Opinion issued November 26, 2013.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-12-00547-CR
                            ———————————
                 JAMES ERIC HIGGINBOTHAM, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 3
                            Harris County, Texas
                        Trial Court Case No. 1773747


                                    OPINION

      Appellant James Eric Higginbotham was charged with misdemeanor driving

while intoxicated (DWI). The jury found Higginbotham guilty of DWI, and the

trial court sentenced him to thirty days’ confinement. On appeal, Higginbotham

argues that the trial court erred in denying his motion to suppress a video recording
of him performing field sobriety tests in the police station’s DWI room on the

night of his arrest. Higginbotham contends the DWI room video should have been

suppressed because the State failed to preserve a different video recording—one

that was captured by Officer Boles’s in-car camera and showed what transpired at

the scene of Higginbotham’s arrest. We affirm.

                                    Background

         Officer Boles of the La Porte Police Department was the State’s key witness

at trial. He testified that he pulled Higginbotham over at 2:00 a.m. after his license

plate reader alerted him that a possible traffic warrant was associated with

Higginbotham’s car. Higginbotham smelled of alcohol, slurred his speech, had red

watery eyes, and admitted that he drank four twelve-ounce beers at Kemah that

night.

         Officer Boles did not conduct any field sobriety tests (FSTs) at the scene.

Instead, he arrested Higginbotham for outstanding traffic warrants and suspicion of

DWI and drove him to the police station, which was five minutes away. In the

station’s DWI room, Boles had Higginbotham perform video-recorded FSTs.

         During trial but outside the presence of the jury, Higginbotham moved to

suppress the results of the horizontal gaze nystagmus (HGN) test on the basis that

it was not properly administered and, therefore, was unreliable. During the hearing

on that motion, Officer Boles testified that the scene video had been recorded by


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his in-car camera, but that it was not preserved because the department’s policy

only required him to submit one video—the in-station video that recorded the

FSTs—to the District Attorney’s office.

      The next morning, Higginbotham orally supplemented his motion to

suppress and urged the trial court to suppress the video of Higginbotham

performing the FSTs in the DWI room on the basis that the State failed to preserve

the scene video recorded by Officer Boles’s in-car camera. Outside the jury’s

presence, Officer Boles testified that the scene video was no longer available. He

acknowledged that the scene video would have shown that Higginbotham did not

drive erratically and that Higginbotham was able to get out of his car without

stumbling. The trial court denied the motion to suppress the DWI room video.

      In the jury’s presence, Officer Boles testified about the missing scene video.

Officer Boles told the jury that his in-car camera recorded the traffic stop, but that

the scene video was not preserved because, consistent with department policy, he

only requested the video custodian to preserve the in-car videos in DWI cases in

which FSTs were conducted at the scene. Thus, he “did not request any special

treatment for the in-car video due to the fact that the stop was predominantly the

warrant stop and [the] DWI investigation was conducted predominantly at the

station.” And, in accordance with the La Porte Police Department’s policy, videos

from the in-car cameras were destroyed after 90 days.


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      On cross-examination, Officer Boles acknowledged that the scene video

showed that Higginbotham did not exhibit certain signs of intoxication.

Specifically, Officer Boles admitted that Higginbotham was not driving erratically,

and that the scene video would have captured about 30 seconds of Higginbotham

driving. Officer Boles also admitted that Higginbotham did not fumble with his

wallet, stumble out of his car, or lean on his car for support. Officer Boles did tell

the jury, however, that the scene video recorded his own audible statements to the

effect that Higginbotham had slurred speech, red, watery eyes, and smelled of

alcohol at the scene.

                                       Discussion

      Higginbotham contends that the trial court abused its discretion in refusing

to suppress the DWI room video because the State destroyed the scene video,

which contained valuable evidence material to Higginbotham’s defense.

Higginbotham asserts the scene video’s destruction violates the Due Course of

Law Clause of the Texas Constitution, which Higginbotham argues affords him

greater protection than federal law.

A.    Standard of Review

      “In review of a trial court’s ruling on a motion to suppress, an appellate

court must apply a standard of abuse of discretion and overturn the trial court’s

ruling only if it is outside the zone of reasonable disagreement.” Martinez v. State,


                                           4
348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We use a bifurcated standard of

review, giving almost total deference to a trial court’s determination of historic

facts and mixed questions of law and fact that rely upon the credibility of a

witness, but applying a de novo standard of review to pure questions of law and

mixed questions that do not depend on credibility determinations. Id. at 922-23.

“[W]hen the trial court fails to file findings of fact, we view the evidence in the

light most favorable to the trial court’s ruling and assume that the trial court made

implicit findings of fact that support its ruling as long as those findings are

supported by the record.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000) (en banc) (citing Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim.

App. 2000)).

B.    Applicable law

      “[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97 (1963). To find

reversible error under Brady, the appellant must show that (1) the State failed to

disclose evidence, regardless of the prosecution’s good or bad faith; (2) the

withheld evidence is favorable to him; and (3) the evidence is material, that is,

there is a reasonable probability that had the evidence been disclosed the outcome


                                         5
of the trial would have been different. Pena v. State, 353 S.W.3d 797, 809 (Tex.

Crim. App. 2011).

      “Incorporated into the third prong, materiality, is a requirement that [the]

defendant must be prejudiced by the State’s failure to disclose the favorable

evidence.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (en banc).

To be material, missing “evidence must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably

available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528,

2534 (1984). “The mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.” Hampton v. State, 86 S.W.3d

603, 612 (Tex. Crim. App. 2002) (quoting United States v. Agurs, 427 U.S. 97,

109–10, 96 S.Ct. 2392, 2400 (1976)); Hebert v. State, 836 S.W.2d 252, 254 (Tex.

App.—Houston [1st Dist.] 1992, pet. ref’d) (to establish materiality, appellant must

show more than that lost evidence might have been favorable). “The evidence is

material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. A

‘reasonable probability’ is a probability sufficient to undermine confidence in the




                                         6
outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383

(1985).

C.    Analysis

      On appeal, Higginbotham argues that the State’s failure to preserve the

scene video violates Brady and the Due Course of Law Clause of the Texas

Constitution, which Higginbotham contends affords him greater protection than

federal law. See U.S. CONST. amends. V, XIV, § 1; TEX. CONST. art. I, § 19.

Higginbotham’s claim that Texas law affords him greater protection than federal

law is based on Pena v. State, 166 S.W.3d 274 (Tex. App.—Waco 2005) (“Pena

I”), vacated, 191 S.W.3d 133, 138 (Tex. Crim. App. 2006) (“Pena II”), which he

urges us to follow.

      1.     Texas law affords Higginbotham no greater protection than
             federal law.

      The Pena case has produced numerous opinions, but the ones on which

Higginbotham relies have been vacated and, therefore, are not authoritative. Pena

was charged with possession of 24 pounds of marijuana, and his defensive theory

was that the substance was not marijuana. Pena I, 166 S.W.3d at 276–77. The

trial court granted Pena’s motion to independently examine the substance, but the

substance had been destroyed.      Id. at 277.   Pena then moved to suppress a

laboratory report confirming that the substance was in fact marijuana, and the trial

court denied his motion. Id.

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      The Waco Court of Appeals observed the holding in Arizona v.

Youngblood—that if destroyed evidence is merely “potentially useful” rather than

“material and exculpatory,”—its destruction does not violate the federal Due

Process Clause unless the accused shows that the State acted in bad faith. Id. at

277–78. But it went on to hold that Texas’s Due Course of Law Clause provided

the appellant greater protection than federal law, and concluded that the Texas

Constitution requires the State to preserve all evidence that has “apparent

exculpatory value,” which includes exculpatory evidence and evidence that is only

potentially useful to the defense. Id. at 281. The Court of Criminal Appeals

vacated and remanded, holding that because the court of appeals acted sua sponte,

it “erred in failing to give the parties the opportunity to brief the issue.” Pena II,

191 S.W.3d at 134.

      On remand, the court of appeals again held that the Due Course of Law

Clause provides greater protection than the federal Due Process Clause. See Pena

v. State, 226 S.W.3d 634, 651 (Tex. App.—Waco 2007) (“Pena III”), rev’d on

other grounds, 285 S.W.3d 459, 465 (Tex. Crim. App. 2009) (“Pena IV”). The

Court of Criminal Appeals reversed again, holding that the appellant failed to

preserve his claim under the Texas Constitution. Pena IV, 285 S.W.3d at 461.

      On remand, the court of appeals addressed Pena’s separate complaint that he

was denied due process under Brady because the State failed to disclose the audio


                                          8
portion of the video from the arresting officer’s in-car camera. Pena v. State, No.

10-03-00109-CR, 2010 WL 2306699, at *1 (Tex. App.—Waco June 9, 2010)

(Pena V), rev’d on other grounds, 353 S.W.3d 797, 815 (Tex. Crim. App. 2011)

(reversed and remanded for new trial after holding evidence was material under

Brady) (Pena VI). The Court of Criminal Appeals held the audio recording was

both favorable and material under Brady and reversed and remanded for a new trial

on that basis. But this holding was based on federal, not state, law. Accordingly,

none of the Pena opinions having precedential value support Higginbotham’s

contention that Texas’s Due Course of Law Clause affords him greater protection

than federal law.

      Additionally, other Texas courts of appeals, including the Fourteenth, have

held that “the Due Course of Law Clause does not provide a greater level of

protection than the Due Process Clause regarding the State’s loss or destruction of

evidence in a criminal prosecution.” State v. Vasquez, 230 S.W.3d 744, 750 (Tex.

App.—Houston [14th Dist.] 2007, no pet.); see also Jackson v. State, 50 S.W.3d

579, 588–89 (Tex. App.—Fort Worth 2001, pet ref’d); Salazar v. State, 185

S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.). We agree and hold that

Texas’s Due Course of Law Clause does not afford Higginbotham greater

protection than the federal Due Process Clause. See Vasquez, 230 S.W.3d at 751.




                                        9
Accordingly, we conclude that Higginbotham is entitled to relief only to the extent

it is available under federal law.

      2.     The trial court’s refusal to suppress the DWI room video does not
             violate federal law.

      To satisfy the third element under Brady, the withheld evidence must be

material. Evidence is material under Brady if there is a reasonable probability that

the outcome of the trial would have been different if the evidence had been

disclosed. 1 Pena IV, 353 S.W.3d at 809. When evaluating whether the materiality

standard is satisfied, the strength of the exculpatory evidence is balanced against

the evidence supporting the conviction. Id. at 812.

      Here, the State was required to prove beyond a reasonable doubt that

Higginbotham did not have “the normal use of mental or physical faculties by

reason of the introduction of alcohol . . . into the body.” See TEX. PEN. CODE ANN.

§ 49.01(2)(A) (West Supp. 2013). Higginbotham contends the scene video would

have been favorable for him because it showed him behaving normally before he


1
      If the evidence is not material and a defendant instead bases a federal due process
      challenge on a state’s destruction of “potentially useful evidence,” then a different
      test applies—the defendant must demonstrate that the state destroyed the evidence
      in bad faith. Illinois v. Fisher, 540 U.S. 544, 547–48, 124 S.Ct. 1200, 1202
      (2004); Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S.Ct. 333, 337 (1988).
      Here, nothing in the record indicated the State acted in bad faith, and
      Higginbotham concedes this. Therefore, Higginbotham cannot prevail under a
      theory that the scene video was “potentially useful evidence” under Youngblood,
      as opposed to “favorable” and “material” under Brady. Youngblood, 488 U.S. at
      58, 109 S.Ct. at 337; Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97
      (1963).
                                           10
was placed in the unfriendly environment of the DWI room. Having considered

the strength of the scene video against the evidence supporting the conviction, we

conclude that the scene video did not meet Brady’s materiality prong.

      Officer Boles testified about the content of the scene video. He agreed that

the scene video showed some indications that Higginbotham was not intoxicated.

Specifically, Officer Boles testified that the scene video would have shown that

Higginbotham was not driving erratically, did not stumble out of his car or lean on

it for support, did not fumble with his wallet, and was able to remove his driver’s

license from his wallet and give it to Officer Boles without any problem.

However, Officer Boles also testified that the scene video recorded his own audible

comments to the effect that Higginbotham smelled of alcohol, had red, watery

eyes, and slurred his speech. 2 The evidence regarding the missing scene video thus

shows that the scene video would have been somewhat—but not entirely—helpful

to Higginbotham.

      The evidence supporting Higginbotham’s conviction, on the other hand, was

strong. First and foremost, Officer Boles testified that Higginbotham admitted that

he drank four twelve-ounce beers in Kemah on the night of his arrest.

      Second, Officer Boles gave extensive and detailed oral testimony about

Higginbotham’s inability to perform the FSTs. During the walk and turn test,

2
      The charge instructed the jury that it may “consider the destruction of the La Porte
      scene video in [their] deliberations.”
                                           11
Higginbotham was unable to balance, could not stand with one foot’s heel directly

in front of the other foot’s toes, missed steps, and turned the wrong direction.

During the one leg stand, Higginbotham signified the loss of the normal use of his

physical faculties because he could not raise one foot six inches while counting and

keeping his legs straight and hands at his sides. Higginbotham put the raised foot

down multiple times, swayed, and used his arms for balance during the entire test.

Likewise, during the “finger to nose” test, Higginbotham swayed, failed to follow

instructions, and missed his nose several times.

      Finally, the jury saw Higginbotham perform these tests in the DWI room

video, after which Officer Boles testified that he could hear Higginbotham slurring

his speech in the DWI room video.

      Balancing the slight exculpatory value of the scene video against the

evidence supporting the conviction, we hold that there was not a “reasonable

probability” that that the outcome of the trial would have been different had the

jury seen the scene video. Accordingly, the scene video was not material under

Brady, and the trial court did not abuse its discretion in denying Higginbotham’s

motion to suppress. See Barre v. State, 826 S.W.2d 722, 725 (Tex. App.—

Houston [14th Dist.] 1992, pet. ref’d.) (destroyed tape recording was not material

under Brady where it “cut both ways” and worked both to appellant’s benefit and

detriment); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston [1st Dist.]


                                         12
1996, no pet.) (lost video recording not material merely because DWI defendant

argued video might have had exculpatory value and officer did not remember

appellant acting outrageously); Williams v. State, 906 S.W.2d 58, 61 (Tex. App.—

Tyler 1995, pet. ref’d) (destroyed video not material where it may have shown

some inconsistencies in arresting officer’s testimony and record did not suggest

State destroyed tape in bad faith).

      We overrule Higginbotham’s sole point of error.

                                      Conclusion

      We affirm the trial court’s judgment.



                                                        Rebeca Huddle
                                                        Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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