concurring.
Regarding the trial court’s submission of a jury instruction on spoliation challenged in point six, I respectfully disagree with the majority that this was not error.
Generally, two rules apply to presumptions that arise from the nonproduction of evidence. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468 (Tex.App. — San Antonio 1998, n.p.h.). One rule is that the deliberate spoliation of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator, but, when there is no evidence of deliberate destruction, this rule does not appy. Id. Here, the majority apparently draws inferences of destruction from the fact that OPI had been able to produce all DB II logs except the medical log. Because no evidence of deliberate spoliation was produced, however, I would hold that the trial court erred by instructing the jury on the unfavorable-evidence presumption under this first rule.
The second rule is implicated when the party is in control of relevant evidence and it fads to produce the evidence or offer testimony explaining its nonproduction to rebut its opponent’s harmful evidence. Id. In the present case, the majority relies on (1) evidence that OPI was the legal custodial of the DB II’s official records and (2) the lack of any showing of a change in the custodial status to relieve OPI of its responsibility to preserve this evidence for trial. However, OPI’s corporate officer, Cole, testified that he could not find the medical log when OPI first became aware of the claim. In the *672absence of any evidence that OPI was in control of the relevant evidence when it was requested, I would hold that Schooley was not entitled to the instruction.
For harmful error to occur, the error must amount to such a denial of a party’s rights that it probably caused rendition of an improper judgment. See Tex.R.App.P. 44.1(a)(1). Even though the issue, to which the missing log was relevant, was hotly contested, Schooley would have been entitled to argue spoliation even without the instruction. Admittedly, the fact that only the medical log turned up missing provided fuel for such an argument. Thus, while I would hold that the trial court erred in submitting an instruction on spoliation, after considering the record as a whole, I would not hold that error was so harmful as to have deprived OPI of a fair trial.
Accordingly, I concur in the majority’s judgment and in all other respects join the majority opinion.