Earl McVay v. State ( 2020 )

Opinion issued December 17, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00480-CR
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EARL MCVAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 1
Galveston County, Texas
Trial Court Case No. MD-0374753
MEMORANDUM OPINION
A jury convicted appellant, Earl McVay, of assault causing bodily injury to a
family member. After appellant and the State reached an agreement regarding
punishment, the trial court sentenced appellant to 365 days in county jail, fully
probated, and a $500 fine. In two points of error, appellant contends that the trial
court erred in (1) denying his motion to dismiss the case for spoliation of possibly
exculpatory evidence and (2) failing to instruct the jury on spoliation. We affirm.
Background
On July 19, 2017, appellant was charged with assault causing bodily injury to
a family member for hitting his live-in girlfriend, Johnnie Hubbard. Appellant
pleaded not guilty, and the case proceeded to trial.
A. Pretrial Hearing
Prior to voir dire, appellant requested that the trial court dismiss the case
because a videotape of Hubbard giving her written statement to police was missing.
After the jury was seated, the trial court conducted a pretrial hearing on appellant’s
motion to dismiss.
At the hearing, Leigh Scofield, the Sante Fe Police Department records clerk
and communications supervisor, testified that the department follows the State
policy requiring the retention of audio and video recordings of witnesses for a period
of six months. Scofield testified that the offense report in this case did not reference
a video.
Sante Fe Police Department Detective Brian Tandy investigated the case
when he was a patrol officer. Tandy testified that he took a statement from Hubbard
in the interview room regarding the alleged assault. He stated that the interview
room has a built-in audio and video camera that is constantly recording. Tandy
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testified that he talked to Hubbard first and then left the room while she wrote out
her statement. Tandy further testified that Hubbard’s written statement was a
summary of their conversation. He stated that he did not know appellant personally,
had had no personal dealings with him, and held no grudge against him.
Tandy testified that the detectives are in charge of making a DVD copy for
any requested video and then placing the videotape into evidence in the case. Tandy
stated that if detectives are not notified to download a particular video, then the entire
tape is purged from the system in approximately fourteen to fifteen days. Tandy
testified that, to download the video, he would have had to contact one of the
detectives by email and notify them. Tandy testified that he never initiated the
procedure to download the video of Hubbard and have it preserved for evidence. He
further stated that he may not have requested preservation of the video because it
was not required, and there was a written statement from Hubbard and photographs
of her injuries. Tandy further testified that the department’s six-month retention
policy pertained to video evidence that has been recorded and saved. He stated that
if he never requested the video be saved, it would have been recorded over in
fourteen to fifteen days.
Tandy testified that, on the day before trial, he informed the prosecutor that
he believed there was a video of Hubbard’s interview because the equipment was
constantly recording. However, he further testified that his report does not reflect
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that he asked a detective to save the video, and that he would have documented in
his report if the video had been downloaded and submitted into evidence.
At the conclusion of the hearing, appellant requested that the case be
dismissed “based on spoliation of very important evidence.” In response, the State
argued that the video was not exculpatory evidence, only potentially useful evidence,
and the fact that it was missing did not rise to the level of a due process violation.
The State also argued that there was no evidence of bad faith on the part of the officer
or the department in failing to preserve, or destroying, the video evidence. The trial
court denied appellant’s motion to dismiss, stating
The Court finds that the defendant must show bad faith on the part of
the police to establish failure to preserve the potentially useful
evidence. And there is just no evidence of bad faith on the part of the
police department. Also, the defendant must make some showing that
the lost evidence was favorable and material; and we just don’t know if
the evidence was lost. First of all, we don’t even know if it truly existed
or if it was favorable and material. Therefore, I am going to deny the
defendant’s motion to dismiss.
B. Evidence Presented at Trial
On May 24, 2017, Tandy was out on patrol when he received a call to return
to the police station to meet a complainant regarding a possible assault. Tandy
testified that his first impression of Hubbard was that she was scared. He stated that
Hubbard had a bruise on her face and a laceration on her arm. Tandy took
photographs of Hubbard’s injuries which he included in his report.
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Tandy took Hubbard to the interview room and asked her what happened.
Hubbard told him that appellant caused her injuries. After Hubbard gave a written
statement, Tandy tried to call appellant multiple times over a two-week period to get
his side of the story. After numerous unsuccessful attempts to reach appellant,
Tandy moved forward with the case and filed a warrant.
On cross-examination, Tandy testified that he did not note his unsuccessful
attempts to reach appellant in his offense report. He also stated that Hubbard did not
tell him that appellant went out of town for work following the assault.
On re-direct examination, Tandy testified that Hubbard’s written statement
reflected what she told him in the interview room that day. On re-cross, Tandy stated
that his notes from various cases were destroyed when his house flooded from
Hurricane Harvey three months later.
Hubbard testified that, in May 2017, she and appellant had been living
together on and off for five years and were re-engaged to be married. On May 23,
Hubbard came home after work and fell asleep. Hubbard testified that, shortly
before 1:00 a.m. on May 24, she woke up when appellant confronted her about a text
message on her phone from Jesse DeLeon. Hubbard testified when she told
appellant that she was not cheating on him and that Deleon had texted her to
congratulate her on her engagement, appellant screamed at her and called her a liar.
She testified that appellant then threw her phone at her, striking her on the arm, and
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slapped her across the face with his open hand, which caused her to have hearing
difficulty for a month. Hubbard testified that she was very scared. She stated that
when she went to the bedroom, appellant told her that she could not sleep in there,
so she went to the couch. Appellant tried to pour Hubbard’s glass of tea on her but
missed because he was intoxicated. Hubbard stated that when appellant passed out
on the couch, she went into the bedroom.
The next day, Hubbard began gathering her belongings to go stay with her
daughter. Hubbard left the house at 2:00 p.m. and went directly to the police station.
Hubbard testified that she spoke with a police officer who took her statement and
pictures of her injuries. Hubbard then went to the emergency room to have her ear
examined. Hubbard testified that she had not drunk alcohol on the night of May 23,
but that she was taking prescribed medications at the time—Vicodin, Xanax, and
Soma—and that she had taken them that day as well as a couple of extra muscle
relaxants before she fell asleep. Hubbard testified that she needed the medication to
be able to sleep. Hubbard further testified that, after she completed rehabilitation,
she called appellant to let him know that she had forgiven him.
On cross-examination, Hubbard testified that she had taken four or five Somas
and two Xanax on the day of the assault. She stated that she subsequently went to
rehabilitation for abusing those medications. Hubbard admitted that she became
upset when appellant grabbed her phone that night, but she stated that she “was more
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crying upset, not pissed off.” Hubbard denied touching appellant on the night of the
assault.
Appellant testified that when he got home from work on May 23, Hubbard
was sleeping on the couch with her phone on her shoulder. When appellant saw
Hubbard’s phone light up with a text message, he looked at it and saw a message
from Jesse DeLeon. Appellant testified that he had heard of DeLeon three months
earlier and thought Hubbard was not going to talk to him anymore. Appellant
testified that when he confronted Hubbard about the text, she became mad.
Appellant stated that Hubbard handed him her phone but deleted DeLeon’s
messages. Appellant further testified that Hubbard demanded that he give her phone
back to her and tried to knock the phone out of his hand as she hit him. Appellant
denied throwing the phone at Hubbard and claimed that Hubbard was the first
aggressor, but he admitted that he slapped Hubbard. Appellant testified that he went
to Florida on May 25 for work and was gone for about three-and-a-half weeks.
At the conclusion of trial, the jury found appellant guilty of the charged
offense. Appellant and the State reached an agreement as to punishment, and the
trial court sentenced appellant to 365 days in county jail, probated, and a $500 fine.
This appeal followed.
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Motion to Dismiss
In his first point of error, appellant contends that the trial court erred in
denying his motion to dismiss. He argues that the loss of potentially useful evidence
was due to a systematic policy of destroying videotaped interviews of witnesses to
which Arizona v. Youngblood, 488 U.S. 51 (1988) should not apply.
A. Standard of Review
When reviewing a trial court’s decision on a motion to dismiss, we apply a
bifurcated standard, giving almost total deference to the trial court’s findings of fact
that are supported by the record, as well as any mixed questions of law and fact that
rely upon the credibility of witnesses. See State v. Krizan–Wilson, 354 S.W.3d 808,
815 (Tex. Crim. App. 2011); Tope v. State, 429 S.W.3d 75, 79 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). 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.
B. Applicable Law
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 addressing the failure to preserve evidence in a criminal trial, there is a distinction
between “material exculpatory evidence” and “potentially useful evidence.”
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Youngblood, 488 U.S. at 57–58; Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.
App. 2010). That difference informs our analysis when deciding whether the State’s
failure to disclose or preserve evidence violates a defendant’s guarantee of due
process of law. See Illinois v. Fisher, 540 U.S. 544, 547–48 (2004) (per curiam).
With material exculpatory evidence, a due process violation occurs whenever
the State suppresses or fails to disclose such evidence, regardless of whether the
State acted in bad faith. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
A Brady claim requires proof that the sought-after evidence was both material and
favorable to the defendant such that there is a reasonable probability that had the
evidence been disclosed, the outcome of the trial would have been different. Pena
v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). However, with potentially
useful evidence, the State’s failure to preserve such evidence does not amount to a
due process violation unless the defendant can show bad faith on the part of the
State. See Youngblood, 488 U.S. at 58. Potentially useful evidence is “evidentiary
material of which no more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant.” Id. at 57. 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. Little v.
State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999); see Moody v. State, 551 S.W.2d
167, 170–71 (Tex. App.—Fort Worth 2017, no pet.) (“Although courts occasionally
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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.”).
C. Analysis
Appellant does not argue that the videotape of Hubbard’s statement to Tandy
was material exculpatory evidence. Tandy testified that the written statement
reflected what Hubbard said during the interview. Instead, appellant contends that
the trial court erred in not ordering dismissal of the case “because the loss of
potentially useful evidence was due to a systematic policy of destroying videotaped
interviews of witnesses.”
To satisfy the standard enunciated in Youngblood involving the destruction of
potentially useful evidence, appellant had the burden to demonstrate that the State
and law enforcement acted in bad faith by failing to preserve the video of Hubbard’s
interview. 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.”). 1
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Appellant urges us to find that Youngblood’s bad faith requirement does not apply
under these circumstances because a defendant will almost never be able to show
bad faith when a systematic policy, rather than an individual officer’s decision, is at
issue. Appellant has not cited any cases which support his position, nor are we
aware of any. We decline appellant’s invitation to depart from Youngblood.
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“Bad faith” is more than being aware that one’s action or inaction could result in the
loss of evidence. See Napper, 322 S.W.3d at 238. “[B]ad faith entails 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. A showing
of negligence does not qualify as bad faith. See Youngblood, 488 U.S. at 58.
Requiring a defendant to show bad faith on the part of the State limits the State’s
requirement to preserve evidence to reasonable bounds and confines it to the class
of cases where the police themselves, by their conduct, indicate the evidence could
form the basis for exonerating the defendant. See id.
Appellant contends that the evidence presented at the pretrial hearing showed
that the Santa Fe Police Department adopted a policy which contemplated the
destruction of potentially important evidence within two weeks after the recording
was made. Appellant argues that the department’s policy does not conform to “state
of the art” standards as evidenced by Scofield’s testimony that the State of Texas’s
guideline for preservation of evidence mandates that evidence should not be
destroyed for six months. Appellant asserts that “a systematic destruction of
evidence, implemented as a matter of agency policy, is not ‘mere negligence.’”
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.”).
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Appellant mischaracterizes the evidence. Tandy testified that the video
equipment is “built in” to the interview room and always recording. He testified
that he told prosecutors shortly before trial that he believed there was a video because
he knew the equipment was constantly recording. Tandy stated that he would have
had to contact one of the detectives by email and notify them in order to download
the video, but that he never initiated the procedure to download the video of Hubbard
and have it preserved for evidence. Tandy stated that if detectives are not notified
to download a particular video, then the entire tape is purged from the system in
approximately fourteen to fifteen days. He further stated that he may not have
requested preservation of the video because it was not required, and there was a
written statement from Hubbard and photographs of her injuries. He also stated that
he did not remember what happened to the videotape. Tandy further testified that
the department’s six-month retention policy was applicable only to video evidence
that has been recorded and saved. He testified that the interview room is used for
“so many things that we can’t keep every recording that was made in there.” See
Napper, 322 S.W.3d at 238 (“Bad faith cannot be established by showing simply
that the [State] destroyed the evidence without thought, or did so because that was
the common practice, or did so because the [State] believed unreasonably that [it]
was following the proper procedure.”).
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The evidence establishes that the Sante Fe Police Department had a policy in
place which allowed the detectives a certain number of days to collect videotape
from the continuously recording equipment if it had evidentiary value. See Zapata
v. State, 449 S.W.3d 220, 229 (Tex. App.—San Antonio 2014, no pet.) (rejecting
argument that State’s destruction of evidence pursuant to record retention policy
amounted to per se due process violation). A policy requiring the department to
preserve every video ever taken would be at odds with the purpose of the bad faith
requirement, which is to limit the State’s obligation to preserve evidence “to
reasonable grounds” and only in those cases “where the interests of justice most
clearly require it.” Burdick v. State, 474 S.W.3d 17, 27 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (quoting Fisher, 540 U.S. at 548) (citing Youngblood, 488 U.S.
at 58) (concluding courts should avoid construction of Due Process Clause that
might “impos[e] on the police an undifferentiated and absolute duty to retain and to
preserve all material that might be of conceivable evidentiary significance in a
particular prosecution”). Further, Tandy testified that Hubbard’s written statement,
which was available to appellant at trial, was a summary of the conversation which
would presumably have been recorded on the video footage. Tandy also testified
that he did not know appellant personally, had had no personal dealings with him,
and held no grudge against him. See Napper, 322 S.W.3d at 238 (“[B]ad faith entails
some sort of improper motive, such as personal animus against the defendant or a
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desire to prevent the defendant from obtaining evidence that might be useful.”).
Appellant has presented no evidence establishing that the State or law enforcement
failed to preserve the footage in bad faith. The trial court did not err by denying
appellant’s motion to dismiss. We overrule appellant’s first point of error.
Spoliation Instruction
In his second point of error, appellant contends that the trial court erred in
failing to instruct the jury on spoliation.
A. Applicable Law and Standard of Review
A review of jury charge error involves a two-step analysis. Ngo v. State, 175
S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994). First, we must determine whether error actually
exists in the charge, and, second, if error does exist, whether sufficient harm resulted
from the error to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d
at 731–32. When, as here, the defendant does not object to the jury charge, we will
not reverse for jury charge error unless the record shows “egregious harm” to the
defendant. See Ngo, 175 S.W.3d at 743–44. Errors that result in egregious harm are
those that affect “the very basis of the case,” “deprive the defendant of a valuable
right,” or “vitally affect a defensive theory.” Id. at 750. We review a trial court’s
decision not to submit an instruction in the jury charge for an abuse of
discretion. Guzman, 539 S.W.3d at 400.
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B. Analysis
A defendant seeking a spoliation instruction bears the burden of establishing
that the State or law enforcement lost or destroyed the evidence in bad faith. See id.at 401 (citing Napper, 322 S.W.3d at 229).
As discussed above, appellant failed to show that the video footage of
Hubbard’s interview was purged in bad faith. Tandy stated that if detectives are not
notified to download a particular video, the entire tape is purged from the system in
approximately fourteen to fifteen days. Tandy testified that he did not request that
the video be downloaded because it was not required, and he had Hubbard’s written
statement as well as photographs of her injuries. He also testified that he did not
know appellant personally or hold a grudge against him. This evidence does not
establish bad faith or a due process violation on the part of the State or the
police. See Youngblood, 488 U.S. at 58; Napper, 322 S.W.3d at 238; see also Arthur
v. State, No. 05-18-00075-CR, 2019 WL 3729499, at *9 (Tex. App.—Dallas Aug.
7, 2019, no pet.) (mem. op., not designated for publication) (concluding that trial
court did not err when it denied defendant’s request for spoliation instruction where
officer testified that he did not seize paperwork in back of defendant’s vehicle or
separately inventory each document because there was no need to take documents
and detective stated that it was not customary to separately list every document in
vehicle due to time constraints); Nichols v. State, No. 02-17-00147-CR, 2018 WL
151865880, at *6 (Tex. App.—Fort Worth Apr. 19, 2018, pet. ref’d) (mem. op., not
designated for publication) (concluding record did not establish officer acted in bad
faith in failing to preserve text message exchange where she testified that she
commonly deleted data from her phone related to her investigations, and defendant
did not produce any evidence that deletion of data from undercover officers’ phones
is not standard practice or that officer harbored any personal animus toward her);
Sobel v. State, No. 09-14-00426-CR, 2015 WL 9311723, at *4 (Tex. App.—
Beaumont Dec. 23, 2015, no pet.) (mem. op., not designated for publication)
(concluding record did not demonstrate improper motive, personal animus against
defendant, or intention to prevent defendant from obtaining potentially useful
evidence, and defendant identified no such evidence, where officer’s testimony
showed surveillance video was destroyed pursuant to store’s common practice of
erasing video after ninety days). Further, there is no indication that the complained-
of evidence was potentially exculpatory or useful to appellant. See Guzman, 539
S.W.3d at 402.
Accordingly, we hold that the trial court did not abuse its discretion in failing
to instruct the jury on spoliation. See Torres v. State, 371 S.W.3d 317, 320 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d) (concluding spoliation instruction not
required where defendant failed to establish potentially useful evidence destroyed in
bad faith). We overrule appellant’s second point of error.
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Lloyd, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
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