                                   NO. 12-08-00368-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

BROOKSHIRE BROTHERS, LTD. ,                   §       APPEAL FROM THE 159TH
APPELLANT

V.                                            §       JUDICIAL DISTRICT COURT

JERRY ALDRIDGE,
APELLEE                                       §       ANGELINA COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Brookshire Brothers, Ltd. appeals the trial court’s judgment in a premises liability lawsuit
brought by Jerry Aldridge. In four issues, Brookshire Brothers asserts that the evidence is
insufficient to support the judgment, that the trial court erred in admitting evidence of spoliation,
and that the trial court erred by charging the jury with a spoliation instruction. We affirm.


                                          BACKGROUND
       Aldridge slipped on a liquid substance and fell while shopping at a Brookshire Brothers’
store in Jacksonville, Texas. Aldridge suffered a substantial spinal injury as a result of the fall.
Initially unaware of the extent of his injury, Aldridge notified Brookshire Brothers employees of
the substance and his fall, purchased some items, and left the store.            Shortly thereafter,
Aldridge’s pain began to increase, and he decided to seek out medical treatment at a local
emergency room. Several days later, Aldridge returned to the store and informed a Brookshire
Brothers’ manager of his injury. The manager prepared a formal incident report, noting that
Aldridge had injured his neck and back.
       Brookshire Brothers later began paying for Aldridge’s medical care, including treatment
by a neurosurgeon. During this time, Brookshire Brothers also preserved a short segment of a
surveillance video recording of the day in question, but later allowed the remainder to be
recorded over by the recording system. The preserved segment, which was less than eight
minutes in length, showed Aldridge entering the store, falling, and leaving. It also showed
Aldridge looking at items in certain parts of the store. But it did not include portions of the

                                                  1
original recording that could have shown the source of the substance on the floor, additional
employees that may have seen the substance, or the amount of effort necessary to clean the
substance from the floor. Six minutes and fifty-three seconds of the preserved video were from
the period directly before Aldridge fell.
       After a failed attempt to overcome his injury and return to gainful employment, Aldridge
filed a premises liability action against Brookshire Brothers. The case was tried to a jury. The
trial court admitted evidence relating to the destruction of the video recording. The trial court
also charged the jury with a spoliation instruction. The jury subsequently reached a verdict in
favor of Aldridge and the trial court rendered judgment on the verdict. This appeal followed.


                                    EVIDENTIARY SUFFICIENCY
       In its third and fourth issues, Brookshire Brothers asserts that the evidence is legally and
factually insufficient. Specifically, Brookshire Brothers alleges that the evidence is insufficient
to support the elements of knowledge, proximate cause, and breach of care.
Standard of Review
       When reviewing a jury’s verdict for legal sufficiency, we may set aside the verdict only if
the evidence at trial would not enable reasonable and fair-minded people to reach the verdict
under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this
determination, we must credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not. Id. Jurors are the sole judges of the
credibility of the witnesses and the weight to give their testimony. Id. at 819. They may choose
to believe one witness and disbelieve another, and reviewing courts may not impose their own
opinions to the contrary. Id. Most credibility questions are implicit rather than explicit in a
jury’s verdict. Id. Accordingly, reviewing courts must assume jurors decided all of them in favor
of the verdict if reasonable human beings could do so. Id.
       Nor is it necessary to have testimony from both parties before jurors may disbelieve
either. Id. at 819-20. Jurors may disregard even uncontradicted and unimpeached testimony
from disinterested witnesses. Id. at 820.       Jurors are not free to believe testimony that is
conclusively negated by undisputed facts. Id. But whenever reasonable jurors could decide what
testimony to discard, a reviewing court must assume they did so in favor of their verdict, and
disregard it in the course of legal sufficiency review. Id.
       In addition, it is the province of the jury to resolve conflicts in the evidence. Id.
Consequently, we must assume that, where reasonable, the jury resolved all conflicts in the
evidence in a manner consistent with its verdict. Id.         If reasonable jurors could resolve
conflicting evidence either way, reviewing courts must presume they did so in favor of the
                                             2
prevailing party, and disregard the conflicting evidence in their legal sufficiency review. Id. at
821. Where conflicting inferences can be drawn from the evidence, it is within the province of
the jury to choose which inference to draw, so long as more than one inference can reasonably be
drawn. Id. Therefore, we must assume jurors made all inferences in favor of their verdict if
reasonable minds could, and disregard all other inferences in our legal sufficiency review. Id.
       Regarding factual sufficiency challenges, where a party who did not have the burden of
proof on an issue asserts that a jury’s verdict is contrary to the evidence, we must overrule the
complaint unless the verdict is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In
conducting our review, we must consider all of the evidence that supports and that which is
contrary to the verdict. Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989). We must
remember that the jury is the sole judge of the credibility of the witnesses. See Santa Fe
Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 638 (Tex. App.—Tyler 2004, no pet.)
The jury may take into consideration all of the facts and surrounding circumstances in
connection with the testimony of each witness and accept or reject all or any part of that
testimony. See id. Where enough evidence is before the jury so that reasonable minds could
differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the
evidence, we may not substitute our judgment for that of the jury. See id.
Applicable Law
       It is undisputed that Aldridge was an invitee of Brookshire Brothers. See Rosas v.
Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975) (invitee is person who enters premises
with possessor’s express or implied knowledge and for parties’ mutual benefit). As such,
Brookshire Brothers owed him a duty to exercise reasonable care to protect him from dangerous
conditions in the store known or discoverable to it. See Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998). The duty a premises owner/operator owes to its invitees is not that
of an insurer. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007). In other words,
the condition is not unreasonably dangerous simply because it is not foolproof. See id. at 163.
       To recover damages in a premises liability case, a plaintiff must prove the following:
(1) the owner/operator had actual or constructive knowledge of some condition on the premises;
(2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise
reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use
reasonable care proximately caused the plaintiff’s injuries. See Gonzalez, 968 S.W.2d at 936.
An invitee’s suit against a store owner/operator is a simple negligence action. Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). A store owner/operator’s duty is to exercise
reasonable care to protect against danger from a condition on the premises that creates an
                                             3
unreasonable risk of harm of which the owner/operator knew or by the exercise of reasonable
care could discover. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). The
crux of this duty depends on actual or constructive knowledge of a dangerous condition that a
reasonable inspection would reveal. See id. The proximate cause element has two components:
cause-in-fact and foreseeability. LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). The
test for cause-in-fact, or “but-for” causation, is whether (1) the act or omission was a substantial
factor in causing the injury and (2) without the act or omission the harm would not have
occurred. Id.
       In premises liability cases, there is no single test for determining actual knowledge that a
condition presents an unreasonable risk of harm. See Univ. of Tex.—Pan Am. v. Aguilar, 251
S.W.3d 511, 513 (Tex. 2008). Courts generally consider whether the premises owner/operator
has received reports of prior injuries or reports of the potential danger presented by the condition.
See id. Alternatively, constructive knowledge can be established by a showing that the condition
had existed long enough for the owner or operator to have discovered it upon reasonable
inspection. See Daenen, 15 S.W.3d at 101.
Discussion
       Aldridge presented seven witnesses at trial and published to the jury the portion of the
video recording preserved by Brookshire Brothers. Aldridge testified that he slipped on a liquid
substance.      The last part of the video recording supported this testimony by showing an
employee signaling that a cleanup was required in the area where Aldridge fell. Six minutes and
fifty-three seconds of the preserved video were from the period directly before Aldridge fell.
Because no spill could be seen on the video, it was some evidence that the substance likely was
on the floor during that period.
       Aldridge presented the deposition testimony of Jonathan Tyler, a Brookshire Brothers
manager. Tyler testified that, in light of the number of employees working in that area (which
was near the check-out area of the store), the substance should have been noticed and cleaned up
within less than five minutes. Further, the video showed a Brookshire Brothers employee
walking very near the location where Aldridge fell almost three minutes beforehand. Tyler
testified that employees are trained to look out for dangerous conditions on the floor and that the
employee should have noticed the substance.          The video also showed another Brookshire
Brothers employee passing nearby four times within five minutes before the fall.
       One known risk at the store was a rotisserie chicken display. Tyler testified that it was
known that the containers for the chickens could leak when carried throughout the store by
patrons. Tyler testified further that the rotisserie chicken display was near the area where
Aldridge fell. Aldridge also offered documentary evidence of a manager’s inspection of the
                                             4
store. The document, a log entry, indicated that a manager had inspected the store eight minutes
before the fall.
        Finally, the video supported the reasonable inference that the slippery substance covered
a large area, and was thus more noticeable. Tyler testified that employees are required to carry a
paper towel with them to clean up small spills. If the spill is too large, the employees are to
enlist help to clean up the spill. Here, the video showed an employee calling for help to clean up
the substance in question. Thus, the video was some evidence that the spill was too large to
clean up with the towel each employee carries.
        The video also showed the employee who noticed the substance pointing to the floor.
The area pointed to is near, but not exactly the same, as the area of the fall. Robert Gilmer, Vice-
President of Human Resources for Brookshire Brothers, testified that employees were trained to
look out for spilled substances. And Gilmer admitted that, if the substance extended from where
Aldridge fell to the area pointed to, a Brookshire Brothers employee should have noticed it.
        Brookshire Brothers disputed this evidence. For example, Gilmer testified that Aldridge
himself did not notice the spill, and therefore it must have been a small one. Gilmer also testified
that employees cannot guarantee perfect safety and that Brookshire Brothers employees are
expected to be on the lookout, but not to carefully inspect each area.
        In light of the record before us, we hold that the evidence is legally and factually
sufficient to support the jury’s verdict in relation to the elements of knowledge, proximate cause,
and breach of care. In the context of legal sufficiency, we hold that the evidence at trial would
enable reasonable and fair minded people to reach the verdict under review. See City of Keller,
168 S.W.3d at 827. In the context of factual sufficiency, we hold that the verdict is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.
See Cain, 709 S.W.2d at 176. We overrule Brookshire Brothers’ third and fourth issues.


                                              SPOLIATION
        In its first and second issues, Brookshire Brothers challenges the trial court’s decisions to
admit evidence of spoliation and to include a spoliation instruction in the jury charge.
Standard of Review
        Spoliation is the improper destruction of evidence relevant to a case. Adkison v. Adkison,
No. 12-06-00077-CV, 2007 WL 259550, at *3 (Tex. App.—Tyler Jan. 31, 2007, no pet.) (mem.
op).

        Evidence spoliation is not a new concept. For years courts have struggled with the problem and
        devised possible solutions. Probably the earliest and most enduring solution was the spoliation
        inference or omnia praesumuntur contra spoliatorem: all things are presumed against a

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        wrongdoer. In other words, within the context of the original lawsuit, the factfinder deduces guilt
        from the destruction of presumably incriminating evidence.


Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998) (internal citation omitted). This traditional
response to the problem of evidence spoliation properly frames the alleged wrong as an
evidentiary concept, not a separate cause of action. Id. Spoliation causes no injury independent
from the cause of action in which it arises. Id. “If, in the ordinary course of affairs, an individual
destroys his or her own papers or objects, there is no independent injury to third parties.” Id.
The destruction becomes relevant only when someone believes that those destroyed items are
instrumental to his or her success in a lawsuit. Id.
        “[W]hen spoliation occurs, there must be adequate measures to ensure that it does not
improperly impair a litigant’s rights . . . .” Id. at 953. It is simple, practical, and logical to rectify
any improper conduct within the context of the lawsuit in which it is relevant. Id. “Indeed,
evolving remedies, sanctions and procedures for evidence spoliation are available under Texas
jurisprudence.” Id. Trial judges have broad discretion to take measures ranging from a jury
instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions.
Id. As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate
for every incidence of spoliation; the trial court must respond appropriately based upon the
particular facts of each individual case.1 Id.
        The loss or destruction of evidence may seriously impair a party’s ability to present its
case. Tex. Electric Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.—Tyler 2005, no pet.)
(citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)). When a party
believes that another party has improperly destroyed evidence, it may either request a spoliation
presumption instruction or move for other sanctions. Adkison, 2007 WL 259550, at *3 (citing
Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998) (Baker, J., concurring)). At that point, a
trial court should determine whether a presumption instruction or another sanction is justified.
Adkison, 2007 WL 259550, at *3 (citing Trevino, 969 S.W.2d at 954 (Baker, J., concurring)).



        1
            The supreme court has explained that

        [e]vidence may be unavailable for discovery and trial for a variety of reasons. Evidence may be
        lost, altered or destroyed willfully and in bad faith or it may be lost for reasons completely
        innocent. Sometimes, lost evidence may be easily replicated, or it may be so marginal that it has
        little or no effect on the outcome of the case. On other occasions, the loss or destruction of
        evidence may seriously impair a party’s ability to present its case. A trial judge should have
        discretion to fashion an appropriate remedy to restore the parties to a rough approximation of their
        positions if all evidence were available. These remedies must generally be fashioned on a case-
        by-case basis.

Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003) (internal citation omitted).
                                                         6
       The trial court enjoys discretion to fashion an appropriate remedy for negligent
spoliation. See Johnson, 106 S.W.3d at 721.


       Because parties have a duty to reasonably preserve evidence, it is only logical that they should be
       held accountable for either negligent or intentional spoliation. While allowing a court to hold a
       party accountable for negligent as well as intentional spoliation may appear inconsistent with the
       punitive purpose of remedying spoliation, it is clearly consistent with the evidentiary rationale
       supporting it because the remedies ameliorate the prejudicial effects resulting from the
       unavailability of evidence. In essence, it places the burden of the prejudicial effects upon the
       culpable spoliating party rather than the innocent nonspoliating party.


See Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (internal citation omitted).
“Furthermore, by punishing negligent conduct, courts will deter future spoliation. The theory of
deterrence is not merely limited to deterring intentional conduct. It applies equally to negligent
conduct.” See id. at 957 n.1.
       Before any failure to produce material evidence may be viewed as discovery abuse, the
opposing party must establish that the nonproducing party had a duty to preserve the evidence in
question. Dillard, 171 S.W.3d at 209 (citing Johnson, 106 S.W.3d at 722). There must be a
sufficient foundational showing that the party who destroyed the evidence had notice both of the
potential claim and of the evidence’s potential relevance thereto. Dillard, 171 S.W.3d at 209
(citing Johnson, 106 S.W.3d at 722). An objective test for anticipation of litigation is whether a
reasonable person would conclude from the severity of the accident and other circumstances
surrounding it that there was a substantial chance for litigation. Dillard, 171 S.W.3d at 209
(citing Johnson, 106 S.W.3d at 722). “A party should not be able to subvert the discovery
process and the fair administration of justice simply by destroying evidence before a claim is
actually filed.” See Trevino, 969 S.W.2d at 955 (Baker, J., concurring).
Evidence of Spoliation
       In its first issue, Brookshire Brothers complains that the trial court erred by admitting
evidence relating to the issue of spoliation. The complained of evidence included documentary
evidence showing that Brookshire Brothers paid for Aldridge to be treated by a neurosurgeon
before it allowed the unpreserved portions of the video recording from the area of the store in
question to be destroyed. It was undisputed that the preserved portion of the video recording
accounted for less than eight minutes of a recording that covered a twenty-four hour period. The
preserved recording included Aldridge’s entering the store, falling, and leaving the store.
       First, Brookshire Brothers asserts that it had no duty to preserve the unpreserved portions
of the video recording. Second, it asserts that Aldridge was not prejudiced by its failure to
preserve any additional portions of the recording. Third, it asserts that it provided a reasonable
explanation for not preserving additional portions. And, fourth, it asserts that, because Aldridge
                                                       7
failed to establish the former elements of spoliation, the evidence was improperly prejudicial
under rule 403 of the Texas Rules of Evidence.




       Duty
       Here, the trial court was presented with the question of duty and resolved it against
Brookshire Brothers. This was based on the undisputed fact that Brookshire Brothers had
control of the entire video recording. After Aldridge returned to the store and “reported his
claim,” Brookshire Brothers preserved less than eight minutes of the recording. The remainder
was subsequently destroyed as part of the recording system utilized by Brookshire Brothers.
       By the time the unpreserved remainder was destroyed, Aldridge had notified Brookshire
Brothers of his injury, a Brookshire Brothers manager had prepared a written incident report
noting a neck and back injury, and Brookshire Brothers had begun paying for Aldridge to be
treated by a neurosurgeon. Evidence showed that Brookshire Brothers routinely compensated
injured customers for two initial doctor’s visits. However, this treatment went beyond those two
visits and involved a specialist. Indeed, Brookshire Brothers’ own correspondence during the
period in question referred to Aldridge as having a “claim.” Finally, Aldridge had, by this time,
requested to see a portion of the video recording from the day in question.
       “A party should not be able to subvert the discovery process and the fair administration
of justice simply by destroying evidence before a claim is actually filed.” See id. Here, a
reasonable person would conclude from the severity of the accident and other circumstances
surrounding it that there was a substantial chance for litigation. See Johnson, 106 S.W.3d at
722; Dillard, 171 S.W.3d at 209. Further, because of the nature of the video in question, it was
reasonable to conclude that Brookshire Brothers was on notice of its potential relevance. See
Johnson, 106 S.W.3d at 722; Dillard, 171 S.W.3d at 209.
       Prejudice to Aldridge
       Brookshire Brothers asserts that Aldridge was not prejudiced by its failure to preserve
any additional portions of the recording. In short, Brookshire Brothers argues that Aldridge
failed to present sufficient evidence to the trial court that he was prejudiced by the destruction of
the unpreserved portions. However, the small portion of the video preserved was sufficient to
show that the destroyed video would have been highly probative.
       First, the camera recorded a part of the store that included the rotisserie chicken display
and the area where Aldridge fell. Second, it showed persons passing by that area. Therefore, the
video would have been some evidence of when a spill occurred or the length of time that the spill
remained.     That the video would probably have contained evidence of these facts is not
                                            8
speculation but is a reasonable inference from the portion of the video that was retained. In
addition, the video would have shown the cleanup efforts and any immediate investigation, both
demonstrating the size of the spill. And the video might have shown the manager’s store
inspection that was noted in the log book.
        To the extent that a court could not discern with certainty what else might be shown on
the video, that absence of proof is a direct result of Brookshire Brothers destroying it. In fact,
the evidence at trial, including the testimony of Tyler and Gilmer, established that no person,
including employees of Brookshire Brothers, ever viewed any of the unpreserved portions of the
video recording. Thus, it was proper for the trial court to give deference to the nonspoliating
party’s assertions of relevancy. See Trevino, 969 S.W.2d at 958 (Baker, J., concurring); see also
Johnson, 106 S.W.3d at 721 (intentional spoliation of relevant evidence raises presumption that
evidence would have been unfavorable to spoliator).
        We note Brookshire Brothers’ argument that Aldridge could have, perhaps, conducted
additional discovery to discern any relevant information. However, the bare allegation that
currently unknown evidence might have existed is not sufficient to overcome the presumption
that Brookshire Brothers destroyed the recording for a reason. See Trevino, 969 S.W.2d at 958
(Baker, J., concurring); see also Johnson, 106 S.W.3d at 721. Moreover, any other evidence
would have been in the form of testimony, subject to the witnesses’ misperceptions and fading
memories. And this testimony may have been from Brookshire Brothers employees, who could
have had interests adverse to Aldridge. As counsel for Brookshire Brothers explained to the jury
when speaking of the preserved portion of the recording, “the video in this case is your best
friend,” “the video doesn’t lie. It’s just credible.”
        Reasonable Explanation
        Brookshire Brothers asserts that it provided a reasonable explanation for not preserving
additional portions. Specifically, Brookshire Brothers claims that it preserved what Gilmer
believed was the amount necessary to show whether a fall occurred. According to Brookshire
Brothers, “[n]othing more was requested of Brookshire Brothers [by Aldridge] until long after
the original video had been [destroyed] in the ordinary course of business.” However, as the late
Justice Baker explained,


        [a] spoliator can defend against an assertion of negligent or intentional destruction by providing
        other explanations for the destruction. For example, if the destruction of the evidence was beyond
        the spoliator’s control or done in the ordinary course of business, the court may find that the
        spoliator did not violate a duty to preserve evidence. Importantly though, when a party’s duty to
        preserve evidence arises before the destruction or when a policy is at odds with a duty to maintain
        records, the policy will not excuse the obligation to preserve evidence.



                                                        9
See Trevino, 969 S.W.2d at 957 (Baker, J., concurring).             Here, as we explained above,
Brookshire Brothers had a duty to preserve additional portions of the destroyed recording. The
fact that Brookshire Brothers destroyed these portions before a request to preserve them was
made or a lawsuit filed does not override the fact that it destroyed these portions during a period
in which it had a duty to preserve them. See id.
       403 Prejudice
       Finally, Brookshire Brothers argues that, because Aldridge failed to establish the
formerly addressed elements of spoliation, the evidence was improperly prejudicial under rule
403 of the Texas Rules of Evidence. “In the context of a trial, there are few, if any, more
inflammatory accusations than that one party destroyed evidence.” Lively v. Blackwell, 51
S.W.3d 637, 642 (Tex. App.—Tyler 2001, pet. denied). Nonetheless, the trial court has the
discretion to admit or exclude evidence of spoliation to the jury. Id. at 641. Where the only basis
for the accusation consists of speculation and conjecture and a reasonable explanation for the
missing evidence exists, such an accusation can unfairly taint the jurors’ perception of the
alleged spoliator as one who is dishonest and deceitful. Id. at 642. In such a situation, it is
legitimate and proper to exclude evidence of alleged spoliation. Lively, 51 S.W.3d at 642 (citing
TEX. R. EVID. 403).
       Here, unlike the situation mentioned in Lively, the evidence of spoliation rose beyond
“speculation and conjecture.” See Lively, 51 S.W.3d at 642. And as we have discussed above, no
“reasonable explanation for the missing evidence exists.” See id.          Instead, the evidence of
spoliation included sufficient evidence of the above described elements. In light of Brookshire
Brothers’ argument, we cannot say that it has shown a 403 objection could be properly sustained.
See Lively, 51 S.W.3d at 642 (citing TEX. R. EVID. 403)
       Conclusion
       A trial court abuses its discretion when its decision is arbitrary, unreasonable, or without
reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,
360 (Tex. 2000). “The mere fact that a trial judge may decide a matter within his discretionary
authority in a different manner than an appellate judge in a similar circumstance does not
demonstrate that an abuse of discretion has occurred.” Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985). From the arguments raised by Brookshire Brothers, we
cannot discern that the trial court abused its discretion by admitting spoliation evidence at trial.
Spoliation Instruction
       In its second issue, Brookshire Brothers complains of the trial court’s decision to charge
the jury with a spoliation instruction. The instruction in question read as follows:


                                                   10
         In this case, Brookshire Brothers permitted its video surveillance system to record over certain
         portions of the store surveillance video of the day of the occurrence in question. If you find that
         Brookshire Brothers knew or reasonably should have known that such portions of the store video
         not preserved contained relevant evidence to the issues in this case, and its non-preservation has
         not been satisfactorily explained, then you are instructed that you may consider such evidence
         would have been unfavorable to Brookshire Brothers.


Brookshire Brothers alleges that, based upon its previous arguments regarding the admission of
spoliation evidence, a spoliation charge was improper.2
         “A trial judge has broad discretion in determining whether to provide a jury with a
spoliation presumption instruction.” Dillard, 171 S.W.3d at 208 (citing Johnson, 106 S.W.3d at
721; Trevino, 969 S.W.2d at 953); see Lively, 51 S.W.3d at 642. A spoliation instruction is an
instruction given to the jury outlining permissible inferences they may make against a party who
has lost, altered, or destroyed evidence. Dillard, 171 S.W.3d at 208; Hopper v. Swann, No. 12-
02-00269-CV, 2004 WL 948526, at *2 (Tex. App.—Tyler Apr. 30, 2004, no pet.) (mem. op.).
Generally, two rules apply to presumptions that derive from the nonproduction of evidence.
Lively, 51 S.W.3d at 643. One rule is that the intentional spoliation of evidence relevant to a
case raises a presumption that the evidence would have been unfavorable to the spoliator. Id.; see
Johnson, 106 S.W.3d at 721; Adkison, 2007 WL 259550, at *3; Dillard, 171 S.W.3d at 208.
The second rule states that the failure to produce evidence within a party’s control raises a
rebuttable presumption that the missing evidence would be unfavorable to the nonproducing
party. Lively, 51 S.W.3d at 643.              “However, if the nonproducing party testifies as to the
substance or contents of the missing evidence, the opposing party is not entitled to the
presumption.” Id.
         Here, by saving a small portion of video and allowing the remainder to be destroyed,
Brookshire Brothers engaged in the “intentional spoliation of evidence relevant to a case.” Cf.
Dillard, 171 S.W.3d at 208; Lively, 51 S.W.3d at 643. In light of the evidence before the trial
court, we hold that the trial court did not abuse its “broad discretion” by charging the jury with
the above spoliation instruction. See Dillard, 171 S.W.3d at 208; Lively, 51 S.W.3d at 642.
Conclusion
         The trial court did not abuse its discretion when admitting the spoliation evidence or
charging the jury with the spoliation instruction. Therefore, we overrule Brookshire Brothers’
first and second issues.



         2
           We have previously implied that a party may seek either a spoliation instruction or another sanction. See
Adkison, 2007 WL 259550, at *3. However, a trial court must first be able to admit evidence of spoliation before
charging the jury with a spoliation instruction of the type in question. Further, we did not hold that a situation could
never exist where both an instruction and another sanction were proper.
                                                          11
                                                    DISPOSITION
         We affirm the judgment of the trial court.


                                                                  BRIAN HOYLE
                                                                     Justice


Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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