Text Authentication — Testimony That Child Called D “Godfather,” That Child’s Phone Id’d Texts as from Godfather, And That D Gave Child Phone Authenticate Texts as Sent by D (Who Didn’t Deny Sending) — Texts as 801(e) Admissions
Campos v. State, 2015 Tex. App. LEXIS 230 (Tex. Ct. App. Jan. 13, 2015):
The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received [*6] from appellant. [M.N. was 10-year-old C.G.J.’s aunt, with whom he lived.] The trial court then held a hearing outside the presence of the jury to elicit testimony from M.N. concerning how she knew the text messages came from appellant. M.N. identified appellant in court, and she testified that when C.G.J. came to live with her he had a cell phone that appellant had given him. She testified that C.G.J. referred to appellant as "Godfather," that C.G.J. did not refer to anyone else by this name, that the name associated with appellant on C.G.J.'s cell phone was "Godfather," and that she had seen text messages on the phone from "Godfather." M.N. saw text messages from "Godfather" stating, "Why haven't you called me? I miss you. I can't live without you. Why are you doing this to me?"
M.N. testified that, based on the text messages, she confronted appellant, warned him to stay away from C.G.J., and told him that she would contact the police. Appellant did not deny sending those messages. Later that day, M.N. asked C.G.J. if she could see his phone, but he had already deleted the text messages at appellant's direction. M.N. filed a police report against appellant for stalking. Defense counsel objected to M.N.'s testimony concerning the text messages [*7] on both hearsay and authentication grounds. The trial court ruled: "I find that there is sufficient authentication. And, of course, an admission [of a party opponent] is an exception to the hearsay rule. So your objection is overruled."
Before the jury, M.N. testified that she had concerns about appellant's relationship with C.G.J. because appellant "obviously was way too old to be hanging out with my nephew." She thought it "wasn't good for [C.G.J.]" that he was at appellant's apartment all the time. M.N. testified that she had observed negative changes in C.G.J.'s behavior, such as [*8] an increasing amount of anger, and that he had been performing very poorly in school before coming to live with her family. She testified that she did not allow C.G.J. to have contact with appellant, but because appellant had given C.G.J. a cell phone they were still in contact via text message. She stated that she saw text messages on C.G.J.'s phone from appellant that read, "Why aren't you picking up? Do you not love me? I feel sick without you." M.N. confronted appellant, who did not deny sending the text messages, and she then filed a police report against appellant. C.G.J. never said anything to M.N. about being sexually abused.
C. M.N.'s Testimony Concerning Content of Text Messages
The State sought to introduce the content of text messages that M.N. saw on a phone given to C.G.J. by appellant.10 Defense counsel objected to this testimony on the basis that the text messages were not sufficiently authenticated [*48] and that they constituted inadmissible hearsay. The trial court found "that there is sufficient authentication" and that the text messages constituted an admission by a party opponent and therefore did not fall within the definition of hearsay.
10 After M.N. saw the text messages and confronted appellant about them, C.G.J. deleted the messages at appellant's direction. Thus, the text messages themselves were not introduced into evidence.
Rule 801(e) provides that an admission by a party opponent, that is, a statement that is offered against a party and is "the party's own statement," does not constitute hearsay. See Tex. R. Evid. 801(e)(2)(A). Authentication is a condition precedent to admissibility and is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). In determining authenticity issues, "The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic." Tienda, 358 S.W.3d at 638. One of the ways in which evidence may be authenticated is by testimony from a witness with knowledge that "a [*49] matter is what it is claimed to be." Tex. R. Evid. 901(b)(1).
Outside the presence of the jury, M.N. testified that, while he lived with her, C.G.J. had a cell phone that he received as a gift from appellant. She testified that C.G.J. referred to appellant as "Godfather," that C.G.J.'s cell phone had the name "Godfather" associated with appellant, and that the phone would state "Godfather" when C.G.J. received text messages from appellant. M.N. stated that C.G.J. did not refer to anyone else as "Godfather." She also testified that she saw several text messages on C.G.J.'s phone from "Godfather" that said "Why haven't you called me?," "I miss you," "I can't live without you," and "Why are you doing this to me?" M.N. testified that she then confronted appellant about the text messages and that he did not deny sending them. Later that night, she asked C.G.J. for his phone, but he had already deleted the text messages at appellant's direction.
We conclude that M.N.'s testimony is sufficient to support a reasonable jury's determination that the text messages are what the State claims them to be, that is, text messages from appellant to C.G.J. See Tex. R. Evid. 901(a); Tienda, 358 S.W.3d at 638. We hold that the trial court did not [*50] abuse its discretion in holding that the text messages were authentic and in allowing M.N. to testify concerning the content of the messages. See Tienda, 358 S.W.3d at 638 ("If the trial court's ruling that a jury could reasonably find proffered evidence authentic is at least 'within the zone of reasonable disagreement,' a reviewing court should not interfere.") (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).
Because the text messages at issue here and offered against appellant are his own statements, these messages constitute admissions by a party opponent and therefore do not fall within the definition of hearsay statements. Tex. R. Evid. 801(e)(2)(A); see also Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App. 1999) ("A statement qualifies as an admission by party opponent if it is offered against a party and it is the party's own statement."). We therefore hold that the trial court did not abuse its discretion in admitting into evidence M.N.'s testimony concerning the content of the text messages.
Share this article: