                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00277-CR


ALBERTO JOSE MEZA                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                      TRIAL COURT NO. CR17201

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Alberto Jose Meza appeals his conviction for possession of a

controlled substance in the amount of more than four but less than 200 grams.

In two points, Meza argues that the trial court erred by overruling his request for




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       See Tex. R. App. P. 47.4.
a spoliation jury instruction and that the trial court erred by overruling his motions

for mistrial. We will affirm.

                                  II. BACKGROUND

      The facts of this case are not in dispute. Officer Brody Brown of the Boyd

Police Department testified that on July 17, 2012, at roughly 2:30 a.m., he pulled

Meza over for speeding. Upon approaching Meza’s vehicle, Brown noticed the

strong smell of marijuana emitting from the vehicle, and he saw an open liquor

container. In the search of Meza’s vehicle that followed, Brown found loose

marijuana strewn about the vehicle’s cabin, three boxes of plastic baggies in its

backseat, and scales with white residue on them in the vehicle’s console. After

Brown and a fellow officer noticed that the dashboard of the vehicle appeared

loose, they searched behind the dashboard and found twelve grams of cocaine

and slightly less than one gram of methamphetamine.

      Significant to Meza’s points on appeal, the in-car video camera in Brown’s

patrol vehicle was an “old-fashioned VHS recorder in the trunk of his car.”

According to Brown, when he attempted to remove the tape at the end of his

shift, it tangled in the machine. Brown said that he attempted to manually rewind

the tape but that it was beyond repair. Brown noted the problem in his report and

placed the tape in his sergeant’s box. By Brown’s account, he did not know what

ultimately became of the tape.

      A jury returned a verdict of guilty on the State’s indictment that Meza

possessed a controlled substance and sentenced him to twenty years’


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incarceration.   The trial court entered judgment accordingly, and this appeal

followed.

                                    III. DISCUSSION

      A.     No Spoliation Instruction Required

      In his first point, Meza argues that the trial court erred by denying his

request for a spoliation jury instruction regarding the missing in-car videotape.

The State argues, among other things, that Meza has not shown that the State

failed to produce the videotape from Brown’s patrol vehicle in bad faith and thus

the trial court did not abuse its discretion by denying Meza’s requested

instruction. We agree with the State.

      In criminal cases involving the State’s failure to preserve evidence, the

defendant is required to show some bad faith on the part of the State for

potentially useful evidence or some indication that the evidence would have been

exculpatory in order to be entitled to a spoliation-type jury instruction. See Snell

v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v.

State, 125 S.W.3d 41, 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d);

Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743, at *1 (Tex. App.—

Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication)

(holding that where the defendant could show only that the lost evidence might

have been exculpatory and could not show bad faith on the part of the State, the

trial court did not err by refusing the spoliation instruction).




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      Here, Meza has alleged, but not shown, that the videotape of his arrest

from the vantage of Brown’s patrol vehicle might have been exculpatory. But he

has not alleged, or shown, that the State acted in bad faith by being unable to

produce the videotape.       Indeed, the only evidence of what became of the

videotape came from Brown’s testimony that the tape was an older-style VCR

tape whose internal tape snagged on the equipment when he took the tape out of

the recorder and that he did not know what became of the tape after he had

attempted to repair it. In short, Meza has not shown that the State acted in bad

faith regarding the videotape. See Chavis v. State, No. 13-10-00547-CR, 2012

WL 592998, at *4–5 (Tex. App.—Corpus Christi Feb. 23, 2012, no pet.)

(mem. op., not designated for publication) (holding that trial court did not err by

denying requested spoliation instruction because appellant had not shown bad

faith on the part of State regarding unproduced in-car video). Thus, the trial court

did not err by denying Meza’s requested spoliation jury instruction. We overrule

Meza’s first point.

      B.     Denial of Meza’s Motions for Mistrial

      In his second point, Meza argues that the trial court abused its discretion

by denying his motions for mistrial.           Specifically, Meza argues that “[t]he

prosecutor continually interjected matters outside the record and commented on

the failure of [Meza] to call a witness or testify.”   After we briefly set out the law

and standard of review, we will discuss these “matters” in turn.




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            1.    Standard of Review on Motion for Mistrial

      We review a trial court’s denial of a motion for mistrial under an abuse of

discretion standard and “must uphold the trial court’s ruling if it was within the

zone of reasonable disagreement.” Archie v. State, 221 S.W.3d 695, 699 (Tex.

Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.

2004)). “Only in extreme circumstances, where the prejudice is incurable, will a

mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004). A mistrial is appropriate only for a narrow class of highly prejudicial and

incurable errors and may be used to end trial proceedings when the error is “so

prejudicial that expenditure of further time and expense would be wasteful and

futile.” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999),

cert. denied, 529 U.S. 1070 (2000)).

            2.    The “Errors”

      The first statement Meza complains about is that during closing

arguments, at the guilt-innocence phase of trial, and after having just explained

that police found “baggies both for the cocaine and . . . separate baggies for

marijuana” in Meza’s vehicle, the prosecutor asked the rhetorical question to the

jury, “What is this guy involved in?” To which Meza objected at trial on the

grounds that the prosecutor was commenting on Meza’s failure to testify. The

trial court overruled the objection.   Now on appeal, Meza argues that this

comment was “clearly outside the record and the rhetorical question was directed

at no one but” him. To the extent that Meza is now arguing that the prosecutor’s


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statement was “clearly outside the record,” we need not address this argument

because Meza’s objection at trial does not comport with the argument he now

raises on appeal; he has forfeited our review of this objection. See Tex. R. App.

P. 33.1(a); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied,

522 U.S. 827 (1997). And to the extent that Meza’s argument is to be somehow

construed as raising an issue pertaining to the prosecutor having commented on

his failure to testify, we decline to address the issue because Meza has not cited

any authority nor has he provided any analysis as to how the prosecutor’s

comment involved an improper question “directed at no one but” him.          See Tex.

R. App. P. 38.1(i); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004)

(“Because appellant does not provide any argument or authority in support of this

contention, it is inadequately briefed.”).

      Meza next complains about two instances in which the trial court sustained

Meza’s objections during the State’s closing arguments at guilt-innocence,

instructed the jury to disregard the statements, but denied Meza’s motions for

mistrial. Meza, however, points to no evidence that the jury failed to follow the

trial court’s instructions to disregard the prosecutor’s statements, even assuming

they were improper.       Thus, we presume the jury followed the trial court’s

instructions and that the trial court did not abuse its discretion by denying Meza’s

motions for mistrial. See Orr v. State, 306 S.W.3d 380, 405 (Tex. App.—Fort

Worth 2010, no pet.) (“In the absence of evidence that it did not, we presume the

jury followed the trial court’s instruction to disregard the improper question.”).


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      The next statements Meza complains about occurred at the punishment

phase of trial wherein the trial court sustained Meza’s objections that the

prosecutor had speculated outside of the record. Much like the complained-of

statements above, Meza has not cited any authority nor has he provided any

analysis as to how the prosecutor’s comments were speculative, outside the

record, or otherwise improper. See Tex. R. App. P. 38.1(i); Hankins, 132 S.W.3d

at 385 (“Because appellant does not provide any argument or authority in support

of this contention, it is inadequately briefed.”).

      Finally, Meza argues that the prosecutor “gave an improper analysis of the

parole law” during closing arguments at punishment.            But like the other

objections that Meza preserved, the trial court instructed the jury to disregard the

prosecutor’s statement, we presume that the jury followed the instruction, and

Meza has pointed to no evidence that it did not. See Orr, 306 S.W.3d at 405.

      C.     No Cumulation

      Meza’s overall second point on appeal is that the cumulative effect of

these complained-of statements entitle him to a new trial. Meza concedes that

the “prosecutor’s comments in the present case were not necessarily individually

improper.” We conclude that there is no cumulative error.

      Cumulative error concerns performance of a harm analysis only when

multiple errors have been established. See Chamberlain v. State, 998 S.W.2d

230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). But having

already determined that Meza either forfeited review, failed to establish error, or


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failed to show that the trial court did not cure any perceived error, there can be

no cumulative error or harm. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000) (rejecting appellant’s argument that cumulative effect of errors at trial

denied him the right to a fair trial where the court had previously rejected each of

appellant’s individual arguments). We overrule Meza’s second point.

                                 IV. CONCLUSION

      Having overruled both of Meza’s points on appeal, we affirm the trial

court’s judgment.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 1, 2015




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