Commercial Litigation and Arbitration

Facebook Messages Authenticated by Recipient: She and Sender Used a Code Known Only to Them, She Recognized “the Way He Said Things” and the Subject Matter Was Known Only to Them — Recipient’s Messages Received for Context ≠ Hearsay

Bullman v. State, 2016 Tex. App. LEXIS 3775 (Tex. Ct. App. Apr. 13, 2016):

In four issues, appellant, Curtis Nathaniel Bullman, challenges his conviction for continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02 (West Supp. 2015). Bullman contends the trial court abused its discretion in admitting the following: (1) the testimony of an outcry witness; (2) evidence of Bullman's extraneous offenses; (3) Facebook records; and (4) telephone recordings and transcripts. Because we overrule all of Bullman's issues on appeal, we affirm the judgment of the trial court.

I. Background

The State indicted Bullman for continuous sexual abuse of a child. The State alleged that "from on or about June 3, 2011 through March 5, 2012" Bullman committed two or more acts of sexual abuse against E.D.2 , a child younger than fourteen years of age. The State specifically alleged that Bullman committed aggravated sexual assault [*2]  against E.D. on or about June 3, 2011, November 1, 2011, and March 5, 2012.


IV. Admissibility of Facebook Records

In his third issue, Bullman contends the trial court abused its discretion in admitting into evidence Facebook records from Bullman's Facebook account, which included various dialogues between Bullman and E.D. Bullman argues the Facebook records were not properly authenticated and contained inadmissible hearsay.

Like other types of evidence, electronically stored evidence must be properly authenticated. See Tienda v. State, 358 S.W.3d 633, 638-39 (Tex. Crim. App. 2012). Rule of Evidence 901(a) states that for the proponent of evidence to satisfy the authentication requirement, he must "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a). In a jury trial, after the trial court makes this threshold decision, the jury then has the role to ultimately determine whether an item of evidence is indeed what its proponent claims. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). We review the trial court's determination of the threshold requirement for an abuse of discretion and will not reverse its decision if it is within the zone of reasonable disagreement. Id.

"Evidence may be authenticated [*15]  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. In Tienda, the Court of Criminal Appeals addressed the authentication of printouts from a social-networking website, namely MySpace. Id. at 638-47. Acknowledging that computers can be hacked, passwords compromised, and mobile phones stolen, the Court explained that evidence that "an email on its face purports to come from a certain person's email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author" is alone insufficient to support a finding of authenticity. Id. 641-42. However, after reviewing the content of the MySpace postings, the Court concluded there was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that the MySpace accounts were created and maintained by the defendant. Id. at 642. Later, in Butler, the Court explained that the trial court may consider the message's "'appearance, contents, substance, internal patterns, or other distinctive characteristics,' [*16]  which considered in conjunction with other circumstances" to support a conclusion that a message emanated from the purported author. 459 S.W.3d at 602 (quoting Tex. R. Evid. 901(b)(4)).

The Austin Court of Appeals identified the two major authentication concerns specific to Facebook:

   First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. Second, because a person may gain access to another person's account by obtaining the user's name and password, the person viewing communications on or from an account profile cannot be certain that the author is in fact the profile owner.

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App.--Austin 2012, no pet.) (internal citations omitted). In Campbell, the defendant acknowledged having a Facebook account but denied sending the victim the Facebook messages at issue. Id. at 551. And, the defendant argued that only he and the victim had access to his Facebook account. Id. The victim in the case identified the printouts as messages she received from the defendant, and she specifically denied that she sent the messages to herself through the defendant's account. Id. The victim also denied having the defendant's current Facebook password the day the messages were sent. Id. [*17]  The court considered the content of the Facebook messages and found internal characteristics that linked the messages to the defendant as the author. Id. at 551-52. The court concluded that the State was not required to conclusively establish that the defendant authored the messages; rather, the State only had to present prima facie evidence such that a reasonable jury could have found that the Facebook messages were created by the defendant. Id. at 552-53. The court concluded such evidence was presented in Campbell, and determined the trial court did not err in overruling the defendant's authentication objection. Id. at 553.

In reviewing whether the evidence is sufficient to support the trial court's ruling, we note initially that the messages, on their face, purport to be messages sent from a Facebook account bearing the name "Curtis N Bullman" to an account bearing E.D.'s name.6 While this fact, without more, is not sufficient to authenticate Bullman as the author of the messages, "when combined with other circumstantial evidence, the record may support a finding by a rational jury that the messages were authored and sent by" Bullman. Id. at 551. Therefore, we examine whether other evidence in the record supports the trial court's [*18]  ruling as to the authenticity of the Facebook records.

6   In his brief, Bullman notes that the trial court also admitted records from a Facebook account bearing the name "Stanley.doritos[.]" Bullman does not identify any content from this account that he alleges caused him harm. See Tex. R. App. P. 38.1(i). Our review of the record indicates that there are no Facebook messages between Bullman and E.D. from this account. Moreover, the only testimony in the record regarding this account is that there were no conversations between Bullman and E.D. from this Facebook account. To the extent Bullman's brief challenges the trial court's admission of these records, we conclude any error potentially stemming from the admission of the records from the "Stanley.doritos" Facebook account would be harmless. See Tex. R. App. P. 44.2(b).

E.D. testified that she communicated with Bullman through Facebook and that the messages she received during those communications stemmed from a Facebook account bearing the name, "Curtis N. Bullman[.]" E.D. recalled that Bullman sent her a friend request from this account in May 2013 after he left Texas. E.D. explained that she knew she was communicating with Bullman because of "the way he said things" and because [*19]  he communicated things through Facebook that only she and Bullman would know. For example, E.D. testified that Bullman created a code and required E.D. to use the code during Facebook conversations to verify he was communicating with her. E.D. testified that Bullman used the code during the Facebook conversations at issue in this case, and as a result, she was certain she was communicating with Bullman.

A forensics investigator with the sheriff's office testified that he obtained the records from Facebook pursuant to a probable cause search warrant. The investigator identified the evidence he received from Facebook in its response to the search warrant. The investigator testified that the Facebook records reflect that Bullman's account was logged into in South Carolina and in Tennessee, but not in Orange County. There is evidence in the record that after leaving Texas, Bullman went to South Carolina and Tennessee. The investigator also testified that Facebook verified this was Bullman's account through his email address and phone number. An Orange County detective testified that they obtained the phone number for Bullman from which he had previously contacted E.D., that they used that [*20]  phone number to contact Bullman, and that this number was the same phone number that Facebook indicated it used to verify the owner of the Facebook account.

During Bullman's testimony, he admitted that he started a Facebook account in May 2013. Bullman further admitted that he had had conversations with E.D. through Facebook two or three times. According to Bullman, he was drunk and high during these conversations, so he could not recall the content of the conversations in full. Notably, Bullman did not deny having the Facebook conversations with E.D. as portrayed in the Facebook records. Bullman also admitted he had a code he used with E.D., and he asked E.D. for the code during the Facebook conversations to confirm he was communicating with E.D. In reviewing the content of the Facebook messages, we note that the messages are consistent with E.D. and Bullman's testimony that Bullman requested E.D. to provide him with a secret code, which E.D. was able to do.

Based on all of the circumstances reviewed above, we conclude that there was sufficient evidence such that a reasonable jury could have found that the Facebook messages at issue in this case were created by Bullman. Therefore, the [*21]  trial court did not abuse its discretion in overruling Bullman's authentication objection and admitting the Facebook records into evidence for the jury to determine the ultimate question of authenticity.

With regard to Bullman's hearsay objection, Texas Rule of Evidence 801(e)(2)(A) "plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay." Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); see also Williams v. State, 402 S.W.3d 425, 438 (Tex. App.--Houston [14th Dist.] 2013, pet. ref'd). "A party's own statements are not hearsay and they are admissible on the logic that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements." Trevino, 991 S.W.2d at 853. Because the Facebook messages were posted by Bullman, the trial court properly overruled his hearsay objection as to his statements on Facebook.

Regarding Bullman's contention that E.D.'s statements were inadmissible hearsay, we disagree. E.D.'s statements were offered not for the truth of the matters asserted, but to give context to Bullman's statements and are thus not hearsay. See McNeil v. State, 452 S.W.3d 408, 419 (Tex. App.--Houston [1st Dist.] 2014, pet. ref'd); see also Gardner v. State, No. 05-14-01063-CR, 2015 WL 6784270, at * 2 (Tex. App.--Dallas Nov. 6, 2015, no pet.) (mem. op., not designated for publication); Hernandez v. State, No. 01-08-00306-CR, 2009 WL 1331649, at *6-7 (Tex. App.--Houston [1st Dist.] May 14, 2009, pet. ref'd) (mem. op., not designated for publication).

We conclude the trial court did not abuse its discretion in overruling Bullman's hearsay objection. [*22]  We overrule Bullman's third issue.

V. Admissibility of Telephone Recordings

In his fourth issue, Bullman contends the trial court abused its discretion in admitting the recording and transcription of three telephone conversations between Bullman and E.D. Bullman contends that the recording and transcripts containing the telephone conversations were replete with inadmissible hearsay.

As noted above, a party's own statements are not hearsay when offered against that party. Tex. R. Evid. 801(e)(2)(A). Bullman's statements on the recording and in the transcripts were his own statements that the State used against him; therefore, Bullman's statements are not hearsay and were admissible. See Trevino, 991 S.W.2d at 853; Tex. R. Evid. 801(e)(2)(A). And, contrary to Bullman's contention, E.D.'s statements were offered not for the truth of the matters asserted therein, but to give context to Bullman's statements and are thus not hearsay. See McNeil, 452 S.W.3d at 419. We overrule Bullman's fourth issue.

Having overruled all of Bullman's issues on appeal, we affirm the trial court's judgment.

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