Andrew Wayne Baker v. State

• Court: Court of Appeals of Texas
• Decided: October 30, 2002
• Docket: 10-01-00336-CR
• Status: Published

Opinion

Andrew Wayne Baker v. State

IN THE

TENTH COURT OF APPEALS

No. 10-01-336-CR

     ANDREW WAYNE BAKER,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the County Criminal Court at Law No. 14

Harris County, Texas

Trial Court # 1045993

O P I N I O N

      After the trial court denied his Motion to Dismiss for State’s Loss/Destruction of Exculpatory Evidence, Andrew Wayne Baker pled guilty to driving while intoxicated. The trial court assessed his punishment at 180 days in jail, but suspended that sentence and placed Baker on community supervision for one year. Baker appeals the court’s denial of his motion to dismiss.

Motion to Dismiss

      In one issue, Baker contends the trial court abused its discretion in denying his motion to dismiss. Baker argues that his motion should have been granted because the State: 1) lost a videotape made of Baker at the police station; and 2) failed to produce a videotape made at the scene until the day before trial.

Lost Evidence

      The State has a duty to preserve exculpatory evidence. California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984); Williams v. State, 946 S.W.2d 886, 893 (Tex. App.—Waco 1997, no pet.). When an accused complains of lost evidence, he must show that the evidence lost is material and favorable to him. United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S. Ct. 3440, 3449, 73 L. Ed. 2d 1193 (1982); Williams, 946 S.W.2d at 893. "A showing that the lost evidence might have been favorable does not meet the materiality standard." Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd) (emphasis in original); accord Gamboa v. State, 774 S.W.2d 111, 112 (Tex. App.—Fort Worth 1989, pet. ref'd) (citing Valenzuela-Bernal, 458 U.S. at 873, 102 S. Ct. at 3449)). In addition, the accused must show that the State acted in bad faith when it failed to preserve the evidence in order to show a violation of due process or due course of law. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988) (due process); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston [1st Dist.] 1996, no pet. h.) (due course of law).

      Baker’s lead trial attorney testified at the hearing on the motion to dismiss that he viewed the videotape made at the station and formed the opinion that it was exculpatory. An assistant district attorney testified that computer records revealed he had checked out the tape but he did not have any recollection of that tape. That assistant testified that he did not do anything to dispose of the tape or to deliberately misplace it. Another assistant district attorney explained that the video room at the district attorney’s office and the office itself had been searched for the tape. That assistant acknowledged that the tape was lost but that the State did not act in bad faith or willfully lose the tape.

      Even if the station-made tape was exculpatory, there was no evidence that the State acted in bad faith when it lost the tape. The trial court did not abuse its discretion in denying Baker’s motion to dismiss on this claim.

Withheld Evidence

      Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Pena v. State, 864 S.W.2d 147, 149 (Tex. App.—Waco 1993, no pet.). However, the extreme sanction of exclusion should not be imposed absent bad faith or willfulness on the part of the prosecution. Pena, 864 S.W.2d at 149.

      Baker contends that because a similar incident occurred with the same officer; i.e., the scene tape was produced the day before trial, the State acted willfully in withholding that evidence. The officer testified that he noted on his report that tapes were made at the scene and at the police station. He believed that a new prosecutor could have missed that notation. It was uncontroverted that a new prosecutor was handling Baker’s trial. Baker did not prove bad faith or willfulness by the State.

      Even if the State had acted willfully or with bad faith, the sanction, as noted above, would be exclusion of the evidence, not dismissal of the cause. Because dismissal would not be the appropriate remedy, the trial court did not abuse its discretion in denying Baker’s motion to dismiss on this claim.

Conclusion

      The trial court did not abuse its discretion in denying the motion to dismiss. Its judgment is affirmed.

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed October 30, 2002

Do not publish

[CR25]

Waco ISD left the belt, we are instructed that the evidence is no more than a scintilla and that the no-evidence point should be sustained. Cazarez, 937 S.W.2d at 450.

      Even if one were to accept the view that Zipperlen’s testimony is some probative evidence that no belts were present when he and Howard arrived to work in April 1992, the evidence is factually insufficient to establish that proposition.

      Evidence other than Zipperlen’s testimony bears on the factual-sufficiency question. First, Rusty Wooley testified that belts were present on the roof before and after Cockrum fell and after Jacobs-Cathey worked there. He also testified that he did not check the roof before Jacobs-Cathey’s 1992 work. Finally, he said that Jacobs-Cathey was known for failing to remove the debris it generated from its work sites.

      Second, Andrew Van Dulock testified that Waco ISD employees had replaced belts on the school’s roof as late as September 3, 1991, and that they may have left the belt that caused Cockrum’s fall. He said that Jacobs-Cathey was “not careless” about cleaning up its work-sites.

      Third, photographs taken after the fall show several belts lying on the roof.

      Essentially, the testimony from Wooley and Van Dulock conflicts about Jacobs-Cathey’s work habits. Wooley’s testimony about work habits conflicts with Zipperlen’s. Van Dulock testified that Waco ISD employees may have left belts on the roof. None of the recited evidence adds weight to the proposition that Jacobs-Cathey left the belt that caused Cockrum to fall. Asking whether it is “more probable than not” that Jacobs-Cathey left any belts on the school’s roof or left the actual belt that caused Cockrum to fall, I believe that the evidence is so weak and insufficient as to demonstrate that the finding that Jacobs-Cathey was negligent is clearly wrong and manifestly unjust. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987) (plaintiff must prove that it is more probable than not that but for the defendant’s conduct the accident would not have occurred); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 n.11 (1991).

      I would reverse the judgment and render judgment that Cockrum take nothing. Alternatively, I would remand the cause for another trial.

                                                                  BILL VANCE

Concurring and dissenting opinion delivered and filed June 4, 1997

Publish