      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-11-00834-CR



                                      Travis Campbell, Appellant

                                                    v.

                                     The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-11-904083, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                                             OPINION


                   A jury convicted appellant Travis Campbell of aggravated assault with a deadly

weapon. See Tex. Penal Code Ann. § 22.02 (West 2011). Pursuant to an agreement with the

State regarding punishment, the trial court sentenced Campbell to four years’ imprisonment. In

his sole issue on appeal, Campbell argues that the trial court erred by improperly admitting

Facebook messages that the State contended were created by Campbell. We affirm the judgment of

the trial court.


                                            BACKGROUND

                   At the time of the incident giving rise to Campbell’s arrest, Campbell was sharing a

house with his girlfriend, Ana B., and her two young children.1 On February 26, 2011, the night




        1
            We refer to complainant by her first name in order to protect her identity.
before the incident, the couple had gone out for dinner and drinks at a local restaurant. At trial, Ana

and Campbell presented wholly different accounts of the events following that outing.

                According to Ana, Campbell became upset during dinner when Ana received a

Facebook message on her phone from one of Campbell’s male friends. Following dinner, the couple

returned home, and Campbell continued to question Ana about the message. Eventually, Campbell

left to go to a party while Ana remained at the house. Ana testified that when Campbell returned,

at approximately four in the morning, he woke her and began questioning her again about the

Facebook message.

                In response to Campbell’s questioning, Ana told Campbell to leave and tried to push

him off the bed with her feet. According to Ana, Campbell then took off his clothes and approached

Ana suggesting he wanted to have sex with her. When Ana resisted, Campbell hit her several times

in her face and chest with her cell phone. Ana testified that Campbell then left the room and came

back with a two-pronged fork and a knife. Holding the fork to Ana’s side, Campbell told Ana to text

a profane message to the male friend who had sent Ana the earlier message. Campbell hit Ana in

the face with the handle of the fork when she refused. Ana recalled at trial that Campbell also held

a knife to her neck and threatened to kill her if she did not “lick his ass.” Ana testified that when she

refused, Campbell forced her to have vaginal, anal, and oral sex with him. Afterwards, according

to Ana, Campbell threatened Ana’s life and hit her repeatedly until she blacked out. When she

awoke, Ana grabbed some clothes, kicked a screen off her bedroom window, and jumped out. Ana

then ran to her neighbor’s house, who upon her request drove her to her aunt’s house a few miles

away. Shortly thereafter, Deputy Rick Lane with the Travis County Sheriff’s Office arrived at Ana’s

aunt’s house, and Ana reported to Lane that she had been sexually assaulted by Campbell.

                                                   2
                The next day, Ana went to Saint David’s Hospital so that a sexual assault examination

could be performed. Julie Gibbs, the sexual assault nurse examiner, testified that Ana had “quite a

large amount of injuries, majority to her face, [and] multiple lacerations.” Gibbs testified that Ana

had lacerations on her nose and the side of her face, redness to her breast, bruising on her neck and

left arm, broken capillaries in the back of her throat, and redness to the vaginal area. Gibbs also

stated that the bruise on Ana’s arm had three little scabs in the center and that Ana had told her “this

was from a kitchen two-prong fork.”

                At trial, Campbell took the stand in his own defense and told a very different story.

Campbell acknowledged that he and Ana were arguing when they went out for dinner. However,

Campbell testified that the argument had begun the night before, when Ana had left her children with

him but did not return when she said she would. According to Campbell, Ana was angry with him

during dinner because he had threatened to end their relationship over the matter.

                According to Campbell, he and Ana went home after dinner and had consensual sex.

Campbell denied that he ever forced Ana to have sex. Campbell testified that when he returned

home from the party, Ana was intoxicated and mad at him for threatening to end their relationship.

Campbell stated that Ana then retrieved the meat fork from the kitchen, held it up to him, and began

to hit him in the face. Campbell admitted striking Ana, but explained that he did so only after she

had repeatedly hit him. Campbell testified that he then left the house and Ana followed him, falling

and injuring herself on the exterior stairs, as he drove away.

                At the conclusion of trial, the jury found Campbell “not guilty” of all three counts of

aggravated sexual assault as alleged in the indictment. See Tex. Penal Code Ann. § 22.021 (West



                                                   3
2011). However, the jury found Campbell guilty of one count of aggravated assault with a deadly

weapon, a fork.2 See id. § 22.02. In accordance with the State’s agreement with Campbell, the court

imposed a sentence of incarceration for four years. This appeal followed.

               In his sole issue on appeal, Campbell complains that the trial court erred in admitting

evidence that was not properly authenticated and was harmful to his defense. Specifically, Campbell

contends that the trial court erred in admitting a printout of Facebook messages purportedly

sent by Campbell to Ana and identified at trial as State’s Exhibit 14. Campbell argues that the only

authentication evidence presented prior to the admission of the exhibit was Ana’s testimony that

she received these Facebook messages from Campbell a few days after the alleged assault, that

she did not send them to herself, and that she did not have access to Campbell’s Facebook account

after the incident. Campbell asserts that there is no evidence that the messages are in fact from his

Facebook account. Campbell contends that the trial court’s admission of these messages was harmful

error because the exhibit was “a crucial piece of evidence establishing the aggravated assault with

the fork.”

               The State counters that the trial court did not err in admitting the Facebook messages

because the State presented sufficient evidence to support a finding that the messages were sent by

Campbell. Alternatively, the State contends that if there was any error in admitting the messages,

it was harmless.




       2
        Campbell was also charged with another count of aggravated assault with a knife as deadly
a weapon, but the jury found him “not guilty” of this count. See Tex. Penal Code Ann. § 22.022
(West 2011).

                                                 4
                    APPLICABLE LAW AND STANDARD OF REVIEW

                Under rule 104(a) of the Texas Rules of Evidence, whether or not to admit evidence

at trial is a preliminary question to be decided by the court. Tex. R. Evid. 401(a); Tienda v. State,

358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Only relevant evidence is admissible. Tex. R. Evid.

401, 402. The issue of authentication—that the proffered evidence is what the proponent claims it

to be—arises when “the relevancy of any evidence depends upon its identity, source, or connection

with a particular person, place, thing, or event.” Shea v. State, 167 S.W.3d 98, 104 (Tex. App.—Waco

2005, pet. ref’d). Evidence has no relevance if it is not authentically what the proponent claims it

to be. Tienda, 358 S.W.3d at 638.

                The requirement of authentication or identification is a condition precedent to

admissibility and is satisfied by evidence sufficient to support a finding that the matter in question

is what the proponent claims it is. Tex. R. Evid. 901(a). Whether the proponent of evidence has

satisfied the threshold requirement of authenticity is one of the preliminary questions to be decided

by the court. Tienda, 358 S.W.3d at 638. However, rule 901 “does not erect a particularly high

hurdle, and that hurdle may be cleared by circumstantial evidence.” Peter T. Hoffman, Texas Rules

of Evidence Handbook, Article IX at 948 (8th ed. 2008-09) (quoting United States v. Chin, 371 F.3d

31, 37 (2d Cir. 2004)). The proponent of 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. In fact, in performing its gate-keeping function under rule 104, the trial court itself need

not be persuaded that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638. Rather, the

ultimate question of whether an item of evidence is what the proponent claims is a question for the



                                                   5
fact finder. Id. In a jury trial, the preliminary question for the trial court to decide is simply whether

the proponent of the proffered evidence has supplied facts that are sufficient to support a reasonable

jury determination that the evidence is authentic. Id.; see also Manuel v. State, 357 S.W.3d 66, 74

(Tex. App.—Tyler 2011, pet. ref’d) (“The proponent must only produce sufficient evidence that a

reasonable fact finder could properly find genuineness.”).

                An appellate court reviews a trial court’s decision as to whether evidence is properly

authenticated for an abuse of discretion. Tienda, 358 S.W.3d at 638. A trial court does not abuse

its discretion when it reasonably believes that a reasonable juror could find that the evidence has

been authenticated. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). If the trial court’s

ruling is at least “within the zone of reasonable disagreement,” we will not interfere. Id.


                                            DISCUSSION

                Rule 901 of the Texas Rules of Evidence provides a nonexclusive list of methods for

authentication of evidence. See Tex. R. Evid. 901. For example, evidence may be authenticated by

testimony from a witness with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1).

Evidence may also be authenticated by “appearance, contents, substance, internal patterns, or

other distinctive characteristics, taken in conjunction with circumstances.” Id. R. 901(b)(4). In the

context of communications, the authentication issue that generally arises is whether the evidence is

sufficiently linked to the purported author. With respect to electronic communications—such as

e-mails, text messages, and as in this case, Facebook—the rules of evidence, including rule 901, are

considered at least generally “adequate to the task.” See Tienda, 358 S.W.3d at 638. Printouts of



                                                    6
emails, internet chat room dialogues, and text messages have all been admitted into evidence when

found to be sufficiently linked to the purported author so as to justify the submission to the jury for

its ultimate determination. See id. at 639.

               However, in evaluating whether an electronic communication has been sufficiently

linked to the purported author, we recognize that electronic communications are susceptible

to fabrication and manipulation. See id. at 641 (explaining that some courts, “mindful that the

provenance of such electronic writings can sometimes be open to question,” have held that prima

facie authenticity was not demonstrated). For example, social networking websites, such as Facebook

and MySpace, allow users to establish an online account, create a profile, and then invite others

to access that profile as a “friend.” See Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 845-46 (W.D.

Tex. 2007); see also Griffin v. State, 19 A.3d 415, 420-21 n.6 (Md. 2011) (noting that MySpace

and Facebook work in same way). Accordingly, with respect to identity, Facebook presents an

authentication concern that is twofold. 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.

Griffin, 19 A.3d at 421 (citing David Hector Montes, Living Our Lives Online: The Privacy

Implications of Online Social Networking, J.L. & Pol’y for the Info. Soc’y, Spring 2009, at 507, 508).

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. Id. Thus, the fact that an electronic communication on

its face purports to originate from a certain person’s social networking account is generally

insufficient standing alone to authenticate that person as the author of the communication. See

                                                  7
Tienda, 358 S.W.3d at 642. However, the most appropriate method for authenticating electronic

evidence, as with any kind of evidence, “will often depend on the nature of the evidence and the

circumstance of the particular case.” Id. at 641.

               The Texas Court of Criminal Appeals recently addressed the authentication of printouts

of social-networking websites in Tienda, 358 S.W.3d at 638-47. In that case, the State offered

evidence associated with three MySpace personal profiles, including account information and

printouts of profile pages on which photographs, comments, and music were posted. Id. at 642. At

trial, the defendant did not admit that he had authored the pages. Id. at 647. Further, the State did

not attempt to authenticate the pages through the results of an examination of the defendant’s internet

history or hard drive, nor did the State attempt to link the pages to the defendant through an

employee of the social-networking website. Id. Upon the State’s offering, defense counsel objected

to the admission of the evidence, emphasizing that the case-specific facts referenced in the MySpace

messages associated with the account “were not facts solely within the defendant’s knowledge, but

were known to the deceased’s family, friends, and practically any third party interested in the case.”

Id. at 636. Nevertheless, the trial court admitted the evidence over defendant’s objection. Id. at 635.

               On appeal, the court of criminal appeals held that there was “ample circumstantial

evidence—taken as a whole with all the individual particular details considered in combination—to

support a finding that the MySpace pages belonged to the appellant and that he created and

maintained them.” Id. at 645. For example, the court of criminal appeals noted that there were

numerous photographs of defendant with his unique arm, body, and neck tattoos, as well as his

distinctive eyeglasses and earring. There was also a reference to the victim’s death and music from

                                                    8
his funeral, as well as references to the defendant’s gang and messages referring to the shooting. Id.

While the court acknowledged that it was “conceivable” that someone else had fabricated and

maintained the MySpace pages, the court explained that this was a “scenario whose likelihood and

weight the jury was entitled to assess.” Id. at 646.

               In this case, the State introduced one exhibit comprised of printouts of three Facebook

messages alleged to have been sent by Campbell to Ana’s Facebook account. Each message contain

a banner and date stamp at the top of the message stating, “Travis Campbell, March 2 [time].” The

first message states:


       what was i thinking I am totally wrong it don’t matter what you say or do to me i
       should never put my hand on you, who is me to do that to you you give me nothing
       but love on your kids, then now i disregard that i am so sorry you or [sic] the only
       person i got on my side please help me ana please i would love to call u don’t lock
       me up please i am begging you


Similarly, a second message, dated that same day, states:


       i did you bad something that you would never thaugh [sic] i am very sorry i am mad
       of my self, I am begging your fotgivness [sic] please i can’t sleep or eat i f— up the
       bess [sic] thing i ever have, i am sorry ana help me please i am week [sic] i don’t
       know what to do i am going to call u please answer please don’t sign the paper please
       ana, I need to talk to u.


Finally, a final message, also dated March 2, states:

       please help me ana i cry every day i am so f—ing stuppid [sic] for hurthig [sic] u i
       am guilty what was I thinking please message me tell me your mind let me talk
       please, I am so ashame [sic].




                                                  9
                At trial, the State attempted to impeach Campbell with the Facebook messages.

In response, Campbell acknowledged having a Facebook account but denied sending Ana any

Facebook messages after the incident. Campbell claimed that both he and Ana, but no one else,

had his Facebook account password. In order to authenticate the messages, the State recalled Ana

to testify about the origin of the messages. Ana testified that she recognized the printouts as messages

she had received from Campbell on March 2, 2011. She also testified that she did not send them to

herself. While Ana admitted that she had access to Campbell’s Facebook account at sometime

before March 2, she stated that both she and Campbell had changed their passwords before this date.

Upon Ana’s testimony, and over Campbell’s objection as to authenticity, the trial court admitted the

messages as a single exhibit.

                In analyzing whether the evidence is sufficient to support the trial court’s ruling, we

start by noting that the content of the messages themselves purport to be messages sent from

a Facebook account bearing Campbell’s name to an account bearing Ana’s name. While this fact

alone is insufficient to authenticate Campbell as the author, when combined with other circumstantial

evidence, the record may support a finding by a rational jury that the messages were authored and

sent by Campbell. See id. at 642; see also Commonwealth v. Purdy, 945 N.E.2d 372, 381 (Mass.

2011) (explaining that e-mail sent from Facebook account bearing defendant’s name not sufficiently

authenticated without additional “confirming circumstances”). Accordingly, we examine whether

the remaining evidence supports the trial court’s ruling.

                Turning to the Facebook messages themselves, we find that the messages contain

internal characteristics that tend to connect Campbell as the author. First, the unique speech pattern



                                                  10
presented in the messages is consistent with the speech pattern that Campbell, a native of Jamaica,

used in testifying at trial.3 Second, the messages reference the incident and potential charges, which

at the time the messages were sent, few people would have known about. See Massimo v. State, 144

S.W.3d 210, 216 (Tex. App.—Fort Worth 2004, no pet.) (concluding that “internal characteristics”

served to authenticate e-mails, including fact that e-mail was sent shortly after altercation and

referenced altercation and fact that contents of e-mails were written in same way in which appellant

communicated). Thus, the contents of the messages provide circumstantial evidence supporting the

trial court’s ruling.

                Further, the undisputed testimony provides circumstantial evidence tending to

connect Campbell to the messages. The undisputed testimony yields the following: (1) Campbell

had a Facebook account; (2) only he and Ana ever had access to his Facebook account; and (3) Ana

received the messages bearing Campbell’s name. This evidence suggests that only Campbell or Ana

could have authored the messages received in Ana’s Facebook account. In addition, Ana told the

jury that she could not access Campbell’s account, and therefore, she did not send the messages to

herself. While this evidence certainly does not conclusively establish that Campbell authored the

messages—in fact, Campbell insisted that he did not—the State was not required to “‘rule out all

possibilities inconsistent with authenticity or prove beyond any doubt that the evidence is what it

purports to be.’” See Manuel, 357 S.W.3d at 74 (quoting Chin, 371 F.3d at 37). So long as the

authenticity of the proffered evidence was at least “within the zone of reasonable disagreement,”


        3
          For example, Campbell testified at trial, “I took the knife, but I never pointed to [Ana]. I
take up the knife out of her way, her reach, and tell her that, this, you cannot play with knife because
knife will give you a cut. That’s why I take it. That’s the thing that I told the detective.”

                                                  11
the jury was entitled to weigh the credibility of these witnesses and decide who was telling the truth.

See Tienda, 358 S.W.3d at 638, 645-46 (explaining that conceivably someone could have concocted

appellant’s MySpace page “[b]ut that is an alternate scenario whose likelihood and weight the jury

was entitled to assess once the State had produced a prima facie showing that it was appellant, and

not some unidentified conspirators or fraud artists, who created and maintained these MySpace pages”).

                The facts and issues in this case are similar to those in a case decided by our sister

court of appeals in Fort Worth. See Massimo, 144 S.W.3d at 216-17. In that case, the defendant

disputed the authenticity of a harassing e-mail that the State alleged she had sent to the complainant.

See id. at 216-17. At trial, the defendant asserted that someone was impersonating her and sent the

e-mail on her behalf. Id. However, the court of appeals concluded that the trial did not abuse its

discretion in admitting the e-mail, explaining that the e-mail contained characteristic evidence

supporting the assertion that appellant had sent it. Id. at 216. For example, the court pointed out that

(1) the e-mail was sent shortly after a physical altercation between the defendant and complainant,

and the e-mail referenced the altercation; (2) the complainant recognized the e-mail account as the

defendant’s and had previously received messages from the account; (3) only a few people knew

about the things discussed in the e-mail; (4) the complainant testified that the way in which the

e-mail was written was the way in which the defendant would communicate; and (5) another witness

testified that she had seen the defendant send similar harassing e-mails from a different account. Id.

While this case involves Facebook messages, as opposed to e-mails, the messages in this case

likewise include similar identifying features.

                From the record before us—including (1) the similarities between the speech pattern

presented in the messages and Campbell’s speech pattern at trial; (2) the fact that the messages

                                                  12
reference the incident and were sent just a few days after the incident; (3) testimony establishing

that only Campbell and Ana have ever had access to Campbell’s Facebook account; and (4)

Ana’s testimony that she did not have access to Campbell’s Facebook account at the time the

messages were sent—we conclude that there was prima facie evidence such that a reasonable jury

could have found that the Facebook messages were created by Campbell. Accordingly, we cannot

conclude that the trial court abused its discretion in admitting the evidence over Campbell’s

objection to authentication.

               In addition, even if the trial court had abused its discretion in admitting the Facebook

messages as evidence, we would find that the error was harmless. Campbell argues that the admission

of the messages was harmful because Campbell and Ana had very different uncorroborated stories

concerning the events leading to Ana’s injuries, and the Facebook messages contain an admission

that Campbell “put [his] hands on” Ana. Campbell contends that this alleged admission was “crucial”

to the jury’s finding that Campbell had committed aggravated assault.

               The State contends that any error in admitting the Facebook messages was harmless

because the State’s case against Campbell, even aside from the messages, was substantial. The State

argues that while Campbell and Ana’s stories differ drastically, the State presented extensive

evidence corroborating Ana’s account. First, Ana’s neighbor and cousin testified that Ana appeared

to be in a state of shock shortly after the incident. Next, Gibbs, the sexual abuse nurse examiner,

testified that Ana had extensive physical injuries, including multiple bruises, a perforated ear drum,

trauma to the back of the throat, vaginal redness, and marks consistent with a two-prong fork. Gibbs

also testified that Ana’s injuries were consistent with her claim that she had been assaulted. Finally,



                                                  13
detectives investigating Ana’s home found a window with the screen removed, a broken cell phone,

a meat fork, and knives, just as Ana had described them.

                Because error in the admission of evidence is non-constitutional, Campbell must

show that the error affected his substantial rights. Tex. R. App. P. 44.2(b). A substantial right is

affected when the error has a substantial and injurious effect or influence in determining the jury’s

verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). Substantial rights are not affected

by the erroneous admission of evidence if, after examining the record as a whole, we have fair

assurance that the error did not influence the jury, or had but slight effect. Motilla v. State, 78 S.W.3d

352, 355 (Tex. Crim. App. 2002). In making this determination, we consider whether the State

emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was

elicited from an expert. Id. at 356.

                In this case, the testimony concerning the Facebook messages was not elicited from

an expert. In addition, aside from impeaching Campbell with the messages at trial, the State did not

otherwise emphasize the messages, including during its closing argument. Finally, upon review of

the record, we conclude that the messages were cumulative of other evidence. At trial, Campbell

testified as follows:


        STATE:                  How did she hit you in your face? With her first or her open hand?

        CAMPBELL:               Yes, she open hand she keep going like that. And I said, stop,
                                Ana, stop. It was like a joke until it get serious.

        STATE:                  Did it hurt?

        CAMPBELL:               Yes, it hurt, of course. But, you know, I’m a man, I don’t
                                really was, you know, going to hit her back, you know.

                                                   14
                               And then she start to slap me. She start to slap me. And I
                               said, Ana, stop. If you don’t stop I’m going to hit you back
                               and you ain’t going to like it because my one going to be
                               harder than your own. That’s what I told her, you know.

       STATE:                  Did she eventually stop hitting you?

       CAMPBELL:               She never stop hitting me. She just take it as like a joke thing,
                               but she were hitting me hard.

       STATE:                  After you told her to stop, then what happened?

       CAMPBELL:               Then I hit her back.

       STATE:                  How did you hit her?

       CAMPBELL:               I hit her with my hand.

       STATE:                  Where did you hit her?

       CAMPBELL:               In her face right here.


Thus, Campbell’s own testimony was that he struck Ana. This testimony is entirely consistent with

the statement in the Facebook message that Campbell claims was so crucial to the jury’s verdict—“it

don’t matter what you say or do to me i should never put my hand on you.”

               In light of the cumulative evidence in the record demonstrating that Campbell struck

Ana, we conclude that any error in admitting the evidence did not have a substantial and injurious

effect on the jury’s verdict and should be disregarded. Campbell’s sole point of error is overruled.


                                          CONCLUSION

               Because the trial court did not abuse its discretion in admitting the Facebook messages,

we affirm the trial court’s judgment.



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                                         __________________________________________

                                         Diane M. Henson, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed August 31, 2012

Publish




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