                                                                           ACCEPTED
                                                                        11-17-00098-cr
                                                          ELEVENTH COURT OF APPEALS
                                                                    EASTLAND, TEXAS
                                                                     7/14/2017 2:58 PM
                                                                 SHERRY WILLIAMSON
                                                                                CLERK

                     NO. 11-17-00098-CR

               IN THE COURT OF APPEALS                 FILED IN
                                                11th COURT OF APPEALS
                                                   EASTLAND, TEXAS
       ELEVENTH JUDICIAL DISTRICT OF           TEXAS
                                                 07/14/17 2:58:55 PM
                                                  SHERRY WILLIAMSON
                                                         Clerk
                   AT EASTLAND, TEXAS
***************************************************************
               JASON BERNARD MATTHEWS,
                                               Appellant ,
                              V.

                   THE STATE OF TEXAS,
                                               Appellee.
***************************************************************
                       On Appeal From
       The 42 District Court of Taylor County, Texas
              nd

         Honorable James Eidson, Presiding Judge
             Trial Court Cause Number 26935-A
***************************************************************
                       STATE’S BRIEF
***************************************************************
                          James Hicks
                          Criminal District Attorney
                          Taylor County, Texas
                          300 Oak Street, Suite 300
                          Abilene, Texas 79602
                          325-674-1261
                          325-674-1306 FAX

                    BY: Britt Lindsey
                        Assistant District Attorney
                        300 Oak Street, Suite 300
                        Abilene, Texas 79602
                        State Bar No. 24039669
                        LindseyB@taylorcountytexas.org

          THE STATE WAIVES ORAL ARGUMENT
                      NO. 11-17-00098-CR
***************************************************************
               JASON BERNARD MATTHEWS

                                    V.

                       STATE OF TEXAS
 *************************************************************

             IDENTITY OF PARTIES AND COUNSEL


Appellant:   Jason Bernard Matthews       Appellee: The State of Texas

Trial Attorney for Appellant:             Attorney for State:

  Bob Lindsey                               Luke Davis
  Attorney at Law                           Assistant District Attorney
  342 Chestnut                              Taylor County Courthouse
  Abilene, Texas 79602                      300 Oak St., Suite 300
                                            Abilene, Texas 79602

Appellate Attorney for Appellant:        Appellate Attorney for State:

   Jenny Henley                            Britt Lindsey
   Attorney at Law                         Assistant District Attorney
   702-A Hickory St.                       Taylor County Courthouse
   Abilene, Texas 79601                    300 Oak St., Suite 300
                                           Abilene, Texas 79602

Presiding Judge

   Honorable James Eidson
   42 n d District Court
   Taylor County Courthouse
   300 Oak St.
   Abilene, Texas 79602




                                    i
                                TABLE OF CONTENTS

Identity of Parties and Counsel........................................................... i

Table of Contents ................................................................................ ii

Index of Authorities ........................................................................... iv

Statement of the Case ........................................................................ 1

Response to Issue One ........................................................................ 2

        There was no violation of appellant’s Due Process rights.
        The evidence was merely potentially useful and was
        destroyed through inadvertence rather than bad faith.
        The Texas Constitution provides no greater protection
        than the U.S. Constitution under these circumstances.

Statement of Facts ........................................................................... 2-6

Summary of Arguments ..................................................................... 6

Arguments and Authorities Issue One ......................................... 8-11

Conclusion ......................................................................................... 11

Prayer ................................................................................................ 12

Certificate of Compliance ................................................................. 13

Certificate of Service ......................................................................... 13




                                                   ii
                              INDEX OF AUTHORITIES

CASES

Alvarado v. State, No. 07-06-0086-CR, 2006 Tex. App. LEXIS 8696,
  2006 WL 2860973 (Tex. App. – Amarillo Oct. 9, 2006, no pet.)
  (mem. op., not designated for publication) ................................... 17

Arizona v. Youngblood, 488 U.S. 51, 51-52 (1988)..................... 13, 14

Camacho v. State, No. 14-13-00626-CR, 2014 Tex. App. LEXIS
 11078 (Tex. App.—Houston [14th Dist.] Oct. 7, 2014, pet. ref’d) 17

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) ........... 12

Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) ........ 13, 14

Gelinas v. State, No. 08-09-00246-CR, 2015 Tex. App. LEXIS 8452
 (Tex. App.—El Paso Aug. 12, 2015, no pet.) (mem. op., not
 designated for publication)...................................................... 14, 16

Gutierrez v. State, 419 S.W.3d 547 (Tex. App. – San Antonio 2013,
 no pet.) ........................................................................................... 13

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)................ 12

Higginbotham v. State, 416 S.W.3d 921 (Tex. App. – Houston [1st
 Dist.] 2013, no pet.) ....................................................................... 17

Illinois v. Fisher, 540 U.S. 544 (2004) ........................................ 13, 14

Jones v. State, 437 S.W.3d 536 (Tex. App.—Texarkana 2014, pet.
  ref’d) ............................................................................................... 17

Lee v. State, 893 S.W.2d 80 (Tex. App. – El Paso 1994, no pet.) ..... 13

McGee v. State, 210 S.W.3d 702 (Tex. App. – Eastland 2006, no pet.)
 ........................................................................................................ 17



                                                    iii
Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco 2007), rev’d on
  other grounds, 285 S.W.3d 459 (Tex. Crim. App. 2009) ............... 16

Salazar v. State, 185 S.W.3d 90 (Tex. App. – San Antonio 2005, no
 pet.) ................................................................................................ 17

Salazar v. State, 298 S.W.3d 273 (Tex. App. – Fort Worth 2009, pet.
 ref’d) ......................................................................................... 14, 17

Saldana v. State, 783 S.W.2d 22 (Tex. App. – Austin 1990, no pet.)
  ........................................................................................................ 17

State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999) ............... 13

State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999)................. 13

State v. Rudd, 871 S.W.2d 530 (Tex. App. – Dallas 1994, no pet.) . 17

State v. Vasquez, 230 S.W.3d 744 (Tex. App. – Houston [14th Dist.]
  2007, no pet.) ................................................................................. 17

Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926 (Tex.
 1995)............................................................................................... 17


RULES AND STATUTES

Tex. Health & Safety Code Ann. § 481.112 (West 2016) ................... 2

Tex. Health & Safety Code Ann. § 481.115 (West 2016) ................... 2




                                                     iv
                          NO. 11-17-00098-CR

                     IN THE COURT OF APPEALS

             ELEVENTH JUDICIAL DISTRICT OF TEXAS

                      AT EASTLAND, TEXAS
  ***************************************************************
                  JASON BERNARD MATTHEWS,
                                                    Appellant,
                                 V.

                        THE STATE OF TEXAS,
                                                   Appellee.
  ***************************************************************
                          On Appeal From
            The 42 District Court of Taylor County, Texas
                  nd

              Honorable James Eidson, Presiding Judge
                 Trial Court Cause Number 26935-A
  ***************************************************************
                         STATE’S BRIEF
  ***************************************************************

TO THE HONORABLE COURT OF APPEALS:

     Comes now the State of Texas, by and through her Assistant

Criminal District Attorney, Britt Lindsey, and would show this Court the

following.

                     STATEMENT OF THE CASE

     This appeal is from a judgment and conviction in the 42nd District

Court of Taylor County, Texas for the offense of first degree possession of

methamphetamine with intent to deliver. After denial of appellant’s


                                    1
motion to suppress, appellant was found guilty and sentenced by a jury to

8 years in prison. Appellant now appeals the denial of his motion to

suppress, arguing that the pretrial destruction of evidence violated his

rights under the U.S. Constitution and Texas Constitution.

Response to Issue One

     There was no violation of appellant’s Due Process rights. The

evidence was merely potentially useful and was destroyed through

inadvertence rather than bad faith. The Texas Constitution provides no

greater protection than the U.S. Constitution under these circumstances.

                      STATEMENT OF FACTS

     Jason Matthews (appellant) was charged with possession of four

grams or more but less than two hundred grams methamphetamine with

intent to deliver, and a second count for simple possession of the same

amount. Tex. Health & Safety Code Ann. §§ 481.112, 481.115 (West

2016). (CR1: 16) On November 10, 2016, appellant filed his “Motion to

Inspect, Examine, and Test Physical Evidence,” and “Motion for

Examination” requesting that the court order independent testing of the

18.11 grams of methamphetamine in another laboratory. (CR1: 20-22)

That motion was granted by Judge John Weeks, and on December 14,



                                   2
2016 the court ordered that the narcotics evidence be delivered to

Armstrong Forensic Laboratory in Arlington, Texas for weighting and

identification. (CR1: 24-25)

     On March 30, 2017, the State filed with the court notice of

additional Brady discovery. (CR1: 28-29) That notice stated that during

the week of March 27, 2017 counsel for the State notified counsel for the

defendant of the following:

     a. All drugs pertaining to this Cause Number were
        inadvertently destroyed and therefore cannot be retested
        as ordered by the Court on December 14, 2016.

     b. The Abilene Police Department confirmed that said drugs
        were inadvertently disposed of on or about October 21,
        2016, after the co-defendant to this case, Brittany Lawson,
        took a plea in Cause 12129-D, on May 12, 2016. The
        disposition form for Brittany Lawson did not contain
        information stating a co-defendant's case was still
        pending; this information was not included on Brittany
        Lawson's disposition form by mistake, oversight, or
        administrative error.

     c. Prior to the drug's disposal, said drugs were tested by
        Ashley Zelinski on August 18, 2016, at the Texas
        Department of Public Safety, Abilene Crime Lab.

     d. The State has confirmed with the Abilene Crime Lab that
        it does not possess the drugs and that they were delivered
        back to the Abilene Police Department.




                                    3
     e. Armstrong Forensic Laboratory in Arlington, Texas,
        confirmed it never received any drugs to test for this
        Cause Number.

     (CR1: 28-29) The notice also stated that the State learned on March

30, 2017 that all other evidence related to this cause number, including

any videos or photos, were also inadvertently destroyed for the same

reasons listed above. Appellant filed a motion to suppress the testimony

of the State’s chemist on the grounds that the negligence of the Abilene

Police Department rose to the level of bad faith. (CR1: 30-31)

     Prior to trial appellant’s motion to suppress was discussed. (RR4: 5)

Appellant urged that the actions of law enforcement in destroying the

evidence were bad faith. (RR4: 5-6) Counsel for the State informed the

court that the evidence was inadvertently destroyed sometime around

October 21, 2016 after appellant’s co-defendant pleaded. (RR4: 7) He

stated that this was not due to bad faith but an administrative mistake.

(RR4: 7-8) Appellant argued that there was bad faith due to gross

negligence on the part of police. (RR4: 9) The trial court indicated that the

motion would be denied at that time, but would be carried forward

through the trial and that the court would be listening for any evidence

which indicated bad faith in the destruction of the narcotics. (RR4: 9)



                                     4
     Testimony of Agent Alfred Dixon

     The State first called Agent Alfred Dixon, who is with the special

operations division for the Abilene Police Department in narcotics and a

K9 officer. (RR4: 87-88) He testified that on February 23, 2016 he was

executing a no-knock search and arrest warrant for appellant in a hotel

room at the Civic Plaza. (RR4: 89-90, 92, 106) They observed appellant

leaving the room and getting into a 2011 gray Kia Sportage; after he left

they had a patrol officer stop the vehicle and detain appellant. (RR4: 92-

93) Once appellant was detained they executed a search of the hotel

room, which was occupied by Brittney Lawson. (RR4: 93) In the room

they found marijuana and methamphetamine, as well as used syringes

that still contained blood and methamphetamine. (RR4: 95-96) One

syringe was found in Lawson’s purse, and several more were found in a

box on the nightstand and in a green backpack containing men’s clothing.

(RR4: 97) Dixon testified that he believed the hotel room to be appellant’s

room. (RR4: 97) In another black bag in the room agents found a personal

paper of appellant’s and a bag containing approximately 18.08 grams of a

crystal-like substance, which tested positive for methamphetamine. (RR4:

98) Dixon stated that this was more than would be expected for personal



                                    5
use and was common among those selling narcotics. (RR4: 98-99) He

testified the value of the methamphetamine to be between $800 and

$900. (RR4: 105) Dixon said that MSM powder was also found in the bag,

which is used to cut and mix into narcotics so that more can be gotten out

of it. (RR4: 100) A digital scale with methamphetamine residue was also

found. (RR4: 100)

     Appellant’s vehicle was also searched. (RR4: 100-101) Police found

nine pills of alprazolam, 1.2 grams of hydrocodone, and 2.2 grams of

methamphetamine. (RR4: 101) Police also found personal papers of

appellant and a wooden box containing a syringe with .4 grams of

methamphetamine, a lighter, and a spoon, which he said was drug

paraphernalia. (RR4: 102-103)

     Testimony of Officer Jimmy Seals

     At trial, Abilene Police Department Officer Jimmy Seals testified

regarding the narcotics evidence. (RR4: 112) He testified that one of his

main duties is to transfer lab and drug evidence to and from lockup to the

DPS lab for analysis. (RR4: 112) He testified that he transferred the drug

evidence in this case to the lab on March 21, 2016 and picked it back up

on August 22, 2016. (RR4: 113) He testified that in this case the evidence



                                    6
had been destroyed on October 21, 2016. (RR4: 113, 114-115) He

explained that part of his job is getting dispositions from the district

attorney’s office and marking the evidence for destruction once he

determines that all charges have been satisfied. (RR4: 113)

     In the instant case he received a disposition form indicating that

appellant’s misdemeanor charges had been refused by the district

attorney’s office, and subsequently received another disposition from the

350th district court that appellant’s co-defendant had pleaded guilty to

possession of methamphetamine. (RR4: 113-114) Usually the document

would say that the evidence needed to be retained because a co-

defendant’s case is still pending but this document did not have such a

notation. (RR4: 144) Officer Seals marked the evidence for destruction

because he did not know there was still an outstanding possession of

methamphetamine case pending for appellant. (RR4: 114) Officer Seals

was asked if he would have marked the evidence for destruction had he

known and said “[o]f course not.” (RR4: 114) He was asked if the

destruction was inadvertent and answered “[y]es, it was.” (RR4: 114)

     Testimony of Brittany Lawson




                                    7
     Appellant called co-defendant Brittany Lawson to testify. (RR4:

125) She testified that appellant was her ex-boyfriend and that they

dated for a year and a half. (RR4: 125) She testified that she was still in

love with him and cared about him. (RR4: 126) She testified that she was

arrested for possession of methamphetamine at the Civic Plaza hotel in

Abilene on February 23, 2016. (RR4: 126) She said the room was in her

name and only she was staying there. (RR4: 127) She said that prior to

that she was living at the Abilene hotel with appellant. (RR4: 127-128)

She was not sure where he went when he left but she still saw him (RR4:

128) She said she still had some of his belongings from the other hotel:

“[j]ust like a few backpacks. Like some food, clothing items, just stuff that

he couldn't carry with him.” (RR4: 129) She said he would stay the night

there sometimes but did not on February 23, 2016. (RR4: 129) She said

that he came over to see her the night before but left that same night.

(RR4: 130) The next day he came over for just a few minutes to use the

bathroom and then left; the police came right after that. (RR4: 130) She

said that he left his phone. (RR4: 130)

     She said at that time she was using methamphetamine

intravenously. (RR4: 130) She said she had used that day; she did not



                                     8
know if appellant had. (RR4: 131) She was asked where she got her

methamphetamine and replied “[w]ell, from him,” meaning appellant.

(RR4: 131) She said that she broke up her used needles and threw them

away or put them in a box, and appellant did this as well. (RR4: 131) She

said he did not leave any around the hotel room but that there were some

in his backpack. (RR4: 131-132) Phone conversations between appellant

and Lawson recorded when Lawson was in jail were played. (RR4: 134-

139) Lawson identified an affidavit that she had previously signed

indicating that the narcotics were hers and that appellant had no

knowledge of them, but testified that that was not true. (RR4: 141-142)

On re-cross examination she stated that the drugs were in his bag but

that she did not know whose they were. (RR4: 148)

     Testimony of Ashley Zelinski, former DPS analyst

     Former Texas Department of Public Safety forensic scientist Ashley

Zelinski testified. (RR4: 151) She testified that she is now a forensic

scientist with the Oregon State Police. (RR4: 151) She testified that she

analyzed the narcotics evidence in this case and determined that it was

18.11 grams and contained methamphetamine. (RR4: 155-156)

     Testimony of Jason Matthews, appellant



                                   9
     Appellant took the stand to testify. (RR4: 165) He testified that he

had previously lived with Lawson at the Abilene Motel but did not live

with her at the Civic Plaza. (RR4: 165-168) He testified that they were

evicted, all of their things were packed up and left outside together, and

Lawson took them to the Civic Plaza. (RR4: 167-168) He testified that he

did not go to the Civic Plaza to get his belongings because he had another

girlfriend. (RR4: 168-169) On the day he was arrested he had stayed

downstairs at the Civic Plaza with another girlfriend. (RR4: 169-170) He

denied that the black bag that the drugs were found in was his, and that

any of the drugs found in the room were his. (RR4: 170) He disputed

Agent Dixon’s testimony that drugs were found in his vehicle. (RR4: 171)

He testified that he had used methamphetamine that day but that he did

not use a spoon or needle. (RR4: 184) He said that he snorted it and that

Lawson and some friends provided it. (RR4: 184) He said that he had only

ever been in the room the day that Lawson moved in and the day that he

was arrested. (RR4: 187)

     After both sides rested, appellant reurged his motion to suppress,

which was denied. (RR5: 6-7) The jury subsequently returned a verdict of

guilty to possession of methamphetamine with intent to deliver and



                                   10
charged in the first count of the indictment. (RR5: 25) Punishment was

assessed by the jury at 8 years in the Texas Department of Criminal

Justice Institutional Division. (RR5: 42)

                     SUMMARY OF ARGUMENTS

     U.S. Supreme Court and Texas precedent draws a distinction

between police destruction of “material exculpatory evidence” and

“potentially useful evidence.” When evidence is merely potentially useful,

there is no Due Process violation in its destruction prior to trial unless it

can be shown that law enforcement acted in bad faith. Bad faith in this

context requires more than carelessness or negligence, but rather an

improper motive, such as personal animus against the defendant or a

desire to prevent the defendant from obtaining evidence that might be

useful. As the evidence in this case was destroyed through inadvertence

rather than malice towards appellant, no Due Process violation is shown.

Appellant argues for relief under the Due Course of Law provision of the

Texas Constitution, but a majority of courts of appeal have found that the

Texas Constitution provides no greater protection than the U.S.

Constitution under these circumstances, including this court.

                 ARGUMENTS AND AUTHORITIES



                                     11
Response to Issue One

     There was no violation of appellant’s Due Process
     rights. The evidence was merely potentially useful and
     was destroyed through inadvertence rather than bad
     faith. The Texas Constitution provides no greater
     protection than the U.S. Constitution under these
     circumstances.

Standard of review and relevant law

     Motion to suppress

     A review of a trial court’s ruling on a motion to suppress evidence is

under a bifurcated standard of review for abuse of discretion. Guzman v.

State, 955 S.W.2d 85 (Tex. Crim. App. 1997).       Under this bifurcated

standard of review, the appellate court gives “almost total deference to a

trial court's determination of historical facts” and reviews de novo the

court's application of the law of search and seizure. Carmouche v. State,

10 S.W.3d 323 (Tex. Crim. App. 2000) (citing Guzman, 955 S.W.2d at 89).

When the trial court makes explicit fact findings, we determine whether

the evidence, when viewed in the light most favorable to the trial court's

ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). When no explicit findings of fact are made, the

reviewing court reviews the evidence in the light most favorable to the

court’s ruling. Carmouche, 10 S.W.3d at 327-28 (citing State v. Ballard,


                                    12
987 S.W.2d 889 (Tex. Crim. App. 1999); State v. Munoz, 991 S.W.2d 818,

821 (Tex. Crim. App. 1999)).

Analysis

     In addressing claims involving the prosecution’s failure to

preserve evidence in a criminal trial, the U.S. Supreme Court has

drawn a distinction between “material exculpatory evidence” and

“potentially useful evidence.” Arizona v. Youngblood, 488 U.S. 51, 51-52

(1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010);

Gutierrez v. State, 419 S.W.3d 547 (Tex. App. – San Antonio 2013, no

pet.). A federal Due Process violation occurs if the State fails to disclose

material exculpatory evidence, regardless of whether the State acted in

bad faith. Gutierrez, 419 S.W.3d (citing Illinois v. Fisher, 540 U.S. 544,

547-48 (2004); Ex parte Napper, 322 S.W.3d at 229). It is not enough to

show that it is not enough to show that the missing or destroyed

evidence might have been favorable for the defendant; in order to meet

the materiality standard, its exculpatory value must be apparent. Lee v.

State, 893 S.W.2d 80, 87 (Tex. App. – El Paso 1994, no pet.); see also

Gelinas v. State, No. 08-09-00246-CR, 2015 Tex. App. LEXIS 8452 (Tex.




                                     13
App.—El Paso Aug. 12, 2015, no pet.) (mem. op., not designated for

publication).

     Where lost or destroyed evidence is merely “potentially useful,”

due process is not violated “unless a criminal defendant can show bad

faith on the part of the police.” Youngblood, 488 U.S. 51, 58; Fisher, 540

U.S. 547-48; see also Salazar v. State, 298 S.W.3d 273, 278 (Tex. App. –

Fort Worth 2009, pet. ref’d). The Court of Criminal Appeals observed in

Ex Parte Napper that:

     “[b]ad 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…bad faith entails 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. Bad faith cannot be
     established by showing simply that the analyst destroyed
     the evidence without thought, or did so because that was the
     common practice, or did so because the analyst believed
     unreasonably that he was following the proper procedure.

     Ex Parte Napper, 322 S.W.3d at 229.

     The evidence was merely “potentially useful”

     In the instant case, the evidence was merely potentially useful.

There was no exculpatory value to the evidence that was readily

apparent. Rather, the evidence was shown at trial to be inculpatory by

the testimony of former DPS analyst Ashley Zelinsky, who testified that


                                   14
it weighed 18.11 grams and contained methamphetamine, and by

appellant’s co-defendant Brittany Lawson, who also testified that it was

methamphetamine. (RR2: 146, 147, 156-57) Appellant’s testimony at

trial did not challenge the weight of the narcotics or that the substance

was methamphetamine, but rather that any drugs found in the hotel

room belonged to Lawson, who was an IV methamphetamine user by

both his and her own testimony. (RR2: 130, 171)

     The evidence was not destroyed in bad faith

     The evidence was not destroyed out of any improper motive or

personal animus towards appellant. Officer Jimmy Seals testified that

ordinarily the case disposition forms he receives indicate whether

evidence is to be retained because a co-defendant’s case is still pending,

but in this case the document did not have that notation. The evidence

was destroyed not out of bad faith or due to improper motive, but

through simple inadvertence. Because the evidence was only potentially

useful evidence and was not destroyed in bad faith, there is no Due

Process violation.




                                   15
     The Due Course of Law provision of the Texas Constitution

provides no greater protection than the Due Process Clause of the U.S.

Constitution

     Appellant argues that the Due Course of Law provision of Article

1, Section 19 of the Texas Constitution provides greater protection than

the Due Process Clause of the U.S. Constitution, relying on Pena v.

State, 226 S.W.3d 634, 651 (Tex. App.—Waco 2007), rev’d on other

grounds, 285 S.W.3d 459, 465 (Tex. Crim. App. 2009) (“Pena III and

IV”), which held that negligently destroyed evidence violated the Due

Course of Law clause even absent a showing of bad faith and remanded

to the trial court, determining that the appropriate remedy was an

adverse inference or spoliation instruction rather than exclusion or

outright dismissal.

     However, a majority of courts of appeal have declined to follow the

reasoning of the Pena line of cases, including this Court, and have held

that the Texas Constitution provides no greater protection than the

U.S. Constitution in this regard. See e.g., Gelinas v. State, No. 08-09-

00246-CR, 2015 Tex. App. LEXIS 8452, at *29 (Tex. App.—El Paso Aug.

12, 2015, no pet.) (mem. op., not designated for publication);



                                   16
Higginbotham v. State, 416 S.W.3d 921, 925-26 (Tex. App. – Houston

[1st Dist.] 2013, no pet.); Salazar, 298 S.W.3d at 279; State v. Vasquez,

230 S.W.3d 744, 750 (Tex. App. – Houston [14th Dist.] 2007, no pet.);

Camacho v. State, No. 14-13-00626-CR, 2014 Tex. App. LEXIS 11078

(Tex. App.—Houston [14th Dist.] Oct. 7, 2014, pet. ref’d); Jones v. State,

437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref’d); Alvarado

v. State, No. 07-06-0086-CR, 2006 Tex. App. LEXIS 8696, 2006 WL

2860973, at *3 (Tex. App. – Amarillo Oct. 9, 2006, no pet.) (mem. op.,

not designated for publication); McGee v. State, 210 S.W.3d 702, 705

(Tex. App. – Eastland 2006, 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,

532-33 (Tex. App. – Dallas 1994, no pet.); Saldana v. State, 783 S.W.2d

22, 23 (Tex. App. – Austin 1990, no pet.); see also Univ. of Tex. Med.

Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“[w]hile the

Texas Constitution is textually different in that it refers to ‘due course’

rather than ‘due process,’ we regard these terms as without meaningful

distinction.”). As there is no evidence that law enforcement acted in bad

faith in destroying the evidence prior to trial, appellant’s rights were




                                    17
not violated under the Due Process clause or Due Course of Law

provision.

                            CONCLUSION

     The narcotics evidence was not exculpatory and was destroyed

inadvertently rather than in bad faith. Appellant’s rights under the

U.S. Constitution and Texas Constitution have not been violated.

                               PRAYER

     The State requests this Court affirm the judgment of the trial court.


                            Respectfully submitted,

                            James Hicks
                            Criminal District Attorney
                            Taylor County, Texas
                            300 Oak Street, Suite 300
                            Abilene, Texas 79602
                            325-674-1261
                            325-674-1306 FAX



                      BY: /s/ Britt Lindsey______
                          BRITT LINDSEY
                          Assistant Criminal District Attorney
                          Appellate Section
                          300 Oak Street, Suite 300
                          Abilene, Texas 79602
                          325-674-1376
                          325-674-1306 FAX
                          LindseyB@taylorcountytexas.org


                                   18
State Bar No. 24039669
Attorney for the State




      19
                    CERTIFICATE OF COMPLIANCE

        I, Britt Lindsey, affirm that the above brief is in compliance with

the Rules of Appellate Procedure. The font size in the brief is 14 point,

except footnotes which are 12 point. The word count is 3400, excluding

the exceptions listed in Rule 9.4. The word count of the entire brief is

4307.



                                          /s/ Britt Lindsey______
                                          BRITT LINDSEY


                      CERTIFICATE OF SERVICE

        I certify that on this 14th day of July, 2017, a true copy of the

foregoing State’s Brief was served on the attorney for appellant according

to the requirements of law by email or efiling to:

Jenny Henley
Attorney at Law
702-A Hickory St.
Abilene, Texas 79601

Attorney for appellant, Jason Bernard Matthews.



                                          /s/ Britt Lindsey______
                                          BRITT LINDSEY



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