Opinion issued July 12, 2016




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-15-00870-CR
                          ———————————
                    KEVIN CHARLES HALL, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 185th District Court
                          Harris County, Texas
                      Trial Court Case No. 1426382


                        MEMORANDUM OPINION

      Kevin Charles Hall was convicted of assault on a family member, second

offense, enhanced by prior felony convictions for delivery of a controlled

substance. See TEX. PENAL CODE ANN. §§ 12.42(d), 22.01(a)(1), (b)(2)(A) (West

2011 & Supp. 2015). The jury assessed his punishment at 75 years’ imprisonment.
Hall appeals, contending that the trial court erred by (1) denying a motion for

mistrial after the complainant testified that she believed Hall’s death threat made

during the course of the incident because Hall had “already beaten her” a lot of

times, (2) admitting testimony that Hall called the complainant to beg her not to

testify at trial, and (3) denying Hall a jury instruction on spoliation due to the

State’s inability to produce photographs of the complainant’s injuries taken on the

day of the incident. We affirm.

                                  BACKGROUND

      Hall brought his wife, Corterra Payton, to the parking lot of a bar near the

Southwest Freeway to help him detail cars. Hall and Payton drank alcoholic

beverages as they worked, and they began to argue. The owner of the bar asked

Hall and Payton to leave. Payton refused to leave with Hall, whereupon Hall

dragged Payton to his car. Payton fell to the ground, and Hall continued to drag

her on the ground toward the car. Hall threw Payton in the back seat, punched her

in the face several times, and shut her inside the car. The car’s back seat did not

have working interior door handles and could not be opened from the inside.

Yelling for help, Payton attempted to free herself by rolling down the window and

opening the door from the outside. Hall stopped the car and punched Payton in the

face several more times.




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       Hall then continued driving and turned onto Bissonnet Street. Payton again

attempted to escape. Hall again responded by beating her and shutting her in the

back seat. Because Payton continued to yell for help, Hall told her that he was

“going to take [her] to the bayou and kill [her].” Hall drove down to the bayou and

again went to the back seat. He first punched Payton, and then started to choke

her.   For several minutes, Hall gripped Payton’s neck as she gasped for air.

Eventually, Hall released Payton, left her in the back seat, and resumed driving.

As she and Hall passed a fire station on Bissonnet, Payton jumped out of the

moving car. Payton ran toward the fire station, where firefighters stood outside.

Several firefighters heard Payton screaming and saw her jump from the car.

Payton was bleeding from the mouth. The firefighters called the police, and HPD

Officer B. Sinclair responded.

       When Sinclair arrived at the fire station, she found that Payton, who was

“frantic and crying,” had a swollen eye, a bloody mouth, and cuts and bruises on

her hands. Half of Payton’s hair weave was torn out. Payton recounted the

incident to Officer Sinclair, who took pictures of Payton’s injuries with her cell

phone. After interviewing Payton and taking her to a women’s shelter, Sinclair

handed the investigation over to HPD Sergeant G. Shepherd, a specialist in

domestic violence cases. At trial, Sinclair testified that she sent Shepherd her

photos via HPD’s computer photo management system.            Shepherd, however,



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denied receiving Sinclair’s photos. The next day, Shepherd interviewed Payton at

the district attorney’s office, taking his own photos of Payton’s injuries.

      At trial, Payton testified for the State. The State also called Officer Sinclair

and Sergeant Shepherd, who testified about their investigation, and a third police

officer, who testified that he overheard Hall call Payton on a speaker phone to beg

her not to testify. Hall contended that Payton had suffered her injuries in a fight at

a party the night before or as a result of jumping out of Hall’s car while

intoxicated. The jury found Hall guilty of assault.

                                       DISCUSSION

I.    Denial of Motion for Mistrial

      When asked whether she took Hall’s death threat seriously, Payton

responded that she did because Hall had “already beat [her] a lot of times.” Hall

objected as to relevance and moved for a mistrial. The trial court sustained the

objection and asked the State to rephrase the question, but it denied the motion for

mistrial. Hall contends on appeal that it was error to deny his motion for mistrial

after the jury heard that Hall “already beat” Payton because it is extraneous offense

evidence.

      A.     Standard of Review and Applicable Law

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

standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In



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determining whether a witness’s improper reference to an extraneous offense

requires a mistrial, we consider (1) the severity of the underlying misconduct, (2)

any curative measures adopted, and (3) the certainty of the conviction absent the

misconduct.   See id. at 700.    We conduct this inquiry with reference to the

particular facts of the case. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999). “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).

      Rule 404 of the Rules of Evidence prohibits the use of extraneous crimes or

bad acts as character evidence against the accused. TEX. R. EVID. 404(b)(1).

Evidence of extraneous offenses may, however, be admitted for other purposes,

such as to prove motive, intent, or plan. TEX. R. EVID. 404(b)(2); Wilson v. State,

473 S.W.3d 889, 900 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (citing

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990)). Evidence of

extraneous offenses may also be admissible to rebut defensive theories. Wilson,

473 S.W.3d at 900. Crimes or bad acts that are charged in the indictment are not

extraneous and are not subject to exclusion under Rule 404. See TEX. R. EVID.

404(b); Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (observing

that extraneous bad acts are excluded, because the defendant is only to be tried for

the offense charged). Further, the erroneous admission of an extraneous offense is



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cured by the admission without objection of the offense elsewhere in the record.

See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v.

State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)) (“An error [if any] in the

admission of evidence is cured where the same evidence comes in elsewhere

without objection.”).

      B.     Analysis

      Payton testified she had attempted to escape from Hall’s car twice and

sustained beating from Hall before Hall threatened to take her to the bayou and kill

her. When asked why she took Hall’s threat seriously, Payton explained that

Payton “done already beat [her] a lot of times.” Hall objected to this remark on the

ground that it was irrelevant. The trial court sustained his objection. However,

when Hall asked the trial court to instruct the jury to disregard Payton’s statement,

the court asked the State to rephrase its question. Hall moved for a mistrial, which

the trial court denied. The State then asked Payton, “[Hall] had already assaulted

you multiple times that day, right?” After Payton confirmed that Hall had beaten

her in the car before he threatened to kill her, the State moved away from the

subject of these beatings.

       Hall has not demonstrated that Payton’s testimony referred to beatings that

were extraneous offenses. In context, Payton’s testimony referred to the course of

Hall’s multiple beatings beginning after their argument in the bar parking lot and



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before he threatened to kill her, not attacks from before that time. The beatings

that occurred before Hall threatened to kill Payton were alleged in the indictment

and thus are not extraneous offenses subject to exclusion under Rule 404. See TEX.

R. EVID. 404(b); Segundo, 270 S.W.3d at 87. The State’s question was directed to

Payton’s state of mind in connection with the death threat. After it sustained the

relevance objection, the trial court requested that the State rephrase to clarify the

context in its questioning, and the State complied. Thus, the trial court cured any

impression the jurors may have had that Payton was referring to extraneous

offenses. Payton clarified that Hall had already assaulted her multiple times that

day. The trial court therefore acted in its discretion when it denied Hall’s motion

for mistrial.

II.    Admission of Hall’s Statement

       Hall contends that the trial court erred in admitting testimony that he called

Payton to ask her not to testify. He contends that the testimony’s potential for

unfair prejudice outweighed its probative value and that it was inadmissible

character evidence.

       A.       Standard of Review and Applicable Law

       We review the trial court’s evidentiary rulings for abuse of discretion. See

Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); Montgomery v.

State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990). A trial court abuses its



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discretion if its decision is outside the zone of reasonable disagreement or if it acts

without reference to guiding rules or principles. Burden v. State, 55 S.W.3d 608,

615 (Tex. Crim. App. 2001); Montgomery, 810 S.W.2d at 391.

      Under Texas Rule of Evidence 403, evidence is relevant if it makes more or

less probable a fact of consequence to the litigation. Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007) (citing Gigliobianco v. State, 210 S.W.3d 637,

641 (Tex. Crim. App. 2006)). Evidence is unfairly prejudicial if it tends to suggest

a decision on an improper basis rather than on the evidence adduced at trial.

Casey, 215 S.W.3d at 879–80. For example, evidence may be unfairly prejudicial

if it tends to arouse the jury’s hostility or sympathy for one side without regard to

its logical probative value. Id.

      B.     Analysis

      After Hall was arrested for assaulting Payton, he called her repeatedly,

begging her not to testify against him. While Payton was visiting an HPD station,

she received one of these harassing phone calls. Payton put Hall on speaker phone.

Officer T. Vinson-Watson testified that she heard Hall say: “Baby, baby, please

don’t come to court. These people are trying to hang me. Please, baby, don’t

come to court.”

      Hall’s defensive theory at trial was that Payton had suffered her injuries in a

fight at a party the night before or from jumping out of Hall’s moving car while



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intoxicated. A jury could reasonably infer from Hall’s plea for Payton not to

testify that Payton’s truthful testimony would implicate Hall and discredit his

account of a fight at the party or accidental injury.      See TEX. R. EVID. 401

(“Evidence is relevant if it has any tendency to make a fact more or less

probable . . . and the fact is of consequence in determining the action.”); Casey,

215 S.W.3d at 879 (basing probative value, in part, on “how strongly [an item of

evidence] serves to make more or less probable the existence of a fact of

consequence to the litigation”). Because the phone call corroborated Payton’s

testimony and discredited Hall’s alternative account, the phone call had probative

value. See Gigliobianco, 210 S.W.3d at 641.

      Hall suggests that the phone call was an extraneous bad act, the admission of

which violated Rule 404’s exclusion of extraneous offense or bad act evidence for

character purposes, because it violated a protective order. The testimony, however,

did not refer to the protective order.       Vinson-Watson’s testimony does not

otherwise suggest that Hall committed any crime or bad act beyond the one for

which he was standing trial. We hold that the trial court acted within its discretion

in admitting Hall’s statement to Payton. See TEX. R. EVID. 404; Segundo, 270

S.W.3d at 87.




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III.   Spoliation Instruction

       Hall finally contends that the trial court erred in refusing a jury instruction

on spoliation of evidence because the State failed to produce the cell phone

photographs.

       A.    Standard of Review and Applicable Law

       In analyzing a jury-charge issue, we first determine whether error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). If we find error, then we consider whether the error was harmful under the

appropriate standard. Tottenham, 285 S.W.3d at 30; see also Warner v. State, 245

S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-charge

error is not a bar to appellate review, but rather it establishes the degree of harm

necessary for reversal.”).

       When charging the jury, a trial court must instruct it on the “law applicable

to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court

is not required to instruct the jury on defensive issues sua sponte, even if they are

raised by the evidence. Jackson v. State, 288 S.W.3d 60, 63 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d) (citing Oursbourn v. State, 259 S.W.3d 159, 179 (Tex.

Crim. App. 2008)).




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      The State has no duty to preserve evidence unless its exculpatory value is

apparent at the time of its destruction. California v. Trombetta, 467 U.S. 479,

488–89, 104 S. Ct. 2528, 2534 (1984); White v. State, 125 S.W.3d 41, 43 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d). The defendant claiming spoliation

of evidence must show that the lost evidence was favorable and material to his

defense, such that if it were disclosed, there is a reasonable probability of a

different result.   See Higginbotham v. State, 416 S.W.3d 921, 924 (Tex.

App.―Houston [1st Dist.] 2013, no pet.). Further, to be entitled to relief, the

defendant must show that in failing to preserve the material and favorable

evidence, the State acted in bad faith. Neal v. State, 256 S.W.3d 264, 280 (Tex.

Crim. App. 2008) (citing Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S. Ct.

333, 337–38 (1988)).

      B.     Analysis

      Hall has not established that the State acted in bad faith in failing to produce

Sinclair’s photos; rather, his argument focuses on the officer’s negligence in failing

to make a back-up of the photos. A defendant must show that the State acted in

bad faith to be entitled to relief. See White, 125 S.W.3d at 44. Sinclair recalled

that immediately after she left the fire station on Bissonnet, she returned to the

police station. There, Sinclair transferred the photos from her phone to a special

computer program for management of photographic evidence, and sent the photos



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to Sergeant Shepherd. Sinclair testified that this was consistent with HPD protocol

for preserving photographic evidence. Absent evidence of bad faith, a spoliation

instruction is not required. See Youngblood, 488 U.S. at 57–58, 109 S. Ct. at 337–

38; Neal, 256 S.W.3d at 280.

      Additionally, Hall has not demonstrated that the photos were favorable to his

defense. He alleges in his brief that the photos would establish that Payton’s

injuries were a day old at the time she jumped out of Hall’s car, consistent with a

fight that Payton had been in the night before the incident, and not her more recent

altercation with Hall. Officer Sinclair described Payton’s appearance as “frantic”

and disheveled, noting that she was bleeding from the mouth and that she had

blood under her eye, conditions consistent with fresh injuries. Because Hall cannot

show a reasonable probability of a different result if the photos had been preserved,

the trial court did not err in denying him a spoliation instruction. See Trombetta,

467 U.S. at 488–89, 104 S. Ct. at 2534; Higginbotham, 416 S.W.3d at 924; White,

125 S.W.3d at 43.




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                                 CONCLUSION

      We affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Higley, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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