                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-11-00192-CR


THE STATE OF TEXAS                                                      STATE

                                      V.

LARENCE DAVEN CARTER                                                APPELLEE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                       MEMORANDUM OPINION1
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                             I. Introduction

     In one issue, Appellant, the State of Texas, appeals from the trial court’s

order granting Larence Daven Carter’s motion to suppress. We reverse and

remand.




     1
      See Tex. R. App. P. 47.4.
                     II. Factual and Procedural Background

      On October 15, 2009, the State indicted Carter for intoxication

manslaughter.     At a pretrial hearing, Carter moved to dismiss the charge

because the State had lost the videotaped recording of his standardized field

sobriety tests. Specifically, Carter asserted that the videotape, which he agreed

had ―inadvertently been erased,‖ was ―the one piece of evidence that the jur[ors]

would have in the field that they could take back into the jury room and look at‖

and that trying a case without evidence that ―could be exculpatory‖ is a

deprivation of due process.

      The trial court denied this motion but stated that it would grant a motion to

suppress the field sobriety test results and the testimony of Officer Persinger,

who administered Carter’s field sobriety tests.2 When the State asserted that no

evidence of bad faith on which to base that decision existed, the trial court

responded, ―I don’t care if it’s bad faith or not[;] it’s missing. They don’t have an

opportunity to look at this and determine whether or not he performed those field

sobriety tests perfectly.‖

      After the State filed a motion asking the trial court to clarify its ruling, the

trial court entered a suppression order that ordered the State not to ―mention,


      2
       Carter had previously filed a motion to suppress when another judge
presided over the trial court. Nothing in the record indicates that this motion was
granted, and trial commenced but ended in a mistrial. However, the current
judge was subsequently elected to that court, and he granted Carter’s motion to
rehear all motions.


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produce evidence, or elicit testimony from witnesses as to the administration,

performance, or the results of the [field sobriety tests] or the fact that Officer

Persinger had [Carter] perform any field sobriety testing that night.‖ The trial

court clarified that this ―pertains to what would and should have been

videotaped.‖ This order also contained the trial court’s finding that the videotape

was not destroyed in bad faith.3 The State objected to this suppression order,

and this appeal followed.

                               III. Suppression

      The State argues that the trial court erred by suppressing evidence

concerning Carter’s field sobriety tests because the destruction of the videotape

did not violate Carter’s due process rights.

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact


      3
       During the pretrial hearing, Carter did not dispute that the videotape was
not destroyed in bad faith and stated, ―I have no reason to question the videos
were lost in the method in which they say they were lost.‖ In addition, Carter
states on appeal that he does not contend that the videotape was lost in bad
faith.


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questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Law

      In addressing whether the pretrial destruction of evidence constitutes a

denial of due process, the United States Supreme Court has drawn a distinction

between ―material exculpatory evidence‖ and ―potentially useful evidence.‖

Salazar v. State, 298 S.W.3d 273, 277–78 (Tex. App.—Fort Worth 2009, pet.

ref’d); see Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S. Ct. 333, 337

(1988) (defining ―potentially useful evidence‖ as that of which no more can be

said than that it might have exonerated the defendant). A federal due process

violation occurs when the State suppresses or fails to disclose material

exculpatory evidence, regardless of whether the State acted in bad faith.4 Illinois

v. Fisher, 540 U.S. 544, 547, 124 S. Ct. 1200, 1202 (2004); Salazar, 298 S.W.3d

at 278. However, to prove a federal due process violation based on the State’s

loss or destruction of potentially useful evidence, the defendant must show that

the State destroyed the evidence in bad faith. Fisher, 540 U.S. at 547–48, 124

      4
        A number of Texas courts of appeals, including this court, have held that
the Texas constitution does not provide greater protection than the United States
Constitution regarding the State’s loss or destruction of evidence in a criminal
prosecution. Salazar, 298 S.W.3d at 278 (citing other courts of appeals’
decisions). Therefore, we will not conduct a separate analysis under the Texas
constitution. See id.; see also Jimenez v. State, 32 S.W.3d 233, 242 & n.10
(Tex. Crim. App. 2000) (McCormick, P.J., concurring) (stating that ―due process
of law‖ and ―due course of law‖ mean the same thing).


                                        4
S. Ct. at 1202 (noting that it does not matter that the evidence provides the

defendant’s only hope for exoneration and is essential to and determinative of

the outcome of the case). One of the reasons for this difference in treatment is

that ―whenever potentially exculpatory evidence is permanently lost, courts face

the treacherous task of divining the import of materials whose contents are

unknown and, very often, disputed.‖ Youngblood, 488 U.S. at 57–58, 109 S. Ct.

at 337.

C. Analysis

       In suppressing evidence related to the lost videotaped recording of

Carter’s field sobriety tests, the trial court failed to appreciate the United States

Supreme Court’s distinction between material exculpatory evidence and

potentially useful evidence. See id. at 57–58, 109 S. Ct. at 337. There was no

dispute in this case that the videotape had inadvertently been erased, no longer

existed, and could not be viewed.       The trial court even based its ruling on

Carter’s inability to determine what the videotape revealed.         Indeed, Carter

concedes on appeal that the field sobriety test constituted evidence that could

have been both favorable and unfavorable. Therefore, this is precisely the kind

of evidence that the Supreme Court classifies as potentially useful because it is

permanently lost such that the court would face the treacherous task of divining

the import of its contents, which are disputed. See id. at 57–58, 109 S. Ct. at

337.




                                         5
      It does not matter whether this evidence is the only piece of evidence of its

kind that the jury could have examined in the jury room or whether this evidence

could have determined the outcome of the case. See Fisher, 540 U.S. at 548,

124 S. Ct. at 1202. There was no dispute that the videotape could have been

exculpatory, but that is the most that can be said of it. See Youngblood, 488

U.S. at 57–58, 109 S. Ct. at 337; Payne v. State, No. 2-09-100-CR, 2010 WL

1730857, at *3 (Tex. App.—Fort Worth Apr. 29, 2010, pet. ref’d) (mem. op., not

designated for publication) (holding that the DVD recording was potentially useful

evidence because the claim that it would have shown what happened during the

stop and arrest only amounted to an assertion that the DVD might have

exonerated the appellant). Because Carter’s videotape was potentially useful

evidence, the trial court was required to find bad faith on the part of the State

before suppressing evidence related to the videotape. See Fisher, 540 U.S. at

547–48, 124 S. Ct. at 1202.

      During the suppression hearing, the trial court failed to appreciate the

importance of this inquiry, stating that because Carter could not review the

missing videotape, the existence of bad faith was irrelevant.           Then in its

suppression order, the trial court expressly found that the loss of the videotape

was not due to bad faith on the part of the State or its agents. Therefore, the trial

court erred by failing to correctly apply the law—the distinction between material

exculpatory evidence and potentially useful evidence—to the undisputed facts—

that the State failed to preserve the video but did not do so in bad faith. See

                                         6
Amador, 221 S.W.3d at 673; Salazar, 298 S.W.3d at 277–78. Accordingly, we

sustain the State’s sole issue.

                                  IV. Conclusion

      Having sustained the State’s sole issue, we reverse the trial court’s

suppression order and remand this case for further proceedings.



                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and WALKER, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 16 ,2012




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