                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-13-00155-CR
                              ___________________

                       DEADRIAN GAINOUS, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________________ _

                On Appeal from the 411th District Court
                         Polk County, Texas
                        Trial Cause No. 22115
_________________________________________________________________ _

                          MEMORANDUM OPINION

      Deadrian Gainous pleaded guilty to assault on a public servant after the trial

court denied his written motion to dismiss the indictment based upon alleged

spoliation of evidence by the State. See Tex. R. App. P. 25.2(a)(2)(A) (A plea-

bargaining defendant may appeal matters raised by written motion filed and ruled

on before trial.). In his sole appellate issue, Gainous challenges the trial court’s

denial of his motion to dismiss the indictment. We affirm the trial court’s judgment

of conviction.

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      Gainous’s motion explained that the incident took place at the Polunsky Unit

of the Texas Department of Criminal Justice (TDCJ), where Gainous was

incarcerated, when an officer was attempting to re-house Gainous. Gainous

asserted in the motion that when the door of his cell was opened, an altercation

occurred, and the TDCJ—Office of the Inspector General (“OIG”) initiated an

investigation, which led to the filing of the charge against Gainous. In his motion

to dismiss, Gainous contended that “[v]ideo footage existed that depicted

[Gainous]’s use of self defense to protect himself from bodily harm threatened by

an officer[,]” but although the State was aware of the video’s “exculpatory value”,

the video was nevertheless destroyed pursuant to TDCJ’s retention policy.

      Lacey Mericle, an investigator for the OIG when the offense occurred, was

assigned to investigate the incident involving Gainous and a correctional officer.

Mericle testified that Gainous came out of his cell in the Polunsky Unit and

assaulted the officer by striking the officer with closed fists. Mericle explained,

“As soon as I was notified of the offense, I would have tried to get video footage of

the incident, to speak with the victim, any possible witnesses that might have been

in the area, speak with the suspect.” Mericle testified that she received

correspondence from Gainous’s mother, in which Gainous’s mother stated that

Gainous claimed that he was defending himself against a prison guard who

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instigated the fight, and she requested a copy of the videotape evidence of the

incident. Mericle explained that she was aware that a videotape existed when she

began her investigation. Mericle had full access to the videotape of the incident,

and she explained that she viewed approximately ten minutes of the videotape

before reaching the portion of the videotape that contained the incident. Mericle

requested preservation of the portion of the videotape that showed “the actual

offense.” According to Mericle, there was nothing on the videotape that depicted

the victim and Gainous leading up to the incident, so she only requested that the

videotape of the incident between the victim and Gainous be preserved.

      Michael Butcher, assistant warden at the Polunsky Unit, testified that he is

familiar with the surveillance equipment located around the unit, as well as the

policies and procedures related to the surveillance equipment. According to

Butcher, although the unit does not have a retention policy, the system is set up to

maintain up to twenty-one days of surveillance footage, after which time the

storage is full and the older footage is deleted to make room for new footage. If the

unit determines that some footage should be maintained, that footage is recorded

from the hard drive and is maintained as a video file. Butcher testified that when

defense counsel requested six hours of video footage (from 8:00 p.m. on July 19 to

2:00 a.m. on July 20), Butcher was unable to provide what was requested because

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it was no longer available, since more than twenty-one days had passed, but he

instead only produced the portion that contained the assault itself. Butcher

explained that the screen indicator turns red when there is motion in a frame, so the

retained recording began when the system detected motion (that is, when the

officer entered the area where Gainous was being held) and stopped when the

assault ended.

      The State stipulated that other inmates have alleged that the victim was

aggressive on other occasions. Butcher testified that if any video had indicated that

the officer provoked Gainous, that video would have been kept. Butcher testified

that when the video was reviewed, “there doesn’t appear to be any tense situation

there” between Gainous and the officer, and there is no audio on the video. Butcher

testified that the video produced “was the entire incident[,] not just a snippet of the

incident.” Butcher testified that to his knowledge, nothing relevant went on in the

six hours of video surrounding the incident, either before or after the incident.

Butcher explained that the OIG ultimately determines what video to retain.

According to Butcher, Gainous could have requested retention of portions of the

video during the disciplinary process, since that process typically occurs within

twenty-one days.



                                          4
      In determining whether the pretrial destruction of evidence constitutes a

denial of due process, the Supreme Court has distinguished between “material,

exculpatory evidence” and “potentially useful evidence.” Arizona v. Youngblood,

488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). A due process

violation occurs when the State destroys material, exculpatory evidence, regardless

of whether the State acted in bad faith. Id. at 57. However, when the State destroys

potentially useful evidence, as opposed to material exculpatory evidence, the

appellant must show that the State acted in bad faith in destroying the evidence. Id.

at 58; Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010). The

presence or absence of bad faith turns on the State’s knowledge of the exculpatory

value of the evidence at the time it was destroyed. Youngblood, 488 U.S. at 56

fn.*; California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413

(1984); Ex parte Napper, 322 S.W.3d at 230.

      Gainous has not demonstrated that the recording would have been

exculpatory; on the contrary, both Mericle and Butcher testified that the videotape

depicted no relevant interactions between the victim and Gainous prior to the

assault, and Butcher testified that the videotape did not include an audio recording.

In addition, Gainous has not demonstrated that the State acted in bad faith, i.e., had

an improper motive in destroying the videotape, such as animus toward Gainous or

                                          5
a conscious attempt to suppress evidence. See Ex parte Napper, 322 S.W.3d at

232. Rather, the testimony at the hearing indicated that the State had preserved the

videotape of the assault itself, neither Mericle nor Butcher found any relevant

evidence on the videotape from before the incident occurred, and the videotape

was unavailable because the Polunsky Unit only had the capability to store video

surveillance footage for twenty-one days. Accordingly, we overrule Gainous’s sole

issue and affirm the trial court’s judgment of conviction.

      AFFIRMED.




                                              ______________________________
                                                     STEVE McKEITHEN
                                                        Chief Justice


Submitted on August 7, 2013
Opinion Delivered September 18, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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