GARY YOUNG, FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01203-CR
NO. 05-88-01204-CR
 
GARY YOUNG, FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES McCLUNG, THOMAS AND OVARD
OPINION PER CURIAM
JUNE 20, 1989
        Gary Young appeals his conviction for driving while intoxicated, in which punishment was assessed at 180 days' confinement and a fine of $500, probated for two years, and his conviction for evading arrest, in which the court assessed punishment at 180 days' confinement and a fine of $500, probated for 180 days. In his sole point of error, appellant contends that the trial court erred in overruling his motion for acquittal on the ground that a post-arrest videotape of appellant had been destroyed. We disagree; accordingly, we affirm.
         After Dallas Police Officer Wood arrested appellant, he transported him to the intoxilyzer room at the Lew Sterrett Justice Center. A videotape of appellant was made; Officer Wood was present during the taping. When the videotape operator opened the door of the video room, appellant walked out quickly and went to the right. Officer Wood immediately followed because he wanted appellant to go to the left to the book-in table and because he could not let appellant wander around the jail unescorted.
        Appellant was booked in and Officer Wood went to make his report over the telephone. He then realized that he did not have the videotape. He checked the area, but could not locate the tape. Officer Wood testified that it was possible that the tape was used again, because when he went back to the video room, the operator was already in session with someone else. He had the operator check to see if appellant's interview was on the videotapes of two people tested after appellant, but nothing was found.
        Officer Wood testified that he never had the videotape in his hand. He could not say what had happened to the tape. He did not believe that appellant had taken the tape, but he did believe it was appellant's fault that the tape was missing because if he had not had to follow appellant from the videotaping room he would have had time to retrieve the tape.
        Officer Wood testified further that when appellant was arrested appellant had good control of his communication skills and that his speech was not impaired. He stated, however, that appellant had poor balance and had difficulty standing and walking. Officer Wood affirmed that while appellant was on videotape he exhibited a good speech pattern and that, from the speech pattern exhibited, it did not appear that appellant was intoxicated. He testified further that he had appellant move around while being videotaped.
        In his sole point of error, appellant contends that he was entitled to an acquittal because of the State's intentional destruction of evidence favorable to him. He argues that a good faith attempt to produce a videotape is a prerequisite to a conviction for driving while intoxicated because "anything less would amount to a suppression of evidence by the State and a violation of appellant's right to due process."
        State statute provides that each county with a population of 25,000 or more shall provide videotaping equipment and shall videotape persons arrested for driving while intoxicated. Act of June 16, 1983, ch. 303, § 24, 1983 Tex. Gen. Laws 1568, 1605. The statute further provides as the sole sanction for the failure to videotape that the fact of the failure itself may be admitted into evidence at trial. Id. at § 24(c). Dismissal is not required for failure to videotape a defendant. Green v. State, 745 S.W.2d 477, 478 (Tex. App.--Corpus Christi 1988, pet. ref'd); Maddox v. State, 705 S.W.2d 739, 740-41 (Tex. App.--Houston [1st Dist.] 1986, pet. granted). We conclude that if dismissal or acquittal is not required when a videotape is unavailable because the police failed to record a defendant as the statute requires, then dismissal or acquittal is not required when a videotape is unavailable because of the inadvertent loss or destruction of the tape.
        Appellant further urges that the loss of the videotape constitutes suppression of evidence favorable to him in violation of Brady v. Maryland, 373 U.S. 83 (1963). In order to prove a violation of the Brady rule, the defendant must prove (1) the prosecution suppressed evidence, (2) the suppressed evidence was favorable to the defense, and (3) the suppressed evidence was material to the defense. Rector v. State, 738 S.W.2d 235, 244-45 (Tex. Crim. App. 1986); Richardson v. State, 753 S.W.2d 759, 768 (Tex. App.--Dallas 1988, no pet.). Appellant cannot establish the first prong of the Brady test. The record does not establish that the prosecution suppressed evidence, only that the prosecution lost evidence. Thus, there is no Brady violation. See United States v. Lassiter, 819 F.2d 84, 86 (5th Cir. 1987).
        In his brief addressed to cause numbers 05-88-01203-CR, driving while intoxicated, and 05-88-1204-CR, evading arrest, appellant presents no claim of error in the evading arrest conviction. We note that our examination of the record in cause number 05-88-01204-CR does not disclose any fundmental error.
        We overrule appellant's sole point of error and affirm the judgments of the trial court.
                                                          PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01203.F
88-01204.F
 
 
File Date[01-02-89]
File Name[881204]