                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00253-CR
                              NO. 02-17-00254-CR


ERIC JACKSON                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1463959D, 1490111D

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                         MEMORANDUM OPINION1

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      Appellant Eric Jackson appeals from his convictions for burglary and three

counts of aggravated sexual assault of a child, arguing that the trial court abused

its discretion by admitting multiple text messages from the sexual-assault

complainant’s phone. Because we find no abuse of discretion, we affirm the trial

court’s judgments.

      1
       See Tex. R. App. P. 47.4.
      On May 17, 2015, Carrie Green woke to find that someone had broken a

window in her thirteen-year-old daughter’s bedroom and stolen her daughter’s

computer.2 Carrie called the police, who found fingerprint- and blood-evidence

on the broken window.

      One month later, Carrie’s daughter Lacey told Carrie that “a boy made her

have sex with him and that she was afraid.” Lacey identified him to Carrie as

Jackson and stated that “he was the one that broke in and that he was the one

that stole her computer.” Lacey had met Jackson at a park near her home in the

spring of 2015 and their relationship quickly progressed to multiple instances of

unprotected vaginal and oral sex. Jackson was twenty-five at the time. The

night of the burglary, Lacey had told Jackson that she “would not like to talk to

him anymore.” Jackson then appeared at Lacey’s bedroom window, asking her

to talk to him and causing her to leave her bedroom to go into the living room

until the next morning. When she returned, her bedroom window was broken

and her computer was gone.

      Carrie called the police, and Detective Dennis Hutchins interviewed Lacey

and completed a forensic examination of Lacey’s phone.         The investigation

stalled, and it was later discovered that Hutchins had not been “doing his job”

since 2004, leading to his termination from the police department. As a result,

Hutchins’s cases were reassigned to other detectives in June 2016.           The

      2
      We use fictitious names to refer to the minor and her family members.
See Tex. R. App. P. 9.10; see also Tex. R. App. P. 9.8 cmt.


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detective who was assigned Lacey’s case, Detective Casey Allen, discovered

that the video of Lacey’s forensic interview and her medical records had been

lost. Allen arranged for Lacey to be re-interviewed, and Carrie forwarded Lacey’s

medical records to Allen. Hutchins had, however, completed a download of the

contents of Lacey’s phone, including her text messages. After Jackson’s arrest

for the aggravated sexual assaults of Lacey, the fingerprint- and blood-evidence

from Lacey’s bedroom window were identified as belonging to Jackson.

         At Jackson’s consolidated trial, the State offered into evidence numerous

text messages between Lacey’s phone number—972-310-XXXX—to two phone

numbers Lacey testified were numbers she used to communicate with Jackson—

817-522-XXXX and 304-240-XXXX.            Jackson objected to their admission,

arguing that the 817 and 304 numbers had not been sufficiently identified as

belonging to him and that the texts were not relevant. The trial court admitted the

texts, concluding that whether the 817 and 304 numbers had been sufficiently

tied to Jackson was a fact issue for the jury to resolve. The jury found Jackson

guilty of three counts of aggravated sexual assault and of burglary and assessed

his punishment at forty-eight years’ confinement for each assault and five years’

confinement for burglary.3 Now on appeal, Jackson argues that the admission of

the texts was an abuse of discretion because they were irrelevant and not

sufficiently authenticated. See Tex. R. Evid. 401–02, 901(a). We review the

         3
         The jury found Jackson not guilty of continuous sexual abuse of a young
child.


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admission of the text-message evidence over Jackson’s objections for an abuse

of discretion, which may be found only if the trial court’s admissibility ruling fell

outside the zone of reasonable disagreement. See Butler v. State, 459 S.W.3d

595, 600 (Tex. Crim. App. 2015); Tienda v. State, 358 S.W.3d 633, 638 (Tex.

Crim. App. 2012); Gardner v. State, No. 02-14-00459-CR, 2015 WL 4652718, at

*1 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for

publication).

      Jackson’s authentication and relevance objections are two sides of the

same coin. Authentication arises when the relevancy of the evidence depends

on its connection to a particular person.      See Tex. R. Evid. 901(a); Tienda,

358 S.W.3d at 637–39; Campbell v. State, 382 S.W.3d 545, 548–49 (Tex. App.—

Austin 2012, no pet.). Evidence has no relevance if it is not authentically what

the proponent claims it to be. Tienda, 358 S.W.3d at 638. Our discussion of

Jackson’s authentication and relevance arguments therefore is interrelated. See,

e.g., Gardner, 2015 WL 4652718, at *2.          Indeed, Jackson’s sole relevance

argument in his brief is dependent on authenticity: “Without being properly

authenticated, the messages were irrelevant to any fact at issue . . . .”

      Authentication is a condition precedent to admissibility, and the trial court’s

determination of admissibility based on relevance is a preliminary one. See Tex.

R. Evid. 104(a), 401–02, 901(a); Tienda, 358 S.W.3d at 638. Whether a cell-

phone number may be associated with a particular user can be problematic

because “cell phones can be purloined.”        Butler, 459 S.W.3d at 601.      Thus,


                                          4
evidence that a cell-phone number is associated with a purported sender,

standing alone, may be too attenuated to satisfy its authenticity. Id. In any

event, the test for authenticity, and thus relevance, is not stringent and requires

only an initial showing that would be sufficient to support a finding that the matter

in question is what its proponent claims. Campbell, 382 S.W.3d at 549; see Tex.

R. Evid. 901(a). The ultimate question of whether an item of evidence is what

the proponent claims is a question for the fact-finder, rendering the trial court’s

preliminary inquiry a simple one—whether the State supplied sufficient facts to

support a reasonable determination by the jury that the evidence 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) (“The proponent must only produce sufficient

evidence [by which] a reasonable fact finder could properly find genuineness.”).

      Where a sponsoring witness testifies to an association between a cell-

phone number and a purported author of a text from that number, other

surrounding circumstances may “bridge the logical gap” to allow an inference that

the purported author sent the text. Butler, 459 S.W.3d at 602; see also Tex. R.

Evid. 901(b)(1), (4).    Such bridging circumstances include the message’s

“appearance, contents, substance, internal patterns, or other distinctive

characteristics.” Butler, 459 S.W.3d at 602. Accordingly, a trial court’s initial

determination of whether evidence has been sufficiently authenticated to be

admissible is dependent on the facts and circumstances of each case. Tienda,

358 S.W.3d at 639.


                                         5
      Lacey testified to more than just the fact that she used the 817 and 304

numbers to communicate with Jackson. Not only had she saved the 817 number

as “Eric Jackson” in her phone, she testified that the texts at issue were sent by

Jackson and that she remembered the conversations. The forensic examiner

confirmed that Lacey had the 817 number saved as “Eric Jackson” in her phone.

Lacey stated that Jackson frequently would text her when to be at a stop sign by

her home, where he would meet her.          At one meeting, Lacey testified that

Jackson walked her into the woods and forced her to have sex. Several of the

texts at issue referred to meeting at the stop sign and to having sex in the woods.

Lacey also testified to Jackson’s singular vernacular—for example, “mines”

instead of mine—which was used in texts from the 304 and 817 numbers. In text

exchanges with the 304 number, Lacey asked for her “laptop back,” and the 304

number directed Lacey to “come get your computer.”

      We conclude that this evidence sufficiently authenticated the texts and

their connection to Jackson. Lacey’s testimony about events occurring during

her relationship with Jackson, which were reflected in the texts, provided

contextual evidence that was sufficient to establish as a preliminary matter the

authenticity of the texts. See Butler, 459 S.W.3d at 604; Tienda, 358 S.W.3d at

641; Norris v. State, No. 06-16-00150-CR, 2017 WL 1536198, at *2 (Tex. App.—

Texarkana Apr. 27, 2017, pet. ref’d) (mem. op., not designated for publication);

Tyler v. State, No. 05-15-00354-CR, 2016 WL 280032, at *2 (Tex. App.—Dallas

Jan. 22, 2016, no pet.) (mem. op., not designated for publication); Gardner,


                                        6
2015 WL 4652718, at *2; Aekins v. State, No. 04-13-00064-CR, 2013 WL

5948188, at *5–6 (Tex. App.—San Antonio Nov. 6, 2013) (mem. op., not

designated for publication), aff’d on other grounds, 447 S.W.3d 270 (Tex. Crim.

App. 2014); Manuel, 357 S.W.3d at 77–82. Certainly, a reasonable jury could

have determined that the texts were sent by Jackson.         See Cook v. State,

460 S.W.3d 703, 713 (Tex. App.—Eastland 2015, no pet.).              Because the

evidence was sufficiently authenticated such that it could be admitted to the jury,

it was relevant to an issue in the case. See Gardner, 2015 WL 4652718, at *2.

We overrule Jackson’s issue.

      Because the trial court did not abuse its discretion by initially determining

that the State proffered sufficient identifying evidence to authenticate the texts

were connected to Jackson, we affirm the trial court’s judgments. See Tex. R.

App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: MEIER, GABRIEL, and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2018




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