McGee v. State

• Decision Date: 05 October 2006
• Docket Number: No. 11-05-00038-CR.,11-05-00038-CR.
• Citation: 210 S.W.3d 702
• Parties: Willie Marion McGEE, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

210 S.W.3d 702

Willie Marion McGEE, Appellant, v. STATE of Texas, Appellee.

No. 11-05-00038-CR.

Court of Appeals of Texas, Eastland.

October 5, 2006.

B.J. Brown, Odessa, for appellant.

R.N. (Bobby) Bland, Dist. Atty., J. Roderick Price, Asst. Dist. Atty, Ector County Dist. Atty's Office, Odessa, for appellee.

Panel consists of: WRIGHT, C.J., and McCALL, J., and HILL, J.¹

OPINION

JOHN G. HILL, Justice (Assigned).

Willie Marion McGee appeals his conviction by a jury of the offense of robbery. The jury, following McGee's plea of true to an enhancement paragraph, assessed his punishment at eleven years in the Texas Department of Criminal Justice, Institutional Division. He contends in four points of error that he was denied due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under Article I, section 19 of the Texas Constitution when the State lost or destroyed critical evidence and failed to notify the defense that it lost or destroyed critical evidence. We affirm.

Melissa Butts, a patrol officer with the Odessa Police Department, testified that she encountered the complainant in the parking lot of a Wal-Mart store. According to Officer Butts, the complainant related that someone came up and grabbed her purse, pushed her up against her car, and injured her left shoulder. Two witnesses identified McGee as an individual whom, on the occasion in question, they saw running through the parking lot carrying a purse.

Rick Henegar, a sergeant with the Odessa Police Department, testified that he was a detective at the time of this offense. He indicated that he went to Wal-Mart and reviewed a security tape from the evening in question. He stated that the tape did not show any faces and that it showed nothing other than a person running to a car and then leaving. He insisted that he did not know what happened to the tape. When he was asked whether the defense could perhaps have had the tape enhanced, he replied, "I don't know. I guess you could have." Later, he indicated that the tape was very poor quality, so he did not know if it could have been enhanced. Sergeant Henegar acknowledged that he knew about enhancement equipment and that a tape could be put on some other format and things brought out. He further acknowledged that, if the tape could have been enhanced, it could show whether McGee did or did not commit the offense. He insisted that he was not an expert in enhancing poor-quality tapes. He stated that in his opinion he would not think that the particular security tape in question could be made any clearer. McGee presented a motion for mistrial based on the State's failure to preserve the tape and its failure to disclose the existence of the tape.

McGee contends in point one that he was denied due process of law under the Fifth and Fourteenth Amendments of the United States Constitution due to lost or destroyed evidence. The tape in question was not shown to be exculpatory but, rather, evidence that was potentially exculpatory. Failure to preserve potentially useful evidence is not a denial of due process of law unless a criminal defendant can show bad faith on the part of the police. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Neither in his motion for mistrial, nor the discussion in connection with the motion, does McGee suggest that the State acted in bad faith in failing to preserve the tape. In support of his contention on appeal that Sergeant Henegar acted in bad faith, McGee notes that Sergeant Henegar did not preserve the tape as evidence; that he knew about enhancement but did not request it; that he knew the tape, even without a clear view of faces, could be used to establish the ability of witnesses to identify a suspect so that its value for impeaching identification witnesses was clear; that he destroyed his field notes and failed to mention the existence of the tape either in his reports or to the district attorney; and that no police procedures were cited in the destruction or disappearance of the tape.

The burden was on McGee to show that Sergeant Henegar acted in bad faith. He presented no evidence that Sergeant Henegar was not following police procedures in failing to preserve the tape, including any failure to maintain his field notes or to mention it to the district attorney, in view of Sergeant Henegar's determination that the tape was not useful as evidence. While Sergeant Henegar was aware of enhancement and what it might do in some cases, he expressed his opinion that it would not make the tape in question any clearer. McGee suggests that the tape would have been helpful in showing where the various witnesses were, the height of the complainant's assailant by comparison to the witnesses, and the length of time that the witnesses had to observe the assailant. Although Sergeant Henegar at trial acknowledged that the location of the witnesses, the distances they ran, and time "they disappeared off the camera" could be determined by the tape even though the faces were unclear, we hold that this evidence showed negligence, if any, on the part of the officer in failing to preserve the tape, not bad faith. Because we hold that McGee failed to show bad faith on the part of Sergeant Henegar, we overrule point one.

McGee urges in his second point of error that he was denied due process of law under the Fifth and Fourteenth Amendments of the United States Constitution when the State failed to notify him of the loss or destruction of critical evidence. In such a situation, the three-part test used to determine whether a prosecutor's actions have violated due process is whether the prosecutor (1) failed to disclose evidence (2) favorable to the accused and whether (3) the evidence is material, meaning there is a...