                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

     STATE OF TEXAS,                                          §                No. 08-19-00043-CR

                                       Appellant,             §                   Appeal from the

    v.                                                        §       County Criminal Court at Law No. 2

     MICHAEL ANTHONY COLLASO,                                 §              of El Paso County, Texas

                                       Appellee.              §                (TC# 20170C08725)


                                                  OPINION

         Appellee Michael Anthony Collaso was charged by information with one count of the

Class A misdemeanor offense of driving while intoxicated with a blood alcohol level of 0.15 or

more, in violation of Section 49.04 of the Texas Penal Code.1 At a hearing on the day of his

scheduled trial, Collaso orally moved to dismiss the information, contending that his due process

rights were violated because law enforcement officers failed to preserve a cell phone recording

taken by a citizen who had been in a vehicle following Collaso prior to his arrest. The State

contends that the trial court erred by granting the motion, arguing that Collaso failed to meet his




1
  Section 49.04 of the Penal Code provides that a person commits an offense if the “person is intoxicated while
operating a motor vehicle in a public place,” and that the offense is a Class A misdemeanor “[i]f it is shown on the
trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an
alcohol concentration level of 0.15 or more at the time the analysis was performed[.]” TEX.PENAL CODE ANN.
§ 49.04(a)(d).


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burden of establishing that: (1) the missing evidence was material to Collaso’s case, or (2) that the

State acted in bad faith by failing to preserve the evidence. Because we agree that Collaso

presented no evidence at the hearing to meet his burden of proving a due process violation, we

conclude that the trial court erred in granting the motion, and we therefore reverse and remand this

matter to the trial court for further proceedings.2

                            I. FACTUAL AND PROCEDURAL BACKGROUND

           Collaso was arrested for driving while intoxicated during the early morning hours of

April 2, 2017. After receiving six continuances, Collaso’s case was set for trial on December 3,

2018. At the docket call on the day of his scheduled trial, after noting that the matter had just been

brought to its attention during an off-the-record discussion, the trial court held a hearing outside

the presence of the jury on the issue of whether the arresting officers’ failure to preserve a cell

phone recording at the scene of Collaso’s arrest violated his due process rights.

           Although no evidence was presented at the hearing, the parties’ attorneys agreed that a

citizen who had been following Collaso’s vehicle had recorded Collaso’s driving on his cell phone

prior to calling 911.3 At least two officers responded to the 911 call, and found Collaso parked on

the side of the road.4 At the scene, the citizen offered to give the officers his cell phone recording.

The parties agreed that one of the officers, an El Paso County Sheriff’s Deputy, viewed the

recording, but for reasons that are not reflected in the record, both officers at the scene declined to

take the citizen’s recording into evidence. At the hearing, the State also informed the trial court




2
    This case was submitted solely on the State’s brief since Appellee Collaso failed to file a responsive brief.
3
  At an earlier hearing on Collaso’s motion to suppress evidence, a state trooper testified that he had been dispatched
to the scene based on a 911 call from a private citizen reporting a vehicle driving erratically.
4
    According to the State’s prosecutor, Collaso was found passed out in his car when the officers arrived.


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that the citizen was presently incarcerated and not available to testify at trial, but that his brother,

who had also been in the vehicle following Collaso, was available and ready to testify at trial. The

State also advised the court that the deputy who had viewed the recording at the scene was on his

way to court to testify, but had not yet arrived.

        Collaso’s attorney orally moved to dismiss the information, arguing that the missing

recording was “potentially useful” to his case, and that the officers had acted wrongfully by

“deliberately” or “intentionally” refusing to take the recording into evidence. Collaso argued that

the officers’ failure to preserve the recording prejudiced his case and denied him a “fair trial under

due process.” The State opposed Collaso’s motion, arguing that there was no evidence to support

a finding that Collaso’s due process rights had been violated, as no witnesses had testified as to

any relevant facts, and the State therefore urged the court to wait until it could present the deputy’s

testimony to shed some light on the issue.

        The trial court stated that it would have preferred to hear witness testimony on the issue,

particularly from the deputy, but indicated that it was not willing to wait for the deputy to arrive

before making its decision. In particular, the trial court expressed concern that a jury had already

been assembled and would be prejudiced by a delay in starting the trial. Although the State

indicated that it was ready to proceed with the trial, and that it could call other witnesses while

waiting for the deputy to arrive, the trial court declined that option. Instead, the trial court granted

Collaso’s motion to dismiss, finding that the missing recording was “material” to Collaso’s case,

and that its loss was prejudicial as it deprived Collaso of the opportunity to test the credibility of

the witnesses at trial. That same day, the court issued a written order dismissing the State’s

information against Collaso. This appeal followed.




                                                    3
                                         II. DISCUSSION

       In its sole issue on appeal, the State contends that the trial court erred in granting the

motion, asserting that the record was devoid of any evidence to support a finding that Collaso’s

due process rights were violated. We agree.

       A. Standard of Review

       We apply a bifurcated standard of review to the trial court's decision of whether to quash

or set aside an information or indictment. See State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.

2004); Gomez v. State, No. 08-17-00185-CR, 2019 WL 947628, at *2 (Tex.App.--El Paso Feb. 27,

2019, no pet.) (not designated for publication). The amount of deference an appellate court should

afford to a trial court’s ruling on a motion to dismiss a charging document depends upon which

“judicial actor” is better positioned to decide the issue. See Moff, 154 S.W.3d at 601. As a general

rule, an appellate court affords almost total deference to a trial court’s determination of the

historical facts that the record supports, especially when the trial court's fact findings are based on

an evaluation of a witness’s credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997) (en banc); see also Gomez, 2019 WL 947628, at *2. However, when the

trial court’s decision to dismiss an indictment or information turns on a question of law, and does

not turn on the evaluation of the credibility and demeanor of a witness, then the trial court is in no

better position to resolve the issue than an appellate court; in that instance, the appellate court

should review the trial court’s decision de novo. See Moff, 154 S.W.3d at 601; see also Gomez,

2019 WL 947628, at *2.

       B. Applicable Law

       The Due Process Clause of the Fourteenth Amendment guarantees a defendant in a criminal

prosecution a trial comporting with fundamental fairness. See California v. Trombetta, 467 U.S.


                                                  4
479, 485 (1984). In determining whether the failure to preserve evidence violated a defendant’s

due process rights, courts have drawn a distinction between lost or missing evidence that can be

considered “material exculpatory evidence” and evidence that is at best “potentially useful.”

Ex parte Napper, 322 S.W.3d 202, 229, 231 (Tex.Crim.App. 2010), citing Arizona v. Youngblood,

488 U.S. 51, 57 (1988); see also Gelinas v. State, No. 08-09-00246-CR, 2015 WL 4760180, at *8

(Tex.App.--El Paso Aug. 12, 2015, no pet.) (not designated for publication). When the State fails

to preserve or disclose material-exculpatory-evidence, it violates the defendant’s due process

rights regardless of the State’s motives, and therefore, the question of whether the State acted in

bad faith is “irrelevant.” Ex parte Napper, 322 S.W.3d at 229, citing Youngblood, 488 U.S. at 57;

see also Illinois v. Fisher, 540 U.S. 544, 547 (2004) (recognizing that if the State withholds

material-exculpatory-evidence, a federal due process violation occurs regardless of whether the

State acted in bad faith). However, when the State fails to preserve evidence that is merely

“potentially useful,” the defendant has the burden of demonstrating that the State acted in “bad

faith” by failing to preserve the evidence. Ex parte Napper, 322 S.W.3d at 229, citing Youngblood,

488 U.S. at 58; see also Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App. 2008) (recognizing

that the government's “failure to preserve potentially useful evidence” does not violate due process

unless the defendant shows that the loss of the evidence resulted from “bad faith on the part of the

police.”).

        C. Application

               1. Material or merely potentially useful?

        The first step in our analysis is to determine whether the missing cell phone recording

should be characterized as either “material-exculpatory-evidence” or merely “potentially useful”

evidence. In order to be considered material-exculpatory-evidence, lost or destroyed evidence



                                                 5
must possess an “exculpatory” value that was apparent at the time of its destruction or loss; in

other words, it must be evidence that could be “expected to play a significant role in the suspect’s

defense,” and the evidence must be of such a nature that the defendant would be unable to obtain

comparable evidence by other “reasonably available means.” Ervin v. State, No. 08-15-00025-

CR, 2017 WL 3614237, at *11 (Tex.App.--El Paso Aug. 23, 2017, pet. ref'd) (not designated for

publication), citing Trombetta, 467 U.S. at 488-89; see also Gelinas v. State, No. 08-09-00246-

CR, 2015 WL 4760180, at *8 (Tex.App.--El Paso Aug. 12, 2015, no pet.) (not designated for

publication) (it is not enough to show that missing or destroyed evidence might have been

favorable to the defendant in order to meet the materiality standard, but instead, its exculpatory

value must be “apparent.”). Although the Court of Criminal Appeals has not settled on a definitive

test for determining when evidence is merely potentially useful, it has indicated that evidence is

not potentially exculpatory when its potential value is based on (1) “mere speculation,” (2) when

the evidence was “legally irrelevant to the crime charged,” or (3) when the chance that the evidence

would exonerate the defendant was “virtually nil.” Ex parte Napper, 322 S.W.3d at 231. And the

Court has further noted that, in some instances, the “potential exculpatory value of evidence” may

be so attenuated that even a showing of bad faith will not afford a basis for relief. Id.; see also

Ervin, 2017 WL 3614237 at *13-14.

       The trial court determined that the missing cell phone recording was material-exculpatory-

evidence to Collaso’s case based solely on the arguments of counsel. However, generally the

arguments of counsel are not considered “evidence” upon which a trial court may make a ruling.

See, e.g., State v. Guerrero, 400 S.W.3d 576, 586 (Tex.Crim.App. 2013); Elkins v. Stotts-Brown,

103 S.W.3d 664, 669 (Tex.App.--Dallas 2003, no pet.) (recognizing that motions and arguments




                                                 6
of counsel are not evidence). Therefore, the trial court had no evidence from which to make this

determination.

         Moreover, there is nothing in the arguments of counsel, or otherwise in the appellate record,

that would convince us that the trial court correctly found that the missing recording was material-

exculpatory-evidence to Collaso’s case. In other words, there is nothing in the record that would

suggest that that the recording had any exculpatory value that was apparent to the officers at the

scene of Collaso’s arrest. To the contrary, the record indicates that the very reason the witness

made the recording stemmed from his concern that Collaso was driving erratically on the highway,

which also prompted him to call 911 to alert law enforcement.5 Accordingly, the recording was

more likely to have demonstrated that Collaso was driving in an impaired manner, and as the State

pointed out at the hearing, the recording would have been more beneficial to the State’s case, and

likely would not have played a significant role in Collaso’s defense. We therefore conclude that

the trial court erred in finding that the missing recording was material-exculpatory-evidence to

Collaso’s case. See, e.g., Higginbotham v. State, 416 S.W.3d 921, 926-27 (Tex.App.--Houston

[1st Dist.] 2013, no pet.) (missing video from the scene, which had slight exculpatory value, was

not material to defendant’s case, where video taken at the police station showed that the defendant

had failed his field sobriety tests); Ramirez v. State, 301 S.W.3d 410, 420 (Tex.App.--Austin 2009,

no pet.) (destroyed videotape of a crime scene was not material-exculpatory-evidence, where no

evidence showed tape would have exonerated defendant, and at best defendant could only assert

that the evidence might have assisted his defense).




5
  At the motion to suppress hearing, the trooper who arrested Collaso testified that the citizen who called 911 did so
because he had observed Collaso driving erratically on the highway. He also testified that the 911 caller and his
brother informed him at the scene that they had both observed Collaso driving “horribly,” stating that Collaso had
been “swerving,” causing him to almost hit their vehicle. However, the trooper did not provide any testimony
regarding the cell phone recording at the motion to suppress hearing, as the issue was not raised at that time.

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         On the other hand, given the lack of evidence in the record, we are not willing to find that

the missing recording had no value to Collaso’s case, and instead, we recognize the possibility that

it might have been at least “potentially useful” to his defense. See Burdick v. State, 474 S.W.3d

17, 26-27 (Tex.App.--Houston [14th Dist.] 2015, no pet.) (treating lost videotape of defendant at

the time of booking as being potentially useful where it was unclear whether it would have helped

or hurt the defendant’s case). In particular, we recognize, as the trial court did that, if nothing else,

Collaso could have used the recording to attempt to impeach the credibility of the State’s lay

witness who was prepared to testify regarding his observations of Collaso’s driving prior to his

arrest.6 See, e.g., Chandler, 278 S.W.3d 70, 74 (Tex.App.--Texarkana 2009, no pet.) (recognizing

that either exculpatory evidence or impeachment testimony can be favorable to a defendant’s case).

Accordingly, at least for purposes of this appeal, we will treat the missing recording as being

potentially useful to Collaso’s case. See generally Gelinas, 2015 WL 4760180, at *9 (where

officers failed to record entire traffic stop, the missing portion of the recording was treated as being

merely potentially useful to defendant’s case); Chandler, 278 S.W.3d at 75 (holding that in the

absence of any evidence that a video recording of an altercation that took place in a jail cell would

have played a significant role in the defendant’s case, the video recording could be considered

potentially useful at best); Gamboa v. State, 774 S.W.2d 111, 112 (Tex.App.--Fort Worth 1989,




6
  We recognize that Collaso was charged with driving while intoxicated with a blood-alcohol level of 0.15, also known
as a “per se” theory of intoxication, and that Collaso therefore could be convicted based solely on evidence that he
had the requisite level of alcohol in his system at the time the test was performed. See State v. Mechler, 123 S.W.3d
449, 455 (Tex.App.--Houston [14th Dist.] 2003), aff'd, 153 S.W.3d 435 (Tex.Crim.App. 2005). Therefore, unlike
cases in which a defendant is charged under an “impairment” theory of intoxication, which requires evidence that the
defendant did not have the normal use of his mental or physical faculties due to the ingestion of alcohol or other
substances, the State was not required to present eyewitness testimony that Collaso was driving in an impaired manner
in order to obtain a conviction. Id. However, the State was still required to prove that Collaso had been operating a
motor vehicle at the time that his blood alcohol level was above the legal limit. Id. And particularly since the officers
did not actually observe Collaso driving, the lay witness’s testimony, as well as the cell phone recording, would have
been relevant on this issue.

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pet. ref'd) (treating videotapes made after defendant’s arrest as being potentially useful to

defendant’s case).

                  2. No evidence of bad faith.

       As set forth above, when the State has failed to preserve evidence that is considered merely

“potentially useful,” rather than “material” to a defendant’s case, the defendant has the burden of

demonstrating that failure to preserve the evidence was done in bad faith in order to establish a

due process violation. Gelinas, 2015 WL 4760180, at *9. In the present case, the trial court made

no finding that the officers acted in bad faith, nor was there any evidence in the record to support

such a finding.

       Although the Court of Criminal Appeals has recognized that the term, “bad faith” cannot

be defined with precision, it has made it clear that the term entails more than mere negligence on

the part of the State or law enforcement officials where evidence is either lost or destroyed. See

Ex parte Napper, 322 S.W.3d at 238; see also Youngblood, 488 U.S. at 58; see also Ervin, 2017

WL 3614237, at *13 (recognizing that although bad faith may be inferred from a variety of

circumstances, mere negligence, standing alone, is insufficient to sustain a finding of bad faith).

Further, the Court has also recognized that bad faith 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.” Ex parte

Napper, 322 S.W.3d at 238. Instead, bad faith requires a showing of “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.

       At the hearing, despite the State’s offer to present the testimony of the officers who were

at the scene to shed some light on why they declined to take the citizen’s cell recording into

evidence, the trial court made the decision to rule on Collaso’s motion to dismiss without first



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hearing any witness testimony.            Instead, at the hearing, Collaso’s attorney simply made

representations that the officers at the scene “deliberately” chose not to take the recording into

evidence, thereby suggesting that their intentional decision reflected that they were acting in bad

faith. But even if we were to accept as true that the officers intentionally declined to take the

recording into evidence, standing alone, this would be insufficient to establish bad faith, as it does

not support a finding that the officers had a personal animus toward Collaso, or that they acted

with the intent of preventing Collaso from obtaining evidence that might have helped his case.

However, we decline to speculate on the officers’ motives for failing to preserve the cell phone

recording, as the simple fact remains that Collaso presented no evidence at the hearing from which

the trial court could have reasonably inferred that the officers acted in bad faith by failing to

preserve the recording.

        Accordingly, we conclude that, based on the record before us, the trial court erred in finding

that Collaso’s due process rights were violated.

        The State’s sole issue on appeal is sustained.

                                                III. CONCLUSION

        We reverse the trial court’s order dismissing the information and remand this matter for

further proceedings in accordance with our opinion.7


                                                    JEFF ALLEY, Chief Justice

April 15, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)


7
  Although we express no opinion on whether any such motion would be likely to succeed, on remand, Collaso is free
to file a motion to dismiss the information on due process grounds, and request that the trial court hold a proper
evidentiary hearing to determine whether he can meet his burden of establishing a due process violation.

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