Texts Authenticated by Recipient’s Testimony, Messages That Included Photo of Sender, ID’ed a Person Both Knew & by Evidence Phone Was Used to Contact Others Who Knew Sender and That Address for Phone Was a Former Address of Sender’s

Jackson v. State, 2015 Tex. App. LEXIS 6126 (Tex. App. June 17, 2015):

 

II. MOTION TO SUPPRESS

In his first issue, Jackson contends the trial court abused its discretion in denying his motion to suppress certain cell phone records and in "thereafter allow[ing] unauthenticated evidence at [the] revocation hearing and/or trial before the court." The State responds that the cell phone records were properly authenticated by circumstantial evidence.

A. Standard of Review

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Butler v. State, No. PD-0456-14, 2015 WL 1816933, at *3 (Tex. Crim. App. Apr. 22, 2015); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). "The trial judge does not abuse his or her discretion in admitting evidence where he or she reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified." Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).

"In review of a trial court's ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court's ruling only if it is outside the zone of reasonable disagreement." Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply a bifurcated standard of [*4]  review, "giving almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations." Id. at 922-23.

B. Applicable Law

Authentication is a "'condition precedent' to admissibility of evidence that requires the proponent to make a threshold showing that would be 'sufficient to support a finding that the matter in question is what its proponent claims.'" Tienda, 358 S.W.3d at 638. (quoting Tex. R. Evid. 901(a)). Rule 901 "does not erect a particularly high hurdle," and "the proponent of evidence does not need to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.--Austin 2012, no pet.) (internal quotations omitted).

"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 (citing Tex. R. Evid. 901(b)(1), (3)-(4)). "[E]vidence that merely shows the association of a phone number with a purported sender--alone--might be too tenuous [to authenticate a text message]." Butler, 2015 WL 1816933, at *4. "In [*5]  cases where a sponsoring witness may testify to an association between a cell-phone number and a purported author [of a text message], other evidence may be available that might bridge the logical gap and permit a proper inference that the purported author sent the message." Id. at *5. Other evidence may include for example, the message's content or substance, "which considered in conjunction with other circumstances support a conclusion that a message indeed emanated from the purported author." Id. "[A]s with the authentication of any kind of proffered evidence, the best or most appropriate method for authenticating electronic evidence will depend upon the nature of the evidence and the circumstances of the particular case." Tienda, 358 S.W.3d at 639.

C. Application of the Law to the Facts

Jackson contends the trial court abused its discretion in admitting the cell phone records because the records were not properly authenticated. The State responds that the cell phone records "were properly authenticated by circumstantial evidence and properly admitted by the trial court."

The Court of Criminal Appeals recently held that cell phone records had been properly authenticated through circumstantial evidence. See Butler v. State, 2015 WL 1816933, at *1-8. In Butler, the Court reasoned that

   a rational jury could conclude that [the witness] recognized the texts to be coming from [the defendant] on this occasion because (1) [the defendant] had called [the witness] from that number on past occasions; (2) the content and context of the text messages convinced [the witness] that the messages from that same phone number during the course of that very text message exchange; and [*7]  (3) [the defendant] actually called [the witness] from that same phone number during the course of that very text message exchange.

See id. at *5.

In this case, Sally McAllister, who knew Jackson from school and had reconnected with him on Facebook, testified that the number in question belonged to Jackson. See id. at *4-5. She recalled that she had given Jackson her phone number over Facebook, and he texted her from the cell phone number in question. She remembered the text message exchanges between her phone number and the number in question, and she testified that she was communicating with Jackson. See id. McAllister stated that she and Jackson were "flirting" in the text messages and that she and Jackson exchanged pictures of each other. See id. at *5-6. McAllister identified the following as one of her text message conversations with Jackson:

McAllister: You know I have been rackin my mind. I can remember 2 Michael Jackson's from school. But I can't place you. What made you hit me yesterday on FB [Facebook]?

Jackson: Y u hit me back?

McAllister: Lmao [laughing my ass off]. Mmmmm. I hit u back cuz that was your second attempt and I was curious. Then after we began talkin I was feelin u. Curtis? Bright dude.

Jackson: [*8]  Curiosity killed the cat

McAllister: Yup!!!!

Jackson: Yea? Yea mixed dude

McAllister: Yea. I remember him. He always wore a [hat].

McAllister testified that this conversation took place shortly after she communicated with Jackson on Facebook and that she mentioned "Curtis," a person both she and Jackson knew in school, to "figure out which Michael Jackson [he] was." See id. at *6.

In addition to McAllister, the record shows that the phone was used to contact three other people who knew Jackson personally: Corey Jackson, his cousin; a family friend and barber; and the mother of Jackson's child. The text messages between Corey Jackson and the number in question indicated that Corey knew the person with whom he was communicating because Corey sent contact information for a third party to the person. Corey testified that he would not send a third party's phone number to someone that he did not know "from Adam." See id. at *5-6.

Finally, the custodian of records for the cell phone provider Metro PCS testified the cell phone records were the business records of Metro PCS. See Tex. R. Evid. 803(6). The address listed for the Metro PCS subscriber was one of Jackson's previous addresses. See Tex. R. Evid. 901(b)(3) (evidence can be authenticated by comparison [*9]  to other authenticated evidence); Tienda, 358 S.W.3d at 645-46.

The trial court did not state any basis for its ruling. However, this combination of evidentiary facts is sufficient to support a reasonable trial court's belief that the cell phone in question was used by Jackson. See Butler, 2015 WL 1816933, at *5-8; Tienda, 358 S.W.3d at 645-46. In this case, the cell phone records span about two and a half days, and during that time, the phone was used to contact four people who appeared to know Jackson personally. See Butler, 2015 WL 1816933, at *3 (recognizing that "cell phones tend to be personal and user-specific"). The cell phone subscriber's address was an old address of Jackson's. The State was not required to "rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." See Campbell, 382 S.W.3d at 549. The trial court's decision to admit the cell phone records was within the "reasonable zone of disagreement."4 See Butler, 2015 WL 1816933, at *5-8; Tienda, 358 S.W.3d at 645-46. Because we conclude the trial court did not abuse its discretion in admitting the cell phone records at trial, we also conclude the trial court did not err in denying Jackson's motion to suppress. We decide Jackson's first issue against him.

4   Under the title "Harm Analysis" in the argument section of issue one, Jackson contends the admission [*10]  of the text messages violated his Fifth Amendment right against self-incrimination. The text messages were Jackson's own statements being offered against him. Therefore, the statements were admissible as admissions by a party-opponent. See Tex. R. Evid. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) ("Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay."); Jackson v. State, No. 05-13-00004-CR, 2014 WL 2611106, at *4 (Tex. App.--Dallas June 11, 2014, no pet.) (concluding defendant's statements were admissible under Rule 801(a)(2)(A) when defendant argued the statements violated his Fifth Amendment privilege).

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