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Opinion filed September 18, 2008
In The
Eleventh Court of Appeals
____________
No. 11-07-00030-CR
__________
STATE OF TEXAS, Appellant
vs.
HARVILL BLACKSHERE, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR17-488
M E M O R A N D U M O P I N I O N
In this case, we address questions relating to missing drugs in a possession of methamphetamine case. After effectively excluding evidence relating to the methamphetamine, the trial court granted a motion to suppress, discharged the jury empaneled to hear this case, declared a mistrial, and dismissed the case. The State appeals. Because we find that the State=s arguments are well-taken, we set aside the order of the trial court and remand this case.
Only a brief recitation of the facts is necessary to determine the legal question before us. Brownwood Police Corporal Eddie Jones saw some individuals on a public parking lot having what he thought to be a heated discussion. Blackshere was present during the discussion. Fearing that an assault might be possible, Officer Jones watched the individuals. Officer Jones called for other officers to come to the parking lot. Officers Danny Hutchins and Bryan Bell came to the parking lot. In the process of attempting to discover what was happening at this parking lot, a substance thought to be methamphetamine was discovered in a car near the seat where Blackshere had been sitting. Blackshere was arrested for possession of a controlled substance. Officer Bell took possession of the controlled substance and put it in his patrol car. The officer testified that the evidence was not tampered with in any way while in his custody. Officer Bell placed the evidence in a baggie and attached an evidence tag upon which he placed his signature, the case number and a description of what was in the baggie.[1] The baggie was marked as State=s Exhibit No. 1. He placed the evidence in the Brownwood Police Department evidence locker, a secure facility. Later, Brownwood Police Detective Bruce Spruill picked up the drugs from the custodian of the evidence locker and sent them to the Texas Department of Public Safety Crime Lab in Abilene for testing. A chemist at the crime lab tested the drugs, and they were returned, along with a report of the lab results, to Detective Spruill. Detective Spruill returned the drugs to the evidence locker.
The trial of this case was to begin on Monday, February 5, 2007. On Friday morning, February 2, 2007, as the State was preparing for trial, Detective Spruill went to the evidence locker to retrieve the drugs but was unable to find them. Detective Spruill notified the prosecutor and, within a matter of a few hours, the prosecutor notified Blackshere=s attorney that they had not been able to find the drugs.
On February 5, 2007, the day of jury selection, the trial court heard a motion for continuance in which Blackshere sought more time in order that trial counsel could further research the missing evidence matter. In that motion for continuance, Blackshere also asked for the appointment of an investigator to Ainvestigate the facts and circumstances surrounding the >misplacing= of the alleged controlled substance.@ The trial court denied the motion. Also on the same day, Blackshere filed a motion to suppress based upon the fact that the drugs had been misplaced and that, therefore, his rights Aunder Article I, Section 19 of the Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure@ had been violated. He requested that the trial court suppress all tangible evidence seized by the officers in connection with this case as well as all testimony concerning that evidence. He also asked the trial court to suppress evidence of Alab reports, results, or other evidence pertaining to the alleged controlled substance in this matter.@ Blackshere further asked the trial court to suppress anything else it thought should be suppressed. The trial court announced that it was going to carry the motion to suppress during the trial.
When the State offered State=s Exhibit No. 1 into evidence, Blackshere=s attorney objected Abased on the previous motions submitted to the court.@ During a hearing held outside of the presence of the jury, it was shown that the officer in charge of the evidence room during the periods relevant to this case was Britt Brownlee. It appears from the record that Brownlee had pleaded guilty to a federal charge of conspiracy to distribute methamphetamine and was awaiting sentencing when this case was tried. There were several other instances when drug evidence appeared to be missing from the evidence vault while Brownlee was in charge of the evidence locker. Brownlee was given the opportunity to, and did, resign from the Brownwood Police Department.
The DPS chemist and Detective Spruill reviewed the records of the chain of custody in this case. They both testified that they saw nothing that would cause them to doubt the results of the lab tests or the chain of custody. The evidence showed that the tests Aare all valid.@
The trial court ultimately suppressed evidence related to the drugs, stating on the record that Blackshere had Abarely@ proved bad faith, and the trial court found bad faith Asquarely@ on the part of the Brownwood Police Department evidence custodian. The trial court also dismissed the case on the record. Additionally, on February 6, 2007, the trial court entered a written order that globally granted Blackshere=s motion to suppress. On February 23, 2007, the trial court entered a detailed written order in which it made certain findings and in which it granted the motion to suppress, declared a mistrial, and dismissed the case because of Brownlee=s bad faith Aresulting in insufficient evidence to sustain a conviction.@
In its findings of fact and conclusions of law, the trial court concluded that Blackshere=s rights under the due course of law clause of the Texas Constitution and the due process clause of the United States Constitution had been violated because the State had acted in bad faith through Brownlee and the Brownwood Police Department when the State failed to preserve evidence that it had a duty to preserve and thereby deprived Blackshere of an opportunity to have the drugs independently tested, when it failed to properly investigate and notify affected individuals of the instances when drugs had gone missing, and when it failed to make appropriate changes in its procedures in order to properly maintain evidence. The trial court also concluded that the State did not present any innocent explanation for the missing methamphetamine. The trial court further concluded that Brownlee=s actions and omissions constituted a conscious effort to abuse his position as evidence custodian. Additionally, the trial court found that, after it granted the motion to suppress, there was insufficient evidence to sustain a conviction.
We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s determination of historical facts while reviewing the trial court=s application of the law de novo. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court must view the evidence in the light most favorable to the trial court=s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, a trial court makes explicit fact findings, the appellate court determines whether the evidence, when viewed in the light most favorable to the trial court=s ruling, supports those fact findings. Id. We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Id.; Myers v. State, 203 S.W.3d 873, 879 (Tex. App.CEastland 2006, pet. ref=d).
The Fourteenth Amendment to the United States Constitution contains the due process clause. Article I, section 19 of the Texas Constitution contains the due course of law clause. The standards used to show a violation of either when evidence has been lost or destroyed is the same under either constitution. McGee v. State, 210 S.W.3d 702, 705 (Tex. App.CEastland 2006, no pet.). The evidence in this case did not show that the missing evidence was exculpatory. The only evidence presented was that, up until the time the drugs found by the court to be methamphetamine were tested and returned to the Brownwood Police Department, they had not been tampered with in any way and that there was no doubt that the tests were accurate. Even if we assume that the drug evidence was potentially exculpatory, the 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 police. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The same would be true under the due course of law provisions of the Texas Constitution. McGee, 210 S.W.3d at 704.[2]
In Lake v. State, 577 S.W.2d 245, 246 (Tex. Crim. App. 1979), Lake had been convicted of possessing heroin. Sometime after the conviction, the heroin was destroyed by order of the trial court. Later, the trial court set aside the conviction. In a retrial, Lake claimed that he could not be convicted because the heroin no longer existed. The Court of Criminal Appeals disagreed. While a defendant normally is entitled to access to the contraband and while Athe state must not be allowed to purposefully or carelessly destroy evidence with an eye to harming a defendant,@ a conviction can be had in the absence of the physical presence of the drugs if the drug has been tested and if the chain of custody has been proven. Id. (emphasis added). The court noted in Lake that the chemist who tested the drugs as well as the officers involved in the chain of custody were present and available for questioning.
Here, the chemist who analyzed the methamphetamine as well as the officers involved in the chain of custody were present and testified. The evidence shows that the drugs were not missing until after the lab tests had been performed. The testimony shows that the tests were not compromised. While it might have been useless to move the trial court for independent lab testing after the drugs were missing, Blackshere at no time either before or after it was discovered that the drugs were missing asked that he be allowed to test the drugs independently; he was apparently ready to go to trial without such an independent examination. Even if the circumstantial evidence presented would be enough to show that the custodian of the evidence stole the methamphetamine after it was tested, we cannot say that the evidence would show that the State destroyed the evidence Awith an eye to harming a defendant@ or that there was any evidence that the State did so carelessly. Id. There has been no showing that the State acted in bad faith. Because it was not shown that the destroyed evidence was exculpatory but at most only potentially exculpatory and because bad faith on the part of the State was not shown, we sustain the State=s two issues on appeal.
The trial court=s order granting Blackshere=s motion to suppress, declaring a mistrial, and dismissing this case is set aside, and this cause is remanded to the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 18, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]There was another evidence tag attached to the bag, but it related to other drugs found on Willie Calvin who was also involved in the events at the parking lot and who was also arrested for possession.
[2]A majority of Texas Courts of Appeals have held that the due course of law clause in the Texas Constitution provides no greater rights than the Due Process Clause of the United States Constitution in cases of this nature. Therefore, those courts, including this one, apply the bad faith requirement set forth in Youngblood. See Purvis v. State, No. 12-06-00422-CR, 2008 WL 2221826 (Tex. App.CTyler May 30, 2008, no pet.) (mem. op., not designated for publication); Sharpe v. State, No. 05-07-00276-CR, 2008 WL 963130 (Tex. App.CDallas Apr. 10, 2008, no pet.) (not designated for publication); Alvarado v. State, No. 07-06-00086-CR, 2006 WL 2860973, at *3 (Tex. App.CAmarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication); McGee v. State, 210 S.W.3d 702, 705 (Tex. App.CEastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.CSan Antonio 2005, no pet.); Jackson v. State, 50 S.W.3d 579, 588-89 (Tex. App.CFort Worth 2001, pet. ref=d); Williams v. State, 946 S.W.2d 886, 893 & n.4 (Tex. App.CWaco 1997, no pet.); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.CHouston [1st Dist.] 1996, no pet.); Saldana v. State, 783 S.W.2d 22, 23 (Tex. App.CAustin 1990, no pet.). The Waco Court of Appeals (with one dissent) has now disagreed with the other courts of appeals. See Pena v. State, 226 S.W.3d 634, 645-46 (Tex. App.CWaco 2007, pet. granted). Pena is currently pending in the Texas Court of Criminal Appeals.