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Click here for the full text of this decision FACTS:Jose Pena was charged with possession of marijuana. Before trial, Pena requested an independent analysis of the evidence. Thereafter, it was discovered that the alleged marijuana had been destroyed, and all records documenting the testing of the evidence were lost, except a lab report. The trial court denied Pena’s motion to suppress the lab report, and Pena was convicted. HOLDING:Reversed and remanded. “Whether in cases involving contraband or those containing DNA evidence, it is clear that science is becoming increasingly capable of answering life or death questions with the alacrity of Caesar’s thumb. As a result, it is imperative that we consider the loss or destruction of evidence carefully. Therefore, because of the increasing reliance of law enforcement upon the advances of science, and because of the reasons articulated by the jurisdictions cited above, we join our sister states in rejecting Youngblood [Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed. 2d 281 (1988)] as persuasive when interpreting the due course clause of the Texas Constitution.” The court holds that, under the due course clause of the Texas Constitution, the state has a duty to preserve evidence that has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is potentially useful to the defense. In either case, the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. In the case of the loss or destruction of exculpatory evidence, due process requires that the consequences of such a breach be a dismissal of the state’s case. Conversely, the loss of potentially useful evidence requires a consideration of several factors to determine what consequences, if any, should flow from such a breach. Keeping in mind the central objective of protecting the defendant’s right to a fundamentally fair trial, the court directs trial courts to consider: 1. the degree of negligence involved; 2. the significance of the destroyed evidence considered in light of the probative value and reliability of secondary evidence that remains available; and 3. the sufficiency of the other evidence used at trial to support the conviction. If after considering these factors, the trial court concludes that a trial without the missing evidence would be fundamentally unfair, the court may then determine the appropriate measures needed to protect the defendants rights. OPINION:Reyna, J. Before Gray, C.J.,Vance and Reyna, JJ. Gray, C.J., dissents.

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