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Opinion filed August 31, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00091-CR
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RAYMUNDO ALBARADO, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 12,595
O P I N I O N
The jury convicted Raymundo Albarado, Jr. of the offense of driving while intoxicated with a child passenger. Tex. Pen. Code Ann. ' 49.045 (Vernon Supp. 2006). The trial court assessed punishment at confinement in a state jail facility for twenty months and a fine of $2,500, but the court suspended the imposition of confinement and placed appellant on community supervision for five years. We affirm.
Issues
Appellant has briefed two points of error and a supplemental contention for our review. In the first and second points of error, appellant argues that his due process rights were violated by the State=s failure to preserve and disclose potentially favorable evidence that was material to his defense B i.e., the videotape showing appellant=s stop, field sobriety tests, and arrest. In his second point, appellant argues that his due process rights were violated by the trial court=s erroneous denial of his motion to dismiss and its refusal to give a jury instruction regarding the presumption of innocence as it related to the unavailable videotape. In his supplemental argument, appellant asserts that the current law under Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002), should be changed because it falls short of ensuring that due process is carried out.
Background Facts
The record shows that Trooper James P. Lattimore was on patrol on August 22, 2004, when he stopped appellant for speeding. Appellant=s four-year-old son was a passenger in the vehicle. Trooper Lattimore smelled the odor of an alcoholic beverage in appellant=s vehicle and on his breath and noticed that appellant=s eyes were glossy and bloodshot. According to the trooper, appellant=s face was pink and his motions were slow. Trooper Lattimore had appellant perform standardized field sobriety tests: the horizontal gaze nystagmus, the nine step walk-and-turn, and the one-leg lift. Trooper Lattimore also conducted a breath test using a portable device at the scene. Based upon his performance on these tests, appellant was arrested for driving while intoxicated. Appellant refused to give an intoxilyzer breath specimen. At trial, Trooper Lattimore described appellant=s performance on the standardized field sobriety tests and testified that, in his opinion, appellant did not have the normal use of his mental and physical faculties.
The record shows that Trooper Lattimore=s vehicle was equipped with a videotape machine that came on when he initiated the stop by turning on his emergency lights. The videotape that recorded appellant was inadvertently placed back into circulation. Trooper Lattimore testified that, at the time of appellant=s arrest, he had recently transferred from another county and was unfamiliar with the procedure used in Palo Pinto County for marking a videotape to be preserved for trial rather than re-circulated. The videotape was not provided to appellant and was not available for trial.
Available Exculpatory Evidence or Destroyed Evidence
Under his first point of error, appellant correctly states the law with respect to due process under Brady[1] and its progeny requiring the State to disclose material evidence, whether impeaching or exculpatory, that is favorable to the accused. See, e.g., Strickler v. Greene, 527 U.S. 263 (1999); Wyatt v. State, 23 S.W.3d 18, 26-27 (Tex. Crim. App. 2000). The State=s good or bad faith is irrelevant in a Brady analysis. Brady, 373 U.S. at 87. Appellant=s reliance upon Brady and its progeny is mistaken because the videotape, which may or may not have been exculpatory, had been destroyed and was no longer in the State=s possession. When the State fails to preserve potentially useful evidence for trial, a standard different from Brady applies.
Although the State has a duty to preserve evidence that might be expected to play a significant role in an accused=s defense, the failure to preserve such evidence does not violate the accused=s right to due process unless the State acts in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also California v. Trombetta, 467 U.S. 479, 488-89 (1984). Appellant has not shown any bad faith on the part of the State in this case. The only evidence regarding the re-circulation of the videotape was that the State=s act was inadvertent. Trooper Lattimore marked the videotape to be preserved as he had done previously and was not aware that Palo Pinto County employed a different procedure. Consequently, the record does not support appellant=s contention that his rights to due process were violated. The first point of error is overruled.
Jury Instruction
In his second point of error, appellant contends that his due process rights were violated by the trial court=s refusal to charge the jury regarding the presumption of innocence as it related to the videotape. Appellant asked that the jury be instructed to Apresume that said video tape, had it been properly preserved and admitted into evidence, would have favorably supported the presumption that Defendant is innocent.@ Appellant cites no authority requiring such an instruction.
While we agree with appellant=s assertion that he was entitled to a fair trial, to due process pursuant to the Fourteenth Amendment, and to the presumption of innocence, we do not agree that he was entitled to the requested instruction. The record shows that the jury was properly instructed that A[a]ll persons are presumed to be innocent@; that, in order to convict any person of a crime, each element of the offense must be proved beyond a reasonable doubt; and that a defendant need not prove his innocence or produce any evidence at all. The instruction continued, AThe presumption of innocence alone is sufficient to acquit the defendant.@ We find no error in the jury charge and hold that the trial court did not violate appellant=s rights by refusing to give the additional requested instruction. Appellant=s second point of error is overruled.
In his final contention, appellant asserts that the three-pronged Richardson test needs to be amended because it requires a showing that the withheld evidence be favorable to the accused and that it be material. See Richardson, 70 S.W.3d at 870. First, we note that Richardson involved a Brady situation where the evidence was available but was not disclosed. Second, as an intermediate appellate court, we are bound to follow the law as declared by our superior courts. We will not amend the three-pronged test set out by the Supreme Court and the Texas Court of Criminal Appeals. Appellant=s supplemental contention is overruled.
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
August 31, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.