      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00856-CR



                                     Phillip Beaty, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
        NO. D-1-DC-15-302682, HONORABLE KAREN SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Phillip Beaty guilty of aggravated assault with a deadly

weapon. See Tex. Penal Code § 22.02(a)(2). The jury then assessed punishment at 20 years’

imprisonment, and the trial court rendered judgment consistent with the jury’s verdicts. In his sole

appellate issue, Beaty contends that the trial court abused its discretion in admitting electronic

images from the social media website Facebook. We will affirm the trial court’s judgment of

conviction.


                                         BACKGROUND

               At trial, the State alleged that Beaty shot Rogelio Moran with a handgun in the early

morning hours of November 1, 2015, near the Texas Club in southeast Austin. The State presented

the testimony of several witnesses, including the club’s owner and two of its bouncers. These

witnesses testified that a bald Hispanic man with a striped shirt got into a fight in the parking lot.
The man then dropped a gun, picked the gun up, and got into a vehicle. The vehicle drove a short

distance, the man got out and fired a shot, the man got back into the vehicle, and the vehicle drove

away. The bouncers testified that the suspect had a tattoo on his head that said “Philly.” The State

presented surveillance video footage from the club and Exhibit 27, a still image from the video

showing a bald suspect wearing a striped shirt.

                The State also called Paul Tronco, who at the time was a detective with the

Austin Police Department. Detective Tronco testified that he used Facebook to help identify the

shooting suspect. During his testimony, the State offered Exhibits number 23 through 26. Exhibit 23

is a screenshot taken from the Facebook account of “Jonathan B. Esquivel” and shows that

Esquivel “added 2 new photos” on “November 1 2015.” The post includes the following caption

above the photos:


       Holloween [sic] 2015

       #Party


Exhibit 24 is an enlarged copy of one of the photos. It shows two men, whom Detective Tronco

identified as Esquivel and Beaty. The man identified as Beaty is bald, tattooed, and wearing a shirt

that matches the witnesses’ descriptions as well as the image of the suspect in Exhibit 27, which was

taken from surveillance video footage. Exhibit 25 is an enlarged copy of the other photo. It again

shows the two individuals alleged to be Esquivel and Beaty. Exhibit 26 appears to be a screenshot

of a Facebook post made by Esquivel on “January 17.” It includes a photograph of a man whom

Detective Tronco identified as Beaty and also includes the following text, which is quoted verbatim:



                                                  2
       Alright yall Lil Philly doing good, holdin his head up! Says he misses and loves all
       his real niggas who been down since day one, and for yall to fuxk with em. Wont
       know nothing about his caes for another month or so

       #FreeMyLilBro


The image also shows comments other users made on the post.

               As the following excerpt of the trial transcript shows, Beaty objected to these exhibits,

and the trial court overruled the objection:


       [Prosecutor:] Through your research in attempting to identify Mr. Beaty, did you
       search Facebook?

       [Tronco:] I did.

       [Prosecutor:] And did you find a particular Facebook page of an individual with
       photographs from Halloween night of Mr. Beaty?

       [Tronco:] I did.

       [Prosecutor:] Who’s Facebook page was that?

       [Tronco:] His brother, Jonathan Esquivel.

       [Prosecutor:] And in addition to finding the photographs of Mr. Beaty from that
       night, did you find—did you continue to monitor that Facebook page?

       [Tronco:] I did.

       [Prosecutor:] Why did do you that?

       [Tronco:] Until the case goes to trial, you never know what evidence is going to
       come up.

       ***

       [Prosecutor:] I want to show you what’s been marked as State’s Exhibits Number 23
       through 26, and ask you to take a look at those.


                                                  3
[Tronco:] Okay.

[Prosecutor:] Do you recognize those?

[Tronco:] I do.

[Prosecutor:] How do you recognize those?

[Tronco:] I uploaded these.

[Prosecutor:] When you up loaded [sic] them, does that mean you saved them from
your computer?

[Tronco:] I took a screenshot and then I took that screenshot and I attached it to our
incident reporting system electronically.

[Prosecutor:] And are these the Facebook page—the pictures from Jonathan
Esquivel’s Facebook page that you found relevant to that night?

[Tronco:] I did.

[Prosecutor:] And are these exactly as you found them when you were doing your
research?

[Tronco:] Yes.

[Prosecutor:] And the State’s Exhibits Number 23, 24, and 25, do you recall when
you found those?

***

[Prosecutor:] That was early in your investigation?

[Tronco:] Yes. It was posted on the 1st, but I didn’t find it on the 1st.

[Prosecutor:] And on State’s Exhibit Number 26, do you recall, was that posted on
a later date?

[Tronco:] It was January 17th.

[Prosecutor:] You found that on a later date?

[Tronco:] I did.

                                          4
        [Prosecutor:] At this time, Your Honor, we’d offer State’s Exhibits Number 23, 24,
        25, and 26. They’ve all been tendered to defense counsel previously.

        [Defense Counsel:] Your Honor, I would object, in that I don’t think there’s a proper
        predicate here. I think they need somebody from Facebook to authenticate these
        photographs, the dates and whatever, and see what they say. I don’t think they have
        a valid predicate. I think they need somebody from Facebook to authenticate these.

        [The Court:] Objection overruled. They will come in.


                Beaty was subsequently convicted and sentenced, and this appeal followed.


                                            DISCUSSION

                In his sole appellate issue, Beaty contends that the trial court abused its discretion

in admitting the Facebook exhibits because the exhibits were not properly authenticated. We

review the trial court’s decision as to whether evidence is properly authenticated for an abuse of

discretion. See Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Campbell v. State,

382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.). “A trial court does not abuse its discretion

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

authenticated,” and “[i]f the trial court’s ruling is at least within the zone of reasonable disagreement,

we will not interfere.” Campbell, 382 S.W.3d at 549 (quotation marks omitted) (citing Druery v.

State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007)).

                Under rule 104(a) of the Texas Rules of Evidence, whether to admit evidence at trial

is a preliminary question to be decided by the court. See Tex. R. Evid. 104(a); Tienda, 358 S.W.3d

at 637–38. Only relevant evidence is admissible. See 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,

                                                    5
place, thing, or event.’” Campbell, 382 S.W.3d at 548–49 (quoting 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.” Id. at 549 (citing Tienda, 358 S.W.3d at 638). The requirement of

authentication or identification may be satisfied by evidence sufficient to support a finding that

the matter in question is what the proponent claims. See id. (citing Tex. R. Evid. 901(a)). This is

not “a particularly high hurdle,” and it “may be cleared by circumstantial evidence.” 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.” Id. (citing Tienda, 358 S.W.3d at 638). “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 Tienda, 358 S.W.3d at 638 (“The ultimate question whether an

item of evidence is what its proponent claims then becomes a question for the fact-finder . . . .”).

                “Evidence may be authenticated in a number of ways, including by direct testimony

from a witness with personal knowledge, by comparison with other authenticated evidence, or by

circumstantial evidence.” Tienda, 358 S.W.3d at 638. “Printouts of emails, internet chat room

dialogues, and cellular phone text messages have all been admitted into evidence when found to be

sufficiently linked to the purported author so as to justify submission to the jury for its ultimate

determination of authenticity.” Id. at 639. Social media posts and other electronic media have been

authenticated in a number of different ways, and no one method of authentication is required. See

id. at 641 (“And sometimes other circumstances, peculiar to the facts of the particular case, have

sufficed to establish at least a prima facie showing of authentication.”); see also Woods v. State,

No. 11-15-00134-CR, 2017 WL 3711104, at *5 (Tex. App.—Eastland Aug. 25, 2017, no pet. h.)

                                                   6
(mem. op., not designated for publication) (“The Tienda court examined the issue and held that

evidence can authenticate such posts with reference to specific details only the purported author

would know, messages referring to the alleged incident, and unique photos of the purported author.

Since that decision, this court and others have affirmed the use of properly authenticated social

media accounts on similar grounds.”) (citation omitted).

                 In Tienda, for example, the court of criminal appeals explained that circumstantial

evidence, including images of the defendant’s distinctive tattoos, was sufficient to authenticate the

defendant’s social media posts:


       This combination of facts—(1) the numerous photographs of the appellant with his
       unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring;
       (2) the reference to David Valadez’s death and the music from his funeral; (3) the
       references to the appellant’s “Tango Blast” gang; and (4) the messages referring to
       (a) a shooting at “Rumors” with “Nu–Nu,” (b) Hector as a “snitch,” and (c) the user
       having been on a monitor for a year (coupled with the photograph of the appellant
       lounging in a chair displaying an ankle monitor) sent from the MySpace pages of
       “ron Mr. T” or “MR. SMILEY FACE” whose email address is “ronnietiendajr@”—
       is sufficient to support a finding by a rational jury that the MySpace pages that the
       State offered into evidence were created by the appellant. This is ample circumstantial
       evidence—taken as a whole with all of 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.


Tienda, 358 S.W.3d at 645 (footnote omitted). The Tienda court also emphasized that the State

was not required to remove all doubt concerning the posts’ authenticity, which was ultimately a

jury question:


       It is, of course, within the realm of possibility that the appellant was the victim of
       some elaborate and ongoing conspiracy . . . . But that is an alternate scenario whose
       likelihood and weight the jury was entitled to assess once the State had produced a

                                                  7
       prima facie showing that it was the appellant, not some unidentified conspirators or
       fraud artists, who created and maintained these MySpace pages.


Id. at 645–46.

                 While the case law discussed above is instructive, many of the cases dealing with the

authentication of electronic media are distinguishable from this case because, in those cases, the

identity of the person who created the message was critical to its relevance. See, e.g., id. at 635–36

(messages boasting of the shooting and threatening “those who had been ‘snitchin’”); Woods,

2017 WL 3711104, at *5–6 (message accusing victim of lying). Here, the issue is not what message

Beaty allegedly communicated through the Facebook posts, because it was undisputed that Beaty

did not post the content to Facebook. Instead, the issue is merely whether the photographs depict

Beaty’s clothing and appearance at the time of the shooting.1 Therefore, the precise origin of the

Facebook posts is less crucial.

                 Detective Tronco testified that he visited the Facebook page of Beaty’s brother and

took screenshots of content he found there. He testified that the exhibits contained the images

“exactly as [he] found them when [he was] doing [his] research.” Moreover, the exhibits themselves

contain evidence that they portray Beaty and that they were posted by his brother, including the fact

that: (1) the post shows that “Jonathan B. Esquivel added 2 new photos”; (2) the post includes the

captions “Holloween [sic] 2015” and “#Party” and also shows that the post was made on

“November 1 2015”; (3) the two photos in Exhibits 23 through 25 depict a man that Detective


       1
         The Facebook photographs purport to show how Beaty was attired on Halloween, and the
shooting happened as Beaty was leaving the Texas Club shortly after 2 am on the following morning,
November 1st.

                                                   8
Tronco identified as Beaty’s brother; (4) the two photos in Exhibits 23 through 25 depict a man

identifiable as Beaty through his distinctive tattoos, which both the trial court and jury personally

observed, see Tienda, 358 S.W.3d at 645 (holding that the evidence was sufficient to support

authentication, in part because the posts depicted “numerous photographs of the appellant with his

unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring”); (5) Exhibit 26

shows that “Jonathan B. Esquivel” posted the content, and the profile picture2 for this “Jonathan B.

Esquivel” is the same as the profile picture for the “Jonathan B. Esquivel” that posted the photos in

Exhibits 23 through 25; (6) the post in Exhibit 26 references “Lil Philly,” “Cuz Philly Dinero,” and

“That boy Philly,” and the trial court and jury could have personally observed that Beaty’s first

name was Phillip and that he had the word “Philly” tattooed prominently on the back of his head;

and (7) Exhibit 26 includes a photo showing a person that the trial court and jury could have

concluded was Beaty.3

                In light of this abundant internal evidence, coupled with Detective Tronco’s

testimony, we hold that it would not have been outside the zone of reasonable disagreement for the

trial court to conclude that a reasonable jury could have determined that the evidence was authentic.

See id. at 638 (describing standard of review); Campbell, 382 S.W.3d at 549 (same). Of course,

someone else could have manipulated images of Beaty and hacked into Esquivel’s account or



       2
           A small profile picture appears next to Esquivel’s name at the top of the Facebook posts.
       3
           The trial court and jury could have concluded that the person depicted in Exhibit 26 was
Beaty for at least two reasons. First, they could observe Beaty’s appearance in court. Second, the
trial court and jury were previously shown State’s Exhibit 22A, which was a recording of a “video
visit” between Beaty, who was incarcerated, and “his wife or his baby’s mom.” In the recording,
both Beaty and the background behind him appear exactly as they do in the photograph in Exhibit 26.

                                                  9
uploaded them to Facebook through an alias account. But the likelihood of such “an alternate

scenario” was for the jury to weigh. See Tienda, 358 S.W.3d at 646. Accordingly, we cannot

conclude that the trial court abused its discretion in overruling Beaty’s objection and admitting

Exhibits 23 through 26.

               Furthermore, even if the trial court erred in admitting these exhibits, we would

conclude that this error was not reversible. Generally, the erroneous admission of evidence is non-

constitutional error that we must disregard unless it affects the defendant’s “substantial rights.”

See Tex. R. App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (applying

rule 44.2(b) analysis when trial court erroneously admitted evidence); Sandoval v. State, 409 S.W.3d

259, 304 (Tex. App.—Austin 2013, no pet.) (“The erroneous admission of extraneous-offense evidence

is non-constitutional error.”). “A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39

(Tex. Crim. App. 2014). “Where the error did not influence the jury or had but a ‘slight effect,’

substantial rights are not affected.” Cantos v. State, No. 03-14-00585-CR, 2016 WL 691012, at *2

(Tex. App.—Austin Feb. 19, 2016, no pet.) (mem. op., not designated for publication) (quoting

Sandoval, 409 S.W.3d at 293).

               Here, in addition to the Facebook posts, the State presented the testimony of the

Texas Club’s owner and two bouncers. All three men provided descriptions of the shooting and

the suspect, and their descriptions of the suspect matched Beaty’s appearance. The bouncers noted

that the suspect had “Philly” tattooed on the back of the head, and the jury was shown Beaty’s

“Philly” tattoo during trial. The club’s owner identified Beaty in court as “the individual that [he]



                                                 10
saw in the club that night that was in the fight out in the street, that dropped the gun, and that

committed the shooting further down the street,” one bouncer identified Beaty in court as “the

individual that was in the fistfight, that dropped the gun that night at the Texas Club,” and the other

bouncer identified Beaty in court as “the individual that has the Philly tattoo that had the striped

shirt . . . and the bald head.” Additionally, Officer Jason Ullo of the Austin Police Department

testified that he arrived at the location of the shooting after the suspect had fled and, after speaking

with witnesses, compiled a description of the suspect as “Hispanic male, mid 20s, shaved head with

tattoos all over his body and face, and one specific tattoo that said Philly on the back of his head.”

Bobby Cooper, an employee of Travis County, testified that he knew Beaty, that Detective Tronco

showed him a video of the incident at the bar, and that he recognized Beaty in the video. Finally,

the State presented the video from the bar and Exhibit 27, a still image taken from the video, and the

jury could have concluded for itself that Beaty appeared in the video.

                Given this strong evidence of Beaty’s guilt, we conclude that any error the trial court

may have made in admitting the Facebook exhibits did not have “a substantial and injurious effect

or influence in determining the jury’s verdict,” did not affect Beaty’s substantial rights, and was not

reversible. See Schmutz, 440 S.W.3d at 39.4


       4
          Beaty argues that the admission of the Facebook exhibits was harmful because “some of
the State’s eyewitness evidence lacked credibility, and the rest was limited in scope.” Specifically,
he points out that the Texas Club’s owner and two bouncers had been unable to pick Beaty out of
a photo lineup. However, as the two bouncers explained at trial, all of the individuals in the photo
lineup they were shown had hair, whereas the suspect they saw the night of the shooting was bald
and had distinctive head tattoos. Moreover, whatever reticence they may have had before trial, the
club owner and the two bouncers unequivocally identified Beaty as the shooting suspect while under
oath in court. Given the fact that Beaty’s baldness and tattoos were features that the eyewitnesses
focused on during the shooting incident and the fact that Beaty had hair in the photo lineup, we

                                                  11
                Because we conclude that the trial court did not abuse its discretion in admitting the

Facebook exhibits, and because we further conclude that any error the trial court may have made in

admitting the exhibits did not affect Beaty’s substantial rights, we overrule Beaty’s sole appellate issue.


                                            CONCLUSION

                We affirm the trial court’s judgment of conviction.



                                                 __________________________________________

                                                 Scott K. Field, Justice

Before Justices Goodwin, Field, and Bourland

Affirmed

Filed: November 15, 2017

Do Not Publish




conclude that their inability to pick Beaty out of a lineup did not so detract from the force of their
testimony as to leave Beaty’s identity as the shooter in serious doubt, even excluding the Facebook
exhibits.

                                                    12
