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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Jody Shane Meador v. State
Combined Opinion