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Click here for the full text of this decision FACTS:N.M., the 14-year-old victim, testified that she was standing alone on the street corner near her home in Bryan around 8 a.m., waiting on the school bus. A black four-door car drove up right next to her and stopped; it had driven by a minute before and the driver had looked at her. When the car stopped, N.M. felt uncomfortable, and when she looked to see why the car was not driving off, she saw that the driver’s pants were unzipped, his penis was exposed and he was masturbating while looking at her. She could not get to her house because of where the car was stopped, so she looked away. A couple of minutes later, her sister came out and yelled “hi,” but N.M. was too afraid to scream. As the car left, N.M. got its license plate number and went home, called 9-1-1, and told the operator the license plate number. Kelly Davis, a police officer, came to N.M.’s home and took a report, and N.M. provided a written statement. Davis described N.M. as visibly shaken and scared. N.M.’s sister described her after the incident as “really shaking” with watery eyes, as if N.M. had been crying or was about to cry. Davis learned that the car, a black Cadillac, was registered to Don Terrell’s mother-in-law and that it was being driven by her daughter (Terrell’s wife). Davis then went to Terrell’s house and located the car; its hood was warm to the touch. Davis knocked on the door, but no one answered. She returned to the station to have a photo lineup created, and while she was writing her report, Terrell showed up. Detective Neveu interviewed Terrell and recorded the interview with audiotape and videotape. Davis watched and listened to the interview by way of a television monitor; Terrell did not know that he was being recorded or that Davis was watching and listening. Later, Davis could not locate either tape and she did not know what happened to them. Later that day, Davis and Neveu took a tape-recorded statement from N.M. during which she identified Terrell as the driver from a photo lineup. Davis could not locate that audiotape either. Authorities charged and convicted Don Terrell with indecency with a child, sentencing him to 13 years in prison. He appealed. HOLDING:Affirmed. Terrell’s first issue contended that the trial court erred in denying his motion to dismiss, because the state’s failure to preserve the audiotape and videotape of Terrell’s police interview and the audiotape of the victim’s police interview violated his due course of law rights under Texas Constitution Art. I, �19. The 10th Court of Appeals noted its recent holding that the Texas Constitution’s due course of law provision “provides a greater level of protection than the due process clause of the [U.S. Constitution's] Fourteenth Amendment and that, under it, ‘the State has a duty to preserve material evidence which has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is potentially useful to the defense.’” Under the 10th Court’s 2007 opinion Pena v. State, trial courts must weigh three questions to decide whether the state’s failure to preserve potentially exculpatory evidence violated a defendant’s state constitutional due process rights. Would the evidence have been subject to discovery or disclosure? If so, did the state have a duty to preserve the evidence? And, if there was a duty to preserve the evidence in question, was that duty breached and what consequences should flow from the breach? The first two Pena factors, the court stated, are not in dispute. The tapes were subject to disclosure and the state failed to preserve them. Thus, the court turned to the third factor to determine what consequences should flow from the state’s failure to preserve the tapes. The significance of Terrell’s interview, the court stated, is minor, because Davis testified to its key exculpatory information: that Terrell had come to the police station to clear his name and had denied committing the offense. Also, Terrell’s employer corroborated that facet; he said that on the occasion Terrell went to the police station, Terrell told him he needed to leave work and take care of an emergency because some people were spreading some untrue rumors about him. As for the lost tape of the interview of N.M. in which she identified Terrell in a photo lineup, the court stated that that evidence was potentially significant, but the fact that Terrell’s attorney adequately and effectively cross-examined N.M., impeaching her in several key areas, tempered the evidence’s significance. Thus, on the element of the importance of the missing tapes, the court found that it weighed neither in favor of nor against a due course of law violation. In this case, the court found that N.M.’s testimony alone was sufficient to support Terrell’s conviction. The missing tapes were not critical to whether the state could establish Terrell’s guilt beyond a reasonable doubt. This element, the court stated, also weighed against a due course of law violation. Thus, the court stated that overall it found little, if any, impairment to the defense caused by the state’s mistake or negligence. The court held that the failure to preserve the tapes did not violate Terrell’s due course of law rights. In his second issue, the court stated, Terrell asserted that legally insufficient evidence supported the trial court’s “true” finding on the enhancement paragraph. At punishment, the state introduced, without objection, a penitentiary packet containing Terrell’s fingerprints and a judgment for Terrell’s 1982 “aggravated rape” conviction. Terrell did not argue that the pen packet was inadmissible; rather, he contended that he was not required to do anything further, because the pen packet affirmatively showed on its face that his age was 16 at the time of the offense. The court stated that to attack the enhancement paragraph, he must “show was that there was no order transferring him from juvenile court to district court.” Thus, because the state made a prima facie showing of Terrell’s prior conviction, the court found legally sufficient evidence to support the trial court’s finding. OPINION:Vance, J.; Vance and Reyna, J.J. CONCURRENCE:Gray, C.J. “Don Terrell appeals his conviction for the offense of indecency with a child. . . . He was sentenced to 13 years in prison. Because the trial court did not err in denying Terrell’s motion to dismiss based on the State’s loss of evidence and because the evidence was legally sufficient to support the trial court’s finding of the enhancement paragraph to be true, I agree the judgment should be affirmed.”

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