Opinion issued November 24 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00506
- CR

——————————— MIENYON DELINEIA LANE , Appella nt

V. THE S TATE OF TEXAS , Appell e e
On Appe a l from the 182nd District Court

Harris County , Texas Trial Court Ca se No. 1559165

MEMORANDUM OPINION A jury convicted appellant, Mienyon Dilineia Lane , o f murder, and the trial
court assessed her punishment at 27 years ’ confinem ent. In two rel a ted issues on appeal, Lane contends that the tria l co u rt erred by (1) admitt ing, over her objection,2

“ any cell phone evidence, including cell sit e data , due to the failure to preserve all cell phone evidence, ” and (2) denying her request fo r a spo l iation jury instru ction, which she requested for the same rea s on. We affirm. BACKGROUND Circumstances of the Murder On July 3, 2017, Passion Mitchell allowed Lane to drive her car, a silver Infiniti G35, so that Lane could drop her off at and pick her up from a sleep study
at Memo rial Hermann Hospit al

. Lane ’s fri e nd, Lashay Smith, was also riding in the car. After dropping Mitchell off at the sleep study , Lane and Smith went to
meet c omplainant, Anthony Johnson, picking up $30 worth of PCP for him on the
way his apartment

. Th e three smoked cigarettes dipped in PCP until the early morning hours of July 4, 2017. A ll three of them got in the car and drove around for about 30

- 40 minutes while smoking the cigarettes dipped in PCP. Smith testified that , after returning to Johnson ’ s apartment for a whil e , Lane and Johns o n argued about the $30 Johnson owed Lane for the PCP. Lane and Smith then left Johns on ’ s apartment. On the way, they stopped at a house ; Lane went in side the house , while Smith stay e d in the car. Smith testi fied that Lane came out of the house with a gun. Smith and Lane then r eturn ed to Johnson ’ s apartment complex. Smith said she got out of the car and walk ed to a nearby bus stop , while Lane drove into the apartment comple x. Smith testified tha t, while she3

waited at the bus stop, Lane drove up to her again and asked to use her phone. After Lane used S mith ’ s phone, Smith saw Lane return to the apartment complex. Surveillance video show s t he Infiniti enter and leave the apartment com plex multiple times between 6:30 and 6:45 A .M. Cell ph one location data evide n ce corroborates much of Smith ’ s testimony about Lane ’ s and her movements on the night of the offense. Around 10:30 A.M. , Johnson ’ s girlfriend arrive d at his apartment and found
him dead from a gunshot wound to the chest

. Cell Phone Evidence
The trial in c luded several type s of information obtained from the cell phones of the parties involved , including data regarding a cellphone ’ s location obtained through “ p ings ” on certain ce ll phone towers and data extracted from cell phones. When examining data extrac t ed from cell phones , there are two types : physical and logical. A physical extraction has the potential to gather more information, even information that has b een deleted from the phone. However, because of a backlog
i n the police ’ s high

- tech c rime unit, a physical extraction would require the owner of the phone to surrender it for a few weeks

. D uring the investigation, only a logical extraction was done on S m ith’s phone. Pol ice explained that they were afraid that if they sought to perform the more detail e d physical extra ction, which

co uld take several weeks, Smith would withdraw her consent to the search.4

Th erefore, there was no information collected regardin g any d ata that might have deleted from Smith ’ s cell phone. Lane requ ested all cell phone evidence

— includi ng the cell phone location data

— be suppressed, or , in the alternative, for a spoilation instruction to be given to the jury because a more extens ive, physical extraction was not done on Smith ’ s cell phone. Both requests were denied by the
trial cou r t. MOTION TO SUPPRESS AND SPOLIATION INSTRUCTION In related issues one and two, Lane contends that the trial court abused its discretion in deny ing her motion to suppr ess the admission of “ any cell phone evidence, including cell site data, due to the f a ilure to prese rve all cel l phone evidence and the tr ial court a lso err ed in denying Lane ’ s related spolia tion instruction. ” Specifically, she argues that, bec ause the police had Smith ’ s cell phone in their possession, they shoul d have prese rved any evide n ce that could have been found on it. 1 Lane argue s that “ [b]ec ause of the lack of detective work done to obtain possible exculpat ory information f rom phones obtained by police,

. . . that

1 The record shows that police cond ucted a “ logical ” data extraction from all the phones in its possession , which di d not include any deleted data that a “ physical ” data extraction wo u ld have provided

. At trial, Lane acknowled ged tha t c ell tower sit e data was obtained pursuant to sear ch warrants issued to the cell phone service providers, but argued that all cell phone data

— including the cell tower site dat a obtained pursuant to a war r ant

— should have been excluded because a m or e th oro ugh “ physical ” data extraction could have been done on the phones, but was not.5

all cell phone dat a [should] be suppress [ed] , or , in the alternativ e , that a spoliation charge be included in the jury charge. ” Standard s of Review
We re view a trial court ’ s ruling on a motion to s uppress for

an abuse of discretion

. Oles v. State , 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). A trial court abuses its dis c r etion when its decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State , 842 S.W.2d 667, 682 (T ex. Crim. Ap p. 1992). We give almost total deference to the trial court ’ s findings of fact , and , in the absence of exp l icit findings, we presume the trial court made whatever appropriate implicit findings are supported by the record. Carmouche v.
St ate , 10 S .W.3d 323, 32 7

– 28 (Tex. Crim. App. 2000). However, we revie w de

novo the application of the relevant law to the fact s . Id. at 327. Likewise, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 9 93 S.W.2d at 106

. We must uphold t he trial court ’ s ruling if it is correct under any theor y of law applicable to the c a se. Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). Beca use Lane ’s complaint is premised
on a violation of her due

- pr ocess rights, if we find error, we apply the constitutional

- error harm standard. See Hern andez v. State , 60 S.W.3d 106, 108 ( Tex. Crim. App. 2001). Under that standard, “[i]f the appellate record in a criminal case reveals constitutional error that is sub ject to a harmless error review,6

[we] must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the convicti on or punishment. ” T EX
. R. A PP
. P. 44.2(a). We review a compl aint of jury

- charge error under a two

- step process, considering first whether error exists

. See Ngo v. State , 175 S.W.3d 738, 7 43 (Tex. Crim. App. 2005). If error exist s , we then analyze that error for harm under the procedural framework of Almanza v. Stat e , 686 S.W.2d 157 (Tex. C rim. App. 1984 )

. An appella nt is entitled to relief for a requeste d , b ut erroneously denied instruc ti o n only if the record shows that s he suffered “some harm.” See Reeves v.
State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013 ). Under t his standard, the harm must be actual, not merely theoretical. Id. Applicable Law
The due

- process clause of the United State s Constitution provides a limited protection to criminal defendants when authorities fail to preserve potentially useful evi dence i n a criminal pr osecution. Arizona v. Youngblood , 488 U.S. 51,
57

– 58 ( 1988). The due

- course - of

- law provision of the Texas C ons t itution provides no greater prote ction than the federal Due Process Clause regarding the State ’ s loss or dest ruction of evidence or failu re to preserve evidence in a criminal pr osecution. Higginbotha m v. State , 416 S.W.3d 921, 925

– 26 (Tex. App.

— Houston [1 s t Dist.] 2013, no pet.)

.7

The due

- process protection for a failure to preserve evidence that could hav e been subjected to tests, the results of which might have e xonerated the defendant,
is much more limited than the failure of the prosecution to turn ove r existing exculpatory evidence. Ex parte Napper , 322 S.W.3d 202, 229 (Tex. Crim. App. 2010) (citing Yo ungbloo d , 488 U.S. at 57, 109 S. Ct. at 337); see also Moody v. State , 551 S.W.3d 167, 171 (Tex. App.

–– Fort Worth 2017, no pet.). The narrower protection is appropriate because of the “treacherous task” that courts face in “divining the import of materials whose contents are unknown and, very often, disputed.” Napper , 322 S.W.3 d at 229.
Therefore , “when the destr uction of potentially useful evidence is at issue, the defendant must show ‘bad faith’ on the part of the State in destroying the
evidence in orde r to show a violatio n of due proc ess.” Id. “This rule confines the police ’ s obligation to preserve evidence ‘t o that class of cases [in which] the intere s ts of justice most clearly require it, i.e., those cases in which the police themselves by their condu ct indicate that the evidence cou ld form a basis for exonerating the defendant.’ ” Id. “Bad faith” is more than simply being aware that one ’ s action or in a ction could result in the loss of something that is recognized to be evidence. As the cases we have di scussed show, bad f aith entails some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obt a ining evidence that might be useful. Bad faith cannot be established by showing simply that the analys t destroyed the evi dence without thought, or did so because that was the common practice, or did so8

because th e analyst believed unreasonably that he was following the proper procedure. Id. at 238 ; see also Guzman v. State , 539 S.W.3d 394, 402 (Tex. App.

— Houston [1st Dist. ] 2017, pet. ref ’ d) ( quoting Napper and stating that “ [b] ad faith requires a showing of ‘ so me sort of improper motive, such as personal animus against the defendant or a desire to prevent t he d efendant from obtaining evidence that might
be useful ’ ” ). Analy sis Here, Lane admits that she cannot show the required “ bad faith. ” 2 Nevertheless, she argues that, because “ technology has changed s ince the decision
in Ari zona v. Youngblood , ” the standard that requires a showing of “ bad faith ” by police of ficers “ should be revisited by not only the United States Supr eme Court but also the Texas Courts. ” Lane proposes that the State ’ s fail ure to coll e c t o r

2 At the motion to suppress hearing, d efense counsel stated :

Now, I will say the case law requires me to prove bad faith. A nd I don ’ t believe bad faith exists here. I conced e that completely. I believe that just as Detective Brown testified, this is a matter of officers with a lot of work, inadequate resources, equipment that perhaps doesn ’ t function prop erly, a number of thi n gs. However, [ Lane ] is on trial for mu rder, a charge that potentially carries life in prison. So, [ Lane ] should not be punished in her defense because there is [sic] inadequate resources or a backlog of cases. That, again, violates ever y standard of funda m ental fairness that I can conceive of.9

prese rve evidence

— even without a showing of bad faith

— should create an inferen ce that the absent evidence would favor Lane

. 3 Exp ressing no op inion regarding the analysis proposed by Lane , we are nevertheless bound by the precedent of the Texas Cour t of Criminal Appeals

. See Purchase v. State , 84 S.W. 3d 696, 701 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref d) (“As an inte rmediate court of appeals we are bound by the decisions of our state ’ s highest criminal court.”). The Court of Criminal Appeals
ha s held that when the issue of spoliation concerns potentially usefu l eviden ce, the defendant must show that the State lost o r destroyed the evidence in bad faith. Napper , 322 S.W.3d at 229. We cannot and will not accept Lane ’ s invitation to disregard bindi n g precedent from the Texas Court of Criminal Appeals.
Because Lane failed to show th at police acted in bad fa ith i n not collecting a

“ p hysical ” extra ction of data from the cell phones in its possession, the trial court did not abuse its discretion in den y ing her motion to suppress or err in denying her requested spoliation instruction.

3 Lane ’ s requested jury charge provided as follows:

The State has a duty to collect and preserve evid ence. The fact that the State lost or failed to preserve evidence does not in and of itself require you to acqu i t the Defendant. It is, however, o ne fact or for you to consider in your deli berations. If aft er consideration o f all the proof you find that the State failed to gather or preserve evidence, the conten ts or quality of which are at issue and the production m ay or may not have been a benefit to the Defendant, you may infer that the absent evidence wo uld be favorable to the Defendant

.10

Accordingly, we overrule issues one and two. CONCLUSION
We affirm the trial court ’ s judgment.

Peter Kelly Justice Panel consists of Chief Justice Radack a n d Justices Lloyd and Kelly.
Do not publish. T EX
. R. A PP
. P. 47.2(b)

.