g*f5-l5
FORM 90A. 100.1 Petition for Discretionary Review
NO.03-13-00371-CR ORIGINAL
IN THE
COURT OF CRIMINAL
APPEALS /
OF TEXAS
DOUGLAS FARIRAYI RECEIVED IH
COURT OF CRIMINAL APPEALS
Petitioner JUL 10 2015
v.
THE STATE OF TEXAS Abel Acosfca, Clerk
Petition in Cause No. 03-13-00371-CR from the
THIRD Court of APPEALS_TRAVIS County, Texas and FILED M
the Court of Appeals for the
THIRD District of Texas
COURT OF CRIMINAL APPEALS
JUL 10 2015
PETITION FOR DISCRETIONARY REVIEW
Abel Acosta, Clerk
DOUGLAS FARIRAYI
_2619 FM 3158
512-663-8427
[State Bar identification number]
ATTORNEY FOR PETITIONER
SHANNON HOOKS
TABLE OF CONTENTS
Index of Page
Authorities
Statement Regarding Oral Page
Argument
Statement of the Page
Case
Statement of Procedural Page
History
Ground for Review Page
[Summarize, e.g., The trial court erred in refusing to Page
grant the petitioner's requested instruction on the right
to remain silent at trial.]
Reason for Review Page
Prayer for Relief Page
Appendix Page
INDEX OF AUTHORITIES
CASE LAW
[List cases in alphabetical order and each page on which the case appears. ]
CONSTITUTIONS
[List United States Constitution first and Texas Constitution second. List specific
constitutional references in numerical order. List the pages on which the authorities are
cited.]
STATUTES AND RULES
[List federal statutes first, followed by Code of Criminal Procedure, Penal Code, Revised Civil
Statutes, Texas Rules of Criminal Evidence, and Texas Rules of Appellate Procedure. List
statutes in numerical order. List the pages on which the authorities are cited.]
TEXTS
[List texts in alphabetical order. List the pages on which the authorities are cited.]
NO. _03-13-00371-CR
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
Petitioner
v.
THE STATE OF TEXAS
Petition in Cause No.03-13-00371-CR from the
THIRD Court of APPEALS County, Texas and
the Court of Appeals for the third court of appeals
Supreme Judicial District of Texas
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:
DOUGLAS FARIRAYI, petitions the Court to review the judgment affirming HIS[his or her]
conviction for_DRIVING WHILE INTOXICATED [offense] in Cause No. _03-13-00371-CR.
STATEMENT REGARDING ORAL ARGUMENT
[Set forth reasons why oral argument would be helpful if petition granted, e.g., The ground
for review set forth in this petition concerns the conflicting opinions of different courts of
appeals on the same point of law, and oral argument would be helpful to the Court in
distinguishing these authorities and arriving at the approach that is consistent with prior
opinions of this Court].
STATEMENT OF THE CASE
DRIVING WHILE INTOXICATED., The petitioner was convicted by a jury of the offense of
DRIVING WHILE INTOXICATED of guilty; the punishment was assessed by the jury at
NINETY DAYSIN PRISON AND EIGHT YEARS OF COMMUNITY SERVICE. This conviction was
affirmed by the Court of Appeals for the THIRD DISTRICT OF APPEALS District on _23rd June
23rd JUNE,2015
GROUND FOR REVIEW
The court of appeals did not consider the deletion of the video as harmful to my case
.Actualy it did harm my case because the Jury did not get to understand why I was shaking
in the video ,Reasons tied to my medical condition.
REASON FOR REVIEW
The Officer made the Jury believe I was so drunk that I could not open my drivers side
window.That is not true.I opened the moon roof and told him my window was broken.I
bought the vehicle with a defected window.I have the address for the previous owner and
he can witness that.
When I was stopped by the Officer I told him that I have a health condition that makes me
shake and sweat very badly at times.I also told him it is not because I am drunk.I went
ahead and told him that the same thing happened in 1994 when I was stopped by a
policeman because of a bad headlight.I started shaking and sweating badly .1 failed the
sobriety test and I was taken to the Police station.Tests were done and I was told I was
drunk.As I argued that I wasn't,One officer came from the background and told me I was
not drunk.He took me to the car pound and released my car at no cost to me.He told me he
was just doing his job.
Officer claims that I was driving on the other side of the road.That is not true .1 dogged an
object in the road by quickly crossing the yellow line and went back to my lane quickly.
In the video the Officer asked if I was from Nigeria?I knew what he was saying.When I was
getting into the patrol car He mentioned you fuckin Nigerian.I knew what he was saying.
Mrs Kelly Gler My procecutor is the one I heard whispering to the policeman that she
deleted the parts of the video where I was telling the officer about my health condition as
well as my previous encounter with a policeman who suspected I was drunk.
All what was deleted from the video is all I wanted to testify and let the jury have a clear
understanding.I ended up with nothing to say much because all the above had been
deleted.
I am asking for an re-trial so that the Jury can judge this case fairly .
PRAYER FOR RELIEF
For the reason herein alleged, the petitioner was denied a fair trial in Cause No. 03-03-03_
03-13-00371-CR Therefore, petitioner prays this Court grant this petition, and upon
reviewing the judgment entered below, reverse this cause and remand it for a new trial.
RespectfuNy submitted,
_[signature]
DOUGLAS FARIRAYI
2619 FM 3158 DALE TEXAS 78616
512-376-3249
_[State Bar identification number] Attorney for Petitioner
APPENDIX
_[Copies of any opinions delivered by court of appeals on rendering
judgment for which discretionary review is sought]
CERTIFICATE OF SERVICE
This is to certify that copies of the above-entitled and numbered petition for review have
been served on both the District Attorney of County, Texas, and the State
Prosecuting Attorney, by delivery of a true copy to them in person
on the 1 day of , or by
mail, by depositing same, postpaid, in an official depository under the care and custody of
the United States Postal Service on the day of
^ , enclosed in a wrapper properly addressed
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00371-CR
Douglas Farirayi, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-l-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 oftraffic "[f]or
at least three blocks" before it returned to the correct lanes of traffic. After observing appellant at
1 Becausethe 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 decisionand
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 ofblood." 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
overheadlights until the vehiclehad crossedback into the correct lanes of traffic"so there was no
recording of [appellant] being over in the oncoming lanes."
Appellant's defensive theoryat trialwas thathe wasnot intoxicated, and he testified
in his own defense. Accordingto 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 overintothe oncoming lanes oftraffic wasbecause he "saw anobjectin theroad,
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.
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
issueunder the framework ofBrady v. Maryland, 373 U.S. 83 (1963).3 But the standardconcerning
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 "potentiallyuseful evidence" does not constitute a denial of due processunless
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 distinctiondrawnby United States Supreme Court between "material
exculpatory evidence" and "potentially useful evidence").
3 Underthe framework ofBrady, "the suppression by theprosecution of evidence favorable
to a defendant violates dueprocess,if the evidence is material eitherto guiltor punishment, without
regard tothe good orbad faith ofthe prosecution." Harm v. State, 183 S.W.3d 403,406 (Tex. Crim.
App. 2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
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 admittedduringhis testimony that his vehicle crossed
into the oncoming traffic lanes.
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. SeeJonesv. State, 437 S.W.3d536,540^-1 (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