Opinion issued October 10, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00269-CR
                           ———————————
                   JAMES LEON LAURENTZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1305796



                       MEMORANDUM OPINION

      James Leon Laurentz was convicted by a jury of indecency with a child

involving sexual contact.1 The same jury assessed his punishment at eight years’


1
      TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
confinement but recommended that the trial court place him on community

supervision. Following the jury’s recommendation, the trial court suspended the

imposition of the sentence as to confinement and placed Laurentz on community

supervision for ten years.2 In his single appellate issue, Laurentz contends that the

trial court abused its discretion in admitting a chain of Facebook messages

allegedly exchanged between him and the complainant (State’s exhibit 1) without

sufficient authentication. We affirm.

                                    Background

      On December 31, 2010, N.B. 3 spent the night at her friend, Kaylah

Laurentz’s, house, as she had done many times before. After playing video games

and spending time with friends, N.B. testified that she went to sleep in Kaylah’s

bed. Later that evening, Laurentz, Kaylah’s father, came into the bedroom to

speak to Kaylah and then gave the two girls foot massages. Laurentz left the

bedroom, but after Kaylah fell asleep, he returned. This time, Laurentz began by

rubbing N.B.’s feet but he did not stop there.         According to N.B., after he

massaged her feet, Laurentz moved his hands up her body, going underneath her

shirt, and “tickling on [her] belly” until he reached the bottom of her bra. N.B.

2
      Further terms of his community supervision included Laurentz’s 120 days in the
      Harris County jail, sex-offender treatment, 150 hours of community service, and
      no contact with children.
3
      In order to protect her identity, the complainant, who was fifteen-years old when
      the assault took place, will be referred to by her initials (N.B.).

                                          2
testified that Laurentz then started massaging her legs again and finally rubbing her

vagina through her clothing. Laurentz left and returned to the room multiple times

that night, and each time he would roll N.B. onto her back against her will, and

begin the ordeal again. According to N.B., Laurentz did not stop touching her until

Kaylah’s mother came to the bedroom door twice that night and inquired as to

what Laurentz was doing in there.

      Laurentz and Kaylah drove N.B. home early the next morning, January 1,

2011. N.B. testified that she was scared of being alone with Laurentz and insisted

that Kaylah accompany them. At 6:29 a.m., the same morning, “James Laurentz”

sent a Facebook message to N.B.’s Facebook account asking for her forgiveness

and promising to never put her in that situation again.        Specifically, “James

Laurentz” wrote:

      I sinned against you and am sorry. I as[k] your forgiveness even
      though I do not deserve it. I can’t take it back but I can assure you
      that I will never put you in that situation again. I should have been a
      better example of a Christian man than I was. Please forgive me.

At 10:04 p.m. that evening, N.B. responded to the message, stating:

      I was terrified, I woke up the next morning and thought I dreamt it all;
      I was so confused. It[’]s to[o] soon for me to forgive you, hopefully I
      will in time, but I will never look at you the same. I can barely even
      type this message. It’s repulsive.




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At 7:38 a.m. the next morning “James Laurentz” replied to N.B.’s response,

expressing remorse for his actions, apologizing for his “moment of weakness,” and

asking N.B. not to hold what happened between them against his daughter, Kaylah.

      Please don’t hate Kaylah because of me. And remember we all have
      weak moments in our lives. I have had many. My only saving grace
      comes from God. I will regret what I did but don’t stop trusting in
      Jesus because of me. My moment of weakness has happened and I
      would be destroyed if I damaged your faith. I regret the grief I caused
      you and God. Again I am sorry. 4

      On January 5, 2011, N.B. confided in her friend, Destiny Lily, about the

assault and showed Lily some Facebook messages on her cell phone. According

to Lily, N.B. logged onto her Facebook account and accessed the messages in her

Facebook inbox.     Lily testified that when a message is sent via Facebook’s

messaging feature, which is similar to e-mail, the recipient can tell who the

message is from because “it would have [the sender’s] name and a picture of [the

sender].”

      At Lily’s urging, N.B. told Lily’s aunt, Sandy Edwards, what happened and

reluctantly showed her the Facebook messages on her cell phone.              Edwards

immediately contacted both Laurentz’s wife and N.B.’s grandfather. When Mrs.


4
      After State’s exhibit 1 was admitted into evidence, N.B. testified that she had a
      Facebook account and that she received a Facebook message from Laurentz after
      the assault. Although she was “shocked and scared” by the message, N.B.
      subsequently responded to the message and Laurentz replied to her response. N.B.
      identified State’s exhibit 1 as a copy of the Facebook messages she and Laurentz
      exchanged.
                                          4
Laurentz and Kaylah arrived at Edwards’ home that evening, Edwards informed

them about N.B.’s allegations and showed Mrs. Laurentz the messages.5 N.B.’s

grandfather, who arrived at Edwards’ home after Kaylah and Mrs. Laurentz had

left, was also shown the messages and testified that he viewed them again when he

took N.B. to the police station and Detective Jason Meredith (Deer Park Police

Department) instructed N.B. to log into her Facebook account and show him the

Facebook messages that she and Laurentz had exchanged after the assault. He

portrayed the messages on a computer screen and printed a copy of the messages.

Detective Meredith identified State’s exhibit 1 as a screen shot of the Facebook

messages exchanged by Laurentz and N.B. that he printed at the police station.

According to the Detective, the URL printed on State’s exhibit 1, as well as the

contents of the exhibit, identified it as N.B.’s Facebook account. 6 At this time,

5
      After State’s exhibit 1 was admitted, Mrs. Laurentz testified for the defense that
      her husband had told her that he had sent N.B. a Facebook message and
      apologized to N.B. because he had yelled at her the morning after she spent the
      night at their home. Although it is not expressly identified as such, it is apparent
      from her testimony that Mrs. Laurentz is referring to the Facebook messages
      contained in the State’s exhibit 1. Kaylah Laurentz, another defense witness, also
      testified that her father had a Facebook account, he was Facebook “friends” with a
      lot of her friends, he frequently communicated with her friends via Facebook, and
      that it was common for her father to send private messages to her friends via
      Facebook. We note, however, that this defensive testimony does not necessarily
      render any error associated with the allegedly improper admission of State’s
      exhibit 1 harmless. See generally Leday v. State, 983 S.W.2d 713, 719 (Tex.
      Crim. App. 1998) (stating harmful effect of improperly admitted evidence not
      cured by fact that defendant sought to meet, destroy, or explain it by introducing
      rebutting evidence).
6
      Detective Meredith testified that each Facebook profile has a unique URL number.
                                           5
however, the State did not attempt to admit the exhibit into evidence or elicit any

testimony from the Detective as to the specific contents of the messages.

      During cross-examination, Laurentz’s counsel questioned Detective

Meredith regarding the vagueness of the Facebook messages. Detective Meredith

disagreed with defense counsel’s characterization of the messages as “vague,”

lacking detail, and failing to reference a specific incident. Arguing that the defense

had “opened the door” with respect to the actual content of the messages and that

the record would be incomplete without the information, the State then moved to

have the Facebook messages admitted as State’s exhibit 1. Laurentz objected to

the admission of State’s exhibit 1 on the basis that “no one from Facebook is here

to testify as to how Facebook messaging works. These Facebook messages were

never accompanied with a business record affidavit stating that they’re kept in the

normal course of business in Facebook. And there has been no witness that can

authenticate that it was Mr. Laurentz who, indeed, sent the messages.” The trial

court overruled the objection and admitted State’s exhibit 1 into evidence.

                                     Discussion

A.    Standard of Review

      We review a trial court’s decision as to whether evidence is properly

authenticated for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638

(Tex. Crim. App. 2012). A trial court does not abuse its discretion when it


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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.

B.     Applicable Law

       Under Rule of Evidence 104(a), whether or not to admit evidence at trial is a

preliminary question to be decided by the court. TEX. R. EVID. 104(a); Tienda, 358

S.W.3d at 638. A bedrock condition of admissibility of evidence is its relevance to

an issue in the case—that is to say, its tendency to make a fact of consequence

more or less probable. TEX. R. EVID. 401, 402; Tienda, 358 S.W.3d at 638. The

issue of authentication (i.e., that the proffered evidence is what the evidence’s

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 proponent of the evidence need not rule out all possibilities inconsistent

with authenticity, or to prove beyond any doubt that the evidence is what it

purports to be. See Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2012,

pet. ref’d).   In fact, in performing its gate-keeping function under Rule 104, the


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trial court need not be persuaded that the proffered evidence is authentic. Tienda,

358 S.W.3d at 638. Rather, the ultimate question under Rule 104 for the trial court

is simply whether the proponent of the proffered evidence has supplied sufficient

facts from which a fact-finder could reasonably determine that the evidence is

authentic. Id.; see also Manuel, 357 S.W.3d at 74 (“The proponent must only

produce sufficient evidence that a reasonable fact finder could properly find

genuineness.”).

      Authentication is a condition precedent to the admissibility of evidence and

the requirement 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 the evidence has satisfied the threshold requirement of

authenticity is one of the preliminary questions to be decided by the court. See

TEX. R. EVID. 104(a), 901(a); Tienda, 358 S.W.3d at 638.

      Rule 901 provides a non-exclusive list of methods for the authentication of

evidence, including witness testimony, appearance, contents, substance, or other

distinctive characteristics taken in conjunction with circumstances. TEX. R. EVID.

901(b); see generally Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin

2012, no pet.) (stating Rule 901 creates low hurdle for admissibility which can be

easily cleared by circumstantial evidence).




                                         8
C.    Analysis

      Both Laurentz and the State argue that the present case is analogous to the

Austin Court of Appeals’ opinion in Campbell, 382 S.W.3d at 549, in which the

appellate court upheld the trial court’s admission of Facebook messages sent by the

defendant to the complainant a few days after an assault. Although the defendant

denied having sent the messages and argued that the complainant had logged into

his account and sent the messages to herself, the court concluded that the messages

were sufficiently authenticated based upon several factors, including that: (1) the

messages were sent to the complainant’s Facebook account from a Facebook

account bearing the defendant’s name; (2) the messages contained internal

characteristics that tended to connect the defendant as the author (i.e., a distinctive

speech pattern); (3) undisputed testimony that connected the defendant to the

messages (e.g., the defendant had a Facebook account, only he and the

complainant ever had access to his account, the complainant denied having access

to the account when the messages were sent, and the complainant recognized the

messages as having been sent by the defendant); and (4) the messages, which were

sent within days of the assault, specifically referenced the assault (i.e., the

defendant apologized for putting his hands on the complainant). See Campbell,

382 S.W.3d at 551–53.




                                          9
      In the instant case, State’s exhibit 1 was properly authenticated through

witness testimony and circumstantial evidence, including the contents and

characteristics of the Facebook messages themselves.             A review of the

circumstantial evidence indicating that State’s exhibit 1 is what the State claims it

to be (i.e., an exchange of communications between Laurentz and N.B.) includes

the following: (1) the first and third messages in the chain contain a banner

identifying the sender as “James Laurentz”; (2) the first and third messages in the

chain also contain a date and time stamp indicating that “James Laurentz” sent

those messages within roughly a day of the assault (i.e., 6:29 a.m. on January 1,

2011, and 7:38 a.m. on January 2, 2011, respectively); (3) “James Laurentz”

repeatedly expresses remorse for his actions, apologizes for his “moment of

weakness,” and asks N.B. not to hold what happened between them against

Kaylah, Laurentz’s daughter; (4) Detective Meredith testified that the URL listed

on State’s exhibit 1 identified the exhibit as having been printed from N.B.’s

Facebook account; (5) both Lily and Detective Meredith testified that N.B. logged

into her password-protected Facebook account in order to access the messages; (6)

N.B. showed Facebook messages on her cell phone to Lily and Edwards when she

confided in them about the assault; (6) N.B.’s grandfather’s testified that he viewed

Facebook messages between N.B. and Laurentz first on N.B.’s cell phone, and then

later on a computer at the police station, and finally, he viewed a printout of the

                                         10
message chain; (7) Detective Meredith testified that he directed N.B. to log onto

her Facebook account when she and her grandfather came to the police station; (8)

Detective Meredith printed out a screenshot of the Facebook messages that N.B.

showed him on the computer at the police station; (9) Detective Meredith

identified State’s exhibit 1 as the screenshot of the Facebook messages that he

printed out between Laurentz and N.B.; and (10) although the messages do not

explicitly reference the assault, “James Laurentz” apologizes for having “sinned

against” N.B. and he characterizes his “moment of weakness” as something serious

enough to be capable of damaging N.B.’s faith in God.

      Laurentz argues that the State failed to properly authenticate State’s exhibit

1 because (1) unlike in Campbell, the Facebook messages did not specifically

mention an actual assault and, (2) the State failed to exclude the possibility that the

messages were sent by someone other than Laurentz. The fact that the Facebook

messages in Campbell specifically referenced the underlying offense is merely one

factor that the court considered. The fact that the messages in the present case do

not explicitly reference the assault does not mean that the State failed to proffer

sufficient evidence from which a reasonable jury could conclude that the messages

were sent by Laurentz—rather, it is merely one factor for the jury to consider when

determining the weight and credibility of the evidence. Similarly, the proponent of

the evidence does not need to rule out all possibilities inconsistent with

                                          11
authenticity or prove that the evidence is what it purports to be beyond a

reasonable doubt. Campbell, 382 S.W.3d at 549. As the Court of Criminal

Appeals stated in Tienda, even though it may be possible that someone else sent an

electronic communication, ultimately it is up to the fact-finder to weigh the

evidence and decide whether the communication was sent by the defendant or

another person. Tienda, 358 S.W.3d at 646.

      Laurentz’s argument that the State’s failure to subpoena a Facebook

employee to verify that the messages were sent from Laurentz’s Facebook account

or admit evidence directly linking Laurentz’s computer to the Facebook messages

is equally unpersuasive because the State is not required to do either of these things

in order to authenticate a non-traditional communication under Rule 901. Here,

the State was able to authenticate the exhibit through other accepted manners of

authentication under the rule, including the contents and characteristics of the

messages and witness testimony.

      Laurentz further argues that State exhibit 1’s content raises questions as to

the document’s authenticity because N.B.’s name is misspelled on the exhibit. As

previously discussed, the State elicited testimony identifying the Facebook account

as N.B.’s, including testimony from Lily and Detective Meredith. The fact that

N.B.’s name is misspelled is merely one factor for the jury to consider when

evaluating the weight and credibility of the witness testimony linking the

                                         12
correspondence to N.B. It was up to the jury to consider the exhibit itself, as well

as the witness testimony, and determine whether the account was actually N.B.’s.

      In light of the witness testimony and circumstantial evidence in this case,

including the contents and characteristics of the Facebook messages themselves,

we conclude that the State proffered sufficient evidence pursuant to Rule 901 from

which the jury could have reasonably determined that State’s exhibit 1 is what the

State claimed it to be—an exchange of Facebook messages between Laurentz and

N.B. Accordingly, we hold that the trial court did not abuse its discretion in

admitting State’s exhibit 1 into evidence. We overrule Laurentz’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice


Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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