Opinion filed April 5, 2018




                                              In The


           Eleventh Court of Appeals
                                          __________

                                    No. 11-17-00098-CR
                                        __________

                  JASON BERNARD MATTHEWS, Appellant
                                                 V.
                          THE STATE OF TEXAS, Appellee


                          On Appeal from the 42nd District Court
                                  Taylor County, Texas
                              Trial Court Cause No. 26935A


                          MEMORANDUM OPINION
       The jury convicted Appellant of possession with intent to deliver four grams
or more but less than two hundred grams of methamphetamine.1 The jury assessed
punishment at confinement for eight years and a $5,000 fine. In a single issue on
appeal, Appellant complains that the negligent destruction of evidence prior to

       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2017).
independent analysis denied him due course of law under Article 1, Section 19 of
the Texas Constitution. We affirm.

                               I. Background Facts
      The Abilene Police Department had custody of the physical evidence related
to Appellant’s case. Appellant’s codefendant entered a plea agreement in May 2016.
In August, personnel from the Texas Department of Public Safety laboratory tested
the evidence. The laboratory personnel returned the evidence to the Abilene Police
Department, and personnel there destroyed it in October. In November, Appellant
filed a motion to conduct his own test of the State’s physical evidence. A month
later, the trial court granted the motion and authorized Appellant’s independent
laboratory to weigh and identify the “crystalline substance.” In March 2017, the
State learned and disclosed that personnel of the Abilene Police Department had
destroyed the evidence the previous October. Abilene police department personnel
explained that the codefendant’s disposition form did not include notes about
Appellant’s pending case because of “mistake, oversight, or administrative error.”
      In response, Appellant filed a motion to suppress the testimony of the
laboratory analyst and alleged bad faith by the Abilene Police Department.
Appellant argued that the State’s case was focused on Appellant because the search
warrant named him, so the destruction of the evidence after the disposition of the
codefendant’s case constituted gross negligence and bad faith. The State countered
that the evidence was destroyed by mistake because the Abilene police officers in
charge of the evidence had no reason to retain it when they received the
codefendant’s disposition form, which did not have any notes about Appellant’s
case. The trial court carried Appellant’s motion through trial; it later denied the
motion due to a lack of evidence of bad faith.



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      At trial, the State’s laboratory analyst testified that the crystalline substance
contained methamphetamine and that it weighed 18.11 grams.                Appellant’s
codefendant also testified that the substance was methamphetamine. Appellant did
not dispute the composition or the weight of the substance; instead, he testified that
the drugs did not belong to him and claimed that the drugs belonged to the
codefendant.

                                    II. Analysis
      On appeal, Appellant asks this court to consider whether the negligent
destruction of evidence violated Appellant’s right to due course of law. Appellant
urges us to follow Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco 2007) (Pena
III), rev’d on other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009), and recognize
a greater level of protection for due course rights under the Texas Constitution than
due process rights under the U.S. Constitution. We declined to do so in an earlier
case. See McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.)
(applying the federal standard to due course rights after Pena v. State, 166 S.W.3d
274 (Tex. App.—Waco 2005) (Pena I), vacated, 191 S.W.3d 133 (Tex. Crim. App.
2006)). We again decline to do so after Pena III.
      Under the U.S. Constitution, a due process violation occurs “when the State
fails to disclose to the defendant material exculpatory evidence.”         Arizona v.
Youngblood, 488 U.S. 51, 57 (1988). However, “the Due Process Clause requires a
different result when we deal with the failure of the State to preserve evidentiary
material of which no more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant.” Id. When dealing with
evidence that is merely “potentially useful,” the defendant has to show that the
failure to preserve the evidence resulted from bad faith. Id. at 58; see Roberts v.



                                          3
State, No. 11-09-00175-CR, 2011 WL 2112809, at *4 (Tex. App.—Eastland
May 27, 2011, no pet.) (mem. op., not designated for publication) (citing
Youngblood, 488 U.S. at 57, 58; Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.
App. 2010)).
      In McGee, we held that the right to due course of law under the Texas
Constitution provides the same level of protection as the U.S. Constitution in cases
dealing with the loss of potentially useful evidence. McGee, 210 S.W.3d at 705.
Eleven of our sister courts have explicitly followed the same course. See State v.
Fellows, 471 S.W.3d 555, 558 n.5, 563 (Tex. App.—Corpus Christi 2015, pet. ref’d);
Gelinas v. State, No. 08-09-00246-CR, 2015 WL 4760180, at *10 (Tex. App.—El
Paso Aug. 12, 2015, no pet.) (not designated for publication); Jones v. State, 437
S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref’d); Higginbotham v. State,
416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); State v. White,
No. 03-07-00041-CR, 2010 WL 3271195, at *8 (Tex. App.—Austin Aug. 19, 2010,
no pet.) (mem. op., not designated for publication); Ramirez v. State, 301 S.W.3d
410, 421 (Tex. App.—Austin 2009, no pet.); Salazar v. State, 298 S.W.3d 273, 279
(Tex. App.—Fort Worth 2009, pet. ref’d); Purvis v. State, No. 12-06-00422-CR,
2008 WL 2221826, at *6 (Tex. App.—Tyler May 30, 2008, no pet.) (mem. op., not
designated for publication); Sharpe v. State, No. 05-07-00276-CR, 2008 WL
963130, at *6 (Tex. App.—Dallas Apr. 10, 2008, no pet.) (not designated for
publication); Smith v. State, No. 07-05-0289-CR, 2007 WL 2002897, at *3 n.7 (Tex.
App.—Amarillo July 11, 2007, no pet.) (mem. op., not designated for publication);
State v. Vasquez, 230 S.W.3d 744, 751 (Tex. App.—Houston [14th Dist.] 2007, no
pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.);
State v. Rudd, 871 S.W.2d 530, 533 (Tex. App.—Dallas 1994, no writ).




                                         4
      The Ninth Court of Appeals noted that most of Texas appellate courts apply
the bad faith standard from Youngblood, but it declined to reach the issue because
the appellant failed to preserve error. Kiser v. State, No. 09-11-00157-CR, 2012
WL 1448408, at *1 (Tex. App.—Beaumont Apr. 25, 2012, pet. ref’d) (mem. op., not
designated for publication). Therefore, the Tenth Court of Appeals is the only court
to hold that the right to due course of law prohibits negligent destruction of evidence
that is merely potentially useful. See Pena III, 226 S.W.3d at 651. And Pena I and
Pena III were decisions from which Chief Justice Gray dissented and gave
persuasive reasons for applying the Youngblood standard to due course rights. See
Pena I, 166 S.W.3d at 285 n.1 (Gray, C.J., dissenting); Pena III, 226 S.W.3d at 670
(Gray, C.J., dissenting).
      Given this court’s precedent and the holdings among most of the Texas courts
of appeals, we hold that bad faith is required to prove a violation of the right to due
course of law when potentially useful evidence is lost or destroyed. See McGee, 210
S.W.3d at 705.      Here, the evidence was only potentially useful because the
codefendant and the laboratory agent both confirmed that the crystalline substance
contained methamphetamine, but Appellant was unable to obtain independent
analysis. No more can be said of the crystalline substance other than that it could
have been independently tested. See Youngblood, 488 U.S. at 57. Appellant argues
on appeal that the State negligently destroyed the evidence and does not argue that
the loss of evidence resulted from bad faith. Because bad faith is a necessary element
of Appellant’s claim, Appellant has not shown that the destruction of evidence
violated his right to due course of law. We overrule Appellant’s sole issue.




                                           5
                                      III. This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


April 5, 2018

Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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