                                 NO. 12-09-00159-CR

                       IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

KATHERYN PARRISH BOUDREAUX,                   §               APPEAL FROM THE 273RD
APPELLANT

V.                                            §               JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                      §               SABINE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       A jury found Katheryn Parrish Boudreaux, Appellant, guilty of possession of cocaine in
an amount less than one gram. The court sentenced Appellant to confinement in a state jail
facility, probated for one year. Appellant urges three issues, all related to the State’s destruction
of potentially exculpatory evidence. We affirm.


                                          BACKGROUND
       On June 4, 2004, Appellant went to the Sabine County Sheriff’s Department to make a
statement in an unrelated case. A deputy recognized Appellant as the subject of an outstanding
warrant for theft by check. The deputy arrested Appellant and reached in her handbag to retrieve
her driver’s license. There, the deputy also found an inhalant pipe and a small package of white
powder that he believed was cocaine. Appellant was arrested for possession of a controlled
substance.
       After seizing the small bag of white powder and the inhalant pipe, the deputy placed the
items into an evidence bag and placed them in the evidence locker room under Log #6158.
Texas Department of Public Safety (“DPS”) Laboratory Service received the items under
Agency Case Number 6158. Karen Ream, the DPS forensic chemist who tested the items,
testified at the trial. Her report of November 1, 2004 shows that the white powder contained .05
gram of cocaine.
       Chief Deputy Anthony Miller testified that when he was assigned to the evidence locker
room, it was an “absolute nightmare.” He embarked on an effort to restore order. On August 11,
2006, more than two years after Appellant’s arrest, Deputy Miller petitioned the 273rd Judicial
District Court for permission to destroy evidence in forty cases, because the cases had been
disposed of. Deputy Miller testified that he had mistakenly listed the evidence held under Log
#6158 among that to be destroyed. The trial court signed the destruction order for the listed
evidence including Log #6158. Consequently, the evidence was unavailable when the case was
tried two and one-half years later on February 24, 2009.


                                   ADMISSION OF EVIDENCE
       In her first two issues, Appellant contends the trial court erred in admitting any evidence
of the alleged drugs or the results of their testing because the material had been destroyed under
the court’s order. The State’s negligence in allowing the destruction of the evidence, Appellant
claims, denied her the opportunity to have the material independently tested.        Test results
contradicting the analysis by the DPS chemist would have been extremely important in her
defense. Therefore, she contends that the admission of the challenged evidence violated her
rights to due process under the U.S. Constitution and due course of law under the Texas
Constitution.
Applicable Law
       The Texas Supreme Court has consistently held the due course of law clause in the Texas
Constitution and the due process of law clause of the United States Constitution to be equivalent.
United States Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex. 1997). Texas due course of law
decisions therefore mirror U.S. Supreme Court due process decisions. See id.
       The state has a duty to preserve and produce exculpatory evidence in its possession if the
exculpatory value of the evidence was apparent before it was destroyed and was of a nature that
the defendant would have been unable to obtain comparable evidence by other reasonably
available means. California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L.
Ed. 2d 413 (1984); McDonald v. State, 863 S.W.2d 541, 543 (Tex. App.–Houston [1st Dist.]
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1993, no pet.). A federal due process violation occurs whenever the state suppresses or fails to
disclose material exculpatory evidence, regardless of whether the state acted in bad faith.
Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060 (2004).
However, to prove a due process of law violation based on the state’s destruction of potentially
useful evidence, as opposed to material, exculpatory evidence, the defendant must show the state
acted in bad faith in destroying the evidence. Arizona v. Youngblood, 488 U.S. 51, 57-58, 1009
S. Ct. 333, 337-38, 102 L. Ed. 2d 281 (1988); Jackson v. State, 50 S.W.3d 579, 589 (Tex. App.–
Fort Worth 2001, pet. ref’d). Potentially useful evidence is “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.” Youngblood, 488 U.S. at 57, 109 S. Ct. at 337. “A showing that the
lost evidence might have been favorable does not meet the materiality standard.” Jackson, 50
S.W.3d at 589.
Discussion
       To demonstrate the state’s duty to preserve evidence, an appellant must show that the
evidence destroyed was favorable and material to his case. Herbert v. State, 836 S.W.2d 252,
254 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d). The only evidence in this record indicates
the evidence would have been unfavorable to the defense. A showing that a retesting of the
material might have contradicted the DPS chemist’s analysis demonstrates only potential value
and does not meet the materiality standard. Jackson, 50 S.W.3d at 589.
       Without a showing that the evidence would have been favorable and material, the
evidence destroyed had only potential value to Appellant’s case. In order to establish a denial of
due process by the state’s destruction of evidence only potentially useful, Appellant must show
the state acted in bad faith. Youngblood, 488 U.S. at 57-58, 109 S. Ct. at 337; Jackson, 50
S.W.3d at 589.
       When the court ordered the evidence destroyed, over two years had elapsed since
Appellant’s arrest and the analysis of the material by the State. Nothing in the record contradicts
the chief deputy’s explanation that its destruction was unintentional. Appellant insists the State
acted negligently. Appellant has made no showing that the State acted in bad faith nor does she
claim it acted in bad faith.     Without such a showing, there is no due process violation.
Appellant’s first two issues are overruled.
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                                                 CHARGE ERROR
         In her third issue, Appellant contends the trial court erred in not properly instructing the
jury that destroyed evidence must be viewed as favorable to the defendant and that the failure to
submit such a charge violated his constitutional right to due process.
         Appellant filed no written objection to the trial court’s failure to include within its charge
the instruction she now insists should have been given. Nor did she dictate such an objection to
the court reporter in the presence of the court and the State’s counsel. No error is preserved. See
TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). Appellant’s third issue is overruled.


                                                   DISPOSITION
         The judgment is affirmed.


                                                                         BILL BASS
                                                                             Justice




Opinion delivered June 23, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)




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