Commercial Litigation and Arbitration

Texts Authenticated: Phone in Defendant’s Possession on Arrest — He Answered It while Detained, Called It His — Name of Third Party He Said Owned It Was Named in Contact List while He Was Listed as “Me” — Contains Photos of Him

Jones v. State, 2015 Tex. App. LEXIS 3139 (Tex. Ct. App. Mar. 31, 2015):

A. Authenticity of information from mobile telephone

Jones frames his challenge to the admission of information from the phone as an issue of the evidence's authenticity. As a condition precedent to admissibility, the proponent of the evidence must satisfy the requirement of authentication by showing that "the matter in question is what its proponent claims." TEX. R. EVID. 901(a). The question of authentication arises when the relevance of proffered evidence "'depends upon its identity, source, or connection with a particular person, place, [*17]  thing or event.'" Angleton v. State, 971 S.W.2d 65, 70 (Tex. Crim. App. 1998) (quoting 2 Steven Goode, et al., Texas Practice Guide to Texas Rules of Evidence: Civil & Criminal § 9.01, at 191--92 (2d ed. 1993)). In performing its "gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic." Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). "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." Id.

"Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence." Tienda, 358 S.W.3d at 638; see Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.--Tyler 2011, pet. ref'd) (authentication may be shown by circumstantial evidence). It need not be proven beyond a reasonable doubt, and the proponent of the evidence is not required to rule out all possibilities inconsistent with authenticity. Manuel, 357 S.W.3d at 74. Moreover, in light of the diverse variety of electronic evidence, "as with the authentication of any kind of proffered evidence, the best or most appropriate method for authenticating electronic evidence will often depend upon the nature of the evidence [*18]  and the circumstances of the particular case." Tienda, 358 S.W.3d at 639.

The text messages admitted in this case show conversations between people sending messages from various phone numbers. The senders were identified by names entered into the contact list. The user of the phone in question was identified only as "Me." In the trial court Jones argued that he did not own the phone in question. Similarly, on appeal, he argues that he "could have also been using someone else's phone." Thus, Jones argues the State failed to establish that he was responsible for all the pictures, text messages, contacts, and other information found on the phone. In other words, he contends that there was insufficient evidence to show that he was the "Me" identified in the text messages, and therefore the court erred by admitting all of the evidence obtained from the mobile phone.

The State argued that the evidence showed Jones's connection to the mobile phone: he was in possession of it at the time of arrest, he answered it and spoke to an acquaintance while detained by law enforcement officers, and it rang continually thereafter during the traffic stop. At one point in the video, Jones referred to the phone as his. At trial, [*19]  Pearly "Baby" Green testified that the phone was hers and that she allowed her son James Green to use it as well. But the phone's contact list included entries for both "Baby" and James, identifications that would be unnecessary if the phone belonged to either of them. The phone also included photographs of Jones, and photographs of shipping labels on boxes, including one addressed to Jones at the same restaurant where he picked up the box in this case.

Jones relies on Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), in which the Court of Criminal Appeals considered whether the trial court erred by admitting evidence from a social-networking profile that the State contended was created by the defendant. 358 S.W.3d at 634. In Tienda, the defendant was charged with murder resulting from a multiple-car shootout. Id. Evidence of his involvement in the shootout was inconsistent, but the State proffered evidence from several social-networking accounts that it believed were created by the defendant and which included incriminating information. Id. at 635--36. The profiles were not created with the defendant's legal name, and his theory appeared to be that he did not create the profiles and they should not be used against him. See id. But the profiles did reflect [*20]  his nicknames, email addresses associated with him, photographs of a person who bore a resemblance to him, and specific information about the charged offense and his co-conspirators. Id. at 636. The Court of Criminal Appeals held that there was sufficient circumstantial evidence connecting the defendant with the social-networking evidence to establish a prima facie case that he was responsible for the content. Id. at 642.

Jones argues that there is less evidence to support authentication in this case than there was in Tienda. For example, he argues that there was no evidence of the account holder for the phone, who paid for the account, when it was opened, or the identity of the pets shown in some of the photographs. He also argues that a photograph on the phone of a package addressed to James Green and a text message to "Me" that stated "James Holla at me" show that James Green "was in charge of the phone." However, the proponent of the proffered evidence need not eliminate all other possibilities inconsistent with authenticity. Manuel, 357 S.W.3d at 74. The question is whether the evidence would support a determination by a reasonable jury that the evidence is what it is purported to be. Tienda, 358 S.W.3d at 638.

Here the State offered the evidence [*21]  from the phone as information and content that was within Jones's control. In support of that, the State relied on circumstantial evidence connecting Jones to the phone at the time of his arrest. This included Jones's possession and use of the phone when stopped by Deputy Martin, the identification of phone numbers in the phone suggesting that it was used to communicate with "Baby" and with James but not with him, photographs showing a shipping label addressed to him at the restaurant where he worked, and text messages regarding bank transactions consistent with bank receipts found in the car he was driving. Though individual pieces of the circumstantial evidence, standing alone, could have led to a different inference, taken together, we conclude that the evidence supported a prima facie case that the phone and its contents belonged to Jones. See Tienda, 358 S.W.3d at 638; Manuel, 357 S.W.3d at 76.

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