Candelario Martinez, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2008
• Docket: 13-06-00665-CR
• Status: Published

Opinion

NUMBER 13-06-665-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CANDELARIO MARTINEZ, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court

of Hidalgo County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

Appellant, Candelario Martinez, Jr. (Martinez), was indicted for possession with intent to deliver cocaine weighing more than one gram and less than four grams. See Tex. Health & Safety Code Ann. § 481.112(a), (c) (Vernon 2003). He filed pretrial motions to suppress evidence and to dismiss, which the trial court denied following hearings on each motion. Pursuant to a plea agreement, ⁽¹⁾ Martinez pleaded no contest to the offense, and the trial court sentenced him to eight years' community supervision, plus a $2,000 fine. Martinez presents five issues on appeal. We affirm.

A. Factual Background

At approximately 2:16 a.m. on August 7, 2005, Officer Lanny Swanson was on patrol in Weslaco when he saw Martinez drive away from a bar. Martinez's vehicle did not have a front license plate, so Swanson activated his overhead lights and stopped him. Swanson testified Martinez "had been drinking," "was slightly slurring of speech," and "[a] little off balance." Swanson conducted three field-sobriety tests on Martinez, all of which he passed.

After conducting the tests, Swanson obtained Martinez's oral consent to search the vehicle. He testified that he wanted to search the vehicle because, "[w]e had several [Crime Stoppers] tips that he [Martinez] sells narcotics and he usually carried a weapon in the floorboard of his vehicle." ⁽²⁾ Swanson said that the tips were "[f]airly recent" and that he received "another one two weeks ago."

Swanson's search of the vehicle turned up a "Sandwich bag with six smaller corner pieces of the sandwich bag cut with a white substance in it, powder." He said that he found the bag in "[t]he center console between the two seats . . . . [I had] to lift it up and there was an area underneath it." He also testified that the search "was brief. We had cause to where it was at."

On cross-examination, Swanson testified that his patrol car had a video camera, which recorded whenever he activated his overhead lights. He explained that even though he conducted the field-sobriety tests while Martinez stood in front of his patrol car, the camera did not record the tests because the videotape was "full." When the trial court asked him, "[S]o to your knowledge there was no recording made of the stop?", he replied, "Correct, because it wasn't submitted. So I don't believe there was one."

Swanson said the field-sobriety tests took approximately five or six minutes. When counsel asked him, "And you started these exams shortly after pulling him over; is that right?", he replied, "Correct." Swanson testified that he searched the passenger in Martinez's car, but that he did not perform field-sobriety tests on the passenger. ⁽³⁾

Martinez testified that after Swanson stopped him, he got out of the vehicle and gave him his driver's license and "insurance." Swanson told him that he had no front license plate and that he "smell[ed] a little bit of alcohol." Martinez told him that he drank "a couple of beers." Martinez further testified:

And then he [Swanson] asked me, . . . if I had any dead bodies or machine guns in my car. I said, no, sir. And he said, Do you mind if I took [sic] a look? And I said, As a matter of fact, I do. I don't like anybody going through my stuff. And then he said, I smell alcohol. Would you mind stepping over here behind the vehicle because I want to make sure that I get this on video. And I said, okay. So we stepped in between the cars. And then he did the light test. It was the first test. And after the light test he said, you didn't do too bad. He said, if you let me search your vehicle and you're free to go. And I said, no. I said, I don't like anybody going through my stuff . . . .

* * *

And then I said, . . . I just don't like anybody going through my stuff. And then he said, Okay. Well, let's do this other field sobriety test.

That one was the . . . one-leg stand and count to 30.

I performed the exam and then he again asked me, he said, okay. You didn't do too bad . . . . [H]e said, you skipped number 19 . . . . He said if you give me--if I can search your vehicle and I don't find anything, you're free to go. And I said, no, sir, I said, you can't search my vehicle. And he said, you know what, it wouldn't take anything for me to get the K-9 unit out here right now. And then we'll see. And I said, well do whatever you want, you know, I told him, do or go ahead and do it, I said. Go ahead and do it. And then he said, all right, let's do this other test.

So I performed the exam, the field sobriety test,[ ⁽⁴⁾] and then after that, he said that he was going to impound--he said, why don't you save yourself all the trouble because I'm going to impound your car. He said, and let search [sic] your vehicle and if I don't find anything you're free to go.

And I said, you know what, do whatever you want to do. You're going to do whatever you want to do anyway.

And at that point, he took off to my car. There wasn't any backup yet or anything . . . . I guess he kept searching, and then he came out with a bag full of--with bags.

At this point, counsel questioned Martinez as follows:

Q. Now, by this time you'd already said you didn't want to consent, at least on a few occasions; is that correct?

A. Yes, yes, sir.

Q. And he [Swanson] didn't honor that request, did he?

A. No, sir. My choices were, either you take the field sobriety or consent and you're free to go. Those are my choices.

Q. So, finally when you, I guess said, well, do whatever you want, you didn't do that freely, right?

A. At that point I determined that I--that I was going to go to jail anyway and my car was going to get impounded so I said do whatever you want. You're going to do whatever you want anyway.

Q. But did you feel coerced into giving consent?

A. Yes, sir, definitely, yes.

Q. Now, also you said he wanted you to do the field sobriety test because there was a videotape, right?

A. Yes.

Q. And this videotape would confirm to what you're testifying to today?

A. That's correct . . . .

Q. And that would show you denying consent, right?

Q. At one point, he told you that you did passed [sic] the exams, right-

A. Yes, he did.

Q. But he kept on asking you for consent to search, right?

A. Yes, right.

Q. Even after the purpose of the stop had concluded; is that correct?

On cross-examination, Martinez admitted he had a prior conviction for possession of marihuana, a third-degree felony.

After hearing argument from both sides, the trial court denied the motion to suppress, stating "the officer had probable cause for the arrest and the search."

B. Discussion

1. Motion to Suppress

By his first three issues, Martinez argues the trial court erred in denying his motion to suppress because his detention was "overly prolonged," and any subsequent alleged consent to search was not voluntary, in violation of the Fourth Amendment to the United States Constitution, Article 1, Section 9 of the Texas Constitution, and article 38.23 of the Texas Code of Criminal Procedure. See U.S. Const. amend IV; Tex. Const. art. 1, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). ⁽⁵⁾

Standard of Review

In St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), the court stated:

Whether a specific search or seizure was reasonable is a mixed question of law and fact and is conducted de novo. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Trial courts are given almost complete deference in determining historical facts. We review the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case.

Id. at 725 (citations omitted). "We conduct a de novo review of evidence when the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor." Id.

When, as in this case, there are no explicit fact findings, and neither party timely requested findings and conclusions, we imply the necessary fact findings that would support the court's ruling if the evidence, viewed in the light most favorable to the court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). We then review the court's legal ruling de novo, unless the implied fact findings supported by the record are also dispositive of the legal ruling. Id.

Reasonableness of the Detention

The Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. See U.S. Const. amend. IV; Tex. Const. art.1,§ 9. In deciding whether Martinez's detention was reasonable, we view the trial court's factual findings in the light most favorable to his ruling, but we decide the issue of reasonableness as a question of Fourth Amendment law under Supreme Court precedent. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In Kothe, the court noted that the Supreme Court has stated that "Fourth Amendment 'reasonableness' is measured 'in objective terms by examining the totality of the circumstances'; it 'eschew[s] bright-line rules, instead emphasizing the fact-specific nature of the . . . inquiry.'" Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)).

Routine traffic stops are analogous to investigative detentions and are governed by Terry v. Ohio, 392 U.S. 1 (1968). Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.-Fort Worth 2007, pet. dism'd); Gansky v. State, 180 S.W.3d 240, 242-43 (Tex. App.-Fort Worth 2005, pet. ref'd). A Terry analysis has two prongs. First, a court must decide if an officer's action was justified at its inception. Id. Second, the court must determine whether the search and seizure was reasonably related in scope to the circumstances that justified the interference in the first place. St. George, 237 S.W.3d at 726; Kothe, 152 S.W.3d at 63.

Whether Swanson's Action was Justified at its Inception

Swanson's stop was valid because he saw Martinez commit a traffic violation by failing to have a front license plate. See Tex. Transp. Code Ann. § 502.404 (Vernon Supp. 2007) (defining offense of operating passenger car on public highway without a license plate at the front and rear of the vehicle). His subsequent detention of Martinez pursuant to that violation is considered to be valid as well. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) ("As long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation, regardless of whatever the usual practices or standards of the local law enforcement agency are and regardless of the officer's subjective reasons for the detention.") (emphasis in original). Because of the Crime Stoppers' tips, Swanson evidently suspected that Martinez was involved in drug activity when he stopped him for failing to have a front license plate, but this fact alone does not render the traffic stop improper. Stops and detentions that pertain to the original violation do not exceed the bounds of the Fourth Amendment. See id.

Whether the Search and Seizure was Reasonably Related in Scope to the Circumstances Justifying the Interference in the First Place

Under the second Terry prong, an investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500 (1983); Kothe, 152 S.W.3d at 63; ⁽⁶⁾ Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). Once an officer concludes the investigation of the conduct that initiated the stop, a continued detention is permitted only if there is reasonable suspicion to believe another offense has been or is being committed. Saldivar v. State, 209 S.W.3d 275, 282 (Tex. App.-Fort Worth 2006, no pet.). See Davis, 947 S.W.2d at 243, 245; McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.-Fort Worth 2001, pet. ref'd); see also Ohio v. Robinette, 519 U.S. 33, 41 (1996) (Ginsburg, J., concurring) (Once police satisfy the reason for the stop, they may not use the stop as a fishing expedition for unrelated criminal activity.).

In analyzing the reasonableness of the detention, we bear in mind that during a routine traffic stop, an officer has the right to check for outstanding warrants and request: (1) a driver's license; (2) insurance papers; and (3) identification. See Davis, 947 S.W.2d at 245. The officer may also question the driver about ownership of the vehicle, the driver's destination, and the purpose of the trip. See Powell v. State, 5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999, pet. ref'd). After making a stop for a traffic violation, an officer may rely on all of the facts ascertained during the course of his or her contact with a defendant to develop articulable facts that would justify a continued detention. Sims v. State, 98 S.W.3d 292, 295 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); Powell, 5 S.W.3d at 377.

The United States Supreme Court has refused to place any rigid time limits on Terry stops; instead, the issue is "'whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.'" Kothe, 152 S.W.3d at 64-65 (quoting United States v. Sharpe, 470 U.S. 675, 685-86 (1985)).

Application of Law

Martinez argues that Swanson "decided to prolong the detention for the sole purpose of getting consent to search, and it was at that moment that a constitutional violation occurred." We disagree.

After Swanson stopped Martinez, he smelled alcohol and noticed that Martinez had slurred speech and was unsteady. Thus, he had reasonable suspicion to believe Martinez had either committed or was committing another offense, namely DWI. This permitted him to continue the detention in order to administer the field-sobriety tests. See Saldivar, 209 S.W.3d at 282; Davis, 947 S.W.2d at 245; McQuarters, 58 S.W.3d at 256. The evidence showed that Swanson started the field-sobriety tests "shortly after" stopping Martinez and that the tests took approximately five or six minutes. The evidence does not show that the detention lasted longer than was necessary to effect the purpose of the stop. Royer, 460 U.S. at 500; Kothe, 152 S.W.3d at 63; Davis, 947 S.W.2d at 243, 245; see Sharpe, 470 U.S. at 685-86 (declining to "establish a per se rule that a 20-minute detention is too long" under Terry). ⁽⁷⁾

We conclude that Swanson diligently pursued a means of investigation that was likely to either confirm or dispel his suspicions quickly, during which time it was necessary to detain Martinez. See Kothe, 152 S.W.3d at 64-65. The evidence does not show that Swanson was purposefully prolonging the detention or that the stop lasted longer than necessary to effect the purpose of his investigation. Therefore, the investigative detention was reasonably related in scope to the circumstances that justified the stop and detention in the first place. See Terry, 392 U.S. at 29; St. George, 237 S.W.3d at 726; Kothe, 152 S.W.3d at 63. Viewing the totality of the circumstances in the light most favorable to the trial court's ruling, we hold that Swanson's actions were reasonable under the circumstances, and that the detention as a whole was reasonable. Because neither the initial stop nor its duration violated the Fourth Amendment, Martinez's consent to search his car was not unconstitutionally tainted and, therefore, the evidence seized from his car need not be suppressed under the Fourth Amendment or article 1, section 9. ⁽⁸⁾

2. Voluntariness of Consent

By this same issue, Martinez challenges the voluntariness of his consent to search. He states that his "alleged consent was not an independent act of free will."

In Davis, the Court of Criminal Appeals stated that after officers determine a driver is not intoxicated, continued detention of the driver and the search of his car without his consent is unreasonable when not supported by reasonable suspicion of other criminal activity. 947 S.W.2d at 243-45. To show that the search was made with consent, the State must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Saldivar, 209 S.W.3d at 284; State v. Hunter, 102 S.W.3d 306, 310 (Tex. App.-Fort Worth 2003, no pet.). Voluntariness is determined from all the circumstances surrounding the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); Saldivar, 209 S.W.3d at 284-85. "To be voluntary, consent must 'not be coerced, by explicit or implicit means, by implied threat or covert force.'" Saldivar, 209 S.W.3d at 285 (quoting Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)).

Swanson testified that when he asked Martinez if he could search the vehicle, Martinez replied, "'Yes, I have nothing to hide.'" Swanson stated that when obtaining Martinez's consent, he did not threaten him, did not use physical force, and did not make any threatening gestures. Swanson also testified that during the encounter, he did not draw his weapon, did not strike Martinez with his billy club, did not use pepper spray on him, and spoke to him in a normal conversational manner.

Under the applicable standard of review, we defer to the trial court's assessment of Swanson's and Martinez's credibility. See Ross v. State, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (at suppression hearing, judge may believe or disbelieve all or any part of a witness's testimony); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) (at suppression hearing, trial court is sole trier of fact and judge of witness's credibility and weight to be given their testimony). Viewing the evidence in the light most favorable to the trial court's ruling, then, we infer that the trial court believed Swanson's testimony. Ross, 32 S.W.3d at 855; Ballard, 987 S.W.2d at 891. Because the determination of whether consent was voluntary in this case turns on the credibility of the witnesses, we defer to the trial court's implied finding that consent was voluntarily given. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997); Perez v. State, 103 S.W.3d 466, 468 (Tex. App.-San Antonio 2003, no pet.). We overrule the first three issues.

3. Missing Evidence

By issues four and five, Martinez argues the trial court erred in denying his motion to dismiss ⁽⁹⁾ due to the loss or destruction of potentially useful and/or exculpatory evidence, in violation of the Due Process Clause of the United States Constitution and the Due Course of Law Provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. 1, § 19. Martinez argues that had the State retained the videotape of his field-sobriety tests, the tape would have shown that he did not consent to the search.

At the dismissal hearing, defense counsel called one witness: Swanson. He testified that at the time he began his patrol shift during which he stopped Martinez, his patrol car's video camera was working. He stated that when an officer finishes a shift, the VHS tape "stays in . . . [the patrol car] until it finishes and then it's replaced." He also testified that when the VHS tape is "[f]ull . . . a supervisor pulls it out and it's held on to it [sic] for 90 days, I believe, unless if something arises to where it needs to be held on." When the trial court asked him, "And do you know do they reuse the tapes and tape over them or . . .", he replied, "Yes, sir, we do." At that point, the following exchange occurred between defense counsel and Swanson:

Q. [B]efore you begin a shift you can look at the videotape and determine if it's full or not full or . . .

A. Correct. You can view the little meter deal on there.

Q. Do you remember looking at this videotape before you started your shift?

A. No, I can't say for sure where it was at, no.

Q. Now, when the tape is full, does a light come on the squad car saying that the tape is full?

A. The screen blinks. I believe. The screen or the little lights on the screen blink and it won't record.

Q. Do you remember that light coming on that night?

A. (Nods in the negative.)

Q. Now, you say sometimes these tapes, I guess get recorded over; is that correct?

A. Correct.

Q. When does that happen?

A. When a videotape is pulled from the vehicle it's held on to, I believe by law it's 90 days, it has to be held on to. After 90 days, it's put back up into the briefing room where they'll erase whatever is on it and put it up to be reused.

Swanson further testified that during his shift on the night in question, he made approximately five stops prior to stopping Martinez. After he stopped Martinez, he went off duty. He said that if he arrested a person for DWI, the videotape would be held longer than 90 days, and it would be submitted as evidence. When the trial court asked Swanson if he saved the video from Martinez's case, he replied, "There was no video as far as I know. I believe the videotape had expired. But if it was, the video from that car was saved for, due to the state law of 90 days, the 90 days has elapsed by now." Swanson said that he did not erase the tape, and that he did not request that the tape be saved. He said that "[i]f I arrest someone and I believe the video will help me in court, I will save it. I did not have one on this case so I don't believe it was running." He also testified:

If there was a tape of this [appellant's] stop, I would have saved it. But during the previous stops, it might have expired. The tape ran out and on this stop I did not have it. But on these [the previous] stops, I would not have put it as evidence because there would be no reason to.

He said that if the tape would have recorded Martinez's stop, he would have saved it. He could not say for sure when "the tape ran out."

Federal Due Process Violation

To demonstrate reversible error under Brady v. Maryland ⁽¹⁰⁾ and United States v. Bagley ⁽¹¹⁾ from the State's failure to disclose exculpatory evidence, a defendant must show that: (1) the State failed to disclose evidence, regardless of the prosecutor's good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the withheld evidence is material; that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).

In addressing whether the pretrial destruction of evidence constitutes a denial of due process of law under the United States Constitution, the Supreme Court has drawn a distinction between "material, exculpatory evidence" and "potentially useful evidence." State v. Vasquez, 230 S.W.3d 744, 747 (Tex. App.-Houston [14th Dist.] 2007, 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. Vasquez, 230 S.W.3d at 747 (citing Illinois v. Fisher, 540 U.S. 544, 547-48 (2004)) (emphasis added).

Here, the State did not fail to disclose or suppress the videotape. Swanson testified that "There was no video as far as I know. I believe the videotape had expired. But if it was, the video from that car was saved for, due to the state law of 90 days, the 90 days has elapsed by now." Thus, this is a case involving a failure to preserve evidence.

The Supreme Court has held the State's duty to preserve evidence is limited to that which might be expected to play a significant role in the suspect's defense. California v. Trombetta, 467 U.S. 479, 488-89 (1984). To meet that standard, the exculpatory value of the evidence must be apparent before its destruction, and the evidence must be of a nature that the defendant would be unable to obtain comparable evidence by other means. Id. The Supreme Court has held that if a defendant wants to prove a federal due-process violation based on a 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. Vasquez, 230 S.W.3d at 747 (citing Fisher, 540 U.S. at 547-48; Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988)). The Youngblood Court described potentially useful evidence as "'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.'" Id. (quoting Youngblood, 488 U.S. at 57-58).

At the dismissal hearing, Swanson testified that "I would have liked to keep this tape. This would have helped me tremendously in this case. So if there was a tape there, I would have saved it." From this testimony, it is hard to imagine how the missing videotape might be expected to play a significant role in Martinez's defense. See Trombetta, 467 U.S. at 488-89. Accordingly, the tape did not have exculpatory value apparent to the State before it was reused.

Concerning the State's destruction of potentially useful evidence, there is no evidence showing that law enforcement destroyed the tape in a calculated effort to circumvent the disclosure requirements of Brady v. Maryland. Rather, the evidence showed that if there was a tape, it was reused pursuant to police-departmental procedure and in compliance with state law. ⁽¹²⁾ The trial court did not make an explicit finding of bad faith, nor can a finding of bad faith be implied because there is no evidence in the record to support that finding. There being neither an explicit finding of bad faith nor evidence to support an implicit finding of bad faith, no federal due-process violation is shown. See Youngblood, 488 U.S. at 57-58; Trombetta, 467 U.S. at 488-89

Due Course of Law Clause

To adjudicate this appeal, we must decide whether the Due Course of Law Clause provides a greater level of protection than the Due Process Clause regarding the State's destruction of potentially useful evidence. The Due Course of Law Clause provides, in relevant part, that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. The Due Process Clause provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1.

The Texas Constitution uses the words "due course of the law of the land" instead of "due process of law," and the Due Process Clause does not specifically mention disfranchisement. See id. Otherwise, the wording of the two provisions is substantially similar. Disfranchisement means "'the act of taking away the right to vote in public elections from a citizen or class of citizens.'" Vasquez, 230 S.W.3d at 749 (quoting Black's Law Dictionary 480 (7th ed.1999)). Presuming, without deciding, that disfranchisement is not one of the privileges or immunities covered by the Due Process Clause, that would mean only that the Due Course of Law Clause applies to more types of deprivations than does the Due Process Clause. Id. at 750. Because this case involves a deprivation of Martinez's liberty, this potential difference in the two provisions is not relevant. The State's deprivation of Martinez's liberty triggers the requirement of due course of law and due process of law. Id. Therefore, the only words from the two constitutions that relate to the scope of the protections provided are "due course of the law of the land" and "due process of law." Id.

In Rodriguez v. State, 21 S.W.3d 562, 568 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd), the court held that the Due Course of Law Clause generally does not provide any greater protection than the Due Process Clause. ⁽¹³⁾ Vasquez, 230 S.W.3d at 750-51. Other than the Waco Court of Appeals's decision in Pena v. State, 226 S.W.3d 634, 651 (Tex. App.-Waco 2007, pet. granted), no Texas appellate court contradicts the precedents mentioned in footnote 13.

Without adopting the holding in Pena, we will apply the court's analysis due to the possibility the Court of Criminal Appeals may decide to adopt the Pena decision. The Pena Court held that "under the Due Course of Law provision of article 1, section 19, the State has a duty to preserve material evidence which has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is potentially useful to the defense." Id. at 651. The Pena Court adopted the following approach as the standard for a due course of law claim:

the following three factors should be weighed to decide whether a defendant's state constitutional due process rights have been violated by the State's failure to preserve potentially exculpatory evidence:

(1) would the evidence have been subject to discovery or disclosure;

(2) if so, did the state have a duty to preserve the evidence; and

(3) if there was a duty to preserve, was that duty breached, and what consequences should flow from the breach.

Id. at 651 (citing Deberry v. State, 457 A.2d 744, 750 (Del. 1983)). With respect to the third factor, the Pena court stated:

[W]e draw a balance between the nature of the State's conduct and the degree of prejudice to the accused. The State must justify the conduct of the police or prosecutor, and the defendant must show how his defense was impaired by loss of the evidence. In general terms, the court should consider "(1) the degree of negligence or bad faith involved, (2) the importance of the lost evidence, and (3) the sufficiency of the other evidence adduced at the trial to sustain the conviction."

Id. (quoting Deberry, 457 A.2d at 752) (citations omitted).

Regarding the first two Pena factors, Swanson's testimony did not show that a tape was made. Rather, he believed the tape ran out. He also testified that if a tape was made, it would have been reused after ninety days. If we assume a tape was made, its contents were potentially useful to the defense because Martinez testified that the tape would have shown that he did not consent to the search. Based upon this assumption, then, the State had a duty to preserve the tape, and it was subject to disclosure.

Next, we turn to the third Pena factor and what consequences should flow from the State's failure to preserve the tape.

The Degree of Negligence or Bad Faith Involved

From Swanson's testimony, it appears that (1) if the tape existed, it was reused after ninety days in compliance with state law and (2) that there is no evidence of any bad faith on the part of the police or the prosecutor. Furthermore, there is no evidence of any intentional misconduct relating to the missing tape. We find that the first element weighs against a due course of law violation.
The Importance of the Lost Evidence

The significance of the missing tape is disputed--Swanson testified that the tape would have helped his case, while Martinez argues it would have shown he did not consent to search. Assuming we believe Martinez, the missing tape is potentially significant, but its significance is lessened because Martinez testified at the suppression hearing that he told Swanson to "do whatever you want to do." Furthermore, Martinez's testimony is subject to impeachment due to his prior felony conviction. See Tex. R. Evid. 609. We find that the second element weighs neither in favor of nor against a due course of law violation.

The Sufficiency of the Other Evidence to Sustain the Conviction

The missing tape was not critical to whether the State could establish Martinez's guilt beyond a reasonable doubt. Swanson testified that Martinez gave him consent to search. He found the cocaine in the console of the car, which Martinez was driving. Accordingly, this element weighs against a due course of law violation.

Even assuming the State was either mistaken or negligent in reusing the tape after ninety days, we find little, if any, impairment to the defense. Accordingly, we hold that the failure to preserve the tape did not violate Martinez's due course of law rights. Issues four and five are overruled.

The trial court's judgment is affirmed.

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 24th day of January, 2008.

1. On October 16, 2006, the trial judge signed a document titled "TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL" and placed an "X" corresponding to the preprinted statement: "is in a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal."

2. Swanson did not find a weapon during the search of Martinez's vehicle.

3. The passenger did not testify at the suppression hearing.

4. Martinez testified the third field-sobriety test was "The walk twenty paces in a line."

5. Article 38.23 provides, in relevant part:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

6. In other words, if a driver is stopped on suspicion of DWI, once the officer determines the driver is not impaired, the officer should promptly release the driver. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2005).

7. The Sharpe Court explained:

While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.

470 U.S. at 685, (citation omitted).

8. We note that the Texas Constitution follows the federal standard for an investigatory detention as set out in Terry. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

9. Martinez filed a pretrial motion to dismiss due to loss or destruction of potentially useful and/or exculpatory evidence.

10. 373 U.S. 83 (1963).

11. 473 U.S. 667 (1985).

12. In 2001, Texas passed legislation prohibiting racial profiling by peace officers, codifying law-enforcement policy on racial profiling, and requiring reports by peace officers for traffic and pedestrian stops. See Tex. Code Crim. Proc. Ann. arts. 2.131-.134 (Vernon Supp. 2006). Article 2.135 provides an exemption from the reporting requirements of articles 2.133 and 2.134 for law-enforcement agencies using video and audio equipment. See Tex. Code Crim. Proc. Ann. art. 2.135. In relevant part, subsection (b) of article 2.135 provides:

[A] law enforcement agency . . . shall retain the video and audio or audio documentation of each traffic and pedestrian stop for at least 90 days after the date of the stop. If a complaint is filed with the law enforcement agency alleging that a peace officer employed by the agency has engaged in racial profiling with respect to a traffic or pedestrian stop, the agency shall retain the video and audio or audio record of the stop until final disposition of the complaint.

Tex. Code Crim. Proc. Ann. art. 2.135(b) (Vernon Supp. 2006) (emphasis added). There is no evidence showing that a racial-profiling complaint was filed which would have operated to extend the required ninety-day retention period. Thus, the record reflects compliance with the statutory retention requirements of article 2.135(b).

13. The Texas Supreme Court also has stated that the language of these two clauses is "nearly identical" and that there is no meaningful distinction between "due course" and "due process." See Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). In addition, eight other Texas courts of appeals 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. See Alvarado v. State, No. 07-06-0086-CR, 2006 WL 2860973, at *3 (Tex. App.-Amarillo Oct. 9, 2006, no pet.) (not designated for publication) (holding that Due Process Clause and Due Course of Law Clause provide the same protection concerning the State's destruction of potentially useful evidence); McGee v. State, 210 S.W.3d 702, 705 (Tex. App.-Eastland 2006, no pet.) (same); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.-San Antonio 2005, no pet.) (same); Jackson v. State, 50 S.W.3d 579, 588-89 (Tex. App.-Fort Worth 2001, pet. ref'd) (holding that both Due Course of Law Clause and Due Process Clause require showing of bad faith by state in failing to preserve potentially useful evidence); Williams v. State, 946 S.W.2d 886, 893 & n.4 (Tex. App.-Waco 1997, no pet.) (concluding that state's loss of videotape showing defendant's performance of sobriety tests did not violate Due Process Clause or Due Course of Law Clause because there was no evidence of bad faith by state); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (holding that the State's erasing of videotape of sobriety tests did not violate Due Process Clause or Due Course of Law Clause because there was no evidence of bad faith by the State); State v. Rudd, 871 S.W.2d 530, 532-33 (Tex. App.-Dallas 1994, no pet.) (holding that Due Process Clause and Due Course of Law Clause provide the same protection regarding state's destruction of potentially useful evidence); Saldana v. State, 783 S.W.2d 22, 23 (Tex. App.-Austin 1990, no pet.) (same as Jackson).