any conduct on the part of
anyone that would show reckless disregard of the State’s obligation to comply with a court order.
We hold that, even if the principle announced in this out-of-state federal civil case applies here,
the routine destruction of a video, without more, does not constitute sufficient evidence of bad
faith so as to require a spoliation instruction. We overrule Gutierrez’s single issue.
       The judgment is affirmed.


September 15, 2011                                                              PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
                                                                2
