                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00418-CR


JAIRO CHAVEZCASARRUBIAS                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1337507D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Jairo Chavezcasarrubias appeals his convictions and twenty-

year sentences for indecency with a child by contact and for sexual assault of a

child under 17 years of age. In four issues, Chavezcasarrubias challenges the

trial court’s rulings pertaining to the admission and exclusion of evidence and to


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       See Tex. R. App. P. 47.4.
the trial court’s overruling his objection to the State’s argument during

punishment. In this opinion, we will refer to the minor complainant as Girl. And

because the issues in this case are evidentiary matters, and in an attempt to

protect Girl’s identity and privacy, we will recite only the facts necessary to the

disposition of each of Chavezcasarrubias’s issues as we address them, and we

will affirm.

                                   II. DISCUSSION

       A.       Admitted Text Messages

       In his first issue, Chavezcasarrubias argues that the trial court abused its

discretion by admitting text messages from Girl’s phone that he claims were not

“sufficiently    connected”   to   him.       These    text   messages      between

Chavezcasarrubias and Girl contain communications that appear to acknowledge

that they had engaged in sexual intercourse.

       The State first argues that Chavezcasarrubias’s complaint at trial does not

comport with the complaint he now brings on appeal—Chavezcasarrubias

objected several times that these text messages were “hearsay.” See Burleson

v. State, 802 S.W.2d 429, 439 n.2 (Tex. App.—Fort Worth 1991, pet. ref’d)

(“[P]roblems of authentication and hearsay are not interchangeable.”). The State

also argues that the trial court did not abuse its discretion by determining that the

text messages were properly authenticated. We conclude that the trial court did

not abuse its discretion by admitting the text messages.




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      As to the State’s argument that Chavezcasarrubias has failed to preserve

this argument for our review because his objections at trial were “hearsay”

objections and not ones sounding in authentication, we disagree that the parties

at trial did not understand Chavezcasarrubias’s objections to be issues of

authentication. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)

(“In determining whether a complaint on appeal comports with a complaint made

at trial, we look to the context of the objection and the shared understanding of

the parties at the time.”).

      Here, the trial court clearly understood Chavezcasarrubias’s objection to

be one pertaining to authentication of the text messages.         Indeed, when

Chavezcasarrubias referred to his objection that the State had “failed to show

that it is an exception to the hearsay rule,” the trial court overruled

Chavezcasarrubias’s objection, specifically citing to authentication factors, and

the trial court stated that the texts would be allowed into evidence “under Rule

901.” See Tex. R. Evid. 901 (“Authenticating or Identifying Evidence”). Further,

Chavezcasarrubias conducted a voir dire of the State’s sponsoring witness, Girl,

and the questions asked pertained to whether it could be determined that the text

messages had originated from Chavezcasarrubias.        Thus, we will review the

merits of Chavezcasarrubias’s issue.

      We review a trial court’s evidentiary ruling using 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), cert. denied, 131


                                       3
S. Ct. 2966 (2011). 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.

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.), cert. denied,

552 U.S. 1028 (2007).

      The issue of authentication arises when the relevancy of evidence is

conditioned on its identity. Campbell v. State, 382 S.W.3d 545, 548–49 (Tex.

App.—Austin 2012, no pet.). Authentication is generally accomplished by direct

testimony from a witness with personal knowledge or by circumstantial evidence.

See Tex. R. Evid. 901; 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”). Previous exhibits found

to be authenticated include emails, Internet chat room conversations, and text

messages. Tienda, 358 S.W.3d at 638; Manuel, 357 S.W.3d at 74. 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 text message emanating from a device assigned to the purported

author, without more, is insufficient to support a finding of authenticity.    358

S.W.3d at 641–42.

      For authentication by a witness with knowledge of an electronic

communication, a witness qualifies as having knowledge when he participated in


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an exchange of messages and can testify to an exhibit’s fair and accurate

depiction of the messages exchanged. Tex. R. Evid. 901(b)(1); see also 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, 447

S.W.3d 270 (Tex. Crim. App. 2014); 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 emails).

      In this case, Chavezcasarrubias contends that the State failed to

adequately demonstrate that the text messages received by Girl were messages

from Chavezcasarrubias himself. But the State elicited testimony from Girl that

the text messages were a true and accurate depiction of text messages between

herself and Chavezcasarrubias. Further, Girl testified that she had witnessed

Chavezcasarrubias enter the phone number that the text messages were

received from into her phone; that Chavezcasarrubias had previously given her

accurate instructions on what to wear and where to be through text messages

sent from this same number; that she knew that the phone number belonged to

Chavezcasarrubias because she had called him on it and recognized his voice

when he answered; and that the text messages contained information with which

only she and Chavezcasarrubias would have been familiar.




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      We conclude that Girl’s testimony concerning the text messages indicates

that Chavezcasarrubias was the author of the messages sent to Girl’s phone.

See Tienda, 358 S.W.3d at 641 (“Sometimes the purported sender has

responded to an exchange of electronic communications in such a way as to

indicate circumstantially that he was in fact the author of the particular

communication.”). Thus, the trial court did not abuse its discretion by overruling

Chavezcasarrubias’s objections to the text messages being introduced into

evidence.    See Manuel, 357 S.W.3d at 76–77, 81–82 (holding sufficient

authentication of defendant’s phone number after complainant testified to

receiving phone calls, text messages, and voicemails from the phone number

and because complainant recognized defendant’s voice and knew the phone

number as defendant’s). We overrule Chavezcasarrubias’s first issue.

      B.    Text Messages from Another Person

      In his second issue, Chavezcasarrubias argues that the trial court “erred in

excluding evidence of a text message from a young man who also wanted to

have sex with” Girl.    Specifically, Chavezcasarrubias argues that his Sixth

Amendment right to cross-examination was violated by the trial court’s decision

to exclude evidence regarding a text message allegedly from a young man, Boy,

inquiring about having sex with Girl. The State argues that Chavezcasarrubias

failed to preserve this issue for our review. We agree with the State.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds


                                         6
for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d

249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119

S. Ct. 1466, 1472 (1999).

      At trial, Chavezcasarrubias argued that Girl’s testimony that she had texted

with him only regarding sex was “misleading” and that her testimony had “opened

the door . . . to talking about any kind of text messages about sex with other

people.” Chavezcasarrubias argued that he should be allowed to question Girl

about, and ostensibly introduce, the text message from Boy who allegedly had

inquired about having sex with her.       But at no time did Chavezcasarrubias

complain that the trial court’s exclusion of Boy’s text message, or the trial court’s

ruling forbidding questions regarding the message, violated his Sixth Amendment

right to cross-examination.    See Reyna v. State, 168 S.W.3d 173, 179 (Tex.

Crim. App. 2005) (holding that a proffer of evidence for purposes of credibility did

not preserve a Confrontation Clause argument for appeal because such a proffer

did not bring the judge’s attention to the appropriate evidence rule or statute);

see also Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965) (“It

cannot seriously be doubted at this late date that the right of cross-examination is

included in the right of an accused in a criminal case to confront the witnesses

against him.”).

      The Reyna case is particularly instructive to our disposition of this issue.

In Reyna, the defendant, charged with indecency with a child, sought to cross-


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examine the complainant about a false allegation of sexual abuse that the

complainant had allegedly made against another. 168 S.W.3d at 174. In support

of admission, the defendant argued that the evidence went to the credibility of the

complainant.    Id. at 179.    Later, on appeal, the defendant argued that the

exclusion of the evidence violated his Sixth Amendment right to Confrontation.

Id. The Texas Court of Criminal Appeals held that the defendant forfeited review

of the confrontation issue because the credibility argument he made in the trial

court could have been based on either the rules of evidence or the right to

confrontation; thus, the trial argument did not sufficiently bring to the trial court’s

attention the basis for the request. Id.

      Similarly, in the present case, Chavezcasarrubias argued that Boy’s text

message should have been admitted because Girl’s testimony was “misleading”

and because she had “opened the door” regarding whether she had texted other

persons regarding sex. But Chavezcasarrubias did not sustain his record burden

of explaining to the trial court, and by extension to us, why Boy’s text message

was admissible—whether under an evidentiary rule or statute, as an exception to

an evidentiary rule or statute, or under a constitutional provision. We therefore

overrule Chavezcasarrubias’s second issue.

      C.     Girl’s Knowledge of Sexual Activity and Websites

      In his third issue, Chavezcasarrubias argues that the trial court abused its

discretion by not admitting evidence that Girl’s knowledge of the “various sexual

positions” that she testified to having engaged in with him came from “studying


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pornography, not from her encounter with” him. Chavezcasarrubias’s argument

is predicated on the notion that he should have been allowed to introduce

evidence of, and question Girl regarding, pornographic websites that she

allegedly had visited. The State argues that Chavezcasarrubias has failed to

preserve this issue for our review. We agree with the State.

      To preserve a complaint that the trial court erroneously excluded evidence,

the complaining party must bring forward a record indicating the nature of the

evidence.   See Tex. R. App. P. 33.1, 33.2; Tex. R. Evid. 103(a)(2).           If the

excluded evidence is not apparent from the context of the record, it must be

brought forward either through a timely offer of proof or a formal bill of exception.

Barnard v. State, 730 S.W.2d 703, 717–18 (Tex. Crim. App. 1987), cert. denied,

485 U.S. 929 (1988); Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.—San

Antonio 1997, pet. ref’d).

      Chavezcasarrubias does not dispute the State’s argument that he failed to

preserve this issue for our review. In fact, during oral argument before this court,

Chavezcasarrubias admitted that his offer of proof made at trial did not contain

evidence that Girl had seen the specific types of sexual acts that she had

described having participated in with him via any of the websites she allegedly

had visited. Instead, Chavezcasarrubias argued that the trial court “shut [him]

down” from making a full and proper offer of proof. Our reading of the record not

only belies this contention, it appears that the trial court went to extraordinary

measures to allow Chavezcasarrubias to make his offer of proof. Indeed, during


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a hearing held outside the jury’s presence pertaining to Girl’s alleged history of

visiting pornographic websites, Chavezcasarrubias contended that he was

unprepared to make a proper offer of proof and that he would need to retrieve

pertinent information in order to do so. The trial court stated that it would allow

Chavezcasarrubias to retrieve the pertinent information and make a formal ruling

only after Chavezcasarrubias had made his full offer of proof. True to its word,

the trial court later held a second hearing outside the presence of the jury where

Chavezcasarrubias questioned Girl about whether she had visited certain

websites.

        Girl averred that she had visited at least one of the websites.

Chavezcasarrubias, however, never questioned Girl or otherwise proffered any

evidence or testimony concerning whether the websites that Girl allegedly had

visited contained depictions of the types of sexual acts that she had testified to

having participated with Chavezcasarrubias in, nor did he even question her

about    whether   these    websites   contained    such    information.      Thus,

Chavezcasarrubias has failed to bring forth a record containing the excluded

evidence he now complains about. See Shafer v. State, 82 S.W.3d 553, 555

(Tex. App.—San Antonio 2002, pet ref’d.) (holding that defendant failed to

preserve claim that evidence of complainant’s consensual sexual history was

relevant because defendant did not file a timely bill of exceptions nor point to any

evidence in record setting forth the excluded evidence).              We overrule

Chavezcasarrubias’s third issue.


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      D.     The State’s Argument at Punishment

      In his fourth issue, Chavezcasarrubias argues that the trial court erred by

overruling his objection to the State’s argument, made during punishment, that if

Girl “were six months younger,” he would have been facing a higher degree of

punishment range. The State argues that Chavezcasarrubias failed to preserve

this issue for our review as well. We agree with the State.

      To preserve error for appellate review, a party must object when improper

argument is made and obtain a ruling on that objection. Tex. R. App. P. 33.1(a);

Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2007,

no pet.).   The objection must be made at the earliest possible opportunity.

Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006,

no pet.). And an objection must be lodged each time the allegedly improper

argument is made. Haliburton v. State, 80 S.W.3d 309, 315–16 (Tex. App.—Fort

Worth 2002, no pet.); Briones v. State, 12 S.W.3d 126, 129 (Tex. App.—Fort

Worth 1999, no pet.). Failure to object to jury argument at trial forfeits the right to

raise the issue on appeal. Tex. R. App. P. 33.1; Simpson v. State, 119 S.W.3d

262, 268 (Tex. Crim. App. 2003).

      Although Chavezcasarrubias objected the second time the State made the

complained-of argument, he did not object to the State’s having argued the very

same argument several record paragraphs earlier. Thus, Chavezcasarrubias did

not lodge an objection each time this allegedly improper argument was made,

and he has failed to preserve this issue for our review. See Briones, 12 S.W.3d


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at 129 (holding that defendant failed to preserve any error in prosecutor’s

allegedly improper argument made during punishment phase of trial for sexual

assault of a child because defendant did not object when prosecutor made other

comments to same effect). We overrule Chavezcasarrubias’s fourth issue.

                                  III. CONCLUSION

      Having overruled all four of Chavezcasarrubias’s issues on appeal, we

affirm the trial court’s judgments.




                                                    /s/ Bill Meier
                                                    BILL MEIER
                                                    JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

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

DELIVERED: October 15, 2015




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