adverse inference instruction in Texas

2015See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001) (observing that ″a party seeking an adverse inference may rely on circumstantial evidence to suggest the contents of destroyed evidence″); Reece, 81 S.W.3d at 817 (noting that circumstantial evidence may establish a fact when that fact is ″inferred from other facts [**29] proved in the case″) (citation and internal quotation marks omitted). 13 See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores,

2014See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir.2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.2004) (same). .

2015See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001) (observing that ″a party seeking an adverse inference may rely on circumstantial evidence to suggest the contents of destroyed evidence″); Reece, 81 S.W.3d at 817 (noting that circumstantial evidence may establish a fact when that fact is ″inferred from other facts [**29] proved in the case″) (citation and internal quotation marks omitted). 13 See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores,

2014See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir.2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.2004) (same). .

2015Citing Pena, 226 S.W.3d at 655 , appellant contends that an adverse-inference instruction was mandated to cure a due course of law violation.

2015Citing Pena, 226 S.W.3d at 655 , appellant contends that an adverse-inference instruction was mandated to cure a due course of law violation.

2015See id. at 44 (trial court did not err in refusing an adverse-inference instruction where the defendant could show only that the unpreserved evidence might have been favorable to his defense).

2015See id. at 44 (trial court did not err in refusing an adverse-inference instruction where the defendant could show only that the unpreserved evidence might have been favorable to his defense).

2024Jones v. State, 531 S.W.3d 309, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

2019Jones, 531 S.W.3d at 321 ; Yazdi v. State, No. 03-13-00794- CR, 2016 WL 240925 , at *5 (Tex. App.—Austin Jan. 13, 2016, pet. ref’d) (mem. op., not designated for publication) (describing spoliation instruction as “an instruction that [the failure to preserve evidence] gives rise to a presumption that the uncollected evidence would favor the defendant”); Carroll v. State, 266 S.W.3d 1, 3 (Tex. App.— 26 Waco 2008, pet. ref’d) (“The remedy for the State’s failure to preserve such evidence is an adverse inference instruction.”).

2019See United States v. Valas, 822 F.3d 228, 239 (5th Cir. 2016); Wise, 221 F.3d at 156 ; see also State v. Vasquez, 230 S.W.3d 744, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (Seymore, J., concurring). 2.

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) ("An adverse inference drawn from the destruction of records is predicated on bad conduct."); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction."); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State's actions were an admission evidence was unfavorable to its case); but se

2014See TransAmerican, 811 S.W.2d at 917 . 13 See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004) (same). 18 1.

2014See TransAmerican, 811 S.W.2d at 917 . 13 See also, e.g., Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004) (same). 18 1.

2010City of Bismarck v. Holden, 522 N.W.2d 471, 475 (N.D. 1994) (ellipsis in original). 113 Garza, 435 F.3d at 75 (citing United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993)); United States v. Branch, 537 F.3d 582, 590 (6th Cir. 2008).

2010City of Bismarck v. Holden, 522 N.W.2d 471, 475 (N.D.1994) (ellipsis in original). 113 .

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) (“An adverse inference drawn from the destruction of records is predicated on bad conduct.”); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (“Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction.”); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, fact-finder must be able to conclude State’s actions were an admission evidence was unfavorable to its case); but s

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) ("An adverse inference drawn from the destruction of records is predicated on bad conduct."); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction."); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State's actions were an admission evidence was unfavorable to its case); but se

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) ("An adverse inference drawn from the destruction of records is predicated on bad conduct."); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction."); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State's actions were an admission evidence was unfavorable to its case); but se

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) ("An adverse inference drawn from the destruction of records is predicated on bad conduct."); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction."); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State's actions were an admission evidence was unfavorable to its case); but se

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) (“An adverse inference drawn from the destruction of records is predicated on bad conduct.”); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (“Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction.”); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, fact-finder must be able to conclude State’s actions were an admission evidence was unfavorable to its case); but s

2007See United States v. Wise, 221 F.3d 140, 156 (5th Cir.2000) ("An adverse inference drawn from the destruction of records is predicated on bad conduct."); State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Neither the rationale of the spoliation inference nor any authorities found support submission of the inference in the case of unintentional destruction."); see also State v. Hartsfield, 681 N.W.2d 626, 632-33 (Iowa 2004) (indicating, in order for destruction to be intentional, factfinder must be able to conclude State's actions were an admission evidence was unfavorable to its case); but se

2021See Jones v. State, 531 S.W.3d 309, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (citing Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 , 22–25 (Tex. 2014)).

2019Ltd. v. Aldridge, 438 S.W.3d 9 , 19 n.6 (Tex. 2014) (noting that Texas courts usually use the term presumption while federal courts generally refer to a spoliation instruction as an adverse-inference instruction). –17– what happened to the actual documents in the back of the vehicle.

2019See United States v. Valas, 822 F.3d 228, 239 (5th Cir. 2016); Wise, 221 F.3d at 156 ; see also State v. Vasquez, 230 S.W.3d 744, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (Seymore, J., concurring). 2.

2019Jones, 531 S.W.3d at 321 ; Yazdi v. State, No. 03-13-00794- CR, 2016 WL 240925 , at *5 (Tex. App.—Austin Jan. 13, 2016, pet. ref’d) (mem. op., not designated for publication) (describing spoliation instruction as “an instruction that [the failure to preserve evidence] gives rise to a presumption that the uncollected evidence would favor the defendant”); Carroll v. State, 266 S.W.3d 1, 3 (Tex. App.— 26 Waco 2008, pet. ref’d) (“The remedy for the State’s failure to preserve such evidence is an adverse inference instruction.”).

2019Cox v. State, No. 05-11-00687-CR, 2012 WL 2692189 , at *6 (Tex. App.—Dallas July 9, 2012, pet. stricken) (not designated for publication) (“A spoliation adverse inference instruction is a defensive issue [that] a trial court has no independent obligation to submit to the jury absent a request by the defendant.”); see Carroll, 266 S.W.3d at 3–4 (holding that trial court did not err by failing to submit spoliation instruction to the jury when the defendant failed to request the adverse inference instruction); see also Rivera v. State, No. 09-16-00065-CR, 2017 WL 4275194 , at *1 (Tex. App.—Beaumo

2019See United States v. Valas, 822 F.3d 228, 239 (5th Cir. 2016); Wise, 221 F.3d at 156 ; see also State v. Vasquez, 230 S.W.3d 744, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (Seymore, J., concurring). 2.

2017See Burdick v. State, 474 S.W.3d 17, 28 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

2015See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001) (observing that ″a party seeking an adverse inference may rely on circumstantial evidence to suggest the contents of destroyed evidence″); Reece, 81 S.W.3d at 817 (noting that circumstantial evidence may establish a fact when that fact is ″inferred from other facts [**29] proved in the case″) (citation and internal quotation marks omitted). 13 See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores,

2015See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001) (observing that ″a party seeking an adverse inference may rely on circumstantial evidence to suggest the contents of destroyed evidence″); Reece, 81 S.W.3d at 817 (noting that circumstantial evidence may establish a fact when that fact is ″inferred from other facts [**29] proved in the case″) (citation and internal quotation marks omitted). 13 See also, e.g., Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (describing an adverse inference instruction as a sanction); Hodge v. Wal-Mart Stores,

2014In cases involving the State’s failure to preserve evidence in a criminal trial, the United States Supreme Court has drawn a distinction between “material exculpatory evidence” and “potentially useful evidence.” See Arizona v. Youngblood, 488 U.S. 51 , 57–58, 109 S. Ct. 333, 337 (1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.

2014In cases involving the State’s failure to preserve evidence in a criminal trial, the United States Supreme Court has drawn a distinction between “material exculpatory evidence” and “potentially useful evidence.” See Arizona v. Youngblood, 488 U.S. 51 , 57–58, 109 S. Ct. 333, 337 (1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.

2014By taking “no corrective action,” he argues, the trial court violated his due process rights under the United States Constitution and his due course of law rights under the Texas constitution because “[t]he labels on the pill bottles could have been used to exonerate [him].” 3 Although Appellant does not identify precisely what “corrective action” he faults the trial court for not taking, he cites a case in his brief from the Waco court of appeals, in which that court recognized three “remedies for the loss or destruction of evidence: (1) dismissal; (2) exclusion of related evidence; or (3) an

2014In cases involving the State’s failure to preserve evidence in a criminal trial, the United States Supreme Court has drawn a distinction between “material exculpatory evidence” and “potentially useful evidence.” See Arizona v. Youngblood, 488 U.S. 51 , 57–58, 109 S. Ct. 333, 337 (1988); Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.

2010City of Bismarck v. Holden, 522 N.W.2d 471, 475 (N.D. 1994) (ellipsis in original). 113 Garza, 435 F.3d at 75 (citing United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993)); United States v. Branch, 537 F.3d 582, 590 (6th Cir. 2008).

2010City of Bismarck v. Holden, 522 N.W.2d 471, 475 (N.D. 1994) (ellipsis in original). 113 Garza, 435 F.3d at 75 (citing United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993)); United States v. Branch, 537 F.3d 582, 590 (6th Cir. 2008).

2009Zubulake V, 229 F.R.D. at 426, 437 .

2008See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998) (trial court does not err by faffing to submit defensive issue raised by evidence if defendant does not request submission); see also Parker v. State, 192 S.W.3d 801, 806 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit article 38.23 instruction); Michaelwicz v. State, 186 S.W.3d 601, 624 (Tex.App.-Austin 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit “no adverse inferences” instruction concerning defendant’s failure to testify).

2008See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998) (trial court does not err by faffing to submit defensive issue raised by evidence if defendant does not request submission); see also Parker v. State, 192 S.W.3d 801, 806 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit article 38.23 instruction); Michaelwicz v. State, 186 S.W.3d 601, 624 (Tex.App.-Austin 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit “no adverse inferences” instruction concerning defendant’s failure to testify).

2008See Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998) (trial court does not err by faffing to submit defensive issue raised by evidence if defendant does not request submission); see also Parker v. State, 192 S.W.3d 801, 806 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit article 38.23 instruction); Michaelwicz v. State, 186 S.W.3d 601, 624 (Tex.App.-Austin 2006, pet. ref'd) (applying Posey to complaint regarding failure to submit “no adverse inferences” instruction concerning defendant’s failure to testify).