Opinion
NO. 01-15-00779-CR
06-02-2016
SHANE MARCUS WELDON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1447189
MEMORANDUM OPINION
Appellant, Shane Marcus Weldon, was charged by indictment with burglary. Appellant pleaded not guilty. The jury found him guilty. Appellant agreed to 20 months' confinement and a $2,500 fine. In one issue on appeal, Appellant argues the trial court erred by denying his request for a jury instruction on spoliation of the evidence.
We affirm.
Background
Rodney Holder reported a burglary of his bar in Houston, Texas in the early morning of June 21, 2014. Deputy I. Barnett drove to the bar on June 23, 2014 for a follow-up meeting with Holder.
Surveillance video of the burglary had provided some details for the identity of the burglar. After reviewing the surveillance video, Holder and his employees determined that the burglar had been at the bar during business hours earlier that day. From a review of credit card receipts, Holder had determined the name of the burglar was Shane Weldon. Holder looked up the name on Facebook. Holder found a picture of Appellant on Facebook wearing the same shirt worn by the burglar during the burglary.
Holder turned over the receipt and a print-out of the Facebook picture to Deputy Barnett. Deputy Barnett took the receipt and picture to his station and placed them in the "documents tray." From there, the documents were supposed to be scanned, and then the originals would be placed in the case file. While the documents were placed in the case file, they were never scanned.
Some time later, Deputy Barnett took the documents to the district attorney's office. He turned the documents over to personnel at the district attorney's office. There is no further record of the documents or their location.
At trial, Holder testified about identifying Appellant on the surveillance video both during the burglary and during business hours, locating the receipt with Appellant's name on it, and finding a matching picture of Appellant on Facebook. Deputy Barnett testified about seeing the receipt with Appellant's name on it and seeing the picture from Facebook that showed Appellant wearing the same shirt seen in the surveillance video of the burglary.
During the charge conference, Appellant requested the following instruction to be included in the charge:
The State had a duty to retain physical evidence, including but not limited to photographs, documents and business records. The photographs, documents and business records have been lost by the State or an agent of the State. You may consider that this evidence would have been unfavorable to the State.The trial court denied the request.
Jury Instruction
In his sole issue on appeal, Appellant argues the trial court erred by denying his request for a jury instruction on spoliation of the evidence.
A. Standard of Review
We review alleged jury charge error in two steps. First, we determine whether error exists, and if error exists, we review for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Howard v. State, 239 S.W.3d 359, 365 (Tex. App.—San Antonio 2007, pet. ref'd).
B. Legal Principles
Spoliation of evidence concerns the loss or destruction of evidence. Torres v. State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). When the spoliation concerns potentially useful evidence, the defendant bears the burden of establishing that the State lost or destroyed the evidence in bad faith. See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); Castilla v. State, 374 S.W.3d 537, 541 (Tex. App.—San Antonio 2012, pet. ref'd); Torres, 371 S.W.3d at 319.
The Court of Criminal Appeals has recognized that "'[p]recisely what constitutes 'bad faith' is not clear.'" Napper, 322 S.W.3d at 231 (quoting George E. Dix and Robert O. Dawson, 42 TEXAS PRACTICE, 2d ed., § 22.63 (2001)). However, the court also recognized that bad faith is "more than simply being aware that one's action or inaction could result in the loss of something that is recognized to be evidence." Id. at 238. Bad faith requires a showing of "some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful." Id.
In Napper, the court explained that "[b]ad faith cannot be established by showing simply that the analyst destroyed the evidence without thought, or did so because that was the common practice, or did so because the analyst believed unreasonably that he was following the proper procedure." Id. When conduct can, at worst, be described as negligent, the failure to preserve evidence does not rise to the level of a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988).
C. Analysis
Here, the only evidence in the record about the loss of the receipt and Facebook picture print-out shows that the loss was inadvertent. While the two documents were supposed to have been scanned at Deputy Barnett's station, they had not been in this instance. Deputy Barnett turned the documents over to the district attorney's office, and no further record of the documents or their whereabouts exist. At most, this demonstrates negligence by the deputy's station and the district attorney's office. This does not establish bad faith or a due process violation. See Napper, 322 S.W.3d at 238; Youngblood, 488 U.S. at 58, 109 S. Ct. at 337.
Appellant relies on a concurring opinion from a sister court to argue that he should have been entitled to the spoliation instruction without proof of bad faith. See State v. Vasquez, 230 S.W.3d 744, 751-55 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (Seymore, J., concurring). Even if we agreed that the analysis in that opinion applied here, we are bound by the precedent of the Court of Criminal Appeals. See Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) ("As an intermediate court of appeals we are bound by the decisions of our state's highest criminal court."). The Court of Criminal Appeals has held that a defendant seeking a spoliation instruction bears the burden of establishing that the State lost or destroyed the evidence in bad faith. Napper, 322 S.W.3d at 229.
We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).
See TEX. PENAL CODE ANN. §§ 30.02(a)(1), 31.03(a) (Vernon 2011).