Opinion
No. 07-16-00233-CR
03-12-2018
EDWARD JOHNSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2015-408 ,087; Honorable John J. McClendon, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a plea of not guilty, Appellant, Edward Johnson, was convicted by the trial court of aggravated assault, enhanced by a prior felony, with an affirmative finding regarding the use of a deadly weapon. Punishment was assessed at forty years confinement. By a sole issue, Appellant asserts the trial court abused its discretion in admitting, during the punishment phase of the trial, two photographs he contends were not properly authenticated under Rule 901 of the Texas Rules of Evidence. Appellant contends the admission of this evidence improperly influenced the sentence imposed by the trial court. We affirm.
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). An offense under this section is a second degree felony. Id. at § 22.02(b). When the conviction is enhanced, the range of punishment is increased to that of a first degree felony. Id. at 12.42(b) (West Supp. 2017).
BACKGROUND
Appellant and the victim engaged in a verbal confrontation in a grocery store parking lot. That encounter escalated into a physical altercation. When Appellant mentioned he was getting his gun, the victim assumed it was in Appellant's vehicle, so he armed himself with a metal bar that was in the back of his El Camino. At that point, a female, later identified as Tessa Chance, jumped out of the passenger side of the vehicle Appellant was driving and asked the victim not to hit her car. Before the incident intensified, Appellant drove away only to return minutes later and shoot the victim in the leg. At that point, the victim called 911.
Detectives interviewed numerous witnesses at the scene and reviewed surveillance video from the grocery store parking lot. Their investigation led them to suspect Appellant of the shooting, which resulted in surveillance of Appellant and the vehicle he was driving at the time of the incident. Eventually, the vehicle was stopped for a traffic offense. At that time, Tessa was driving and Appellant was the passenger. One of the officers who made the stop smelled marihuana and asked both occupants to exit the vehicle.
During a search, crack cocaine was found on Appellant and he was arrested. He was told about the pending investigation of the shooting but declined to discuss it. Later though, he agreed to speak to detectives to inquire why his cell phone had not been returned after the traffic stop. During that discussion, Appellant waived his rights and agreed to discuss the shooting. He made a statement admitting that he got his gun and shot the victim because he was angry. He was subsequently charged with aggravated assault.
During the punishment phase of trial, while Tessa was testifying, the State sought to admit photographs extracted from Appellant's Facebook page by a detective during the investigation. One of the photographs depicted Appellant wearing a shirt with the printed slogan "I grind to shine." In that photo, he also had a firearm tucked in his waistband. Another photograph showed him making a shooting gesture with his hands. Appellant objected to admission of the photographs on the ground of improper authentication. Appellant also objected to admission of contemporary comments posted on his Facebook page. In overruling Appellant's objections and admitting the photographs into evidence, the trial court noted that it would give the exhibits proper weight and would not take into consideration any of the comments posted (thereby effectively granting the objection as to the admission of the comments posted on Appellant's Facebook page).
A third photo is a screen shot of Appellant's profile page and wall.
Appellant also objected below on hearsay grounds and denial of the opportunity to cross-examine other individuals in the photos. He does not raise those arguments on appeal.
During closing arguments, the State argued for a harsh sentence by referencing the disputed photographs as evidence of Appellant's pride in his "criminal lifestyle." In response, defense counsel argued that a Facebook photograph of an individual with a gun is not necessarily indicative of someone with a violent persona. In assessing Appellant's sentence at forty years, the trial court referenced that argument by stating, "[t]he distinction between you and those people on those websites (other people posting photographs of themselves with their guns) is that you choose to shoot people."
APPLICABLE LAW
A trial court's evidentiary ruling is reviewed for abuse of discretion. See Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (on reh'g). We will reverse a trial court's ruling only when the decision falls outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. Additionally, we review a trial court's decision to admit evidence in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998).
The trial court must decide any preliminary question concerning whether evidence is admissible; TEX. R. EVID. 104(a), and unless otherwise provided, relevant evidence is admissible and irrelevant evidence is inadmissible. TEX. R. EVID. 402. In that regard, evidence has no relevance if it is not authentically what its proponent claims it to be. Tienda v. State, 358 S.W.3d 633, 637-38 (Tex. Crim. App. 2012).
Authentication is a condition precedent to admissibility of evidence that requires the proponent to make a threshold showing that would be "sufficient to support a finding that the matter in question is what its proponent claims." TEX. R. EVID. 901(a); Tienda, 358 S.W.3d at 638. Authentication is not a particularly high hurdle and it may be cleared by circumstantial evidence. Mirola v. State, No. 07-14-00182-CR, 2015 Tex. App. LEXIS 4524, at *5-6 (Tex. App.—Amarillo April 30, 2015, pet. ref'd) (mem. op., not designated for publication). Additionally, the proponent of the evidence does not need to "rule out all possibilities inconsistent with authenticity or to prove beyond any doubt that the evidence is what it purports to be." Id. at *6.
Authentication of evidence may be accomplished by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with other circumstances surrounding the creation of that evidence. TEX. R. EVID. 901(b)(4). Evidence may also be authenticated in numerous ways: (1) by direct testimony from a witness with personal knowledge, (2) by comparison with other authenticated evidence, or (3) by circumstantial evidence. Tienda, 358 S.W.3d at 638. Rule 901 does not require any particular standard of proof; rather it requires only that the trial court be satisfied that the evidence is genuine. Llamas v. State, 270 S.W.3d 274, 281 (Tex. App.—Amarillo 2008, no pet.). The ultimate question whether an item of evidence is what its proponent claims it to be is a question for the fact finder. Tienda, 358 S.W.3d at 638.
ANALYSIS
While Tessa was testifying, the State introduced Exhibits 85, 86, and 87 consisting of two photographs from Appellant's Facebook page and his profile page and wall. In one of the photographs, Appellant is making a shooting gesture while standing with other males. In another photo, he is standing with two other males and has a firearm tucked in his waistband. Tessa, who was in the vehicle with Appellant at the time of the shooting, testified that she met Appellant on Facebook and she is one of his "Facebook friends." She explained that she views Appellant's photographs on her news feed but had never seen the photographs in question. She did recognize where they were taken—a local club—and also recognized Appellant's name at the top of the profile page. She also had personal knowledge of Appellant's Facebook page. She did not deny that the individual in the photographs making the shooting gestures and the individual with a firearm tucked in his waistband was Appellant.
In Beaty v. State, No. 03-16-00856-CR, 2017 Tex. App. LEXIS 10694, at *9-10 (Tex. App.—Austin Nov. 15, 2017, no pet.) (mem. op., not designated for publication), the court distinguished cases involving electronic media in which the identity of the person who created the message was crucial to its relevance. There, the court admitted the defendant's Facebook photographs to show his clothing and appearance at the time of the shooting and determined that the precise origin of Facebook posts was less crucial than in cases were the identity of the purported author was at issue. Id. Cf. Campbell v. State, 382 S.W.3d 545, 548-49 (Tex. App.—Austin 2012, no pet.) (recognizing that electronic communications are susceptible to fabrication and manipulation and where the identity of the purported author is at issue, specific details are required); Woods v. State, No. 11-15-00134-CR, 2017 Tex. App. LEXIS 8206, at *14 (Tex. App.—Eastland Aug. 25, 2017, no pet.) (mem. op., not designated for publication) (Facebook posts accusing victim of lying).
In the instant case, the State, as proponent of the evidence, was claiming that the photographs were what it claimed them to be—depictions of Appellant proudly displaying his "criminal lifestyle." As in Beaty, the origin of Appellant's Facebook posts was not crucial to establish that he was the individual in the photographs making shooting gestures and displaying a firearm tucked in his waistband. Because Tessa identified Appellant as the individual depicted in the photographs based on her personal knowledge, we find the State authenticated the photographs with sufficient certainty to satisfy the fact finder that the evidence was genuine.
Appellant alleges he was harmed by the State's reference to the photographs during its closing argument as evidence insinuating he was a violent person. The State argued that the photographs showed Appellant's pride in his "criminal lifestyle." Defense counsel countered the State's closing argument by suggesting that Appellant, like members of law enforcement and the NRA who post photographs of themselves with their firearms on their Facebook profiles, was not a violent individual. In sentencing Appellant to forty years confinement, the trial court specifically responded to defense counsel's argument by distinguishing Appellant from law enforcement and NRA members because Appellant made the choice to shoot his victim out of anger. The trial court rebuffed Appellant's argument for a light sentence and reminded him that he had previously been on community supervision for another offense and had not taken advantage of the opportunity. Based on the record before us, we hold the trial court's ruling on Appellant's authentication objection was not outside the zone of reasonable disagreement. Neither was the imposition of a forty-year sentence an abuse of discretion.
Furthermore, even if the trial court did abuse its discretion in admitting the photographs in question, the error was harmless as it did not affect his substantial rights. See TEX. R. APP. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Appellant's conviction was enhanced by his plea of true to a prior felony conviction. Thus, his conviction was punishable as a first degree felony which carries a range of punishment between five and ninety-nine years confinement and a fine up to $10,000. TEX. PENAL CODE ANN. § 12.32 (West 2011). The State argued for a harsh sentence and the trial court's assessment of forty years confinement with no fine is less than half of the maximum punishment. Appellant's sole issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.