Text / Email Authentication — Conduct Pursuant to Text Exchange Sufficient to Authenticate Disputed Texts — Authentication Issue Is for Jury — Court Need Not Be Persuaded Texts Are Authentic — Texts as Admissions

Cook v. State, 2015 Tex. App. LEXIS 2649 (Tex. Ct. App. Mar. 20, 2015):

Appellant's conviction for cocaine delivery arises out of Appellant's sale of drugs to a confidential informant. The confidential informant, Lindsey Ford, testified that she had used and sold drugs in the past and that she was familiar with who sold drugs in Stephenville. In November 2010, Ford agreed to work as a confidential informant with the Stephenville Police Department in connection with its undercover investigations of deliveries of controlled substances.

Sergeant Curtis Dees, a fourteen-year officer with the Stephenville Police Department, works in the Criminal Investigation Division. Sergeant Dees testified about the use of confidential informants by the Stephenville Police Department to conduct [*2]  narcotics investigations and the types of operations in which confidential informants are used. Sergeant Dees also outlined the process involved in using a confidential informant, including pre- and post-buy searches of the informants, the use of marked money, and audio and video recordings of the buys.

Ford testified that, on December 29, 2010, she met up with Sergeant Dees and Sergeant Ford for the purpose of making a drug buy from Appellant. Ford said that she sent text messages to Appellant and agreed to buy two "eight-balls" of cocaine from him for $270. An eight-ball of cocaine is 3.5 grams, or an eighth of an ounce of cocaine. Ford testified that she met with Sergeant Dees and Sergeant Ford at their office, where Staci King, the records clerk for the police department, took her into a back room and searched her and her belongings. The officers then equipped Ford with audio and video recording equipment to record the transaction with Appellant.

Ford planned to buy cocaine from Appellant at the Bargain Town convenience store. The officers dropped Ford off a few blocks away from Bargain Town. Ford waited for Appellant at Bargain Town for a few minutes. After receiving a text from Appellant, Ford walked across the street to the Riverwalk Apartments. Ford then got into Appellant's car, and they drove off. Ford testified that, as they were driving off, she gave Appellant the money for the cocaine. Ford said that Appellant immediately gave her the two eight-balls of cocaine. Appellant then dropped Ford off a block away from her home. Sergeant Dees and Sergeant Ford picked up Ford a few minutes later. Ford gave the recording device and the cocaine to Sergeant Dees and Sergeant Ford.

At trial, the video of the transaction between Ford and Appellant was admitted into evidence, along with photos of the text messages between Ford and Appellant. The cocaine recovered by Sergeant Dees from Ford was also admitted into evidence, along with the report of the lab analysis performed by William Todsen with the Texas Department of Public Safety Crime Laboratory in Abilene.

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Admissibility of Text Messages

In his fourth issue, Appellant contends that the trial court erred when it admitted text messages over his authentication and hearsay objections. A trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). If the ruling is within the zone of reasonable disagreement, an appellate court [*15]  will not disturb it. Id. There is no abuse of discretion if the trial court "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).

Whether to admit evidence at trial is a preliminary question to be decided by the court. TEX. R. EVID. 104(a); Tienda, 358 S.W.3d at 637. Only relevant evidence is admissible. TEX. R. EVID. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Evidence not properly authenticated is irrelevant, and authentication is a "condition precedent" to admissibility. TEX. R. EVID. 901(a); Tienda, 358 S.W.3d at 638.

A proponent of evidence is 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." Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.- Austin 2012, no pet.). In performing its gate-keeping function under Rule 104, the trial court need not be persuaded that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638. Instead, the question of whether an item of evidence is what the proponent claims it to be is a question for the factfinder. Id. The preliminary question for the trial court is to decide whether the proponent of the evidence has supplied [*16]  sufficient facts to support a reasonable jury determination that the evidence is authentic. Id.; see also Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.-Tyler 2011, pet. ref'd) (stating "proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness").

Authentication may be accomplished by several methods, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence. TEX. R. EVID. 901. Rule 901 "does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." Campbell, 382 S.W.3d at 549. Printouts and pictures of emails, internet chat room conversations, and text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify the submission to the jury for its ultimate determination of authenticity. Tienda, 358 S.W.3d at 639.

Ford testified that she sent and received text messages from Appellant to set up the drug buy on December 29, 2010. Ford testified that, while she was waiting at Bargain Town for Appellant, she sent text messages to him and asked where he was and when he was going to be there. Ford said that Appellant then texted her and said he was at the apartments [*17]  across the street. She then walked over to where he was parked. The events surrounding the message sent to Ford indicate circumstantially that Appellant was the author of the text message. See Tienda, 358 S.W.3d at 641 ("Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue."). Although the picture of the text message alone may have been insufficient for authentication purposes, we conclude the evidence was admitted in such a way that, in combination with other evidence, a reasonable juror could have believed the text message was sent by Appellant.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). A statement is not hearsay if the statement is offered against a party and is the party's own statement in either an individual or representative capacity. TEX. R. EVID. 801(e)(2)(A). In this case, the text message offered against Appellant contained his own statement in his individual capacity. Consequently, the text message was not hearsay. [*18]  Rather, because it constituted Appellant's own statement, it was properly admitted into evidence. See id.; Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App. 1999); Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991); Lozano v. State, No. 2-06-379-CR, 2007 WL 4216349, at *8 (Tex. App.-Fort Worth Nov. 29, 2007, no pet.) (mem. op., not designated for publication) (concluding text messages contained defendant's statements and were properly admitted as party admission). Accordingly, we conclude the trial court did not abuse its discretion when it admitted the text messages into evidence. We overrule Appellant's fourth issue.

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