## NUMBER 13 -23-00054- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

THE STATE OF TEXAS

, Appellant,

v.

JUAN VILLARREAL

, Appellee.

ON APPEAL FROM THE 148TH DISTRICT COURT

OF NUECES COUNTY, TEXAS



## MEMORANDUM OPINION

Before Justices Longoria, Silva, and Pe ña

Memorandum Opinion by Justice Silva

Appellee, Juan Villarreal, was charged with fourteen counts of sexual assault. See

T EX

. P ENAL C ODE A NN . § 22.011(a)(1). Villarreal sought and was granted dismissal based2 on spoliation of the evidence and violation of article 2.1397. 1 See T EX

. C ODE C RIM

. P ROC

.

A NN

. art. 2.1397. By a single issue, t he State argues the trial court erred in dismissing the

indictment. We reverse and remand.

I. B ACKGROUND

In 2019

, the Nueces County District Attorney ’ s Office re

- indicted Villarreal

, a local

physician, for allegedly penetrating

, without consent, the female sexual organ of fourteen

former patients. 2 Following multiple motions for continuances by both parties, o n August

3, 2022, Villarreal filed a “ Motion to Disclose and Designate Lost Evidence and Request

for Hearing, ” alleging :

Defense counsel became aware, through a source, that the Nueces County

District Attorney ’ s Office was missing [two] boxes of evidence in this case.

The District Attorney ’ s [O] ffice was well aware they were missing such

evidence but did not disclose this to defense counsel at any time before

this, and only recently disclosed this when confronted by the defense.

In the hearing that followed, prosecutor Will Greenlee 3 acknowledged he learned of the

lost evidence on June 30, 2022, when he was first assigned to the case . O ver the course

of a month, Greenlee conducted a search of the office and its warehouse

, and following

attempts to recreate the entire case file with the assistance of local law enforcement

, the

State was unaware of what evidence remain ed lost

.

O n January 27, 2023, Villarreal filed the motion which forms the basis of this

1 Ahead of the trial court’s issuance of its dismissal order, the State dismissed counts six, seven,

eight, twelve, and fourteen of the indictment, citing the lapsed statute of limitations as cause.

2 Villarreal was initially indicted in late 2018; the indi ctment was amended in 2019 to add

complainants.

3 Prior to Will Greenlee ’ s assignment, there were at least six different prosecutors who were either

named in or created user generated entries in the Nueces County District Attorney ’ s O ffice case notes

system or appeared in prior court hearings on this cause.3 appeal : “Motion to Dismiss Based on Spoliation of Evidence and Violation of Chapter 2,

T[exas] C[ode of] C[riminal] P[rocedure] A[rticle] 2.1397, The Richard Miles Act .” Villarreal

argue d that the State and law enforcement violated article 2.1397 ( the Richard Miles Act),

article 39.14 (the Michael Morton Act), 4 and Brady by “ intentionally, negligently [,] or

recklessly destroy [ing] at least potentially exculpatory and mitigating evidence in this

matter, ” and therefore, dismissal with prejudice is the appropriate remedy. See Brady v.

Maryland

, 373 U.S. 83, 87 (1963); see also T EX

. C ODE C RIM

. P ROC

. A NN

. arts. 2.1397,

39.14

.

On February 6, 2023, the trial court held a hearing on Villarreal ’s motion. No

witnesses were called

, 5 and t he following defense exhibits were admitted: (1) the Nueces

County District Attorney ’s O ffice case notes for this cause

, which includes all entries by

prosecutors or staff made in this case; (2) an email between Greenlee and Corpus Christi

Police Department (CCPD) Detective Charla Hemerly

, wherein Greenlee requests the

recreation of the case file and Detective Hemerly informs Greenlee that certain videos f or

this case are “ no longer available as the retention period has expired ”; (3) an order

denying the dismissal of an indictment in an unrelated cause against an unrelated

defendant

, which included a written finding that alt hough “ there was credible evidence of

gross incompetence, negligence [,] and/or carelessness on the part of the Nueces County

4 W e independently address Villarreal’s article 39.14 claim supra but not e that Villarreal brought a

separate “Motion to Dismiss for Failure to Provide a Speedy Trial and Failure to Comply with the Michael

Morton Act” for which no ruling was obtained.

5 A different judge presided over the hearing on Villarreal ’s “ Motion to Dismiss Based on Spoliation

of Evidence and Violation of Chapter 2, T[exas] C[ode of] C[riminal] P[rocedure] A[rticle] 2 .1397, The

Richard Miles Act ” than had presided over the hearing on Villarreal ’s “ Motion to Disclose and Designate

Lost Evidence and Request for Hearing. ” Villarreal ’s counsel provided the trial court with the transcript of

the prior hearing

, where in witnesses had testified

.4 District Attorney ’s Office[,] . . . such misconduct does not rise to the level requiring the

dismissal ” of the indictments

, and there was no evidence presented of “ intentional or

knowing misconduct on the part of the State ”; (4) CCPD Detective J ulio Ramos ’s

affidavit s of discovery compliance signed in July 31, 2018 and July 2, 2019 ; and (5 ) an

email exchange between Greenlee and Detective Ramos in August 2022

, regarding the

State’s search for all evidence related to this case.

Villarreal argued that the State fail ed to keep an accounting of its evidence, and

as evidence of bad faith, Villarreal pointed to the State ’s failure to timely disclose that the

evidence had been lost and the State ’s persistence in prosecuting the charges. The State

countered that it had opted, pursuant to office policy

, to conduct an internal search for the

lost evidence before immediately notifying Villarreal . According to the State, any delay in

notifying Villarreal was reasonable in that the State wanted to be certain that evidence

was, in fact, lost and could no longer be replicated

. At the hearing, t he State maintained

that Villarreal had previously been provided discovery , which Villarreal does not dispute;

the State wa s unaware if Villarreal possesse d evidence provided by the State that is no

longer in possession of the State; and all evidence in the State’s possession to

- date had

been provided to Villarreal.

T he trial court granted Villarreal’s motion to dismiss the case with prejudice

, 6 and

this appeal ensued. See T EX

. C ODE C RIM

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. A NN

. art. 44.01(a)(1) (allowing the State

to appeal a trial court order that dismisses an indictment, information, or complaint).

6 No written findings accompanied the trial court ’s dismissal order.5 II. M OTION TO D ISMISS

By a single issue, the State argues the trial court erred in granting Villarreal ’s

motion to dismiss predicated on spol i ation and an alleged violation of article 2.1397

. See

id. art s. 2.1397 , 39.14

.

A. Standard of Review and Applicable Law

“[T] he dismissal of an indictment is a drastic measure only to be used in the most

extraordinary circumstances. ” State v. Hill

, 499 S.W.3d 853, 872 n.69 (Tex. Crim. App.

2016). Generally, a trial court lacks authority to dismiss a case without the State ’s

consent, and a trial court has no inherent power to dismiss a prosecution. State v. Mungia

,

119 S.W.3d 814, 816 (Tex. Crim. App. 2003); see also State v. Garcia

, No. 13

- 21

- 00404

-

CR, 2022 WL 3452413, at *3 (Tex. App.

— Corpus Christi

– Edinburg Aug. 18, 2022, no

pet.) (mem. op., not designated for publication)

. The Texas Court of Criminal Appeals has

established limited exceptions for dismissal without prosecutorial consent, including

“ when a defendant is denied a right to speedy trial, when there is a defect in the charging

instrument, when necessary to remedy certain Sixth Amendment violations, or when a

defendant is detained without a charging instrument in violation of article 32.01 of the

Texas Code of Criminal Procedure. ” State v. Villaloboz

, 658 S.W.3d 320, 326 (Tex.

App.

— El Paso 2022, pet. ref ’ d) ; see Mungia , 119 S.W.3d at 816

. However, trial courts

are not limited to these delineated exceptions. Mungia

, 119 S.W.3d at 816. “ [A]lthough a

particular constitutional violation has not yet been recognized as a basis for a trial court

to dismiss a charging instrument, this does not preclude a trial court from having authority

to dismiss on that ground. ” Id. at 817.6 When reviewing a trial court ’s decision on a motion to dismiss

, we give almost total

deference to the trial court ’s fact findings that are supported by the record

. See State v.

Krizan

– Wilson

, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011); State v. Fellows

, 471

S.W.3d 555, 561 (Tex. App.

— Corpus Christi

– Edinburg 2015, pet. ref ’ d)

. For pure

questions of law or mixed questions that do not depend on credibility determinations, our

review is de novo. See Krizan

– Wilson

, 354 S.W.3d at 815 ; Fellows

, 471 S.W.3d at 561.

B. Spoliation

We first address the State’s contention that Villarreal failed to show evidence of

bad faith as necessary to prevail on his spoliation challenge.

“ Spoliation concerns the loss or destruction of evidence. ” Guzman v. State

, 539

S.W.3d 394, 401 (Tex. App.

— Houston [1st Dist.] 2017, pet. ref ’ d) (citing Torres v. State

,

371 S.W.3d 317, 319 (Tex. App.

— Houston [1st Dist.] 2012, pet. ref ’ d)). In the context of

a criminal proceeding, there is a distinction between how we view evidence in the

government ’s possess ion and that which the government no longer possesses—

including evidence which the government no longer possesses because it has been lost

or destroyed

. Fellows

, 471 S.W.3d at 562 ; see Arizona v. Youngblood

, 488 U.S. 51, 55

(1988); Brady

, 373 U.S. at 87. Brady addresses the former while the latter is governed by

Youngblood

. Fellows

, 471 S.W.3d at 562; see Garcia v. State

, 592 S.W.3d 590, 600

– 01

(Tex. App.

— Eastland 2019, no pet.) (“ Although courts occasionally blur the distinction

between Youngblood and Brady

, Youngblood is properly applied to cases in which the

government no longer possesses the disputed evidence, whereas Brady is properly

applied to cases in which exculpatory evidence remains in the government ’s possession. ”7 (quoting Moody v. State

, 551 S.W. 3d 167, 170

– 71 (Tex. App.

— Fort Worth 2017, no

pet.))) ; see also McVay v. State

, No. 01

- 19

- 00480

- CR, 2020 WL 7391556, at *3 (Tex.

App.

— Houston [1st Dist.] Dec. 17, 2020, pet. ref ’ d) (mem. op., not designated for

publication) (“ The Court of Criminal Appeals has held that Youngblood

, and not Brady

, is

properly applied in cases in which the government no longer possesses the disputed

evidence ” ). To satisfy the standard enunciated in Youngblood

, a defendant has the

burden of demonstrating that the State or its actors lost or destroyed the evidence and

did so in bad faith

. 7 See Youngblood

, 488 U.S. at 58 (“ We therefore hold that unless a

criminal defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute a denial of due process of law. ” ); Guzman

,

539 S.W.3d at 401; see also State v. Tooley

, No. 07

- 21

- 00103

- CR, 2021 WL 4282632,

at *1 (Tex. App.

—Amarillo Sept. 21, 2021, pet. ref ’ d) (mem. op., not designated for

publication)

.

Significant effort has been expended trying to determine the meaning of “ bad faith. ”

See Ex parte Napper

, 322 S.W.3d 202, 231 (Tex. Crim. App. 2010). “‘ Bad faith ’ is more

than simply being aware that one ’s action or inaction could result in the loss ” of evidence.

See id. at 238. “ [B]ad faith entails some sort of improper motive, such as personal animus

7 Although Villarreal invokes Brady in his motion, Villarreal’s complaint is more properly considered

under Youngblood because it is uncontroverted that the State does not possess the desired evidence. See

State v. Fellows , 471 S.W.3d 555, 562 (Tex. App.

— Corpus Christi

– Edinburg 2015, pet. re f’d) ; Rodriguez

v. State , 491 S.W.3d 18, 31 (Tex. App.

— Houston [1st Dist.] 2016, pet. ref’d) (treating a Brady claim about

a lost video as a Youngblood claim); see also Greco v. State , No. 02

- 19

- 00383

- CR, 2021 WL 3557041, at

*2

– 3 (Tex. App.

— Fort Worth Aug. 12, 2021, no pet.) (mem. op., not designated for publication) (same);

Hosey v. State , No. 13

- 17

- 00121

- CR, 2018 WL 1755822, at *3 (Tex. App.

— Corpus Christi

– Edinburg Apr.

12, 2018, no pet.) (mem. op., not designated for publication) (same). Thus, Villarreal was required to

demonstrate that the State acted in bad faith. See Fellows , 471 S.W.3d at 562; see also Arizona v.

Youngblood , 488 U.S. 51, 58 (1988).8 against the defendant or a desire to prevent the defendant from obtaining evidence that

might be useful. ” Id. A showing of gross negligence or poor judgment does not qualify as

bad faith. See Youngblood

, 488 U.S. at 58 ; see also Payne v. State

, No. 11

- 19

- 00298

-

CR, 2021 WL 4998788, at *6 (Tex. App.

— Eastland Oct. 28, 2021, pet. ref ’ d) (mem. op.,

not designated for publication) (“ Misjudgment is not bad faith .”); Cadriel v. State

, No. 13

-

14

- 00137

- CR, 2015 WL 5634421, at *10 (Tex. App.

— Corpus Christi

– Edinburg Sept. 24,

2015, pet. ref ’ d) (mem. op., not designated for publication) (“ [A] showing of negligence on

the part of the police or the government is not equivalent to bad faith. ” ).

As evidence of bad faith here

, Villarreal argue d that the State failed to properly

maintain its case management system, which resulted in the intentional, negligent, or

reckless loss or destruction of evidence. The State ’s inability to maintain a proper case

management system and find evidence

— however problematic

— is not evidence of bad

faith where it remains undisputed that the State does not know what happened to the lost

evidence

. See Villarreal v. State

, 504 S.W.3d 494, 521 (Tex. App.

— Corpus Christi

–

Edinburg 2016, pet. ref ’ d) (“ [T]he record shows that the State did not know what happened

to the video statement. And a showing of negligence on the part of the police or the

government is not equivalent to bad faith. ” ); see also State v. Lausch

, 651 S.W.3d 546,

559 (Tex. App.

— Houston [14th Dist.] 2022, pet. ref ’ d) ( concluding that testimony by law

enforcement that they searched for a missing written statement but could not find it and

did not know what happened to it was insufficient evidence of bad faith ); McVay

, 2020

WL 7391556, at *3 (concluding defendant had “ presented no evidence establishing that

the State or law enforcement failed to preserve the footage in bad faith ” where an officer9 testified “ that he did not know appellant personally, had had no personal dealings with

him, and held no grudge against him ” ); Sanchez v. State

, No. 13

- 16

- 00681

- CR, 2019 WL

5076508, at *10 (Tex. App.

— Corpus Christi

– Edinburg Oct. 10, 2019, no pet.) (mem. op.,

not designated for publication) (concluding no bad faith was shown where audio

recordings of interviews were unable to be located after a computer had been “ wiped

out ” ). Moreover, there was no evidence that establishes the State or any of its actors

specifically knew the nature of the missing evidence

— i.e., that the evidence was

favorable to Villarreal

— thereby indicating a possible improper motive

. See Villarreal

, 504

S.W.3d at 521 (considering whether the defendant had shown the State was aware the

lost evidence was potentially exculpatory or “ in any way favorable and material ” in its bad

faith analysis and concluding “ that the lost evidence might have been favorable is not an

affirmative showing that the evidence was favorable and material ”) (emphasis added)

.

Evidence of Greenlee ’s undisputed delay in notifying Villarreal that the State had lost the

evidence in the case is equally unavailing . G reenlee’s delayed disclosure neither resulted

in the loss or destruction of evidence

, see Napper , 322 S.W.3d at 238, nor is it exemplary

of evidence of improper motive

. See Villarreal , 504 S.W.3d at 521.

Absent evidence of bad faith, the trial court erred in granting a dismissal on this

basis. See Youngblood

, 488 U.S. at 58 ; Lausch

, 651 S.W.3d at 559.

C. Article 2.1397

Villarreal additionally argue d the State ’s noncompliance with article 2. 1397

necessitate d the dismissal of charges. The State asserts on appeal as it did before the

trial court: no such remedy exists under article 2.1397.10 Texas Code of Criminal Procedure article 2.1397 places an affirmative duty on the

law enforcement agency that files a case with a prosecuting office to produce all

information that would be required to be produced pursuant to article 39.14(a) . T EX

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C RIM

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. art. 2.1397. The article reads in its entirety as follows:

(a) In this article:

(1) “ Attorney representing the state ” means an attorney authorized

by law to represent the state in a criminal case, including a district

attorney, criminal district attorney, or county attorney with criminal

jurisdiction. The term does not include an attorney representing the

state in a justice or municipal court under Chapter 45.

(2) “ Law enforcement agency ” means an agency of the state or an

agency of a political subdivision of the state authorized by law to

employ peace officers.

(b) A law enforcement agency filing a case with the attorney representing

the state shall submit to the attorney representing the state a written

statement by an agency employee with knowledge of the case

acknowledging that all documents, items, and information in the possession

of the agency that are required to be disclosed to the defendant in the case

under [a] rticle 39.14 have been disclosed to the attorney representing the

state.

(c) If at any time after the case is filed with the attorney representing the

state the law enforcement agency discovers or acquires any additional

document, item, or information required to be disclosed to the defendant

under [a] ticle 39.14, an agency employee shall promptly disclose the

document, item, or information to the attorney representing the state.

Id.

R ecently, we examined whether noncompliance with article 2. 1397 could be

remedie d by the suppression of evidence or the issuance of a new trial

. Black v. State

,

No. 13

- 22

- 00147

- CR, 2023 WL 7204472

, at *7 –8 (Tex. App.

— Corpus Christi

– Edinburg

Nov. 2, 2023, pet. ref ’ d) (mem. op., not designated for publication)

. We concluded that

the plain text of the statute is “ silent on its face as to the consequences of noncompliance

, ”11 and the “ legislative history also does not indicate whether a defendant may use the statute

to exclude relevant testimony from officers who fail to comply with the statute. ” See id. at

*7.

We are bound by this Court’s prior holding absent an intervening and material

change in the statutory law or a decision from a higher court or this Court sitting en banc

that is on point and contrary to the prior panel ’s decision. See Malbrough v. State , 612

S.W.3d 537, 565 n.2 (Tex. App.

— Houston [1st Dist.] 2020, pet. ref’d) (Countiss, J.,

concurring); see also State v. Hardin , No. 13

- 18

- 00244

- CR, 2019 WL 3484428, at *3

(Tex. App.

— Corpus Christi

– Edinburg Aug. 1, 2019) (mem. op., not designated for

publication ), aff’d , 664 S.W.3d 867 (Tex. Crim. App. 2022). Pursuant to our precedent,

just as we found no indication that suppression of evidence or a new trial would be the

appropriate remedy for article 2.1397 noncompliance, we conclude neither would the

drastic remedy of a dismissal with prejudice. S ee generally Hill

, 499 S.W.3d at 872 n.69.

Because a rticle 2.1397 is not a mechanism for dismissal , a dismissal predicated on an

article 2.1397 violation is error. S ee Mungia

, 119 S.W.3d at 816; Fellows

, 471 S.W.3d at

568

– 69

.

D. Article 39.14

Interwoven i n Villarreal’s “Motion to Dismiss Based on Spoliation of Evidence and

Violation of Chapter 2, T[exas] C[ode of] C[riminal] P[rocedure] A[rticle] 2.1397, The

Richard Miles Act ,” he claim s article 39.14 violations, which the State refutes occurred

.

See T EX

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. art. 39.14(a).12 “ According to the plain text of [a] rticle 39

. 14

, criminal defendants now have a

general statutory right to discovery in Texas beyond the guarantees of due process, ”

requiring the State to “disclose all ‘ exculpatory, impeaching, and mitigating’ evidence to

the defense that tends to negate guilt or reduce punishment ” within its “ possession,

custody, or control. ” Watkins v. State

, 619 S.W.3d 265, 277, 291 (Tex. Crim. App. 2021)

(citing T EX

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. P ROC

. A NN

. art. 39.14(a) ). To be clear, the evidence must be within

the St ate ’s possession, custody, or control for purposes of an article 39.14 compliance

challenge

. See In re State ex rel. Skurka

, 512 S.W.3d 444, 455 (Tex. App.

— Corpus

Christi

– Edinburg 2016, no pet.); see also Mitchell v. State

, No. 01

- 23

- 00251

- CR, 2024

WL 187385, at *7 (Tex. App.

— Houston [1st Dist.] Jan. 18, 2024, no pet.) (mem. op., not

designated for publication) (“ The defendant has the burden to show the complained

- of

evidence was in the State ’s possession but withheld. ”); Mumphord v. State

, No. 13

- 22

-

00388

- CR, 2023 WL 6886119, at *8 (Tex. App.

— Corpus Christi

– Edinburg Oct. 19, 2023,

pet. ref ’ d) (mem. op., not designated for publication) (“ We will not impose a burden on the

State to produce evidence which may not be available or might not even exist.”). Further

,

we have previously held that where complained

- of evidence is not within the State ’s

possession because it has been inadvertently destroyed, dismissal is not warranted under

article 39.14. Garcia

, 2022 WL 3452413, at *5 (“ Here, the evidence conclusively

establishes that the complained

- of pictures were not in the State ’s possession, custody,

or control because of a technical issue with uploading the pictures to the computer.

Therefore, the trial court’s dismissal on this basis was erroneous. ”); see also Chandler v.

State

, No. 02

- 18

- 00166

- CR, 2018 WL 6565812, at *1 n.2 (Tex. App.

— Fort Worth Dec.13 13, 2018, pet. ref ’ d) (mem. op., not designated for publication) (“ [T]he State ’s duty to turn

over material evidence and exculpatory evidence does not extend to lost items but instead

is limited to items in its possession, custody, or control. ”).

The parties agree that the complained

- of lost evidence here is not in the State ’s

possession, custody, or control

. See Watkins , 619 S.W.3d at 277; see also T EX

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C RIM

. P ROC

. A NN

. art. 39.14(a). Therefore, in accordance with our preceden t

, dismissal

under a rticle 39

. 14 was error

. See Mungia , 119 S.W.3d at 816; Fellows , 471 S.W.3d at

568

– 69.

We sustain the State ’s sole issue.

III. C ONCLUSION

We reverse and remand for proceedings consistent with this memorandum

opinion.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 (b ).

Delivered and filed on the

9th day of May

, 202 4.