Porter, James v. State ( 2003 )

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed July 3, 2003.                                                      

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00817-CR 

____________

JAMES PORTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 898,709

M E M O R A N D U M   O P I N I O N

            Appellant was charged by indictment with delivery of less than one gram of cocaine.[1]  After the trial court denied his motion to dismiss, appellant entered a plea of no contest pursuant to a plea agreement.[2]  The trial court assessed punishment at six years’ confinement. 

Appellant and two passengers in his car were arrested after delivering crack cocaine to undercover officers. Upon arrest, the ten-dollar bill used in the transaction (whose serial number had been recorded by the officers) was found around appellant’s finger.  The State did not retain the bill as evidence, pursuant to a policy to retain records of serial numbers of bills used in such cases, but not the bills themselves.  Appellant moved to dismiss because the State could not produce the bill for inspection. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm appellant’s conviction.  See Tex. R. App. P. 47.1.

            Generally, the mere failure to preserve evidence is not a denial of due process. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988); Burke v. State, 930 S.W.2d 230, 236 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).  In order to show that denial of due process occurred when evidence was lost, a defendant must show the evidence was (1) material; (2) favorable to the defense; and (3) destroyed in bad faith by the State.  See Burke, 930 S.W.2d at 236.  Here, appellant provides no evidence the State acted in bad faith.  Moreover, even if he had, he argues only that the ten-dollar bill could have been exculpatory if it failed to show it had been rolled around something.  This is pure speculation; it does not meet the materiality standard.  Id. 

In sum, appellant has not shown bad faith or that the evidence was favorable and material. Consequently, we overrule his only issue.

The judgment is affirmed.

/s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Memorandum Opinion filed July 3, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant’s indictment was enhanced with prior felony convictions for aggravated assault and possession of a controlled substance.

[2] Appellant’s plea agreement waived his right to appeal anything except the issue presented herein.