Opinion filed March 26, 2015




                                       In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00076-CR
                                   __________

                TAYLOR DWAYNE DERING, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                    On Appeal from the 259th District Court
                            Jones County, Texas
                        Trial Court Cause No. 010727

                                  OPINION
      Taylor Dwayne Dering was indicted for aggravated sexual assault of an
elderly person. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (West Supp.
2014). Appellant pleaded guilty to the offense and elected for the jury to assess
punishment. The jury assessed punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of eighty years
and a fine of $8,700. In Appellant’s sole issue on appeal, he argues that the trial
court erred when it refused to consider social media evidence at the hearing on his
motion to transfer venue. We affirm.
                                  Background Facts
      Appellant does not challenge the sufficiency of the evidence in that he
pleaded guilty to the alleged offense. Accordingly, we will only set out a brief
summary of the pertinent facts. The alleged offense was committed in April 2012.
In November 2012, Appellant pleaded guilty. Prior to voir dire, Appellant filed a
motion to transfer venue out of Jones County. See TEX. CODE CRIM. PROC. ANN.
art. 31.03(a)(1) (West 2006).
      At the hearing on the motion to transfer, Appellant introduced nine
newspaper clippings detailing the media coverage on the case. Appellant then
sought to introduce Facebook posts by third parties about Appellant. The posts
were not made on Appellant’s Facebook account, nor were they made by
Appellant. Instead, the posts were made on a third party’s account by other third
parties. The sponsoring witness was Appellant’s friend. She was neither the
owner of the account onto which the posts were made nor the owner of any of the
accounts of the alleged posters.     The State objected to the admission of the
Facebook posts because they were not properly authenticated. The trial court
sustained the objection.
      Appellant made an offer of proof concerning the Facebook posts in support
of the motion to transfer venue. The Facebook posts contained three pages of
comments that contained inflammatory remarks about Appellant.          There were
approximately thirty-one posts by people, most of whom allegedly resided within
Jones County. Appellant did not call any of these posters to testify as to the
authenticity of the statements.    Appellant also did not call the owner of the
Facebook account onto which the posts were made.          The sponsoring witness
responded in the affirmative to the following question: “And have you ever talked
to any of these people listed here face to face about things that you had discussed


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with them on Facebook under these names?” However, she did not specify what
she actually discussed with these people.
      The trial court took the motion to transfer venue under advisement. In this
regard, the trial court stated that it wanted to listen to the responses elicited during
voir dire before ruling on the motion. Voir dire lasted approximately one and one-
half days, with extensive questions by the State and Appellant regarding the media
exposure in this case. After voir dire concluded, the trial court denied Appellant’s
motion to transfer venue, stating that Appellant had “failed to show there exists in
Jones County so great a prejudice against [him] he could not obtain a fair and
impartial trial.” The court also stated that Appellant “failed to show that there is a
dangerous combination against him instigated by influence of persons by reasons
of which he cannot expect a fair trial.”
                                       Analysis
      Appellant’s sole issue on appeal is that “[t]he trial court erred by refusing to
consider commentary on a social media website as evidence [Appellant] could not
obtain a fair and impartial trial in Jones County based on lack of authentication.”
Appellant is essentially challenging the trial court’s ruling on the admissibility of
evidence based on whether or not it was properly authenticated. We review a trial
court’s decision to admit evidence under an abuse of discretion standard. Wall v.
State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).               We will uphold an
evidentiary ruling on appeal if it is correct on any theory of law that finds support
in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
We also 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).
      Under Rule 104(a) of the Texas Rules of Evidence, the question of whether
or not to admit evidence at trial is a preliminary question to be decided by the
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court.       TEX. R. EVID. 104(a); Tienda, 358 S.W.3d at 637–38.               The Court of
Criminal Appeals stated as follows in Tienda regarding the authentication of
evidence:
         Rule 901(a) of the Rules of Evidence defines authentication as 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.” Whether the proponent has crossed this threshold as required
         by Rule 901 is one of the preliminary questions of admissibility
         contemplated by Rule 104(a). The trial court should admit proffered
         evidence “upon, or subject to the introduction of evidence sufficient to
         support a finding of” authenticity. The ultimate question whether an
         item of evidence is what its proponent claims then becomes a question
         for the fact-finder—the jury, in a jury trial. In performing its Rule
         104 gate-keeping function, the trial court itself need not be persuaded
         that the proffered evidence is authentic. 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.
358 S.W.3d at 638 (footnotes omitted).
         The court dealt with the authentication of social media evidence in Tienda.
Id. at 641. As noted by the court, the authentication of social media evidence
presents a myriad of concerns. Id. For example, social networking websites, such
as Facebook and MySpace,1 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, 421 n.9 (Md. 2011) (noting that MySpace and Facebook work
in the 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. Second,
         1
          Tienda addressed the authentication of MySpace posts. Id. at 642.

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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.
Tienda, 358 S.W.3d at 642.
      Tienda allows the admission of MySpace posts when there is circumstantial
evidence that sufficiently links the purported author “so as to justify submission to
the jury for its ultimate determination of authenticity.”          Id. at 639.   This
circumstantial evidence may include photos of the purported author with unique
characteristics, references to specific details only the purported author would
know, or messages referring to the alleged incident. Id. at 645.
      However, Tienda and its progeny deal with cases involving authentication of
social media and electronic evidence that emanates from the defendant as the
purported author. Id. at 642 (MySpace posts by the defendant); see, e.g., Butler v.
State, No. 13-12-00608-CR, 2014 WL 1272232, at *2 (Tex. App.—Corpus Christi
Mar. 27, 2014, pet. granted) (mem. op., not designated for publication) (text
messages between defendant and victim); Aekins v. State, No. 04-13-00064-CR,
2013 WL 5948188, at *5 (Tex. App.—San Antonio Nov. 6, 2013) (mem. op., not
designated for publication) (text messages sent by defendant), aff’d, 447 S.W.3d
270 (Tex. Crim. App. 2014); Miller v. State, No. 11-11-00350-CR, 2013 WL
5636375, at *2–3 (Tex. App.—Eastland Oct. 10, 2013, pet. ref’d) (mem. op., not
designated for publication) (defendant’s MySpace profile); Rene v. State, 376
S.W.3d 302, 304 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (photographs
of defendant on defendant’s MySpace profile); Campbell v. State, 382 S.W.3d 545,
548 (Tex. App.—Austin 2012, no pet.) (Facebook messages sent by defendant);
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accord Smith v. State, 136 So. 3d 424, 432–33 (Miss. 2014) (Facebook messages
from defendant); Parker v. State, 85 A.3d 682, 683–84 (Del. 2014) (Facebook
entries originated from defendant’s Facebook account). Other courts have dealt
with the authentication of electronic evidence prior to Tienda. See Tienda, 358
S.W.3d at 639 n.28 (citing cases dealing with emails, internet chat rooms, text
messages, and instant messages). Again, these cases involve communication with
the defendant as the purported author.
      These cases are distinguishable from our facts. Here, the Facebook posts
were not made by Appellant or sent by Appellant to anyone. In fact, Appellant had
nothing to do with the creation or the content of the Facebook posts other than
serve as the subject of the posts. The original post was created by a third party
who did not testify during any of the proceedings.        The sponsoring witness
recognized the account owner’s name and some, but not all, of the posters’ names.
The witness had talked to some of the posters in person but did not say that they
specifically talked about what they posted on Facebook. There was no evidence of
the authenticity of who the purported author was of any of the Facebook posts. All
that Appellant offered in terms of authenticity were the names and photos as shown
on the accounts of the owner and posters.         Without more, this evidence is
insufficient to support a finding of authenticity. See Tienda, 358 S.W.3d at 646–47
(quoting Griffin[, 19 A.3d at 424], to conclude that more circumstantial evidence is
necessary to properly authenticate social media posts).
      Moreover, even if the trial court erred by not admitting the Facebook posts,
the exclusion did not constitute harmful error. Generally, the erroneous admission
or exclusion of evidence is nonconstitutional error governed by Rule 44.2(b) of the
Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the
rules of evidence. Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref’d); see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
                                         6
App. 2001).     Nonconstitutional error requires reversal only if it affects the
substantial rights of the accused. TEX. R. APP. P. 44.2(b); Barshaw v. State, 342
S.W.3d 91, 93 (Tex. Crim. App. 2011).                When evaluating harm from
nonconstitutional error flowing from the exclusion or admission of relevant
evidence, we examine the record as a whole. Rich v. State, 160 S.W.3d 575, 577–
78 (Tex. Crim. App. 2005).
      The trial court withheld its ruling on the motion to transfer venue until after
the completion of voir dire. Over four hundred prospective jurors were summoned
for the trial. One hundred and six veniremembers were seated for the voir dire
examination. Voir dire lasted approximately one and one-half days. There were
extensive questions by both the State and Appellant regarding pretrial publicity and
media exposure. Only two potential jurors were struck who “voiced any real
recollection of any type of [media] exposure.” Thus, the media exposure had little
to no effect on the jury pool as a whole. Accordingly, the exclusion of the
Facebook posts did not affect Appellant’s substantial rights.          We overrule
Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE
March 26, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.



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