Opinion
NO. 14-21-00133-CR
06-09-2022
The STATE of Texas, Appellant v. Larry Lanier LAUSCH, Appellee
Greg Russell, for Appellee. Jack Roady, Rebecca Klaren, Alan Curry, Houston, for Appellant.
Greg Russell, for Appellee.
Jack Roady, Rebecca Klaren, Alan Curry, Houston, for Appellant.
Panel consists of Justices Jewell, Bourliot, and Poissant
Margaret "Meg" Poissant, Justice
After the jury returned a guilty verdict, appellee Larry Lanier Lausch filed a motion for new trial on the basis that the trial court had accidentally attached an excerpt of an appellate opinion to the jury charge. In its sole issue, appellant the State of Texas argues that the trial court erred in granting Lausch's motion for new trial. We affirm.
I. BACKGROUND
In 2018, Lausch was indicted on two counts of indecency with a child, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1). Lausch pleaded not guilty to both counts. Trial began in December 2020.
A. TRIAL EVIDENCE
The state called three witnesses at trial: M.J., the complainant; Donald Wittwer, Lausch's cousin; and Lawrence Thompson, a psychologist. Lausch called eleven witnesses, including Detective Eliud Dael Arredondo with the Hitchcock Police Department; Stephanie Shepherd, employed by Family and Protective Services; Sue Lausch, Larry Lausch's wife; Officer Anjelica Rodriguez with the Hitchcock Police Department; and witnesses from the community, Donald's family, and Lausch's family.
To avoid confusion, we will refer to Sue Lausch by her first name and will refer to appellee by his last name.
According to M.J., the complainant, she was about fourteen or fifteen years old when her mother, Sabrina Webber, met Donald. Sabrina and Donald—who M.J. referred to as her parents—were married in 2015. Lausch is Donald's cousin, but M.J. asserted that Lausch and Donald were raised like brothers. After Sabrina and Donald were married, they moved with M.J. to a house that they rented from Lausch in Texas City, Texas. Lausch lived with his wife, Sue Lausch, and his daughter in Hitchcock, Texas—a town not far from Texas City.
M.J. was twenty-one years old at the time of trial.
M.J. testified that she was close to Lausch and that they would frequently communicate with each other through Facebook and text messages. Regarding the two counts, M.J. and Sue gave different accounts of what transpired.
1. Count One
a. M.J.’s Testimony
On July 4, 2015, there was a party at Lausch's residence. M.J. attended the party with her parents and one of her sisters. M.J.’s parents left the party early, and M.J. was planning on spending the night at Lausch's residence, which she had never done previously. M.J. asked Lausch where she would be sleeping for the night. Lausch was watching a movie and offered M.J. a whiskey, which she drank. According to M.J., Lausch was already drunk at this point. He asked her to watch the movie with him, and she sat down to watch the movie. M.J. testified she became uncomfortable when Lausch tried to kiss her and started touching her legs so she asked him if she could go to bed.
Lausch stood up and led M.J. down the hallway to a bedroom and opened the door for M.J. M.J. claimed that once she entered, she heard the door close and lock behind her. The room was "pitch black," and Lausch started kissing M.J. and grabbing her breasts. Lausch took off his pants, removed M.J.’s pants and underwear, and then began licking M.J.’s vagina.
Sue knocked on the door and attempted to open the door but the door was locked. She called out M.J.’s name, and Lausch stopped and told M.J. not to say anything. Lausch threatened M.J. by telling her he would come after her family if she told anyone about what he did to her.
b. Sue's Testimony
Sue testified that the door to the room M.J. was staying in on July 4, 2015, was made of glass and could not be locked. According to Sue, the light in the hallway was always on and would shine into the bedroom. Sue asserted that they never served alcohol at their parties and that she did not see Lausch drinking at the party. When she checked on M.J. and Lausch, M.J. had changed chairs and Lausch and M.J. both appeared mad at each other; Sue thought they were having some kind of argument.
After July 4, Lausch and M.J. maintained contact through text messages and Facebook. The State and Lausch introduced dozens of text messages the two sent each other between July 5 and August 18.
2. Count Two
a. M.J.’s Testimony
According to M.J., in either August or September of 2015, M.J. and her family went to Lausch's residence again. M.J.’s parents left to get pizza. While M.J. was in the library, Lausch walked up behind M.J. and grabbed her breast. Lausch grabbed her arm and asked what M.J. wanted, to which M.J. responded that she wanted him "to be [her] uncle and not a weirdo, not what he was doing." Lausch let her go, said, "Okay, fine," and left the room. In September and October of 2015, M.J. and Lausch continued to communicate through text messages and Facebook until M.J. blocked Lausch from contacting her on Facebook.
The first person M.J. told about what Lausch had done to her was Melissa Valdivar, a close family friend that worked with the special victims unit of the Houston Police Department. M.J. told Valdivar "shortly after it happened," but M.J. asked Valdivar not to tell anyone. Valdivar passed away in January 2016.
In October 2015, M.J. told Sabrina that Lausch had touched her inappropriately. Because she felt uncomfortable, she did not go into more specific detail.
b. Sue & Donald's Testimony
Soon after, Sabrina informed Donald of M.J.’s allegations concerning the second incidence. Donald and Sabrina contacted Sue and arranged to meet at a park so M.J. could talk to her about Lausch's behavior. M.J. met with Sue at a park on October 15, 2015. According to Donald, M.J. spoke with Sue. After M.J. told Sue the "gist" of what happened, Sue began to cry; it seemed difficult for her to believe. After they finished talking, M.J.’s parents took M.J. home before going to Lausch's residence to confront him about the allegations.
According to Donald, when they arrived at Lausch's residence, he was crying. Without Donald saying anything, Lausch confessed that "everything that [M.J.] had told [them] was true." Then Lausch told Donald that if they were going to contact the police, they should "let him know ahead of time so he could get a bullet and take care of it before the police got there." Donald and Sabrina agreed to meet up the following Sunday to decide what to do concerning Lausch. Sabrina and Donald ultimately decided that M.J. and Lausch needed counseling.
According to Sue, she spoke to Sabrina while Donald and M.J. walked around the park; she claims to have never spoken with M.J. alone. When she heard the allegations, she asserted that she did not believe them and told Sabrina, "You know my brother. You know he would never do anything like this."
Sue arrived at her home before Donald and Sabrina; she told Lausch that at the park Donald and Sabrina told her that he had hurt M.J.’s feelings at the 4th of July party. When Sabrina and Donald arrived, Lausch said that he was sorry and that he did not mean to hurt M.J.’s feelings. According to Sue, Sabrina and Donald never mentioned the allegations, likely because they assumed Sue had mentioned them to Lausch. Instead, Sabrina discussed the need for counseling and wanted Lausch to pay for it.
On October 18, Donald received the following text message from Lausch:
Donald, I think our families need more time to heal before we get together again. Sue doesn't want to ever discuss
or talk about what happened ever again. She just wants to move forward with the healing process. We are family and we love you guys, and just like in the past, we will be there for each other. As in the past I've always kept my promise. I'm considering counseling and have given up drinking all together. I'm still having trouble learning to forgive myself. We hope that you and Sabrina will understand and that we can get together soon. We just need a little more time to heal right now. We love you both and hope you have a blessed day.
According to Donald, Lausch's need for forgiveness was related to what he did to M.J. because there was nothing else for which Lausch needed forgiveness. Sue claims that she and Lausch had helped Donald and Sabrina out financially in the past, but they had grown tired of loaning them money. According to Sue, Lausch did nothing wrong that needed forgiveness; rather, he simply felt bad after cutting them off financially and deciding not to help them any further. Sue further claimed that Lausch's need for counseling was for anger issues, not for anything he did to M.J.
Donald responded to Lausch's text by telling him, "Your option is this. You will go to counseling and you will pay for [M.J.] to go. Thats [sic] the only option besides police you will be given. You both need it." According to Sue, Lausch was confused by Donald's messages to him and did not understand why Donald had sent those messages. Donald and Lausch spoke on the phone to discuss counseling, but the two never spoke again after this call.
On October 20, Donald and Sabrina reported the allegations against Lausch to the Hitchcock Police Department ("HPD").
c. Rodriguez & Arredondo's Testimony
Officer Rodriguez testified that she had her body camera on when Donald and Sabrina came to report the allegations against Lausch. Rodriguez testified that M.J. was crying, uncomfortable, and upset. Rodriguez testified that video footage from her body camera was not available, although footage from her camera had been downloaded to a computer. Rodriguez stated she was unaware of where the recordings were located or who was in charge of keeping the body camera recordings. Rodriguez referred the case to Detective Arredondo, who notified Children's Protective Services. When M.J. was interviewed at the Child Advocacy Center, she mentioned that Lausch touched her breast on two separate occasions, but she did not mention alcohol because she was underage.
The HPD took videotaped statements from M.J.’s mother and stepfather regarding the alleged incidents and also took possession of M.J.’s two cell phones. The videotapes were interviews of M.J.’s mother and stepfather regarding the disputed facts of what had occurred; however, according to Arredondo, the interviews were accidentally deleted by an HPD technician. Arredondo prepared a supplemental report concerning the details of those interviews. Arredondo claimed that Donald and Sabrina's statements during the interviews were consistent with what M.J. told the forensic interviewer. The destruction of the videotapes was only mentioned at trial during Arredondo's testimony.
B. SPOLIATION INSTRUCTION
Prior to trial, the State filed a Notice of Possible Exculpatory Evidence to notify Lausch that the interviews had been accidentally destroyed.
Toward the end of the guilt/innocence stage, Lausch's attorney requested a spoliation instruction because M.J.’s two cell phones had been destroyed. However, shortly thereafter, Lausch's attorney withdrew his request for a spoliation instruction based on the cell phones and instead urged his request for a spoliation instruction based on the destruction of the videotaped statements of the interviews.
Lausch presented no evidence at trial as to how the cell phones were actually lost or destroyed.
The State opposed the instruction, arguing that Lausch had not established the requisite intent to warrant a spoliation instruction. The trial court informed the parties that it had conducted research and found a decision from this Court. See Green v. State , 607 S.W.3d 147, 149 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Based on our decision in Green , the trial court observed that "[w]hen conduct can, at worse, be described as negligent, the failure to preserve evidence does not rise to the level of a due process violation absent extraordinary circumstances." See id. at 156. Accordingly, the trial court denied the spoliation instruction.
The trial court was given the prepared jury charges in an unstapled form, and the trial court read the jury charge for counts one and two to the jury. Both sides presented their closing arguments, with neither side mentioning the destruction of the videotaped statements. When the trial judge "scooped up" the charge for count two to hand to the court reporter, he inadvertently picked up two pages from an excerpt of Green. The court reporter stapled the charge and the case excerpt together.
The excerpt from Green that was included in the jury charge is attached verbatim to this opinion as Appendix A.
C. THE VERDICT
The jury found Lausch guilty on both counts of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1). The trial judge noticed the case excerpt was stapled to the back of the charge when the jury returned with its verdict. Each juror was individually polled, and each juror confirmed that the verdict of "guilty" on both counts was his or her verdict. Lausch moved for a mistrial.
D. LAUSCH'S MOTION FOR MISTRIAL
The next day, before proceeding to the punishment phase, the trial court heard Lausch's motion for mistrial. The State argued that the mistrial should not be granted because mistrial is an extreme remedy, the jury did not receive any new evidence, and Lausch was not harmed because the case excerpt the jury received regarding a spoliation instruction was only an accurate reflection of the law. Lausch argued that the issue of missing statements had come up several times throughout the course of the trial: during Lausch's opening statement, the State's opening statement, the testimony of two witnesses that Lausch called at trial who testified concerning missing statements, and in Lausch's closing statement. The trial judge stated that he would go forward with the punishment phase of the trial, but that he would keep the motion for mistrial under advisement. The jury assessed punishment on both counts at four years’ imprisonment and a $10,000 fine. After punishment was pronounced, the trial judge questioned the jurors regarding the impact of the attached excerpt from the Green opinion.
Testimony by the Jurors Post Verdict
We will refer to the jurors using pseudonyms.
1. Juror 1 Juror 1 was the foreperson and testified that he read the excerpt, but "skipped to the second page pretty much." Juror 1 testified that the excerpt was passed around for everyone to read, but it was not read aloud. He further testified the excerpt had no influence on his verdict.
2. Juror 2
Juror 2 admitted that she did not read or look at the excerpt. She claims the jury charges were not passed around to be read; they were instead placed on an overhead projector to be read.
3. Juror 3
Juror 3 stated that he glanced at the excerpt, but he did not "read deeply into it." He did not mention whether the excerpt affected his opinion.
4. Juror 4
Juror 4 claimed that both charges were put up on an overhead projector and read aloud. Juror 4 believed that everything in the stapled packet, including the excerpt, was read aloud; however, he admitted that he did not read the excerpt. When asked if the excerpt affected his decision, he responded, "I had my ideas. So, everything that was read aloud and everything didn't really change my perspective on things."
5. Juror 5
Juror 5 did not recall the excerpt being put on the overhead projector. She also admitted to not reading the excerpt: "I wasn't made aware that we were supposed to read that."
6. Juror 6
Juror 6 did not read through the excerpt, but he did recall reading through every page of the jury charge. He admitted that not every page of the charge was placed on the projector.
7. Juror 7
Juror 7 stated that the jurors did not pass around the jury charge; instead, they all read through the jury charge as it was placed on the overhead projector. However, according to her, the excerpt was not placed on the overhead projector.
8. Juror 8
Concerning the excerpt, Juror 8 stated, "I do not believe they were put on the overhead [projector]. I believe they were read out loud." The following conversation took place between the State and Juror 8:
[State]: Sir, the last two pages there that the Judge was asking you about that were attached to the charge for Count 2, did that impact your deliberation in any way?
...
[Juror 8]: Me personally, or as a group?
[State]: You individually, sir.
[Juror 8]: Me personally, yes.
When further questioned about whether the excerpt weighed in favor of one of the two parties, Juror 8 stated that he did not understand the question; he was released without additional questioning.
9. Juror 9
Juror 9 did not recall looking at or reading the excerpt; she also claimed that it was never read aloud during jury deliberation.
10. Juror 10
Juror 10 testified that the charges were placed on the overhead projector. He "read through most of it, the charges that pertained." However, when questioned specifically about the excerpt, he stated that it was not read aloud or placed on the projector. He did not recall seeing or reading the excerpt.
11. Juror 11
Juror 11 believed the jurors passed the charge around to read. But he did not think the excerpt was ever placed on the projector or read aloud, although he knows that he personally did not read it because he was not made aware it was something that needed to be read.
12. Juror 12
Juror 12 testified that all of the jurors had an opportunity to see the charges, flip through them, and see them; even though he did not recall seeing the excerpt and admitted that he did not read it, he claims the excerpt was passed around.
13. Trial Court's Ruling
After all of the jurors testified, Lausch re-urged his motion for mistrial. Lausch argued that the loss or destruction of evidence was a fairly substantive part of his defensive theory. In addition, jurors 3 and 8 admitted to reading the excerpt and one juror—juror 8—claimed that the excerpt affected his verdict. Thus, Lausch argued that the excerpt constituted a judicial comment on the weight of the evidence, bolstered the State's case, and increased the defense's burden of proof regarding lost evidence.
The State averred that juror 8 only testified that the excerpt affected his "deliberations," not his actual verdict, and additionally, that the record does not reflect how the excerpt actually affected juror 8's deliberations. The trial court announced to the parties that it was going to take the issue under advisement; on December 22, 2020, Lausch's motion for mistrial was denied.
E. LAUSCH'S MOTION FOR NEW TRIAL
Lausch subsequently filed a motion for new trial which was heard by the court. No new evidence was presented at the hearing on the motion; only arguments were heard. Lausch again argued that the loss of evidence was a crucial component of his defense. However, Lausch also conceded that the trial court's decision to deny his request for a spoliation charge "was probably the right thing to do if there was no evidence of malicious intent or bad faith on the part of the Hitchcock Police Department in losing that evidence." Lausch also admitted that the jurors receiving the case excerpt did not constitute the receipt of "other evidence" by the jurors during deliberation. Nevertheless, Lausch still argued that he was harmed because even if the jurors gave conflicting accounts of what happened during deliberation, at least one juror—juror 8—testified that the excerpt affected his deliberation. Under the Texas Rules of Appellate Procedure 21.3(b), Lausch argued, a defendant must be granted a new trial "when the trial court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights." See Tex. R. App. P. 21.3(b). The trial court granted Lausch's motion for new trial. This appeal followed.
II. ANALYSIS
The State argues that the trial court erred in granting Lausch's motion for new trial because attaching the case excerpt does not constitute error, and even if it was error, the record does not show that Lausch suffered any harm. Lausch avers on appeal that the destruction of the videotapes was crucial to his defense because it demonstrated the "terrible police work" in the case; accordingly, Lausch argues that he suffered some harm.
A. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court's ruling on a motion for new trial for an abuse of discretion. See Najar v. State , 618 S.W.3d 366, 372 (Tex. Crim. App. 2021). The Texas Courts of Criminal Appeals has clarified our standard of review:
apply a uniformly deferential standard of review to a trial court's findings in ruling on a motion for new trial: the trial court is the exclusive judge of the credibility of the evidence, regardless of whether the evidence is controverted, and its ruling will be reversed only for an abuse of discretion, that is, if it is arbitrary or unsupported by any reasonable view of the evidence.
Id. However, when a defendant raises a claim under Rule 21.3(b) of the Texas Rules of Appellate Procedure, as Lausch did in this case, error is reviewed under the Almanza framework. See Igo v. State , 210 S.W.3d 645, 646 (Tex. Crim. App. 2006) ; Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). "An appellate court owes no deference to a trial court's determinations when they are actually determinations as to questions of law or mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor." State v. Ambrose , 487 S.W.3d 587, 597 (Tex. Crim. App. 2016). In Ambrose , the Texas Supreme Court concluded that, the trial court's determination under the Almanza framework that the defendant suffered egregious harm from a jury charge error was a legal conclusion to which no deference was required by the appellate court. See id.
"[I]n each felony case ... tried in a court of record, the judge shall, before the argument begins, deliver to the jury ... a written charge distinctly setting forth the law applicable to the case...." Tex. Code Crim. Proc. Ann. art. 36.14 ; see also Tex. R. App. P. 21.3(b). In analyzing a jury charge issue, we first determine whether error exists. See Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ; Almanza , 686 S.W.2d at 171. "Only if we find error do we then consider whether an objection to the charge was made and analyze for harm." Tottenham v. State , 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). If the alleged jury charge error was properly preserved, then reversal is required if it is shown that the error caused some harm. Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Neither the State nor the defendant has a burden to prove harm. See id. However, the reviewing court must find that the defendant "suffered some actual, rather than merely theoretical, harm from the error." Id. (quoting Warner v. State , 245 S.W.3d 458, 462 (Tex. Crim. App. 2008) ).
"Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Ambrose , 487 S.W.3d at 597 (quoting Marshall v. State , 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) ). Under the relevant standard, we have traditionally considered (1) the entirety of the jury charge, (2) the state of the evidence, (3) counsel's arguments, and (4) any other relevant information revealed by the entire trial record. Id. Courts are required to review the relevant portions of the entire record to determine whether a defendant suffered actual harm, as opposed to theoretical harm, as a result of the error. Id.
B. APPLICATION
1. Attaching the Case Excerpt Constituted Error
We start by determining whether error exists. See Ngo , 175 S.W.3d at 743. Although factually not identical, we find Watts v. State , 99 S.W.3d 604, 611 (Tex. Crim. App. 2003) instructive.
In Watts , immediately prior to jury deliberations, the trial court orally summarized the interpretation of the relevant Water Code statute as stated by the Texas Court of Criminal Appeals in Am. Plant Food Corp. v. State , 587 S.W.2d 679, 683 (Tex. Crim. App. 1979). Although the Court of Criminal Appeals concluded the trial court's summary of Am. Plant Food Corp. was "fairly accurate, if somewhat simplified," the court ultimately concluded that the trial court committed error by giving the oral instruction to the jury because it constituted a judicial comment on the weight of the evidence. See Watts , 99 S.W.3d at 611.
The Court of Criminal Appeals concluded that it is appropriate for trial courts to take judicial notice of the existence, content, and applicability of other cases, but affirmed that judicial notice is "always taken outside the presence of the jury," id. , while further expressing that the jury
determines questions of fact in light of the law as it is finally determined and given to it by the court in the written jury charge. All of the applicable law is contained within that written jury charge. The jury charge does not contain excerpts from judicial decisions or any statements that an appellate court has held that proof of "X" fact fulfills "Y" legal requirement.
Id.
In the present case, while the trial court did not directly address the jury concerning a prior case, the jury charge contained exactly what the Court of Criminal Appeals in Watts determined should not be included in a jury charge: an excerpt from a judicial opinion indicating that "proof of "X" fact fulfills "Y" legal requirement—in this case, an excerpt wherein an appellate court has held that the negligent loss of evidence fails to rise to the level of a due process violation. See Tex. Code Crim. Proc. Ann. art. 36.14 (stating that the trial court should prepare a jury charge "setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence"). Thus, we conclude that the inclusion of the excerpt was error. See id. ; see also Tex. R. App. P. 21.3(b) ; Watts , 99 S.W.3d at 611.
2. Lausch Suffered Some Harm
The State concedes that if we determine error existed, then the proper harm analysis is whether Lausch suffered "some harm" because Lausch timely objected. See Reeves , 420 S.W.3d at 816. In assessing whether "some harm" occurred, we consider the error in light of: (1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole. French v. State , 563 S.W.3d 228, 235–36 (Tex. Crim. App. 2018). "If we conclude the error was calculated to injure the defendant's rights, we must reverse." Smith v. State , 612 S.W.3d 711, 719 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
a. The Entire Jury Charge
As to this factor, we consider the entire jury charge to determine if "anything in the balance of the jury charge either exacerbated or ameliorated" the complained of error. See French , 563 S.W.3d at 236 (holding that the court of appeals erred by simply reiterating the trial court's error without analyzing the rest of the jury charge).
Other than the excerpt itself, Lausch does not assert that any other aspect of the jury charge was erroneous. Nevertheless, we note that the excerpt from the Green case at least partially undercuts Lausch's defensive theory that the police investigation was poorly conducted and that he was negatively impacted as a result. Thus, we conclude that this factor weighs in favor of finding harm. See id.
b. The State of the Evidence
The destruction of evidence and Lausch's defensive theory was raised at trial through Rodriguez and Arredondo. Arredondo admitted that he "dropped the ball" in failing to interview various individuals during his investigation, including Melissa Valdivar, the first person to whom M.J. disclosed the alleged sexual abuse.
Ultimately, this case rests on whether the jury believed M.J.’s allegations against Lausch. The conflicting testimony of M.J. and Lausch, as well as the conflicting testimony of Sue, Sabrina, and Donald, made the credibility of the witness testimony in this case crucial to the jury's verdict.
The jury was presented with text messages to show M.J. and Lausch's "unusual relationship" and that Lausch felt guilty about something he did. Accordingly, the State argues that the jury simply needed to make credibility determinations to weigh M.J.’s allegations against the testimony of Lausch's wife; the jury did not need the videotaped statements made by M.J.’s mother and stepfather. The jury heard M.J.’s testimony concerning the alleged offense. In light of all of the evidence presented at trial, we conclude this factor weighs in favor of finding no harm.
c. The Jury Arguments
During his opening statement, Lausch's attorney very briefly mentioned that the jury would hear from Arredondo about "everything that did not happen." The State did not mention the loss of evidence in its opening.
In the State's final argument, the State focused on M.J.’s testimony and the text messages she and Lausch sent to each other. In its closing argument on rebuttal, the State again focused on the messages Lausch sent to M.J. The State mentioned that Arredondo did a "horrible job" and that Rodriguez "could have done better," but the State did not specifically refer to the loss or destruction of evidence.
In Lausch's closing argument, trial counsel emphasized the character witnesses called by Lausch. He briefly mentioned how Lausch did not have access to M.J.’s cell phones or to Rodriguez's body camera footage, but he never discussed the accidental deletion of Arredondo's interviews with M.J.’s mother and stepfather.
In the closing argument by Lausch's co-counsel, he focused on the State's burden of proof. He was heavily critical of the police work in this case and argued that the case was very poorly handled, but he also did not mention the deleted videotaped interviews.
Finally, we note that Lausch does not argue that the State incorrectly stated the law during closing argument. We conclude this factor weighs slightly in favor of finding no harm. See Gelinas v. State , 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (concluding that the third factor of the Almanza analysis weighed in favor of finding no harm because even though the State's closing argument contained a few misstatements of law, the State ultimately set out the correct law to the jury in its closing argument).
d. Other Relevant Information
In considering this final factor, we review any other relevant information as revealed by the record as a whole. See French , 563 S.W.3d at 235–36. We first note that we have not found, nor has Lausch pointed us to, any part of the voir dire that is relevant to our harm analysis. See Ngo , 175 S.W.3d at 743. In reviewing the remainder of the record as a whole, the most important information is the jurors’ post-verdict testimony. It is true that the jurors’ testimony is somewhat inconsistent regarding what may or may not have occurred during jury deliberations; two jurors testified that the charge with the excerpt was read aloud, others claimed the charge was displayed on an overhead projector, some claimed that both occurred while others disclaimed both. However, despite the contradictions, Juror 8 specifically testified that the excerpt affected his deliberations.
The State argues on appeal, as it did at the hearing on Lausch's motion for new trial, that there is no harm because Juror 8 only testified that the case excerpt affected his deliberations, not his verdict. However, we are not persuaded by this distinction, especially given the context of Juror 8's testimony. Juror 8 did not personally use the word "deliberations" or "verdict." Rather, it was the State that asked Juror 8 if the excerpt "impact[ed] [his] deliberations in any way." Juror 8 simply responded in the affirmative, without any testimony as to the nature or extent of the impact on his deliberations.
The State also argues that there is no evidence of actual harm because there was no way for the jurors to apply the case excerpt in reaching the verdict; thus, the State argues that Juror 8, and the other jurors, ultimately still had to find all of the elements of the offenses beyond a reasonable doubt. While we acknowledge that Juror 8's testimony is vague and fails to explain how the case excerpt affected his deliberations, he affirmatively testified that the excerpt did affect his deliberations. We conclude that this evidence is sufficient to satisfy the relatively lower standard of "some harm." See Reeves , 420 S.W.3d at 816 (finding some harm when the trial court erroneously instructed the jury on the law of provocation, which undermined defendant's sole defense); Watts v. State , 140 S.W.3d 860, 868 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) ("While it is unseemly to predicate reversible error upon an accurate statement of the law, the Court of Criminal Appeals clearly suggests by its opinion that an appellant may be harmed by such an instruction.").
Ultimately, because the attached excerpt impacted Lausch's defensive theory, we cannot say that the error did not cause harm. Therefore, we conclude this factor weighs in favor of finding "some harm." See Reeves , 420 S.W.3d at 816.
3. Summary
We conclude that the trial court committed error by attaching the case excerpt to the jury charge. Considering the entire jury charge, the state of the evidence, the jury arguments, and other relevant information, such as the juror testimony adduced after sentencing, we conclude Lausch suffered some actual, non-hypothetical harm. We overrule the State's sole issue.
III. CONCLUSION
We affirm the trial court's order.
( Jewell, J., concurring).
APPENDIX A
Court of Appeals of Texas, Houston (14th Dist.).
Jonathan GREEN. Appellant
v.
The STATE of Texas, Appellee
NO. 14-19-00083-CR
Opinion filed September 1, 2020
II. The Trial Court Did Not Err by Denying Appellant's Request for a Spoliation Instruction.
Hall gave two written statements to the police: the first on December 15, 2017 (to Officer White) and the second on December 18, 2017 (to Detective Cantu). According to Hall, in his first statement he said he "didn't know nothing about [Appellant's] phone or all that kind of stuff." Hall testified that this first statement was a lie. Hall relied on his second statement to refresh his recollection at Appellant's trial and testified regarding Appellant's (1) actions on December 14, 2017 and (2) lost phone. Hall's first statement to Officer White could not be located at the time of trial. Officer White testified that, "[t]o the best of [his] knowledge." (1) Hall completed and signed the statement and (2) he (Officer White) turned it over to Detective Cantu. Officer White said he had looked for this *156 first statement but had "no idea" what happened to it. Detective Cantu also was asked about Hall's first statement and said she did not "have any idea where that statement is."
At the jury charge conference, Appellant's counsel requested a spoliation instruction with respect to Hall's first statement. The trial court denied the request. Challenging this determination on appeal, Appellant argues that Hall "exonerated Appellant in his first statement and then changed his story to implicate Appellant for the sexual assault in his second interview after he realized that the police considered [Hall] a possible suspect to the crime."
15A review of alleged jury charge error involves a two-step process examining: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v. State , 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (en banc); Jones v. State , 531 S.W.3d 309, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). We analyze these issues below.
A. Error
1617 Spoliation refers to the loss or destruction of evidence. Guzman v. State , 539 S.W.3d 394, 401 (Tex. App.—Houston [1st Dist.] 2017, pet. refd). Absent a showing of bad faith, we cannot find a due process violation that warrants a spoliation instruction. See Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ("[U]nless 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."); see also Ex parte Napper , 322 S.W.3d 202, 229 (Tex. Crim. App. 2010) : Guzman , 539 S.W.3d at 401 ; and Moody v. State , 551 S.W.3d 167, 172 (Tex. App.—Fort Worth 2017, no pet.).
181920 Bad faith requires "more than simply being aware that one's actions or inaction could result in the loss of something that is recognized to be evidence." Napper , 322 S.W.3d at 238. Rather, 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. 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 absent extraordinary circumstances not present here. See generally Arizona , 488 U.S. at 58, 109 S.Ct. 333 and Burdick v. State , 474 S.W.3d 17, 27 (Tex. App.—Houston [14th Dist.] 2015. no pet.) ("A showing of negligence does not qualify as bad faith.").
21 Here, there is no evidence of bad faith and Appellant's attempt to frame the loss of evidence as "gross indifference" is unsupported under Texas case law. Instead, the record reveals Officer White testified that, "[t]o the best of [his] knowledge," he turned Hall's first written statement over to Detective Cantu. Detective White testified that prior to Appellant's trial, he looked for the statement but could not find it. According to Detective White, *157 the last time he saw the statement was on the day he took it. Both Officer White and Detective Cantu testified that they did not know what happened to the first statement. Under these facts, we have insufficient facts to conclude either satisfied the onerous standards of "bad faith".
Having concluded the trial court did not err when it denied Appellant's request for a spoliation instruction, we need not reach the question of whether it was harmful. See, e.g., Guzman , 539 S.W.3d at 400-02.
We overrule Appellant's second issue.
Conclusion
We affirm the trial court's final judgment.
CONCURRING OPINION
Kevin Jewell, Justice
By mere inadvertence, a two-page excerpt from an appellate court opinion was attached to one of two jury charges when the jury retired to deliberate. Although the content of the excerpt did not bear directly on any disputed matter the jury was tasked with deciding, one juror testified that the excerpt influenced his deliberations, though he did not say how. Ultimately, the trial judge decided to afford appellee a new trial. Under the present circumstances, I agree with my colleagues that we should not disturb the trial court's decision.
The first question is whether a court errs by inadvertently attaching to a jury charge a case law excerpt discussing an abstract legal principle on an issue the jury need not address to properly render a verdict. In his motion for new trial, appellee requested a new trial because the court "misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights." Tex. R. App. P. 21.3(b). At the hearing, appellee argued that by attaching the excerpt to the charge, the court commented on the weight of the evidence.
We may affirm the order only on grounds appellee asserted in his motion for new trial and at the hearing without objection by the State. See State v. Zalman , 400 S.W.3d 590, 594 (Tex. Crim. App. 2013) ; Clarke v. State , 270 S.W.3d 573, 580-81 (Tex. Crim. App. 2008). At the hearing, the State did not object to appellee's comment-on-the-weight-of-the-evidence argument.
The trial court must maintain neutrality in informing and guiding the jury. See De La Torre v. State , 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (citing Brown v. State , 122 S.W.3d 794, 798, 801 (Tex. Crim. App. 2003) ). Assisting in this function is the jury charge, which: (1) must be in writing; (2) must "distinctly set[ ] forth the law applicable to the case"; (3) cannot "express[ ] any opinion as to the weight of the evidence"; (4) may "not sum[ ] up the testimony"; and (5) cannot "discuss[ ] the facts or us[e] any argument in [the] charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc. art. 36.14 ; see De La Torre , 583 S.W.3d at 617. Among article 36.14 ’s objectives is preventing a jury from interpreting a judge's comments as a judicial endorsement or imprimatur for a particular outcome. See Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) ("[A] trial court should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might construe this as judicial endorsement or imprimatur."). To ensure compliance with article 36.14 and maintain neutrality, the court may not express any opinion on the weight of the evidence or draw the jury's attention to particular facts. See De La Torre , 583 S.W.3d at 617.
The Court of Criminal Appeals has recognized three circumstances under which "a trial court may single out a particular item of evidence in the jury instruction without signaling to the jury an impermissible view of the weight (or lack thereof) of that evidence." Bartlett , 270 S.W.3d at 151. An instruction that alludes to a particular piece of evidence, but does not serve one of these purposes, "risks impinging upon the independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties." Id. at 151-52. Even a "seemingly neutral instruction" that singles out a particular piece of evidence for "special attention" may constitute an impermissible comment on the weight of the evidence. De La Torre , 583 S.W.3d at 617 ; Bartlett , 270 S.W.3d at 152 ; see Kirsch v. State , 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) ("An instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper comment on the weight of the evidence.").
The trial court may specifically instruct the jury: (1) when the law directs it to attach "a certain degree of weight," or only a particular or limited significance, to a specific category or item of evidence; (2) when the Legislature has expressly required the trial court to call particular attention to specific evidence in the jury charge when the law specifically identifies it as a predicate fact from which a jury may presume the existence of an ultimate or elemental fact; or (3) with respect to evidence that is admissible contingent upon certain predicate facts that are up to the jury to decide. Id.
The trial court presented the jury with a separate charge for each of two counts. The opinion excerpt was attached to the written charge for one count but not the other. Appellee argues that the excerpt drew the jury's attention to the particular (undisputed) fact that the police lost the videotapes of the officers’ interviews of the complainant's parents. The excerpt was not a jury "instruction" and did not specifically reference any particular fact in this case; rather, it discussed the legal concept of spoliation in another case and applied that principle to the facts of that other case. The jury was not being asked to apply spoliation principles here, and appellee agrees the trial court correctly refused his requested spoliation instruction. Still, language in a jury charge that alludes to a specific fact, even in a non-specific way, such as the absence of a videotape recording, may constitute an impermissible comment on the weight of the evidence because it is an indirect reference to the fact and might be construed as judicial endorsement or imprimatur. I agree that the trial court's inadvertent attachment of this particular case law excerpt constituted error under the present circumstances.
Further, I conclude the error is fairly characterized as charge error. The court must deliver a "written charge" and read it to the jury. See Tex. Code Crim. Proc. art. 36.14. The jury charge is to " ‘inform the jury of the applicable law and guide them in its application to the case.’ " De La Torre , 583 S.W.3d at 617 (quoting Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) ). Jury charge error results when the charge does not correctly set forth the law "applicable to the case." See Bell v. State , 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (jury charge error stems from the denial of a defendant's right to have the trial court provide the jury with instructions correctly setting forth the "law applicable to the case"). Here, the appellate court opinion excerpt was part of a written charge because it was physically attached to of one of two written charges, even though it was not read to the jury. Further, the matter of evidence spoliation as discussed in the opinion excerpt was not applicable to this case.
Though not raised by appellee as a ground for new trial, I might further suggest that attaching the excerpt was error due to the likelihood of jury confusion. To begin with, case law should not be attached to a jury charge at all. But presenting a portion of case law to jurors that explains and applies a legal concept the jury is not being asked to address is an even greater invitation for jury confusion. This specific excerpt was likely to mislead or confuse, not only because it is a case law excerpt, but because it applies a legal principle in another case when the jury is not being asked to apply that principle here. The excerpt alluded to a certain fact and discussed that fact in a context the jury was not likely to understand. "[I]t is the function of the charge to lead and to prevent confusion." Reeves v. State , 420 S.W.3d 812, 818 (Tex. Crim. App. 2013). Inapplicable law in a jury charge can present a danger of confusion and risks harm because a jury might erroneously think it is supposed to apply that law in its decision-making process. See Smith v. State , 577 S.W.3d 548, 553-54 (Tex. Crim. App. 2019). For example, when a charge contains a legal instruction applicable to some issues but not others, a court generally must give an appropriate limiting instruction to avoid jury confusion. See id.
Because appellee's motion for new trial complained of charge error under rule 21.3(b), the appropriate harm analysis is under Almanza even when, as here, the trial court granted the motion. See State v. McKnight , 213 S.W.3d 915, 916 (Tex. Crim. App. 2007) (motion for new trial granted); Igo v. State , 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (motion for new trial denied). We must remain cognizant that the goal is to discern whether the error was " ‘calculated to injure the rights of [the] defendant.’ " French v. State , 563 S.W.3d 228, 237 (Tex. Crim. App. 2018) (quoting Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). This means that courts must ask whether the defendant has suffered "some actual, rather than [merely] theoretical harm from the error," Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ; that is, whether the error "actually affected" the outcome. Ross v. State , 133 S.W.3d 618, 624 (Tex. Crim. App. 2004) ; Saunders v. State , 817 S.W.2d 688, 690 (Tex. Crim. App. 1991).
A correct charge is critical to the jury's deliberations. Jury charge error that is likely to confuse or mislead can weigh in favor of "some" harm under Almanza . See Smith v. State , 612 S.W.3d 711, 719-20 (Tex. App.—Houston [14th Dist.] 2020, no pet.) ; see also Reeves , 420 S.W.3d at 819. The opinion excerpt rendered an otherwise appropriate jury charge misleading. The excerpt was attached to one of the written charges and was before the jury for consideration during its deliberations. Looking at the entire charge in context, I note that the court also instructed the jury that it was "bound to receive the law from the Court," included within the charge, and it was to be "governed thereby." Given the excerpt's content together with its attachment to the charge, coupled with our assumption that jurors follow written instructions, Reeves , 420 S.W.3d at 818, the jury reasonably could have deliberated under the erroneous impression that the excerpt "governed" its fact-finding function. Proceeding under such a misimpression, it would be understandably difficult for a reasonable factfinder to comprehend why this particular opinion excerpt was attached and how it applied. Moreover, that the excerpt's content was not read to the jury before it retired would only exacerbate the confusion, as would the fact that the excerpt was attached to only one of the two charges the jury considered. Viewing the error in the context of both written charges, I conclude that this Almanza factor weighs in favor of some harm.
Most jurors either did not read the excerpt or ignored it. However, it was read by two jurors, one of whom said that it influenced his deliberations. The record does not indicate precisely how the juror's deliberations were affected, but the record is suggestive of confusion, and given that the trial judge observed the juror's testimony, we should defer to his evaluation of it. A juror's unobjected-to testimony that a case law excerpt such as this one erroneously attached to one of the jury charges influenced his deliberations is sufficient to cross the line from theoretical to actual harm because the error had an "actual effect" on deliberations. See Saunders , 817 S.W.2d at 690 ; see also Ross , 133 S.W.3d at 624 ; Loun v. State , 273 S.W.3d 406, 418 (Tex. App.—Texarkana 2008, no pet.) (concluding some harm resulted from charge error when juror testimony confirmed the error influenced deliberations). In my view, this relevant information weighs significantly in favor of some harm. I cannot say with "fair assurance" that the error did not have an "injurious effect or influence in determining the jury's verdict." Trevino v. State , 100 S.W.3d 232, 243 (Tex. Crim. App. 2003).
I am skeptical, however, that appellee's other arguments favor a conclusion that he suffered actual harm because of the charge error. Mainly, he says some harm resulted from the excerpt because it diminished his defensive theory that he was denied a fair trial due to law enforcement's inept handling and investigations and its failure to preserve evidence. It is unclear to me how this is so. To the extent the excerpt drew attention to the fact that the police lost video recordings of witness interviews, that fact would advance appellee's defensive theory, not undermine it. Be that as it may, the record before us is sufficient to show that appellee suffered at least some actual harm from the charge error, and therefore I support the trial court's decision to afford appellee a new trial.
As an aside, I wonder whether sending the jury back for further deliberations upon discovery of the error may have avoided the potential for harm. The trial judge first realized the error when the jury returned its verdict. He removed the jury from the courtroom and asked counsel to approach. The conversation that followed is not contained in our record. The jury was brought in, and the court then received the verdicts. Might any harm have been pre-emptively addressed by, before receiving the verdicts, instructing the jury to disregard the two-page case law excerpt and then directing it to begin deliberations anew? With these thoughts, I concur in the court's judgment.