                              Fourth Court of Appeals
                                     San Antonio, Texas
                                                OPINION
                                        No. 04-14-00177-CR

                                       Alejandro Leal PEÑA,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                   From the 218th Judicial District Court, Atascosa County, Texas
                                 Trial Court No. 12-090168-CRA
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Jason Pulliam, Justice

Delivered and Filed: April 15, 2015

AFFIRMED

           This case stems from Appellant Alejandro Leal Peña’s convictions of the offenses of

aggravated sexual assault and indecency with a child. After finding Peña guilty, the jury assessed

punishment at confinement for life in the Institutional Division of the Texas Department of

Criminal Justice as a habitual offender. On appeal, Peña contends the trial court abused its

discretion in admitting unauthenticated statements by the State’s witness at the punishment phase

of the trial. We affirm the trial court’s judgment.
                                                                                        04-14-00177-CR


                                                     BACKGROUND

           On March 13, 2014, Appellant Alejandro Leal Peña was convicted by a jury of the offenses

of aggravated sexual assault and indecency with a child. During punishment, the State presented

evidence Peña was a habitual offender and two witnesses identifying prior bad acts. The jury

assessed punishment at life confinement in the Institutional Division of the Texas Department of

Criminal Justice. In his sole issue on appeal, Peña contends the trial court erred in admitting a

photograph during the punishment phase because the photograph was not properly authenticated.

We, therefore, limit our discussion to the testimony of Tanya, 1 the punishment witness through

which the State offered the exhibit in question.

           Tanya testified regarding her text message exchanges with an individual she knew as

Alejandro Peña. The interaction between Tanya and Peña began accidently; Tanya sent a text

message to a number that matched her friend’s number, with the exception of the area code.

           His phone number was the same as my best friend’s except the area code was
           different. So when I sen[t] a message to the phone and I didn’t put the area code,
           it went to him instead and he replied as if he knew who it was and after a couple of
           messages, I realized it wasn’t her. But I kept sending messages.

After almost two weeks of exchanged text messages, Tanya asked Peña’s name. Peña called

Tanya’s phone; Tanya originally answered but then “hung up because [she] was scared.” Peña

told her that she sounded young and Tanya disclosed she was twelve years old. He later told her

he was forty-eight years old.

           Tanya testified that Peña requested she send him pictures of herself. She agreed and sent

several photographs of herself to Peña, including photographs of herself “without her clothes.”

Tanya also stated she received photographs of Peña: “He sent me one of him without a shirt and

then another of him with glasses and a shirt and another one with him just with a shirt and several


1
    To protect the identity of the victim, we refer to the minor child as “Tanya.”

                                                            -2-
                                                                                     04-14-00177-CR


of—without clothes.” The conversations between the two would, at times, become sexual in

nature, with Peña expressing a desire to perform certain sexual acts on Tanya.

       At trial, Tanya identified Peña as the person in the photographs sent to her cell phone.

Additionally, Tanya stated she was friends with “Alejandro Peña” on Facebook. As a predicate to

an evidentiary offer, the prosecutor showed Tanya State’s Exhibit #3—a photograph of a cell

phone depicting a picture of Peña. Tanya identified the cell phone as hers and the picture as “one

of the pictures that [Peña] sent me.”

       Tanya affirmed the photograph was a fair and accurate depiction of her phone when Peña’s

picture was received.

       After the State offered Exhibit #3 into evidence, Defense counsel objected, on the grounds

of insufficient authentication, to the admission of State’s Exhibit #3. The objection was overruled,

and the exhibit was admitted. Tanya then testified that she sent text messages and photographs to

the person in the picture, and the same person in the picture sent her text messages and

photographs.

       On cross-examination, Tanya admitted she never met or saw Peña in person. Tanya only

spoke once on the phone with someone and it was “just for a second.” Additionally, Tanya stated

she messaged with the individual through Facebook and knew with whom she was exchanging

messages because of several photographs Peña sent to her.

       On redirect examination, Tanya testified that the pictures sent matched the context of the

conversation. Tanya confirmed that when she asked Peña for a photograph, she received one.

Tanya did not consider the photographs to be random photographs of someone she did not know.

Tanya did exchange text messages with other “boys,” but none were forty-eight years old. None

of Tanya’s other exchanges were of the same sexual nature as the exchange between her and this

individual.
                                                -3-
                                                                                     04-14-00177-CR


                                     ADMISSION OF EVIDENCE

       Peña contends because the message was not properly authenticated under Texas Rule of

Evidence 901, the trial court abused its discretion in admitting a photograph of a text message

Tanya believed was sent by Peña. TEX. R. EVID. 901.

A.     Standard of Review

       An appellate court reviews a trial court’s preliminary determination of authenticity of

evidence under an abuse of discretion standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.

App. 2012); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does

not abuse its discretion unless its decision is outside the zone of reasonable disagreement. Tienda,

358 S.W.3d at 638 ((citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh’g)); Campbell v. State, 382 S.W.3d 545, 552 (Tex. App.—Austin 2012, no pet.) (stating

jury entitled to weigh the credibility of witnesses as long as proffered evidence is at least within

the zone of reasonable disagreement). 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); Kelley v. State, 22 S.W.3d 642, 644

(Tex. App.—Waco 2000, pet. ref’d) (concluding admissibility within the discretion of the court

when serves “the proper purpose in enlightenment of the jury”).

B.     Arguments of the Parties

       Peña contends the State merely demonstrated the messages were received by Tanya from

a phone number that Tanya believed to be associated with Peña. Peña argues Texas Rule of

Evidence 901 prohibits the admission of the photograph because the State failed to “adequately

demonstrate that the messages received by Tanya were what the State claimed them to be:

messages from [Peña] as opposed to messages [Tanya] believed or assumed were in fact authored

by [Peña].” See TEX. R. EVID. 901.
                                                -4-
                                                                                       04-14-00177-CR


       The State responds it made a prima facie case the evidence was what it purported to be,

and any challenge thereafter to the authenticity, through evidence or cross examination, was an

issue for the jury to decide. Tienda, 358 S.W.3d at 645.

C.     Authentication

       Texas Rule of Evidence 104(a) dictates the preliminary question to be decided by the trial

court is whether to admit evidence at trial. 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. 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, 382 S.W.3d

at 549. “The preliminary question for the trial court to decide is simply whether the proponent of

the evidence has supplied facts that are sufficient to support a reasonable jury determination that

the evidence he has proffered is authentic.” Tienda, 358 S.W.3d at 638; 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”).

       The issue of authentication arises when the relevancy of evidence is conditioned on its

identity. Campbell, 382 S.W.3d at 548. Authentication is generally accomplished by direct

testimony from a witness with personal knowledge, or by circumstantial evidence. See TEX. R.

EVID. 901; Manuel, 357 S.W.3d at 75. Previous exhibits found to be sufficiently linked to the

proponent to allow submission to the fact finder for its ultimate determination of credibility include

emails, internet chat room conversations, and text messages. Tienda, 358 S.W.3d at 639; see also

Manuel, 357 S.W.3d at 74 (stating the proponent need only provide sufficient evidence to allow

the jury to draw a proper conclusion of genuineness, not disprove all inconsistencies of authenticity
                                                 -5-
                                                                                    04-14-00177-CR


to gain admittance). The Tienda court, however, cautioned that an electronic message purporting

to come from a certain address, or a respondent in a communication purporting to be a particular

individual, or a message emanating from a device assigned to the purported author, without more,

is insufficient to support a finding of authenticity. Tienda, 358 S.W.3d at 642.

       For authentication by a witness with knowledge of an electronic communication, a witness

qualifies as having knowledge when they participated in an exchange of messages and can testify

to an exhibit’s fair and accurate depiction of the message exchange. TEX. R. EVID. 901(b)(1); see

also Aekins v. State, No. 04-13-00061-CR, 2013 WL 5948188, at *5–6 (Tex. App.—San Antonio

Nov. 6, 2013), aff’d, 447 S.W.3d 270; Ussery v. State, No. 03-07-00116-CR, 2008 WL 269439, at

*7 (Tex. App.—Austin Jan. 30, 2008, pet. ref’d) (mem. op., not designated for publication) (stating

witness’s testimony that exhibits were “fair and accurate copies” of messages she had exchanged

with defendant was sufficient to authenticate e-mails). When a photograph is authenticated by a

witness with knowledge, the admissibility of the photograph is conditioned on the witness’s

identification of the exhibit as a fair and accurate depiction of the event the photograph purports

to portray. TEX. R. EVID. 901(b)(1); Kelley, 22 S.W.3d at 644; Davis v. State, 687 S.W.2d 78, 81

(Tex. App.—Dallas 1985, pet. ref’d). There is no requirement the individual authenticating the

photograph have been the photographer or even been present when the photograph was taken.

Kelly, 22 S.W.3d at 644; Davis, 687 S.W.2d at 81.

E.     Analysis

       Peña contends the State failed to adequately demonstrate (1) the messages received by

Tanya were messages from Peña himself and (2) the messages were received from a phone number

the witness believed was associated with Peña. He claims the evidence was insufficient to show

the messages were authored by him. The admission of State’s Exhibit #3 was conditioned on a

witness with knowledge identifying the photograph as an accurate representation of what the
                                               -6-
                                                                                       04-14-00177-CR


photograph purported to portray. Kelley, 22 S.W.3d at 644; Davis, 687 S.W.2d at 81. The

individual identified himself to Tanya as Alejandro Peña and the identification matched an

individual with the same name and same appearance on Facebook.

       Tanya testified she was familiar with the event the photograph purported, an exchange

between herself and an individual she knew as Alejandro Peña. Tanya identified the exhibit as fair

and accurate depiction of a photograph she received. Tanya stated she sent messages and

photographs of herself, and the responder sent her messages and photographs of himself. Tanya

identified the exhibit as a picture of her cell phone with a picture she received, and identified Peña

as the individual in the photographs she received.         Whether Tanya was present when the

photograph was taken, and whether she knew Peña outside the exchange of text messages, only

affects the weight to be given the exhibit, not its admissibility. Davis, 687 S.W.3d at 81.

       We conclude the photograph proffered with the testimony regarding the exchange of

messages and photographs circumstantially support the messages were sent by Peña, and sufficient

for the trial court to find the State provided sufficient evidence to allow the jury to draw a proper

conclusion of genuineness. Manuel, 357 S.W.3d at 74 (stating the hurdle of admission of evidence

may be cleared by circumstantial evidence); see also Aekins v. State, No. 04-13-00061-CR, 2013

WL 5948188, at *5–6 (Tex. App.—San Antonio Nov. 6, 2013), aff’d, 447 S.W.3d 270. The

proponent is not required to dispel “all possibilities inconsistent with authenticity, or prove beyond

any doubt that evidence is what it purports to be.” We, therefore, overrule Peña’s contention the

State failed to properly authenticate State’s Exhibit #3. Manuel, 357 S.W.3d at 74; see also Tienda,

358 S.W.3d at 639.




                                                 -7-
                                                                                      04-14-00177-CR


                                           CONCLUSION

       Because we conclude the trial court’s determination is within the zone of reasonable

disagreement, we find the trial court did not abuse its discretion in admitting the State’s evidence.

See Tienda, 358 S.W.3d at 638.


                                                  Patricia O. Alvarez, Justice

PUBLISH




                                                -8-
