Commercial Litigation and Arbitration

Facebook Authentication — Party’s Posts Are Admissions; Others’ Comments Are Hearsay (Here, Redacted)

Ripstra v. State, 2016 Tex. App. LEXIS 13778 (Tex. Ct. App. Dec. 29, 2016):

In four issues, Katie Alice Ripstra appeals her two convictions for felony injury to a child. She challenges (1) the legal sufficiency of the evidence in support of the jury's guilty verdicts; (2) the trial court's denial of her motion to exclude statements made during voir dire and motion to suppress statements she made to her child's guardian ad litem; (3) the trial court's admission of her Facebook posts; and (4) the trial court's exclusion of certain expert testimony. We affirm.


B. Through Facebook Posts

Appellant also argues in her first issue that the State's voir dire questions about [*15]  Munchausen by proxy "opened the door to allowing . . . [Facebook posts admitted at trial to] sway the jury." The State introduced Facebook posts made by appellant and her Facebook friends about Rachel's condition to support the State's theory that appellant was abusing Rachel to get attention--in other words, the State contended that appellant sought the affirmation of her friends on Facebook whenever Rachel had health problems. Defense counsel objected to all of the Facebook posts as hearsay. The trial court admitted only the statements made by appellant on Facebook, not statements made by appellant's friends.

On appeal, appellant argues that the admission of her Facebook posts "allowed prejudicial and unsupported testimony and evidence in front of the jury" to advance the State's theory that appellant had Munchausen by proxy. Appellant contends that the State failed to present evidence of a "medical or scientific foundation" to support a diagnosis of Munchausen by proxy and thus the trial court abused its discretion in admitting the appellant's Facebook posts, which advanced the State's theory. Appellant did not object to the admission of the Facebook posts on these grounds at trial. [*16]  To preserve error, a party must object and state the grounds for the objection with enough specificity to make the trial judge aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1. The objection must be sufficiently clear to give the judge and opposing counsel an opportunity to address and, if necessary, correct the purported error. Thomas v. State, No. PD-1086-15, 2016 WL 6609750, at *5 (Tex. Crim. App. Nov. 9, 2016). If a trial objection does not comport with arguments on appeal, error has not been preserved. Id. We conclude that appellant has not preserved error on her complaint that the Facebook posts were prejudicial or improperly advanced the State's theory.

Appellant also argues that appellant's Facebook posts are hearsay. Texas Rule of Evidence 801(e)(2) provides that a statement is not hearsay if it is offered against a party and is a party's own statement. Williams v. State, 402 S.W.3d 425, 438 (Tex. App.--Houston [14th Dist.] 2013, pet. ref'd). The only requirements for admissibility of an admission of a party opponent under Rule 801(e)(2) is that the admission is the opponent's own statement and that it is offered against her. Id. The State offered appellant's own statements that she made on Facebook against her.9 Although we have not previously addressed this issue, we conclude that the trial court did not err in admitting [*17]  appellant's Facebook posts as admissions of a party opponent. Cf. Jackson v. State, No. 05-14-00274-CR, 2015 WL 3797806, at *4 n.4 (Tex. App.--Dallas 2015, no pet.) (mem. op., not designated for publication) (concluding that the appellant's text messages were not hearsay because they were admissions of a party opponent); see also Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 7 (Fall 2009). Accordingly, the statements are not hearsay.

9   The trial judge sustained appellant's objection to statements made by others on the Facebook posts. Those statements were redacted.

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