Texts Authenticated by Testimony Witness Used Cell No. Defendant Gave Her via Facebook, Where Number Verified as Defendant’s and Defendant Acted Per Messages — Facebook Account Authenticated by True Cell Number and Contents of FB Messages

Coe v. State, 2015 Tex. App. LEXIS 6374 & 6440 (Tex. Ct. App. June 24, 2015):

Brandon Chadwick Coe appeals his convictions for online solicitation of a minor and attempted sexual assault of a child. See Tex. Penal Code Ann. §§ 15.01, 33.021(c) (West 2011). ***

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B. Online Solicitation of a Minor

Coe asserts that there is no evidence that he engaged in sexually explicit communications with E.B.'s sister while E.B.'s sister was posing as E.B., a minor, on Facebook. He maintains that because the indictment did not charge him with communicating with E.B. through text messages or over G-chat,4 to affirm his conviction we must find that his Facebook communications alone were sexually explicit. Alternatively, he argues that if we conclude the indictment extended to the G-chat communications, the State also had the burden to show those communications were sexually explicit.

4   To the extent Coe attempts to argue in his brief to this Court that the trial court erred in admitting records of the conversations that took place over G-chat, we do not address such argument as Coe has not adequately supported [*9]  the issue with record references or case citations. See Tex. R. App. P. 38.1(i).

***

The indictment alleged that Coe knowingly solicited E.B. "over the [I]nternet and through a commercial online service (Facebook)[.]" Despite Coe's argument to the contrary, alleging in the conjunctive that Coe solicited E.B. "over the [I]nternet" and "through a commercial online service (Facebook)" [*10]  does not require the State to prove that Coe did both. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (holding that "although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive"). Therefore, the evidence is sufficient to support the jury's verdict that Coe was guilty of online solicitation of a minor if the jury could have found beyond a reasonable doubt that Coe knowingly solicited E.B., a minor, over the Internet to meet with him or another person with the intent that E.B. would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with him or another person. See id.; see also Tex. Penal Code Ann. § 33.021(c).

E.B. was sixteen years of age on the date of the alleged offenses. She testified that she knew Coe and his family. She grew up around the Coe family and on occasion had lunch with them. In 2011, Coe and his father helped E.B. and her mom move into a new apartment. She testified that Coe made her feel uncomfortable and awkward during the move because of how Coe would look at her.

E.B. testified that she had been "friends" with Coe on Facebook for some time and had become "friends" well before August 2011. Coe made her feel awkward [*11]  when he placed a comment that she "looked cute" on one of the pictures she posted of herself on Facebook. She told her sister about the comment, so E.B.'s sister started checking E.B.'s Facebook page.

The testimony offered by E.B.'s sister corroborated E.B.'s testimony. E.B.'s sister testified she became concerned for her younger sister, E.B., then sixteen years of age, when she noticed that Coe, a thirty-five-year-old man, was showing an "abnormal" or "excessive" level of interest in E.B.'s pictures on Facebook. The State admitted into evidence a Facebook chat log that E.B.'s sister identified as a conversation that she, under the persona of E.B., conducted with Coe. E.B.'s sister testified that she sent out a group message from E.B.'s Facebook account to Coe and eight other people. The message stated, "'So I am sending a message to all my friends. What is it you-all like and don't like about me? How do we know each other? Do we have any secrets?'" Coe responded to the message within minutes. E.B.'s sister described the initial conversation between Coe and herself and then testified that Coe sent a message to E.B. asking, "'What are you up to, cutie?'"

The following day, E.B.'s sister [*12]  sent a text message to the cell phone number Coe had provided to her during the Facebook chat. Photographs of the text conversation were admitted into evidence. Coe asked E.B. to send him a picture of herself, so E.B.'s sister sent him a picture of E.B. E.B.'s sister testified in detail regarding the content of the text messages exchanged between herself, posing as E.B., and Coe. She exchanged various photographs with Coe throughout the conversation. After she sent one certain photograph that she represented was E.B. lying next to a swimming pool, Coe responded that he would "like to see everything[.]" Coe also sent E.B. a text message that he would "love to be [her] first[.]"

The photographs of the text messages reflect that Coe offered to send E.B. a picture of his sexual organs, but that E.B. would have to send him pictures of her first because he had "a lot more at stake[.]" The evidence also reflects that Coe warned E.B. that she would need to delete any photographs he sent her because he could get in "big trouble[.]" E.B.'s sister testified that she sent Coe two photographs of random nude females she found on the Internet and told Coe they were pictures of E.B. E.B.'s sister testified [*13]  that Coe responded that he liked what he saw in the photographs. Coe responded by sending a photograph of his sexual organ. According to E.B.'s sister, Coe then described in graphic detail what he wanted to do sexually.

Coe later sent a text message indicating that he discovered the legal age of consent in Texas was seventeen years and told her that it was not illegal for them to be together after all. E.B.'s sister testified that up until that point in time, they had not discussed E.B.'s actual age. Coe sent a text message that he was ready to get together with E.B. whenever she was ready and that he looked forward to seeing her soon.

E.B.'s sister testified that Coe sent another text to E.B. wanting E.B. to come over to his house. During the conversation, she informed Coe that E.B. was just sixteen years old. Coe responded that he could get in "real big trouble and go to jail" if they did anything before E.B. turned seventeen years old.

Posing as E.B. again, her sister exchanged chats with Coe on Facebook . Coe sent E.B. a message through Facebook to tell her that she could call or text him if she wanted. Coe ended the conversation by stating that he could not wait to hear E.B.'s voice [*14]  and see her in person. Copies of these exchanges were admitted before the jury. E.B.'s sister testified that she also had conversations with Coe through Google email and chat. Copies of such exchanges were admitted before the jury. From all of her exchanges with Coe, E.B.'s sister became concerned for E.B's safety and decided to contact law enforcement.

E.B.'s sister testified that she had known Coe and his family for over fifteen years and their families had been friends and attended church together. She had also known Coe's ex-wife for many years and used her as a babysitter. E.B.'s sister testified that when the conversations with Coe began, she spoke with Coe's ex-wife concerning the conversations. She denied that she and Coe's ex-wife made any plan to set up Coe. On cross-examination, E.B.'s sister stated that Coe's ex-wife did make a comment to her about Coe which caused her to be concerned about Coe's apparent interest in E.B.

E.B.'s sister agreed on cross-examination that she is adept at photography but denied tampering with any of the photographs of the chat conversations entered into evidence. Defense counsel also questioned E.B.'s sister about thirty-nine missing images mentioned [*15]  in the forensic report of the text messages between her and Coe captured on E.B.'s sister's phone. It was explained that those images were personal pictures of her and her son and were not images of her conversations with Coe.

Chris Smith, chief investigator with the Montgomery County District Attorney's Office, testified he received a report from the F.B.I. regarding an adult's on-line communication with a minor. He testified that E.B.'s sister made a complaint to the F.B.I. about online communications involving E.B. After meeting with E.B.'s sister, he made a plan to take over the identity of the minor child, E.B., and continue the online communications. E.B.'s mother provided Smith with permission to access E.B.'s Facebook and Gmail accounts.

Smith testified that he began accessing E.B.'s Gmail account on October 14. He identified a series of emails between him, posing as E.B., and Coe. Smith testified and the evidence reflects that Smith sent Coe an email from E.B.'s Gmail account and Coe responded and provided his cell phone number and requested her to contact him by texting. Smith confirmed that the number Coe provided in the email was actually Coe's cell phone number. Smith captured [*16]  parts of the on-line chat conversations and emails exchanged with Coe, and the printouts of those exchanges were admitted into evidence for the jury to consider. Based on Smith's investigation and having reviewed the prior messages between Coe and E.B., it was Smith's opinion that Coe continued to solicit the minor for sexual relations.

Coe asked where E.B.'s sister lived so that he could obtain a map to her house. Coe confirmed again that E.B. would be alone at her sister's house that night. Coe then asked E.B. when she would have her next birthday. Coe confirmed that E.B. was still sixteen and would turn seventeen years old the following Wednesday. Coe continued his on-line sexual banter. The conversation continued:

   Brandon: ...so when would you want me to come oveR?

   ....

   Brandon: ...That wouldn't be what it is to me I think you would be really cool to be your first

   me: does this mean I have a date for tonight? really feeling sick right this second (lol)...

   Brandon: Lol If you want one

   me: u r kind of making me feel like u dont want to have sex with me. if u don't, just tell me...I feel like u r playing games with me.

   ....

   Brandon: I wanna be with you if you want

   ....

   me: if u don't want to, [*17]  I understand.

   Brandon: I do

   me: so r u coming tonight?

   Brandon: If you still want me to.

Smith testified that the conversation ended about 3:37 p.m. At this point, Smith started setting up a location to meet Coe. Smith testified that, posing as E.B., he initiated further communication with Coe later that night at 7:13 p.m. Smith testified that he sent Coe the address of the location they had prepared for Coe. Coe confirmed that E.B. was alone at the address. Smith testified that he exchanged various messages with Coe throughout the night. Smith also testified that Coe attempted to call the house at the address Smith had given him. When no one answered, Coe became suspicious that his ex-wife was attempting to set him up and pose as E.B. to cause him trouble. Smith was able to convince Coe to keep the rendezvous that night. Again, the jury was able to view the transcript of the verbal exchanges with Coe.

Coe continued to try to arrange to speak to E.B. on the telephone before arriving at the address. Coe confirmed whether E.B. still wanted to see him and confirmed directions to E.B.'s sister's house. Posing as E.B., Smith expressed concern that Coe would be disappointed because she did not [*18]  know what she was doing. Coe responded, "Sweet that's part of it's being your first. You really don't have to worry about anything[.]" Coe confirmed that he was on his way and asked E.B. what she was wearing and if she would come outside to greet him.

At 12:04 a.m., Coe sent a message indicating he had arrived at the house. Smith testified that a vehicle pulled up to the location and Coe exited the vehicle and began walking towards the house. Smith testified that he exited the house and made contact with Coe and placed Coe under arrest. Smith testified that when they arrested Coe, he was in possession of a cell phone, wallet, car keys, and five condoms. Smith testified that when they made an inventory of Coe's vehicle, they located an additional condom and a prescription bottle of Cialis. Smith testified that the bottle of Cialis was prescribed to Coe.

Defense counsel questioned Smith at length regarding the practices he used in his investigation and criticized him for not subpoenaing the entirety of the conversations from the on-line providers. Smith admitted that if someone has the motive, knowledge, and intent, it was possible for that person to make an innocent person appear guilty [*19]  of an offense. He also agreed that photographs of Facebook and online chats could be altered. He conceded that while he is able to subpoena records from Internet service providers and phone companies, he did not subpoena chat or email records from Google concerning Coe's activities. Smith testified there were other complaints against Coe specifically regarding the misuse of his position at the church to spy on teenage female members of the church.

**

The jury was allowed to view the explicit details of the content of the on-line conversations between Coe and the person he believed to be an under-aged teen, as was this Court in our review. There was ample evidence from which a jury could reasonably infer that Coe solicited E.B. and arrived at the designated meeting place with the intent that she would engage in sexual contact. When viewing the evidence in a light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Coe, through the Internet, knowingly solicited E.B., a sixteen-year-old child, to meet him with the intent that she would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with him. See Tex. Penal Code Ann. § 33.021(c).

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IV. Evidentiary Issues

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B. Photographs Depicting Text Message Conversation on the Cell Phone of E.B.'s Sister

Coe contends the trial court erred in admitting photographs taken of E.B.'s sister's cell phone depicting a text message conversation between Coe and E.B.'s sister, who was posing as E.B. Coe argues the photographs were not properly authenticated.

The issue of authentication arises when "'the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event.'" Campbell v. State, 382 S.W.3d 545, 548-49 (Tex. App.--Austin 2012, no pet.) (quoting Shea v. State, 167 S.W.3d 98, 104 (Tex. App.--Waco 2005, pet. ref'd)). "Evidence has no relevance if it is not authentically what its proponent claims it to be." Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Rule 901(a) of the Texas Rules of Evidence provides that for a party to satisfy the requirement of authenticating or identifying an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a) [*27] . Rule 901(b) includes a list of evidence that satisfies this requirement, including testimony that an item is what it is claimed to be and evidence of the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Id. 901(b).

The ultimate question of whether an item of evidence is what its proponent claims it to be is a question for the factfinder. Tienda, 358 S.W.3d at 638. In performing its gate-keeping function, the trial court need only decide "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. Courts have admitted printouts of emails, Internet chat room dialogues, and text messages into evidence when the courts have found the printouts to be sufficiently linked to the purported author so as to justify the submission to the jury for its ultimate determination of authenticity. Id. at 639; see also Campbell, 382 S.W.3d at 549.

E.B.'s sister identified the photographs of text messages made and received between her personal cell phone and Coe's cell phone on August 11 and August 12. She testified that she took the photographs of the conversation and placed them on a flash drive. She testified that she knew the conversation was with Coe because she sent the message to the number he provided her through Facebook. Smith testified that the number Coe provided through Facebook was actually Coe's cell phone number. The events surrounding the [*28]  messages sent to E.B.'s sister indicate circumstantially that Coe was the author of the text messages. See Tienda, 358 S.W.3d at 641. When considered in combination with other circumstantial evidence in the record and the fact that Coe arrived in person at the designated place and time and announced his arrival by the same cellphone number, we hold a reasonable factfinder could have believed the text messages were created and sent by Coe. See Tex. R. Evid. 901(b)(1), (4). The factfinder was entitled to assess the weight to give Coe's defensive conspiracy and alteration theories once the State had produced a prima facie showing that the text and chat messages were created and sent by Coe.

Coe also argues the photographs do not satisfy the best evidence rule. Coe essentially argues that the best evidence would have been the actual cell phone of E.B.'s sister and not photographs of the conversation. Coe contends that he made a number of objections to the admission of the text messages "in the spirit of the best evidence rule[.]" Coe has not directed us to any part of the appellate record wherein he claims to have made these objections. Our review of the record indicates that Coe made a number of objections to the admission of the photographs: [*29]  (1) he argued the photographs were not properly authenticated, (2) he argued the photographs did not reflect the entirety of the text conversation Coe had with E.B.'s sister, (3) he argued the photographs had been altered, and (4) he argued the photographs were not relevant or material to the issues in the case.

Generally, to prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by the Rules of Evidence or by other law. Tex. R. Evid. 1002. "A duplicate is admissible to the same extent as the original unless a question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate." Tex. R. Evid. 1003. An original is not required, and other evidence of the content of a writing, recording, or photograph is admissible, if the original is: (1) lost or destroyed; (2) not obtainable by judicial process; (3) located outside the state; (4) in possession or control of the opponent; or (5) not closely related to a controlling issue. See Tex. R. Evid. 1004.

We find no support for Coe's contention that he made a best evidence or Rule 1002 objection to the photographs of the text messages contained on E.B.'s sister's cell phone. [*30]  The record reflects that the trial court ordered the State to provide Coe's counsel access to the cell phones in the State's possession. The record further supports that the State complied with the trial court's order and gave Coe's counsel access to the cell phones and an opportunity to review the contents therein. Coe never raised an objection or concern to the trial court regarding the authenticity of the data contained on the cell phones. Coe's counsel never asked the trial court to admit any cell phone into evidence. Coe did not argue, as he now attempts on appeal, that the cell phone is the best evidence of the text messages exchanged between Coe and E.B.'s sister. We find Coe has not preserved this issue for review. See Tex. R. App. P. 33.1(a); see also Clark, 365 S.W.3d at 339; Lovill, 319 S.W.3d at 691-92.

C. Photographs Depicting Facebook Conversation

In his second issue, Coe contends the trial court erred in admitting photographs taken of E.B.'s sister's computer screen depicting the Facebook conversation between Coe and E.B.'s sister, who was posing as E.B, because the photographs appear altered and were not properly authenticated.

At trial, the State argued that authentication was complete because there are identifying factors that suggest the Facebook [*31]  account belonged to Coe, including that it contained his picture, his name, that E.B. had been friends with him on Facebook, and that E.B. knows Coe and his family. The court found the Facebook photographs admissible.

Regarding the Facebook photographs, E.B.'s sister testified that she was familiar with them. She testified that she took the photographs of the conversation as it occurred and then saved the photos onto the computer. She testified that she had sent out the initial group message from E.B.'s account and that Coe responded to that message. E.B.'s sister testified that she believed Coe was the person that responded because the responses had his picture and name on them. E.B.'s sister denied altering any of the photographs.

We note that the content of the messages at issue purport to be messages sent from a Facebook account bearing Coe's name. In this case, the internal content of the Facebook postings--photographs, comments and friends list--was sufficient circumstantial evidence such that a reasonable juror could have found that the messages were authored and sent by Coe. See Tienda, 358 S.W.3d at 642. The messages contain internal characteristics that further tend to connect Coe as the author. First, [*32]  the messages contain Coe's image. Second, the messages contain a reference to attending church with E.B. Finally, and most persuasive, the author of the messages sent E.B. a cell phone number which proved to be Coe's number. We conclude that the combination of facts in this case is sufficient to support a finding that the Facebook messages were created by and sent from Coe. We conclude the trial court did not err in admitting these messages.

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