Snow v. State, 2019 Tex. App. LEXIS 342 (Tex. Ct. App. Jan. 17, 2019):

A jury convicted Cristi Jeanette Snow of two counts of sexual performance of a child under age fourteen. See Tex. Penal Code Ann. § 43.25(b), (c). The jury assessed Snow's punishment at thirty years' confinement on both counts. The trial court ordered the sentences to run concurrently. Snow appeals, raising eight issues.

Most of Snow's issues center on the search of her cell phone and the admission of a transcription of a social media chat and photographs that law enforcement extracted from her cell phone. Snow forfeited most of the arguments she makes on appeal. But even if we reached the merits of her arguments, the trial court would have acted well within its discretion to overrule Snow's [*2]  contentions that (1) evidence of the chat and photos were not properly authenticated, (2) introduction of the chat violated Snow's right to confront a witness against her or allowed the introduction of hearsay, (3) an omission from the affidavit used to obtain a warrant to search the cell phone's contents vitiated the finding of probable cause required to issue the warrant, and (4) the theft of the cell phone from Snow warranted its suppression.

We also overrule Snow's contentions that do not center on her cell phone. The trial court did not abuse its discretion by excluding evidence of Complainant's sexual history or that she might be gay. Nor did the trial court abuse its discretion by excluding a psychologist's opinions that Snow has a low IQ and suffers from dependent personality disorder.

Because we overrule each of Snow's complaints, we affirm.

I. Background¹

Complainant occupied a home with several other adults and children. Some of the occupants were Complainant's relatives, and some were not. Snow had lived with and had a child with Complainant's uncle. Though the relationship had ended, Snow continued to live in the home. Complainant viewed Snow as her best friend.

Both Complainant [*3]  and Snow used a third-party messaging app called KIK. Snow admitted that she had numerous chats on KIK.

On an occasion when most of the others living in the home were gone, Snow was chatting with an individual who used the name King gnol. Both Complainant and Snow were in Snow's bedroom while Snow chatted with King gnol. During the chat, King gnol asked that Snow take nude photos of both her and Complainant and send those to him. Complainant was thirteen years old at the time. Eventually, Complainant took a nude photo of Snow, and Snow took nude photos of Complainant. Snow transmitted these pictures to King gnol.

The existence of the photos came to light when Complainant's uncle examined the photo gallery on Snow's cell phone. The uncle knew that Snow stored nude pictures of herself on her cell phone. Children in the home sometimes used Snow's cell phone, and the uncle did not want them seeing the nude pictures. When the uncle checked the cell phone to determine if the photos of Snow had been deleted, he discovered nude photos of Complainant.

The uncle showed the photos to his mother—Complainant's grandmother. Complainant's grandmother took possession of the cell phone and then delivered [*4]  it to the police the next day.

A forensic interview of Complainant was conducted to obtain her recollection of events. After obtaining a search warrant, police forensically examined Snow's cell phone. The examination revealed the chat between Snow and King gnol and the photos of Snow and Complainant that had been transmitted during the chat. Police subsequently interviewed and arrested Snow.

II. Standard of Review and Law on Preservation²

A trial court's decision concerning the admission or exclusion of evidence and concerning the extent of cross-examination is reviewed under an abuse-of-discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (concerning the admission or exclusion of evidence); Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App.) (concerning the extent of cross-examination). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015). The proponent also has the responsibility to, "at the earliest opportunity, [do] everything necessary to bring to the [*5]  judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question." Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014). A complaint is not preserved "if the legal basis of the complaint raised on appeal varies from the complaint made at trial." See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). To determine whether a complaint on appeal comports with a complaint made at trial, we consider the context in which the complaint was made and the parties' shared understanding at that time. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

III. Snow forfeited her contention that the trial court erred by admitting text messages and pictures from her cell phone because the messages and pictures were not properly authenticated. Even if error were not forfeited, her contention is meritless.

In her first issue, Snow argues that the text messages and pictures on her cell phone were not properly authenticated without proof from a sponsoring witness who had "direct knowledge" that Snow had sent the messages or had personally observed Snow type the messages. Snow forfeited this contention by failing to make an adequate objection in the trial court. And even if an adequate objection [*6]  were made, the arguments that Snow raises go to the weight that the jury should have accorded the evidence and not its admissibility. Finally, even if we were to adopt Snow's "direct knowledge" standard of authentication, the record contains proof that Snow authored the texts and took the photos.

A. Snow's vague statements at the time of the proffer of the messages and pictures forfeited an objection that the evidence was not properly authenticated.

The record is a muddle of statements not phrased as objections, objections that did not mention the statements that Snow now relies on as authentication objections, and confusion as to what exhibits the statements and the objections were directed. This muddle failed to preserve the appellate complaint that Snow makes in her first issue.

Snow phrases her first issue as a challenge to the admission of both the pictures and text messages. Her brief mentions a statement made by her counsel that asked if the sponsoring witness knew who had sent State's Exhibit 24, which was a photo. The sponsoring witness answered that "sillygirlgonewild Cristi Snow" had sent the photo. The State, however, did not proffer the photo until five pages later in the [*7]  record, when it proffered the photo and seven other exhibits. After the officer stated who had sent the photo, Snow objected to the witness reading from a document not in evidence and stated, "[W]ho sent it is a different question than what the phone actually shows." At the prompting of the trial court, the State then offered Exhibit 21, which contained the text message "chat" with King gnol and which was the document the witness had read from to identify who had sent the photos (such as State's Exhibit 24) that were attached to it. The objection made to the introduction of State's Exhibit 21 stated its grounds as only hearsay and denial of the right to confrontation. When State's Exhibit 24 and seven other documents were later proffered, Snow's counsel stated only, "Same objection."

Thus, what Snow relies on as an objection was a vague statement, not phrased as an objection, that was made about a photo that was not even being proffered at the time the statement was made and in response to which the trial court made no ruling. When the text of the chat was proffered, Snow made no objection based on a lack of proper authentication. When the photo was eventually proffered, Snow made no [*8]  authentication objection. We have searched the record and have not found a reference to the word "authentication" or to Texas Rule of Evidence 901 that states the standard for authentication.

Even a general authentication objection, without more, is not adequate to preserve a complaint on appeal. Guaderrama v. State, No. 02-14-00500-CR, 2016 WL 828325, at *4 (Tex. App.—Fort Worth Mar. 3, 2016, no pet.) (mem. op., not designated for publication) (concluding that general authentication objection was "improper authentication objection" and inadequate to preserve complaint on appeal); Trotty v. State, No. 02-12-00537-CR, 2014 WL 2538806, at *3 (Tex. App.—Fort Worth June 5, 2014, no pet.) (mem. op., not designated for publication) (same). And what Snow relies on as an objection falls short of even a general authentication objection. It is not phrased as an objection. It is not directed to the exhibit being proffered. It is not referenced in the objection that was actually made. The record contains no objection claiming that any exhibit was not properly authenticated or anything that could be construed as making such an objection. We therefore conclude that Snow failed to preserve her first issue.

B. Authentication of material extracted from a cell phone does not require "direct knowledge" from a sponsoring witness that the defendant [*9]  typed the extracted data into the phone or took a picture contained on the phone.

Even assuming that Snow preserved her first issue, she nevertheless would not prevail. Snow does not contest that she owned the cell phone from which the chat and photographs were extracted. In fact, one of her issues on appeal is that the material extracted from the cell phone should have been excluded from evidence because the phone was allegedly stolen from her and given to law enforcement. Nor can she sincerely contend that she did not participate in the chat forensically extracted from the cell phone; the jury watched her interview by law enforcement in which she admitted both that she had participated in the chat and that she had taken the pictures transmitted during that chat.³ Still, she claims that a possibility exists that someone else accessed her cell phone, participated in the chat, and took the pictures. In essence, Snow claims that the State bore the burden to negate any possibility inconsistent with her being a participant in the chat in order to authenticate data extracted from the cell phone. The State, however, did not bear that burden in order to authenticate the cell phone data.

This [*10]  court recently discussed how to authenticate data extracted from a cell phone. See McLemore v. State, No. 02-15-00229-CR, 2016 WL 4395778, at *5-6 (Tex. App.—Fort Worth Aug. 18, 2016, pet. ref'd) (mem. op., not designated for publication). The appellant in McLemore made an argument similar to Snow's, contending that the ease of accessing a cell phone should cause "this [c]ourt [to] adopt a standard by which contents of a cell phone must be authenticated in a way that definitely shows who accessed the certain website and who performed the internet search" found on the phone. Id. at *5. This court disagreed, initially noting that Texas Rule of Evidence 901(a) provides that "authentication requires a proponent of evidence to show that an item is what the proponent claims it is." Id. "Authenticity of evidence is a preliminary admissibility question" that the trial court makes in its discretion. Id. But the ultimate question of whether evidence is what the proponent of the evidence claims it to be is left to the factfinder. Id.

Circumstantial evidence is one means of proof to meet the initial burden of showing that proffered evidence is what the proponent claims that it is. Id. at 6. In McLemore, the appellant's control of the cell phone and the fact that the victim was shown material on the phone [*11]  that corresponded to the data extracted from the phone was circumstantial evidence of the appellant's ownership and that the data extracted from it resulted from his use of the phone. Id.

The opinion in McLemore concluded by holding that the burden of authentication does not require the proponent to negate "all other possibilities inconsistent with authenticity." Id. Instead, the jury could assess those possibilities when it ultimately weighed the evidence—"the possibilities that someone accessed the data before appellant owned the phone or while he owned it but was not in possession of it are alternate scenarios that the jury was entitled to assess upon the admission of the evidence." Id.

Here, direct evidence established Snow's ownership of the cell phone. Others in the household took the cell phone from Snow and delivered it to police. The record also contains direct evidence—Snow's admissions during her interview by police—that she had participated in the chat extracted from the cell phone. Even if we were to hold that the State bore the burden to negate possibilities inconsistent with the State's claims of authenticity, the record in this case negates those possibilities.

Simply, [*12]  Snow repeats the arguments that we rejected in McLemore. Beyond that, the record negates any challenge that Snow could make that some other person participated in the chat that was extracted from the cell phone or took the pictures attached to that chat. If the trial court had faced a valid objection challenging the authentication of the cell phone data, it would have acted within its discretion to reject that objection.

We overrule Snow's first issue.

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¹ Snow does not raise a sufficiency challenge. At this point, we provide only those facts necessary to give context to Snow's complaints on appeal. Our discussion of Snow's issues will outline additional facts relevant to her arguments.

² Because many of Snow's arguments challenge the admission or exclusion of evidence and involve questions of preservation, we set forth the standard of review for the admission or exclusion of evidence, as well as the law on preservation, only once and refer to it as necessary. When warranted, other standards of review are set forth within the issues.

³ This opinion will later outline in detail what Snow said about the chat during her interview with police.