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Click here for the full text of this decision FACTS:Melissa Butts, a patrol officer with the Odessa Police Department, testified that she investigated a robbery in the parking lot of a Wal-Mart store. According to Butts, the victim related that someone came up and grabbed her purse, pushed her up against her car and injured her left shoulder. Two witnesses identified Willie Marion McGee as the individual whom they saw running through the parking lot carrying a purse. Rick Henegar, a sergeant with the Odessa Police Department, 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. The jury, following McGee’s plea of true to an enhancement paragraph, assessed his punishment at 11 years in prison. McGee appealed, contending in four points of error that he was denied due process of law under the Fifth and 14th Amendments to the U.S. Constitution and under Article I, �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. HOLDING:Affirmed. McGee argued that he was denied due process of law under the Fifth and 14th Amendments of the U.S. Constitution due to lost or destroyed evidence. The tape in question was not shown to be exculpatory but, rather, evidence that was potentially exculpatory. The court cited precedent stating that 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 (1988). Neither in his motion for mistrial nor in the discussion in connection with the motion does McGee suggest that the state acted in bad faith in failing to preserve the tape, the court noted. McGee, the court stated, presented no evidence that Henegar was not following police procedures in failing to preserve the tape. While 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 victim’s assailant by comparison to the witnesses, and the length of time that the witnesses had to observe the assailant. Although Henegar acknowledged at trial that the location of the witnesses, the distances they ran and time “they disappeared off the camera” could be determined by the tape, the court held that this evidence perhaps showed negligence on the part of the officer in failing to preserve the tape, but not bad faith. McGee argued that he was denied due process of law under the Fifth and 14th Amendments of the U.S. Constitution when the state failed to notify him of the loss or destruction of critical evidence. The court cited a multi-prong test used to determine whether a prosecutor’s actions violate due process in such cases. The test: whether the prosecutor failed to disclose evidence favorable to the accused and whether the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Inasmuch, the court stated, as there was no showing that the tape in question was favorable to the accused or that there was a reasonable probability that the result could have been different had the evidence been disclosed to the defense, it overruled McGee’s point of error regarding the state’s failure to notify. The court dismissed a similar argument based on due process protections in the Texas Constitution. OPINION:Hill, J.; Wright, C.J., and McCall and Hill, J.J.

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