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Click here for the full text of this decision FACTS:Florencio Salazar Jr. appeals his conviction for possession of a deadly weapon in a penal institution. Salazar contends that the trial court erred by denying his motion to suppress evidence. According to Salazar, his due process rights were violated by law enforcement officers destroying potentially exculpatory evidence consisting of a videotape of the prison riot in which he was involved and upon which the charge against him was based. On July 2, 2003, Salazar was legally incarcerated at the Connally Unit in Kenedy, Texas. On that morning, he, along with other prisoners, left their cells to go to work. Salazar was strip-searched and no weapons were found. As the prisoners were going to work, a riot broke out, lasting about 30 minutes. According to Salazar, there was a picket in the area with a video camera that could record what was going on. And, Salazar contends, two officers were operating hand-held video cameras. During the riot, Salazar was stabbed in the lip. Although one of the officers said Salazar had a weapon, Salazar denied it. Salazar contends that at a disciplinary hearing that was held six days after the riot, he requested that the videotapes of the event be preserved. The state, however, produced no videotapes. Salazar believes that the videotapes would show that he was not in control of a deadly weapon. It is the practice of the Texas Department of Corrections to re-use videotapes so that events are taped over every 14 days. There is also an administrative directive in place that requires a crime scene to be protected by the preservation of evidence, including pictures and videos. The investigator testified that no videotapes were made available to her. It was the state’s position at trial that any videotapes that may have existed were simply taped over as a matter of routine. HOLDING:Affirmed. The state has a duty to preserve evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. A defendant must demonstrate the lost evidence is both favorable and material to his case. A showing that the lost evidence might have been favorable does not meet the materiality standard. In addition, the accused must show that the state acted in bad faith when it failed to preserve the evidence in order to show a violation of due process or due course of law. Arizona v. Youngblood, 488 U.S. 51 (1988). Salazar argues, however, that “courts have been moving away from [the Youngblood standard], finding that their own state constitutions provide stronger due process protections than those of the United States Constitution.” The Waco Court of Appeals, did so hold in Pena v. State, 166 S.W.3d 274 (Tex. App. Waco 2005, pet. granted). The Waco court held that because the Texas Constitution provides a greater level of protection than the U.S. Constitution, the trial court’s denial of the motion to suppress should be reversed and remanded, even though there was no evidence of bad faith on the part of law enforcement officials. The court declines, however, to follow the holding of the Waco court. As Justice Thomas Gray noted in his dissent in Pena, the Texas Supreme Court has consistently held the due course of law provision of the Texas Constitution and the due process clause of the U.S. Constitution to be equivalent. OPINION:Angelini, J.; Duncan, Angelini and Marion, JJ.

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