                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00044-CR



       TREVOR SCOTT COPELAND, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 27983




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                MEMORANDUM OPINION
       Trevor Scott Copeland was sentenced to fifty years’ imprisonment following his

conviction by a jury of intentionally or knowingly causing serious bodily injury to L.H., a two-

year-old child. On appeal, Copeland argues (1) that the evidence is legally insufficient to

support his conviction, (2) that he received ineffective assistance because counsel failed to hire

an expert to combat testimony by physicians that L.H.’s injuries were caused by blunt-force

trauma and (3) that the trial court erred in admitting two posts made by Copeland on his internet

Facebook page months before the date of the incident. We find that legally sufficient evidence

supports Copeland’s conviction, ineffective assistance cannot be shown on the record before us,

and although the trial court erred in admitting the Facebook posts, the error was harmless. We

affirm the trial court’s judgment.

I.     The Evidence Is Legally Sufficient to Sustain the Conviction

       L.H.’s mother, Erin Saari, met Copeland at a party and befriended him “[a]round the end

of July, beginning of August” in 2011. Copeland moved into a trailer with Saari and L.H. at

“[t]he end of October.” Shortly thereafter, Copeland and Saari “became boyfriend/girlfriend.”

Saari believed that her relationship with Copeland was over because she “had gotten mad at him

and threw something” at him on December “4th or the 5th” and he told her that “he didn’t want

to be with [Saari] anymore.” Copeland continued to live with Saari and L.H.

       Copeland and Saari “decided that [they] were going to drink” whiskey while L.H. was

asleep on the evening of December 6. Saari testified she “[g]ot drunk with [Copeland]. Listened




                                                2
to some music. Had sex. Checked on [L.H.]. Went to the bathroom and then went to bed” 1 at

10:00 p.m. Copeland woke Saari in the middle of the night. He “had [L.H.] in his arms and

[was] asking [Saari] why she was outside.” Saari noticed a scratch on L.H.’s head and shoulder

and asked Copeland to give the child to her. Copeland refused. Instead of retrieving the child,

who was not crying but was “staring blankly,” Saari “turned around and went to bed.” 2 Before

she fell asleep, she saw that Copeland put L.H. “on the loveseat and went to sleep with her on the

loveseat with him.”

            Saari “woke up in the morning around 9:00 o’clock” to find L.H. standing on top of

Copeland and stomping on him by “lifting up her leg as high as she could and pushing down

with a lot of force.” Copeland “started spanking her.” When Saari took the child away from

Copeland, L.H. “started throwing up.” Saari testified, “I gave her something to drink, and she

just kept saying she was thirsty; and every time I would give her something to drink, she would

throw it up, so I decided to call the doctor” because L.H. “had been sick all weekend.” Saari also

noticed for the first time that “[t]he backs of her legs [were] very bruised . . . [a]nd she had

blotches around her eyes.” Saari asked Copeland what had happened and he told her that “he

went outside and found her outside by the steps.” He explained that “she might have fallen out

of the window because her window was open.”




1
 Saari testified that L.H. “was fine” when she checked on her except for a bruise on L.H.’s leg, which she noticed
before she and Copeland started drinking.
2
    She admitted that she “wasn’t thinking clearly . . . [b]ecause [she] was drunk.”
                                                              3
       Saari took L.H. to the hospital and informed health care providers that she “thought

[L.H.] had fallen out of the window.” Dr. Mauricio Trujillo, a board certified emergency room

physician, treated L.H. and initially noticed that she had

       quite a bit of bruising and abrasions on multiple aspects of the child’s body, from
       her face to her shoulder to her hip to her feet.
               And around her eyes, she had some petechiae that was noted on my
       medical record as well, which are little white 1-millimeter -- not white -- small 1-
       millimeter red dots, which are sometimes seen most commonly with trauma, and
       is a break in a capillary or little blood vessel in your skin.
               So any kind of direct pressure or blunt trauma will cause those little
       capillaries to break and release blood. And you have this rash that we call
       petechiae, and she had those around her face and both eyes.

He concluded that “[f]alling out of a window . . . did not correlate with” “the number of injuries

that this child had on my physical examination.” L.H. was transferred to Dallas Children’s

Medical Center by ambulance.

       Dr. Matthew Cox treated L.H. at Children’s Medical. L.H. “had bruises from head to

toe,” and “was not responding.” She was immediately placed “on life support measures, had a

breathing tube in place and was sedated because of severe lung problems” and “injury or bruises

to her lung tissue.” “[B]ruising on both sides of her neck” in conjunction with “petechiae on her

face,” led to “a high degree of concern of strangulation.” L.H. also had injuries to her abdomen,

heart, liver, and pancreas, and remained on life support for “several days.” Cox testified that

L.H. “was near death.” He concluded that the injuries resulted from “high-force-type” blunt-

force trauma because a fall from a window “wouldn’t be enough force” to cause them. L.H.

remained in Cox’s care for three weeks.




                                                 4
        Saari returned to the trailer after L.H.’s transfer to Children’s Medical. After a discussion

with Copeland, the two searched the Internet for “what kind of sentence you would get for a

child abuse case.” Copeland told Saari “that he was going to go down for this whether he did it

or not.” While Saari made several visits to Children’s Medical, Copeland did not visit L.H. in

the hospital.

        Saari testified that Copeland had “[o]ccasionally” disciplined L.H. by spanking her

“[s]ometimes lightly; sometimes hard.” However, she told the jury that she did not believe in

disciplining a child with such force that it would leave bruises and denied that she caused any of

the injuries she witnessed on L.H.

        Saari testified that the bedroom windows were closed when she put L.H. to bed because it

was “[v]ery cold” on that December night. To open the window, “two knobs on either side” of

the window had to be depressed. Because it took a “good amount” of Saari’s strength to open

the window, she did not believe that L.H. was capable of opening the window on her own.

        Child Protective Services (CPS) 3 and the Greenville Police Department were called to

investigate the cause of the injury. CPS investigator Kenny Stillwagoner went to Saari’s home to

inspect the window from the outside. The window was “4 foot, 4 inches” from the ground.

Stillwagoner testified that there were no footprints on the ground and that it did not “look like

anything had been disturbed in the area under the window.” Roger Seals, an investigator for the

Hunt County Sheriff’s Office, entered the trailer pursuant to a search warrant. Seals testified that

“the bottom of the window to the floor was 20 inches.” Seals also confirmed that “you have to . .

3
 As early as October 2011, Saari was being investigated by CPS for “possible physical abuse” and admitted that she
“[s]ometimes” used marihuana with Copeland. Saari voluntarily relinquished her parental rights to L.H.
                                                        5
. hold the tabs in and keep them held in to raise the window” because “there’s little knobs to

where the tabs will catch about every inch or so if you don’t pull the tabs in.” The tabs were

“approximately 2 feet apart.”

            Detective Joel Gibson interviewed Saari 4 and Copeland. Gibson testified that there were

“inconsistencies that occurred throughout the interview,” including changes to “[Copeland’s]

story as to the discipline that Ms. Saari used on [L.H.]” and his attempts to keep “removing

himself” from the events. Initially, Copeland told Gibson that he had never seen Saari spank

L.H. 5 “As the interview continued, he tended to want to blame [Saari].” 6

            After hearing the evidence, the jury convicted Copeland for injury to L.H., a child under

the age of fourteen years.              Copeland contends that the jury reached its verdict on legally

insufficient evidence.

            In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found that Copeland

intentionally or knowingly caused serious bodily injury to L.H. beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous

legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at

917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the
4
    There is testimony that Saari did not show much emotion during the ordeal.
5
    Saari testified that she disciplined L.H. by spanking her and issuing “timeout.”
6
    The video-recorded interview was played for the jury.
                                                             6
Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318–19).

          Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.”    Id.   Here, the State was required to prove that (1) Copeland (2) intentionally or

knowingly (3) caused serious bodily injury (4) to a child younger than fourteen years of age.

TEX. PENAL CODE ANN. § 22.04 (a)(1), (c), (e) (West Supp. 2013). Copeland challenges only the

first two requirements.

          The trial court’s jury charge contained a law of the parties instruction. “A person is

criminally responsible as a party to an offense if the offense is committed by his own conduct, by

the conduct of another for which he is criminally responsible, or by both.” TEX. PENAL CODE

ANN. § 7.01(a) (West 2011). “A person is criminally responsible for an offense committed by

the conduct of another if . . . acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense. . . .” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).




                                                 7
       We first determine if the evidence was sufficient to establish that Copeland was either a

perpetrator or party to the crime. The jury heard that only Saari and Copeland were present

when L.H. sustained her injuries. During his video-recorded interview, Copeland told Gibson

that he found L.H. outside, brought her inside, and woke Saari in the middle of the night. At that

time, Saari noticed injuries to L.H.’s head and shoulder, but went back to sleep because L.H. was

staring blankly and was not crying. Copeland was the only person awake during the time that

L.H. sustained these injuries. Copeland was also awake when Saari woke up that morning. Saari

witnessed Copeland spanking L.H. Shortly thereafter, L.H. began vomiting, and Saari noticed

that “[t]he backs of her legs [were] very bruised . . . . And she had blotches around her eyes,” a

sign indicating that L.H. had been previously strangled.

       When questioned, Copeland initially told Saari and Gibson of his belief that L.H. had

opened a window and climbed outside. Copeland later agreed with Gibson that a fall from a

window would not have caused the injuries sustained by L.H., which included signs of

strangulation. The jury heard testimony that the window would have been extremely difficult for

the child to open and that there was no evidence of any disturbance on the ground underneath the

window. Yet, Copeland maintained that the window was open, but that he did not open it. Saari

remained at L.H.’s bedside while Copeland failed to visit L.H. very much during her extensive

hospitalization. Copeland told Saari “that he was going to go down for this whether he did it or

not” and conducted an internet search for “what kind of sentence you would get for a child abuse




                                                8
case.” We find the evidence legally sufficient for a jury to determine that Copeland was the

perpetrator of the crime. 7

         Next, we examine the mens rea element. “Injury to a child is result-oriented offense

requiring a mental state that relates not to the charged conduct but to the result of the conduct.”

Baldwin v. State, 264 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). “A

person acts knowingly, or with knowledge, with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result.” TEX. PENAL CODE ANN.

§ 6.03(b) (West 2011). “[I]nconsistent statements[ ] and implausible explanations to the police

are probative of wrongful conduct and are also circumstances of guilt.” Guevara, 152 S.W.3d at

50. We have already discussed that Copeland’s recollection of the open window and L.H.’s

alleged fall was a story which the jury could have found to be highly suspect. A fact-finder may

infer a culpable mental state from the accused’s acts, words, and conduct as well as the

surrounding circumstances. Id.; Baldwin, 264 S.W.3d at 242. L.H.’s injuries “from head to toe”

placed her “near death.” Doctors observed signs of strangulation and concluded that her body

had been subjected to “high-force-type” blunt-force trauma. We conclude that the evidence was

legally sufficient to establish that the acts causing L.H.’s grave injuries were conducted with

knowledge by the perpetrator that the acts were reasonably certain to cause serious bodily injury

to the two-year-old child.

         We overrule Copeland’s point of error relating to legal sufficiency of the evidence.

7
 At the very least, even if the jury believed that the injuries were inflicted by Saari, Copeland’s spanking of L.H. on
the morning of December 7 and his agreement to tell officers initially that the child had fallen out of a window and
that he had never seen Saari spank L.H. were acts of concealment sufficient to support a finding of guilt as a party to
the crime. See Guevara v. State, 152 S.W.3d 45, 51–52 (Tex. Crim. App. 2004).
                                                          9
II.    Copeland’s Claim of Ineffective Assistance Fails

       Copeland argues that his counsel was deficient in failing to hire an expert to “level the

playing field” following Trujillo’s and Cox’s testimony regarding the severity of L.H.’s injuries

and their probable cause. We employ the two-pronged Strickland test for determining whether a

defendant received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

687 (1984).

       To establish ineffective assistance of counsel under the first Strickland prong, an

appellant must first show counsel’s performance was deficient to the extent that it fell below an

objective standard of reasonableness under prevailing professional norms. Id. at 687–88.

       The Strickland test “‘requires a case-by-case examination of the evidence.’” Hart v.

State, 314 S.W.3d 37, 41 (Tex. App.—Texarkana 2010, no pet.) (quoting Williams v. Taylor, 529

U.S. 362, 391 (2000)). Allegations of ineffectiveness must be firmly founded in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999); Hart, 314 S.W.3d at 41 (citing Bone v. State, 77 S.W.3d 828,

835 (Tex. Crim. App. 2002)); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana

2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court,

which does not contain counsel’s reasoning for failing to seek an expert to rebut the testimony of

L.H.’s treating physicians, Copeland bears the burden of proving that counsel was ineffective by

a preponderance of the evidence. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813;

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Rarely will a reviewing court be

provided the opportunity to make its determination on direct appeal with a record capable of

                                               10
providing an evaluation of the merits of the claim of ineffective assistance of counsel.

Thompson, 9 S.W.3d at 813. “In the majority of instances, the record on direct appeal is simply

undeveloped and cannot adequately reflect” the reasoning of trial counsel. Id. at 813–14. As

demonstrated below, this is such a case.

         Copeland’s brief fails to inform this Court how expert testimony could have aided him.

Counsel could have concluded that a non-treating expert was unnecessary or would not have

been able to combat the testimony of L.H.’s treating physicians. There is a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional assistance and that

the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Copeland’s counsel

at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v.

State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref’d). 8

         The second Strickland prong (the prejudice prong) requires a showing that, but for

counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding

would have been different. Strickland, 466 U.S. at 687–88. A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome, meaning that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial with reliable results. Smith v.

State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009).



8
 We note that failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730
n.14 (Tex. Crim. App. 2006).
                                                        11
       Doctors Trujillo and Cox testified extensively about L.H.’s injuries, which were

documented in medical records and in photographs shown to the jury. There is no suggestion

that an expert would argue with the physical evidence, which included signs of strangulation. In

Copeland’s video-recorded interview, even he expressed doubt that a fall from the window could

cause L.H.’s extensive injuries. Copeland’s brief fails to analyze Strickland’s second prong or

otherwise establish how an expert for the defense could have undermined confidence in the

outcome of the case.

       We overrule Copeland’s point of error complaining of ineffective assistance.

III.   It Was Harmless Error to Admit the Facebook Posts

       Copeland posted many mindlessly obscene Facebook status updates, which the State

sought to admit, including one post on August 4, 2011, declaring, “[I] like kicking poor helpless

things,” and another on September 6 stating, “God dam [sic] kids taking my candy I will f*** a

kid up.” Copeland’s counsel lodged a relevance objection and argued that the probative value of

the posts were substantially outweighed by unfair prejudice. The State believed the first post

was relevant because “the indictment alleges that a poor, helpless thing was kicked,” and that

both “extraneous references” were relevant to show Copeland’s state of mind. Following this

explanation, Copeland’s counsel stated,

               Judge, Mr. Grogan is submitting these things for the defendant’s state of
       mind for his argument, and the Defense urges the Court that these are being
       offered to prove the defendant’s character acting in conformity, and we would
       object to that.
               Additionally, we ask the Court to do a balancing test on the prejudicial
       versus probative value. We would say that these items are very prejudicial in this
       case. They don’t have anything to do with -- with injuring a child.

                                               12
                If the Court does decide to allow this or some of the things in, we would
        ask the Court to make a finding of fact and conclusions of law, also a limine
        instruction as to what the jury can use these things for.

The trial court admitted these posts because they “certainly go to his state of mind, his intent, his

motive, his plan, his opportunities, considering this is an alleged child abuse case, his outlook

regarding children and his plan.” 9

         We review for abuse of discretion a trial court’s admission or exclusion of extraneous-

offense evidence. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A trial court does not abuse its discretion if

the decision to exclude evidence is within the “zone of reasonable disagreement.” Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g); Marsh v. State, 343

S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d). We may not substitute our own

decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

If the trial court’s decision on the exclusion of evidence is supported by the record, there is no

abuse of discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531,

537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379. Further, a trial court’s decision

regarding admissibility of evidence will be sustained if correct on any theory of law applicable to



9
The trial court’s written findings of fact and conclusions of law stated that the Facebook posts “go towards the
Defendant’s state of mind, opportunity, motive, intent, before the alleged crime was committed.” (Emphasis added).
At trial, the court issued the following limiting instruction:

                 THE COURT: Ladies and Gentlemen, you will receive a couple of different statements
        in evidence in regard to State’s Exhibit No. 5 and No. 6. Those are for your purpose on how to
        consider those.
                 However, you’re governed by the following limine instruction: Those statements are --
        can be used by you to consider, if they do, in fact, go to the motive, plan, opportunity, and intent
        of the defendant in the alleged perpetration of the crime.
                                                        13
the case, even when the court’s underlying reason for the decision is wrong. Romero v. State,

800 S.W.2d 539, 543–44 (Tex. Crim. App. 1990).

       “Evidence of a person’s character or character trait is not admissible for the purpose of

proving action in conformity therewith on a particular occasion . . . .” TEX. R. EVID. 404(a). As

a general rule, to prevent an accused from being prosecuted for some collateral crime or

misconduct, the State may not introduce evidence of bad acts similar to the offense charged,

even if relevant. Extraneous-offense evidence is showing a crime or bad act and showing the

defendant was connected to it. Castillo v. State, 59 S.W.3d 357, 361 (Tex. App.—Dallas 2001,

pet. ref’d) (citing Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992)).          The

evidence must include some sort of extraneous conduct on behalf of the defendant forming part

of the alleged extraneous offense. Id. (citing Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim.

App. 1993)). “Absent any actual conduct involved which alone or in combination with such

thoughts could constitute a bad act, wrong, or crime, a defendant’s comments about a desire or

intent to commit an offense do not constitute prior misconduct and, therefore, do not implicate

rule 404(b).” Id. (citing Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996)).

“Statements concerning a defendant’s thoughts of wrongdoing are merely inchoate thoughts.”

Id. (citing Moreno, 858 S.W.2d at 154). We hold that Copeland’s Facebook posts fall within this

category.

       Because Rule 404(b)’s exception did not apply to the Facebook posts, we decide whether

they were otherwise admissible. Only relevant evidence is admissible. TEX. R. EVID. 402.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of

                                               14
consequence to the determination of the action more probable or less probable than it would be

without the evidence.” TEX. R. EVID. 401. The Facebook post on August 4, 2011, declaring, “[I]

like kicking poor helpless things” was made around the time that Copeland and Saari met, but

prior to Copeland moving into Saari’s home. The September 6 post stating, “God dam [sic] kids

taking my candy I will f*** a kid up” was made after Copeland’s move. The State argues that

the posts were admitted to show Copeland’s “state of mind when it comes to kids.” We find that

Copeland’s posts regarding his attitude toward children were relevant in this case, although

attenuated. 10

            However, to be admitted over Copeland’s objection, the evidence must also meet the

requirements of Rule 403, which provides, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” TEX. R. EVID. 403. ‘“[P]robative value’ refers to the inherent probative

force of an item of evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the proponent’s need for that

item of evidence.” Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006). We

find that these Facebook posts, which do not specifically refer to L.H. and were made months

before the incident, have very little probative value.

            Further, when “the proponent [of an item of evidence] has other compelling or

undisputed evidence to establish the proposition or fact that the [item of evidence] goes to prove,


10
     Character evidence is relevant, but not admissible to prove conduct.
                                                            15
the [probative value of the item of evidence] will weigh far less than it otherwise might in the

probative-versus-prejudicial balance.” Id. at 641 (quoting Montgomery, 810 S.W.2d at 390).

Here, the State had evidence that Copeland spanked L.H., was present during the incident,

fabricated the story about L.H. falling out of a window, conducted an internet search on the

punishment range for injury to a child, told Saari that he would be held responsible, and gave

inconsistent statements to the police. Thus, the State did not need to seek admission of the

Facebook posts to show Copeland’s state of mind.

       “The rule’s second key phrase, ‘unfair prejudice,’ refers to a tendency to suggest decision

on an improper basis, commonly, though not necessarily, an emotional one.” Id. (citing State v.

Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Rogers v. State, 991 S.W.2d 263, 266

(Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 389).              “Evidence might be unfairly

prejudicial if, for example, it arouses the jury’s hostility or sympathy for one side without regard

to the logical probative force of the evidence.” Id. (citing K. Broun, et al., McCormick on

Evidence § 185 at 737 (6th ed. 2006)). During closing argument, the State asked the jury to

consider, “What kind of a person [could make such statements?]” and concluded the answer to

be, “A guilty person.” The introduction of the Facebook posts was designed to arouse the jury’s

hostility toward Copeland. While the August and September Facebook posts marginally provide

some evidence of Copeland’s general attitude towards children, it is not logical to link these

specific posts to his intent or state of mind as to the incident in December.

       The probative value of the Facebook posts is slim. On the other hand, the danger of

unfair prejudice is high because we believe the evidence was admitted to demonstrate

                                                 16
Copeland’s character and to instill hostility towards him in contravention of Rule 404(a). Thus,

we find that the posts’ probative value was substantially outweighed by the danger of unfair

prejudice. The Rule 403 objection should have been sustained.

        While we find that the admission of the Facebook posts was erroneous, we deem the error

harmless. Error in the admission of evidence constitutes nonconstitutional error that is subject to

a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), any nonconstitutional error

that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Barshaw v.

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). “A substantial right is affected when the error

had a substantial and injurious effect or influence in determining the jury’s verdict.” King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A conviction should not be overturned for

such error if this Court, after examining the record as a whole, has fair assurance that the error

did not influence the jury, or had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex.

Crim. App. 2002). 11

        In a trial record of over 300 pages, the presentation of this evidence, which consisted

merely of Saari reading the Facebook posts, consumed less than half a page. While the State

referred to the posts in its closing argument, Copeland’s counsel responded,

        In talking about the Facebook, there’s been -- the prosecutor has talked about the
        Facebook a lot, about hurting, you know, poor, defenseless things. These are
        kids, folks. They put stupid things on Facebook. Millions of people are on
        Facebook. Millions of people put stupid things on Facebook.
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  In assessing the likelihood that any error adversely affected the jury’s decision, we consider the entire record,
“including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be considered in connection with other
evidence in the case.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
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Given the strength of the evidence discussed above, which established Copeland’s guilt as the

perpetrator of the crime (or at the very least, as a party to the crime), we cannot say that the

Facebook posts had a substantial and injurious effect or influence in determining the jury’s

verdict. The error was harmless.

IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:       November 26, 2013
Date Decided:         December 5, 2013

Do Not Publish




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