                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-14-00459-CR


DEVIN GARDNER                                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1311335D

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                          MEMORANDUM OPINION 1

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      Appellant Devin Gardner appeals his conviction for aggravated robbery

with a deadly weapon and 25-year sentence. Because we conclude the trial

court did not abuse its discretion by admitting cell-phone records, we affirm the

trial court’s judgment.




      1
       See Tex. R. App. P. 47.4.
       On December 23, 2012, shortly before 8:00 p.m., three men entered a

convenience store and forced the owner to the floor at gunpoint. The first man

had a red bandana covering the bottom half of his face and was carrying a gun.

The second man was wearing a grey, hooded sweatshirt, with the hood up, had a

bandana covering the bottom part of his face, and was carrying a long gun. The

third man, who appeared to be unarmed, also had a hood over his head and a

bandana covering the bottom of his face. The robbers took the store’s cash and

quickly left.

       Soon after the robbery, Laura Betik, a teacher at a charter high school,

watched a surveillance video of the robbery after it was shown on a television

news program. Betik had been Gardner’s basketball coach at school and had

tutored him weekly in English. Betik estimated she spent on average of six hours

a week with Gardner during basketball season and would see him daily in the

halls of the school, which was “very small.” Based on the first man’s eyebrows,

his hair cut, his body build, and his predilection for wearing red, 2 Betik was able

to identify the first man on the surveillance video as Gardner.

       Based on Betik’s identification, police officers obtained a search warrant

for cell-phone records for a number Gardner previously had reported to his

community-supervision officer as his number. The warrant requested records for


       2
        Not only was Gardner generally known to wear red, a picture from his
Facebook account showed him wearing a red bandana covering the bottom half
of his face.


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a one-month period surrounding the December 23, 2012 robbery: December 16,

2012 to January 10, 2013.     The name listed for the number’s account was

Shalonda Benjamin, Gardner’s mother, but the subscriber was listed as Gardner.

Six days before the robbery, texts from the number discussed having and

shooting an Uzi, which is a longer, automatic handgun. A text message from the

number sent approximately one hour before the robbery stated, “im fina hit a

lick,” which meant the person sending the text was about to commit a robbery.

At trial, the State introduced the text messages into evidence, and Gardner

objected on the bases that they had not been sufficiently connected to him such

that they were relevant and were unfairly prejudicial. The trial court overruled

Gardner’s objections and admitted the cell-phone records into evidence.

      Gardner’s sole argument on appeal is that the cell-phone records were

erroneously admitted because they were not relevant and unfairly prejudicial.

Gardner’s relevance complaint is based on his assertion that the cell-phone

number was insufficiently connected to him; thus, the texts were not probative to

any fact of consequence. See Tex. R. Evid. 401. Although Gardner does not

specifically attack whether the records were properly authenticated under rule

901, the issue of authentication necessarily arises when the relevancy of the

evidence depends upon its connection to a particular person. See Tex. R. Evid.

901(a); Dering v. State, No. 11-13-00076-CR, 2015 WL 1472013, at *2 (Tex.

App.—Eastland Mar. 26, 2015, no pet.); Campbell v. State, 382 S.W.3d 545,

548–49 (Tex. App.—Austin 2012, no pet.).          Authentication is a condition


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precedent to admissibility, and the trial court’s determination of admissibility is a

preliminary one. See Tex. R. Evid. 104, 901(a); Tienda v. State, 358 S.W.3d

633, 638 (Tex. Crim. App. 2012). We review the admission of evidence for an

abuse of discretion, which mandates deference to a trial court’s ruling as long as

it was within the zone of reasonable disagreement. See Tienda, 358 S.W.3d at

638.

       Although “cell phones tend to be personal and user-specific,” a “cell-phone

number does not necessarily establish the identity of the user at a particular

moment in time with the same definitiveness that fingerprints, signatures,

photographs, or DNA may establish the identity of the perpetrator of a crime”

because “cell phones can be purloined.”         Butler v. State, 459 S.W.3d 595,

601 (Tex. Crim. App. 2015); Tienda, 358 S.W.3d at 641. Accordingly, evidence

that a cell-phone number is associated with a purported sender, standing alone,

may be too attenuated.       See Butler, 459 S.W.3d at 601.        But the test for

authenticity, and thus relevance, is a low bar and requires only a threshold

showing that would be sufficient to support a finding that the matter in question is

what its proponent claims. Campbell, 382 S.W.3d at 549. “In cases where a

sponsoring witness may testify to an association between a cell-phone number

and a purported author [of a text message from that number], other evidence

may be available that might bridge the logical gap and permit a proper inference

that the purported author sent the message.” Butler, 459 S.W.3d at 602. For

example,    the   text   message’s   content,   considered    together   with   other


                                         4
circumstances, may support a conclusion that a text message was indeed sent

by the purported author. See id.

      In isolation, a cell phone number is in some respects similar to a
      return address on a letter. If the return address is the location where
      the purported author happens to live, it may suggest that the person
      who lives at the address is the author of the letter. Or it might not—
      at least on its own, if multiple people happen to live at or have
      access to that same address. But a letter bearing the return address
      of a purported author, combined with other circumstances including
      its appearance and contents, may be sufficient to authenticate a
      letter as having been sent by the person purported to be its author.

Id. at 601–02.   A court’s initial determination of whether evidence has been

sufficiently authenticated to be admissible is dependent on the facts and

circumstances of each case. Tienda, 358 S.W.3d at 639.

       In this case, Gardner reported the cell-phone number as his own number

to his community-supervision officer. Gardner was listed as the subscriber for

the number. Ten days before the robbery occurred, a text from the number

discussed having and shooting a gun similar to one of the guns seen in the

surveillance video from the robbery.        A text from that same number sent

approximately one hour before the robbery showed that the sender was planning

to commit a robbery. Betik, who was very familiar with Gardner, was able to

positively and confidently identify Gardner as one of the robbers on the

surveillance video. We conclude that the cell-phone records were authenticated

through circumstantial evidence such that the number could be sufficiently

connected to Gardner, rendering the records relevant and admissible under rules

401 and 901. See Tex. R. Evid. 401, 901(a); Butler, 459 S.W.3d at 603–05;


                                        5
Jackson v. State, Nos. 05-14-00274-CR, 05-14-00275-CR, 2015 WL 3797806, at

*3–4 (Tex. App.—Dallas June 17, 2015, no pet. h.) (mem. op., not designated for

publication). We overrule this portion of Gardner’s first point.

         Gardner also contends that the cell-phone records, even if relevant, were

unfairly prejudicial and inadmissible. See Tex. R. Evid. 403. Relevant evidence

is presumed to be more probative than prejudicial, and such evidence should be

excluded under rule 403 only if there is a “clear disparity between the degree of

prejudice of the offered evidence and its probative value.”        Conner v. State,

67 S.W.3d 192, 202 (Tex. Crim. App. 2001). It is important to note that the rule

prohibits the admission of evidence carrying a danger of unfair prejudice. Unfair

prejudice justifying exclusion means more than a tendency to injure or prejudice

a defendant, which of course is the point of introducing evidence in the first

place, but refers to an undue tendency to suggest a decision on an improper

basis.    See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999);

1 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of

Evidence § 403.2 (3d ed. 2015). In making a rule 403 determination, a trial court

is to balance many factors including the probative force of the evidence, the

State’s need for the evidence, any tendency to suggest a decision on an

improper basis or confuse the jury, and the likelihood that the presentation of the

evidence will consume an inordinate amount of time. See Gigliobianco v. State,

210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006).




                                          6
      In this case, Betik’s in-court identification of Gardner, while confidently

given, was based on a video where the bottom half of the man’s face was

covered by a bandana, which shows the State’s need for the cell-phone records.

The State did not spend an inordinate amount of time at trial developing the cell-

phone evidence, and there is no record indication that the admission of the

records resulted in jury confusion or an improper verdict. We conclude that there

was not a clear disparity between the degree of prejudice arising from admission

of the cell-phone records and their probative value. Thus, the trial court did not

abuse its discretion by admitting the evidence over Gardner’s rule 403 objection.

See, e.g., Dodson v. State, No. 2-08-286-CR, 2010 WL 2889693, at *4–5 (Tex.

App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op., not designated for

publication) (concluding evidence of defendant’s previous convenience-store

robbery admitted in subsequent robbery prosecution more probative than

prejudicial because prior robbery “assisted the jury in understanding Dodson’s

identity as one of the robbers in the D & S Food Mart robbery”); Rogers v. State,

183 S.W.3d 853, 864–65 (Tex. App.—Tyler 2005, no pet.) (concluding murder

victim’s phone message left for her boss the day before her death not unduly

prejudicial); accord United States v. Acosta, 972 F.2d 86, 89 (5th Cir. 1992)

(holding evidence of interstate phone calls between defendant and defendant’s

brother in counterfeiting prosecution not unfairly prejudicial).

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).


                                          7
                                       /s/ Lee Gabriel

                                       LEE GABRIEL
                                       JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: August 6, 2015




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