By on August 12, 2011

Drivers have no recourse if police say the tape from a dashboard-mounted video camera is not available, according to a ruling Wednesday from the Texas Court of Appeals. Mark Lee Martin wanted to defend himself against drug possession charges filed in the wake of an August 29, 2008 traffic stop, but he was told no video was available.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video. Martin argued the police were obviously hiding evidence.

“The officers intentionally destroyed the video and thereby put exculpatory evidence as far as the search is concerned or evidence favorable to the accused out of the reach of the accused,” Martin’s attorney claimed. “We feel that for no other reason the search is invalid and any evidence found as a result of that search should be suppressed.”

The appellate court found no merit in this argument.

“We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held 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.'”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

“There is no indication in the record that Jennings or his supervisors handled the videotape in question any differently than they handled other videotapes,” Pemberton wrote. “Nor is there any indication in the record that the tape was not preserved because of any improper motive on the part of Jennings or other officers.”

The court concluded that failure to follow the instructions on the subpoena was not evidence of bad faith because Jennings testified that he never received the document.

A copy of the unpublished decision is available in a PDF file at the source link below.

Source: PDF File Martin v. Texas (Court of Appeals, State of Texas, 8/10/2011)


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14 Comments on “Texas Appeals Court: Driver Has No Right to Dashcam Video...”

  • avatar
    DC Bruce

    The most telling fact about this decision is that it is unpublished . . . which means it can’t be cited as precedent in the future. (Not because it can’t be found, but because procedural rules forbid it.) Regrettably, state and federal appellate courts use this practice to bury their “cats and dogs” that they don’t want to see again.
    This is kind of lawyer “inside baseball” stuff, but if the public understood how this works, they should be clamoring for a statute that prohibits appellate courts from doing this. Appellate courts serve two functions: (1) to review the particular case decided below for legal errors and (2) to make judicial policy that instructs lower courts on the law in the future. It is this second function that should force appellate courts to be principled and not ad hoc; and unpublished decisions short-circuit this function.

    It seems to me that if the Department has a policy of preserving this video evidence for 30 days, the fact that it wasn’t preserved in this case should create a presumption that the officer acted in bad faith. In other words, unless he can show that the equipment malfunctioned or that some record was mislabeled as to the date and therefore destroyed early, he should be found to have been acting in bad faith.

    Hopefully, the Texas Supreme Court will review this decision . . . but I’m not holding my breath.

    • 0 avatar

      After actually reading the judge’s decision (and not relying on its reported contents), I find it’s reasonable to conclude that the cop had no malicious intent.

      I do feel there should be punishment for violation of policy, which WAS known prior to the ‘destruction’ of the video. However, the argument that the cop did not believe there was any evidence value to the tape is reasonable:

      The camera doesn’t activate until the cop turns on his lights, but that doesn’t occur until after the cop observes a violation. It is reasonable to think that the camera may not have started to record until after any alleged turn signal would have deactivated normally.

      Conversely, there was no strong argument that the defendant used his turn signal or that it even worked. In fact, his statement that “the switch had gone bad” implies that it is probable that his turn signal was not activated, and the traffic stop was justified.

      • 0 avatar

        Sounds like the camera system is poorly designed, IF the intent is to capture evidence of observed violations. It should preserve a rolling window (at least a minute) of video evidence prior to lights being activated.

        If the intent is just to capture the interaction between the cop and a member of the public, then it’s working as intended and shouldn’t be relied upon to record justification for a stop, and the request for video evidence should have been thrown out.

      • 0 avatar

        Using computer technology of the 21st century, why aren’t the video cameras on 24/7 and have at least a 60 day holding period? Heck, put everything the on-dash camera captures up on youtube and it will be scoured by the public and preserved forever.

      • 0 avatar

        Why rely on the dash cam video of the police? You can have your own dash cam that records in 1920x1080p HD for less than $250. They record time/date/gps location and speed as well as audio.
        I bet a ticket in Mesquite TX with mine. Saved me almost $300 which more than paid for my dash cam. 76 in a 60mph zone. He got the wrong car and I proved it in court.
        Visit for an assorted line up of quality dash cams. They have a 4 channel unit (MDE204) that truckers are using that allows their dispatcher to login and see exactly where their vehicles are and actually view each camera live. Requires a data plan and sim card for the DVR.

    • 0 avatar


      Preserve DC Bruce’s post and keep it for all prosperity. It is one of the most lucid discussions how the insiders play the courts. Read it, learn it, know it and you’ll be far less likely to be victimized in a courtroom.

      “Published” vs. “Unpublished” tips any judicial outcome on it’s head, so look closely for it in any verdict.

      You CANNOT enter new evidence in appellate court. If you are going before a judge known for blocking and tossing out evidence in the defendant’s favor, file EVERYTHING in the Brief to get it part of the record.

  • avatar

    Police keep losing tapes that show their malfeasance and they always seem to get away with it and then wonder why average citizens have no respect for them anymore. I’ve been strong armed by cops before and i’m an average middle class guy who pays my taxes. They’ve lost any potential future witness in me because of this. You have to give respect to get respect. And if I ever get jury duty for a non-violent crime, I will almost definitely vote not guilty. The justice system in this country is a joke.

  • avatar

    This is extremely suspicious… If Texas police actually pulled people over for not signalling, every municipality in the state would have a massive budget surplus.

  • avatar

    What I find most amusing about our justice system is that if, as a normal person, I go before a judge and say “I didn’t know”. Every judge, every time, will say “Ignorance is not an excuse for violation of law”

    But if I were a cop and go before a judge and say “I didn’t know”, the judge will say “you didn’t know? well that’s good enough for me. If anyone thinks otherwise you have to prove beyond reasonable down that this officer did know and even then I’ll probably still throw it out. But even if you DID know. well you have qualified immunity so you’re off the hook anyway.”

  • avatar

    There’s a principle called the Missing Evidence Rule. If a party to a case has evidence, and that evidence turns up missing (or not retained in the customary manner), that fact is noted, and the jury is instructed that they may infer that the evidence was not favorable to that party. The key word there is MAY – the finder of fact does not necessarily have to find the evidence was unfavorable – he just may find that if he thinks it warranted. It’s not an automatic strike against the state here.

    That rule takes care of the problem. The judge, as finder of fact, was entitled to decide that the lack of evidence was not necessarily unfavorable to the party that had lost it.

    We also don’t know from this write-up whether or not the video could reasonably have been expected to have anything of value on it. Because of the way the cars were parked, or other conditions, it may have been unlikely it would be expected to have any evidentiary weight. Maybe the way contraband was located didn’t lend itself to being shown on video. This could well have been what the judge was thinking when he decided the missing tape would not have shown anything useful to the defendant.

    This case was rightly decided. There endeth your local trial lawyer’s sermon for the day.

  • avatar

    I’d like to see dash video available for a lot of things, including to show what their speed guns are showing. Like for example when I was last pulled over for what I was told, going 83 mph in a 65. I’m 100% positive I was going 73 as my daily driver Civic has that LARGE digital display. But at the time, what do you do? It’s really left me with a bad taste in my mouth that an officer actually pulls that crap.

  • avatar

    Hmm… headline does not match story. Sensationalism.

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