                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-439-CR


JODY SHANE MEADOR                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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            FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Jody Shane Meador appeals his conviction and one-year

sentence for evading arrest. In two issues, he contends that his state and

federal constitutional rights were violated when the State violated the trial

court’s discovery order by withholding evidence and that the evidence is legally

and factually insufficient to support his conviction. We affirm.



      1
          … See Tex. R. App. P. 47.4.
                          Sufficiency of the Evidence

      The State charged appellant with evading arrest after he was chased by

a Texas Department of Public Safety trooper and at least one Gainesville police

officer while speeding on his motorcycle.       In his second issue, appellant

challenges the legal and factual sufficiency of the evidence to support his

conviction.2

A.    Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is


      2
        … Because we discuss the factual background in detail in our analysis of
this issue, we address it first.

                                       2
nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

                                        3
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.    Applicable Facts

      While on duty in the Gainesville area, around midnight on November 3,

2005, Texas Department of Public Safety Trooper Barrett Brown noticed a

vehicle with a single headlight traveling northbound on Interstate 35 at eighty-

six miles/hour in a sixty-five mile/hour zone. Trooper Brown was sitting in a

“marked black and white Texas state trooper car,” which he had parked on the

service road near an entrance ramp so that he could run radar. As the vehicle

passed, Trooper Brown saw that it was a motorcycle. Trooper Brown then

turned his car around and started to follow the motorcycle on the highway, but

he did not turn on his car’s headlights. According to Trooper Brown, he did not

want the driver of the motorcycle to see him and “take off going around the

curve” until he increased his speed. Once Trooper Brown was able to speed

up, he turned on his car’s headlights.

                                         4
      Trooper Brown testified that he believed the driver of the motorcycle had

seen him enter the highway and that the driver then accelerated to one hundred

thirty-six miles/hour in a sixty-five mile/hour zone. After Trooper Brown turned

on his car’s headlights, the driver of the motorcycle exited the highway at the

North Grand exit. Trooper Brown testified that at that point he caught up to

the motorcycle and activated his car’s overhead emergency lights and

“wigwags,” the flashing white lights on the front of the car.3 He saw the driver

of the motorcycle turn right and back southbound while running the stop sign

at the intersection of the service road and North Grand;4 the driver then

accelerated “up to 140 miles an hour.” 5

      Trooper Brown then saw the motorcycle drive “up and around by the

school and down by the gas station of Wal-Mart.”         At that point, Officer

Proffer, a Gainesville police officer who was traveling northbound on North

Grand, saw the motorcycle and turned around to follow it. That officer turned


      3
      … Trooper Brown admitted on cross-examination that he had followed
the motorcycle for approximately four miles before turning on the car’s
overhead lights.
      4
       … Although North Grand intersects the northbound and southbound I-35
service road, it does so on the diagonal, so that it runs northbound and
southbound as well.
      5
         … According to Trooper Brown, he turned on his car’s emergency
overhead lights after appellant ran the stop sign but while Trooper Brown was
still driving on the exit ramp about six to eight car lengths behind.

                                       5
his overhead lights and wigwags on and got in front of Trooper Brown; the

driver of the motorcycle then turned left (eastbound) on Highway 82, running

the stop sign at that intersection as he did so. He then accelerated “to a high

rate of speed” but finally stopped when he missed a curve and wrecked the

motorcycle.    Trooper Brown was able to maintain visual contact of the

motorcycle the entire time he was following it.

      After the motorcycle crashed, CareFlite took the driver to the hospital.

Officers searched the motorcycle and in a fanny pack found identification with

appellant’s name on it and a small amount of white powder that field-tested

positive as methamphetamine. 6

      Trooper Brown identified the driver of the motorcycle as appellant.

According to Trooper Brown, he determined that appellant lived in Whitesboro,

and that a “normal person going to Whitesboro” would not have exited on

North Grand and driven southbound to Highway 82 but would instead have

taken the Highway 82 exit directly off of I-35, two exits before the North Grand

exit. Trooper Brown agreed that instead of taking this exit, appellant sped up

dramatically and then drove down two more exits to North Grand. He testified


      6
         … The powder later tested out at the lab to be less than one gram of
methamphetamine. Although the State also charged appellant with possession,
it later dismissed that part of the indictment because the jury could not agree
on a verdict.

                                       6
that a person fleeing police on a motorcycle might want to avoid that part of

Highway 82 because the Gainesville Police Department building was located a

half block off Highway 82 and the driver was more likely to be stopped in that

area because of a higher concentration of police.

      When asked if he had his sirens on while following the motorcycle,

Trooper Brown testified, “I believe so. Yes, ma’am.” But he did not know if

the other officer had his sirens on.

      During Trooper Brown’s testimony, the jury viewed a videotape (without

the audio portion) taken by a recorder in Officer Proffer’s vehicle. The video

starts as appellant, with the officer behind him, is approaching Highway 82.

The patrol car’s blue and red overhead lights are visible. Appellant can be seen

braking as he approaches the intersection of North Grand and Highway 82 and

then accelerating through the stop sign in a left turn onto the highway.

Appellant then appears to accelerate through the turn until he disappears from

the camera’s view as Officer Proffer turns his patrol car.     W hen appellant

reappears in the camera’s view, he is driving straight on Highway 82, and the

brake lights of the motorcycle are not on. Appellant then brakes again at the

approach to the almost ninety-degree curve; at that point, he crashes the

motorcycle.




                                       7
      On cross-examination, Trooper Brown testified that Officer Proffer’s

emergency overhead lights were already on when appellant passed him on the

motorcycle. He agreed that an in-car video camera starts recording when the

overhead lights are activated, but he also said that there is an eight to twelve

second delay.7

      Appellant testified that when Trooper Brown spotted him, he was

“probably going too fast” because he had just recovered the motorcycle from

the residence of a friend who had stolen it from him. He thought someone

could be chasing him. He was on I-35 headed to his girlfriend’s house but

changed his mind and turned around to go back home. He also said that he

took the North Grand exit instead of the Highway 82 exit because “[a]nybody

that rides a motorcycle don’t want to go through the middle of town because

they’ve got to stop, put down their feet, so much extra. You stay on the

highway, straight shot.” Appellant said that he never saw any officers behind

him and that he kept his eyes only on the road in front of him because he was

going so fast.




      7
        … Although in his brief, appellant dismisses this testimony as
“ridiculous,” there is no evidence to rebut it other than his cross-examination
of Trooper Brown.

                                       8
      According to appellant, he never saw a police car until he encountered

Officer Proffer driving in the opposite direction on North Grand, at which point

he “went slamming on the brakes in order to avoid a ticket.”       He said the

officer did not have his lights on when he passed him. However, appellant

must have seen Officer Proffer slow down to turn because he also said, “To

me, it was just a normal vehicle turning to the left. And I thought I’d shut my

bike down fast enough.” According to appellant, he saw a flicker of blue or red

light in the corner of his eye when he turned left on Highway 82, and he

crashed on the curve when he turned around to see if he was being followed.

That was the first time he knew officers were trying to stop him. Appellant

testified that he never intentionally evaded arrest. He also testified that his

driver’s license was in the fanny pack on the motorcycle when his friend stole

it but the drugs were not.

      On cross-examination, appellant agreed when the prosecutor asked him

if it was just coincidence or “[p]erhaps a turn” that caused him to increase his

speed from eighty-six miles/hour to one-hundred forty miles/hour after he

initially passed Trooper Brown on I-35.




                                       9
C.    Analysis

      A person commits an offense if he intentionally flees from a person he

knows is a peace officer attempting lawfully to arrest or detain him. Tex. Penal

Code Ann. § 38.04(a) (Vernon 2003); Vann v. State, 216 S.W.3d 881, 888

(Tex. App.—Fort Worth 2007, no pet.). Therefore, the evidence must show

that the accused knew that a peace officer was attempting to arrest or detain

him. Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986).

      Appellant claims that the evidence shows that “at no time [was he]

intentionally fleeing [Trooper] Brown and at no time was he on notice of an

imminent arrest or detention.” According to appellant, the evidence supports

his version of events—that he did not see any police officer following him until

he turned around before crashing at the curve on Highway 82.

      However, appellant’s testimony conflicts with Trooper Brown’s testimony

and the videotape viewed by the jury. Trooper Brown testified that appellant

increased his speed significantly after he initially passed Trooper Brown; thus,

although Trooper Brown was not attempting to detain appellant at that time,

the evidence shows that appellant was aware of a police officer’s presence.

Appellant admitted he was aware that Officer Proffer was turning as appellant

passed by him on North Grand; the videotape shows that the officer was not

far behind appellant when appellant braked and ran the stop sign at Highway

                                      10
82 while turning left onto the highway.          This evidence casts doubt on

appellant’s explanation that he “slammed” on the brakes after seeing Officer

Proffer to avoid a ticket. The jury was entitled to question why appellant would

reduce his speed, only to then run a stop sign immediately afterward. The

lights from Officer Proffer’s patrol car are clearly visible in the videotape as he

is following appellant.   In addition, although appellant can be seen braking

before running the stop sign at Highway 82, he does not appear to have

“slammed” on his brakes.

      We must defer to the jury’s resolution of conflicts in the evidence; thus,

we conclude and hold that the evidence is both legally and factually sufficient

to support appellant’s conviction for evading arrest. See Margraves v. State,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Matson v. State, 819 S.W.2d

839, 846 (Tex. Crim. App. 1991). We overrule appellant’s second issue.

            Whether State Improperly Failed to Disclose Evidence

      In his first issue, appellant contends that the State improperly suppressed

the videorecording from Trooper Brown’s in-car camera, violating his rights to

due course of law under the Texas Constitution and due process under the

United States Constitution.




                                        11
A.    Applicable Facts

      Before trial began on July 24, 2007, the day after voir dire, appellant’s

trial counsel told the judge that the State had informed him the day before (but

after voir dire) that the State

      had a videotape that had never been turned over to the
      Defense . . . [and] that their office had erased most - - the relevant
      parts of that videotape before the . . . trial. And, of course, she
      just found out about it, I think, I believe, and she can speak for
      herself, but I believe she found out about that yesterday but we
      were never produced that - - that item, which, of course, could
      have Brady material and exculpatory material on it . . . .

Appellant’s counsel asked, “Judge, I’m going to need some time to examine

those items at least sometime during the trial, at the very least in order to be

able to present my defense adequately because [of] these discovery violations

by the District Attorney’s office.” The prosecutor replied that she had given the

video to support staff and told that person to copy it; instead, that person

erased the video.    In response to the trial court’s questioning, appellant’s

counsel testified that he wanted to see the partial video and question Trooper

Brown about it after the State rested.

      Before trial began the next day, appellant’s trial counsel told the trial court

that he had been able to view the partial video. He moved that the case be

dismissed for violation of appellant’s rights to due course of law and due

process as a result of the State’s blatant violation of discovery orders.

                                        12
Appellant’s counsel told the court that the only reason he was not asking for

a mistrial was because his client did not want one; he had been in jail waiting

for trial for over six months. Counsel also declined to request a continuance.

      During trial, appellant’s counsel called District Attorney Investigator Brand

Webb as a witness. Investigator Webb testified that on the Monday before

trial, the prosecutor gave him a videotape to copy. He did not know what was

on the videotape until later when he learned that it was the videotape from

Trooper Brown’s patrol car. However, Investigator Webb further testified that

when he attempted to copy the videotape, he accidentally reversed the tapes;

he put the original where the copy should go and the copy where the original

should go. He agreed that as a result of the erasure, the jury would not be able

to view a videotape from Trooper Brown’s vehicle.

B.    Analysis

      Under Brady v. Maryland, 8 to ensure the accused a fair trial, a prosecutor

has an affirmative duty under the Due Process Clause of the Fourteenth

Amendment to turn over to the accused all exculpatory or impeachment

evidence, irrespective of the good faith or bad faith of the prosecution, which

is favorable to the defendant and is material to either guilt or punishment.




      8
          … 373 U.S. 83, 83 S. Ct. 1194 (1963).

                                       13
Kyles v. Whitley, 514 U.S. 419, 432–33, 115 S. Ct. 1555, 1565 (1995);

United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379 (1985);

Franks v. State, 90 S.W.3d 771, 796 (Tex. App.—Fort Worth 2002, no pet.).

A due process violation occurs if (1) the prosecutor fails to disclose evidence

that is (2) favorable to the defendant and (3) material. Wyatt v. State, 23

S.W.3d 18, 27 (Tex. Crim. App. 2000); Franks, 90 S.W.3d at 796.

      However, in a case in which the State fails to preserve evidence that may

have been useful to an appellant, we apply a different test. Williams v. State,

906 S.W.2d 58, 61 (Tex. App.—Tyler 1995, pet. ref’d). The failure to preserve

potentially useful evidence is not a denial of due process unless a criminal

defendant can show bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109

S. Ct. 333, 337 (1988); Thomas v. State, 841 S.W.2d 399, 402 n.5 (Tex.

Crim. App. 1992); Jackson v. State, 50 S.W.3d 579, 589 (Tex. App.—Fort

Worth 2001, pets. ref’d); Williams, 906 S.W.2d at 61.

      Here, there is no evidence that the destruction of the videotape was the

result of bad faith.   Investigator Webb testified before the jury that the

prosecutor had asked him to copy the tape so that it could be produced to the

defense, but he accidentally erased the tape instead. After he confirmed that

the erasure was accidental, appellant did not ask any further questions.

Appellant did not contend at trial and does not contend on appeal that the

                                      14
erasure of the videotape was the result of bad faith. Accordingly, we conclude

and hold that appellant did not show bad faith such that he is entitled to relief.

See Jackson, 50 S.W.3d at 589; Williams, 906 S.W.2d at 61. We overrule his

first issue.

                                   Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                                  TERRIE LIVINGSTON
                                                  JUSTICE


PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 16, 2008




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