TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00371-CR
Douglas Farirayi, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-11-206200, HONORABLE JIM CORONADO, JUDGE PRESIDING
MEMORANDUM OPINION
Douglas Farirayi appeals his conviction for the offense of felony driving while
intoxicated. See Tex. Penal Code §§ 49.04, .09(b). In one issue, he contends that his due process
rights were violated because the prosecution destroyed exculpatory evidence. See U.S. Const.
amends. V, XIV, § 1. For the reasons that follow, we affirm.1
BACKGROUND
On November 19, 2011, at around 2:00 a.m., a police officer initiated a traffic stop
after observing the vehicle that appellant was driving cross into the oncoming lanes of traffic “[f]or
at least three blocks” before it returned to the correct lanes of traffic. After observing appellant at
1
Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
the traffic stop, the officer called for assistance from the “DWI enforcement unit.” An officer from
that unit arrived and performed field sobriety tests on appellant. Appellant was arrested for DWI
and agreed to give a blood sample.
Appellant was indicted, and the matter proceeded to jury trial in April 2013. The
State’s witnesses were the officer who initiated the traffic stop, the officer who administered the
field sobriety tests, the phlebotomist who drew appellant’s blood, and the forensic chemist who
testified about the results of appellant’s blood test that showed “0.194 grams of ethanol per 100
milliliters of blood.” See Tex. Penal Code § 49.01(2) (defining “intoxicated” as “having an alcohol
concentration of 0.08 or more”). The exhibits admitted at trial included the video recording of the
field sobriety testing of appellant. The video recording of the initial stages of the traffic stop,
however, no longer existed. The officer who initiated the traffic stop testified that the department
“had VHS tapes at the time and the tape wasn’t deemed evidentiary in value. And it was only
retained for 90 days and then wiped out.” The officer testified that, at that time, recordings began
when the overhead lights were activated and “did not back up” and that he did not activate his
overhead lights until the vehicle had crossed back into the correct lanes of traffic “so there was no
recording of [appellant] being over in the oncoming lanes.”
Appellant’s defensive theory at trial was that he was not intoxicated, and he testified
in his own defense. According to appellant, he drank one beer that evening and had difficulty with
the field sobriety tests, not because he was intoxicated, but because he did not understand the
officer’s instructions and because he was nervous and afraid of the police. He explained that the
reason he crossed over into the oncoming lanes of traffic was because he “saw an object in the road,
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it was a small object, and [he] just dodged it,” and he confirmed that, by doing so, he ended up on
the wrong side of a concrete divider. He also challenged the accuracy of the blood test results
through cross examination of the State’s witnesses about the procedures and testing of his blood
samples and his own testimony that he drank only one beer that evening and agreed to give a
blood sample.
The jury found appellant guilty, assessed his punishment at confinement for a term
of eight years, and recommended that the imposition of sentence be suspended and that appellant
be placed on community supervision. The trial court thereafter rendered judgment, and this
appeal followed.
ANALYSIS
In one issue, appellant contends that his due process rights were violated because
the prosecution destroyed the video recording of the initial stages of the traffic stop. See
U.S. Const. amend. V, XIV.2 Appellant urges that the “officer determined that the video was of no
value because it did not support his narrative” and that “the evidence would be exculpatory, and
therefore favorable to the defense.”
2
Although appellant cites article I of the Texas Constitution, he does not provide separate
analysis or contend that the protections afforded under that article are greater than that afforded
under the federal due process clause concerning lost or destroyed evidence. See Tex. Const. art. I,
§§ 10 (rights of accused in criminal prosecutions), 19 (due course of law); Jones v. State,
437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, pet. ref’d) (collecting cases that hold that “the
Due Course of Law Clause [of Texas Constitution] provides no greater protection than the Due
Process Clause regarding the State’s loss or destruction of evidence in a criminal prosecution”).
Thus, we limit our analysis to the federal standard.
3
We conclude that appellant has failed to demonstrate reversible error on this record.
Moreover, he does not show that he preserved his issue by making this argument to the trial court.
Although he was aware that the video recording of the initial stages of the traffic stop no longer
existed and questioned the State’s witnesses about it, he failed to raise his due process argument
before the trial court. See Tex. R. App. P. 33.1(a)(1) (generally requiring complaint to be made
to trial court as prerequisite to presenting complaint for appellate review); Neal v. State,
150 S.W.3d 169, 175, 178 (Tex. Crim. App. 2004) (concluding that due process claim not preserved
because appellant failed to raise claim before trial court).
Appellant also analyzes his issue under the wrong standard. Appellant analyzes his
issue under the framework of Brady v. Maryland, 373 U.S. 83 (1963).3 But the standard concerning
lost or destroyed “potentially useful evidence” applies here. See Illinois v. Fisher, 540 U.S. 544,
547–48 (2004); Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Under that standard, the State’s
failure to preserve “potentially useful evidence” does not constitute a denial of due process unless
a defendant can show bad faith on the part of the State. See Fisher, 540 U.S. at 547–48;
Youngblood, 488 U.S. at 58; see also Gutierrez v. State, 419 S.W.3d 547, 552 (Tex. App.—San
Antonio 2013, no pet.) (noting distinction drawn by United States Supreme Court between “material
exculpatory evidence” and “potentially useful evidence”).
3
Under the framework of Brady, “the suppression by the prosecution of evidence favorable
to a defendant violates due process if the evidence is material either to guilt or punishment, without
regard to the good or bad faith of the prosecution.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.
App. 2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
4
Appellant has not alleged and did not offer evidence before the trial court that would
support a finding that the police acted in “bad faith” concerning the video recording. Although the
video recording of the initial stages of the traffic stop might conceivably have been useful to the
defense’s theory that appellant was not intoxicated because it would have allowed the jury to
observe appellant prior to the field sobriety testing and to compare those observations with the
officer’s description of appellant’s conduct during that time period, the evidence showed that the
tape containing the video recording was erased after being retained for 90 days in accordance with
the department’s retention policy.
The officer who initiated the traffic stop testified at trial that he turned the tape that
contained the recording in to the evidence room. The officer further explained the department’s
retention policy as follows:
Everything was retained at the time for at least a period of 90 days. Had it been
deemed evidentiary, it could have been retained and that would have been from the
court system or the DWI unit or anybody else. I’m not the final judge of whether
it was evidence or not. My decision could be overridden if it had been deemed
necessary.
Consistent with the retention policy, the officer testified that the tape containing the video recording
was retained for 90 days and then “wiped out” after “the tape wasn’t deemed evidentiary in value.”
The officer explained that the recording did not begin until after appellant’s vehicle had returned
to the correct lanes of traffic so it did not capture the traffic violation. Appellant also did not
challenge the legality of the traffic stop and admitted during his testimony that his vehicle crossed
into the oncoming traffic lanes.
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On this record, we conclude that appellant failed to show “bad faith” by the police
and, therefore, that the State’s failure to preserve the video recording did not deprive appellant of
his right to due process. See Jones v. State, 437 S.W.3d 536, 540–41 (Tex. App.—Texarkana 2014,
pet. ref’d) (concluding that defendant’s due process rights were not violated because “no allegation
or evidence that the State acted in bad faith” when it failed to preserve video recording); Jackson
v. State, 50 S.W.3d 579, 588–89 (Tex. App.—Fort Worth 2001, pet. ref’d) (concluding that
appellant failed to show a due process violation because he failed to prove that State acted in bad
faith when it failed to preserve evidence); Williams v. State, 906 S.W.2d 58, 61 (Tex. App.—Tyler
1995, pet. ref’d) (determining that appellant did not offer any evidence of bad faith where
prosecutor testified that video tape was destroyed pursuant to policy).
CONCLUSION
Because we conclude that appellant has failed to demonstrate reversible error, we
overrule his issue and affirm the judgment of conviction.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: June 23, 2015
Do Not Publish
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