### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00834- CR

Travis Cam pbell, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 11- 9040 83, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

O P I N I O N

A jury convicted appellant Travis Campbell of ag grava ted assault with a deadly

we ap on. See Tex. Penal Code Ann. § 22.02 (West 2011). Pursuant to an ag ree ment wi t h t h e State reg arding punishment, the tr i al court sentenc ed Campbell to four y ear s’ imprisonment. I n his sole issue on appea l, Campbell arg ues t h at t h e t rial court err ed by improperly admitting Fa cebook messag es that the State contende d wer e cre ated by Campbell. We aff irm the judgme nt of the trial cour

t.

BACK GR OUND At the time of the incident g iving rise to Campbell’s arr est, Campbell was sharing a house with his g irlfriend, Ana B., and her two y oung chi l d re n . On Fe bruar y 26, 2011, the night 1

We refe r to complainant by her f irst name in orde r to protec t her identity

. 1befor e the incident, the couple had g one out for dinner and drinks at a local restaur ant. At trial, Ana

and Campbell pre sented wholly differ ent ac counts of the e vents following that outing. Acc ording to Ana, Campbell beca me upset during dinner when Ana rec eived a Fa cebook messag e on her phone from one of Campbell’s male friends. Following dinner, the couple returne d home, and Campbell continued to question Ana about the messag e. Eventually , Campbell left to g o to a par

ty while Ana r emained at the hous e. Ana testified tha t when Campbell re turned, at approximately four in the morning , he woke her and beg an questioning h er aga i n ab out the Fa cebook me ssag e.

I n response to Campbell’s questioning, Ana told Campbell to leave and tried to push him off the bed with her fee t. Acc ording to Ana, Campbell then took off his clothes and approa ched Ana sug g esting he wanted to have sex with her. When Ana resisted, Campbell hit her sever al times in her fac e and chest with he r cell phone. Ana testified that Campbell then left the room and came back with a two-prong ed fork and a knife. Holding the fork to Ana’ s side, Campbell told Ana to text a profane me ssag e to the male f riend who had sent Ana the ear lier m essag e. Campbell hit Ana in the fac e with the handle of the fork when she ref used. Ana rec alled at trial that Campbell also held

a knife to her neck and threa tened to kill her if she did not “lick his ass.” Ana testified that when she ref used, C ampbell forced her t o have va g inal, anal, a nd oral sex with him. Afterwar ds, acc ording to Ana, Campbell threa tened Ana’ s life an d hit her repe atedly until she blacke d out. When she awoke , Ana g rabbe d some clothes, kicked a scre en off her bedroom window, and jumped out. Ana then ran to h er n ei gh b o r’s house, who upon her request drove her to her aunt’s house a few miles

awa y . Shortly there afte r, Deputy Rick L ane with the Travis County Sheriff’ s Offic e arr ived at Ana’ s aunt’s house, a

nd Ana r eporte d to L ane tha t she had be en sexually assaulted by

Campbell.
2T h e n e xt d ay , Ana went to Saint David’s Hospital so that a sexual assault examination

could be perf

ormed. J ulie Gibbs, the sexual assault nurse examiner, testified that Ana had “quite a larg e amount of injuries, majority to her fac e, [and] multipl e lace rations.” Gibbs testified that Ana had lace rations on her nose and the side of her fac e, redne ss to her brea st, bruising on her neck and l ef t arm, broken capillar ies in the back of her throat, and redne ss to the vag inal are a. Gi b b s al s o stated that the bruise on Ana’ s arm had three littl e scabs in the cente r and that Ana had told her “this was fr om a kitchen two- prong fork.”

At trial, Campbell took the stand in his own defe nse and told a very differ ent story

. Campbell acknow ledg ed that he and Ana were arg uing when t h ey went out for dinner. Howeve r, Campbell testified that the arg ument had beg un the night befor e, when Ana had left her children with him but did not return when she said she would. Acc ording to Campbell, Ana was ang ry with him during dinner be cause he had thr eate ned to end their rela tionship over the matter. Acc ording to Campbell, he and Ana went home afte r dinner and had consensua l sex. C ampbell denied that he ever forc ed Ana to have sex. Campbell testified that when he returne d home from the party , Ana was intox icated and mad at him for threa tening to end their rela tionship. Campbell stated that Ana then retrie ved the meat fork from the kitchen, held it up to him, and beg an to hit him in the f

ace . Campbell admitted striking Ana , but expl ained that he did so only afte r she had repe atedly hit him. Campbell testified that he then left the house and Ana followed him, falling and injuring herse lf on the exterior stairs, as he drove a way . At the conclusion of trial, the jury found Campbell “not g uilty ” of all three counts of ag g rava ted sexual assault as alleg ed in t he indictment. See Tex. P enal Code A nn. § 22.021 (West

32011). Howeve r, the jury found Campbell g uilty

of one c ount of ag g rava ted assault with a de adly

wea pon, a fork. See id

. § 22.02. I n acc ordanc e with the State’s ag ree ment with Campbell, the court

2 imposed a sentenc e of inc arc era tion for four y ear s. This appea l followed.

I n his sole issue on appea l, Campbell complains that the trial court err ed in admitting evidenc e that was not proper ly authentica ted and was harmful to his defe nse. Specifica lly , Campbell contends that the trial court err ed in admitting a printout of Fa cebook messag es purportedly sent by Campbell to Ana and identified at trial as State’s Ex hibit 14. Campbell arg ues that the only authentica tion evidenc e prese nted prior to the admission of the exhibi t was Ana’ s tes t imony that she rec eived these Fa cebook messag es from Cam p b el l a few day s afte r the alleg ed assault, that she did not send them to he rself, and that she did not have acc ess to Campbell’s Fa cebook acc ount afte r the incident. Campbell asser ts that there is no evidenc e that the messag es are in fac t from his F a c e b o o k a c c o u

n t. Ca mp b e ll c o n te n d s th a

t th e tr ia l c o u

r t’ s a d mi s s io n o f th e s e me s s a g e s w a s h a r mf u l

err or bec ause the exhibi t was “a cruc ial piece of evide nce e stablishing the ag g rava ted assault with the fork.” The State counter s that the trial court did not err in admitting the Fa cebook messag es beca use the State prese nted sufficie nt evidenc e to support a finding that the messag es wer e sent by Campbell. Alterna tively , the State contends tha t if there w as any

err or in admitting the me ssag es, it was harmless.

Campbell was also char g ed with another count of ag g rava ted assault with a knife as deadly 2 a wea p o n , b u t t h e j u ry found him “not g uilty ” of this count. See Tex. Penal Code Ann. § 22.022 (West 2011). 4AP P LICABLE LAW AND STANDARD OF REVIEW Under rule 104(a) of the Texas Rules of Evidence , whether or not to admit evidenc e at trial is a pre liminary

question to be dec ided by the cour t. Tex. R . Evid. 401(a) ; Tienda v. State , 358 S.W .3d 633, 638 (Tex. Crim. App. 2012). Only rele vant evidenc e is admissible. Tex. R. Evid. 401, 402. The issue of authentica tion—that the proff ere d evidenc e is what the proponent claims it to be—ar ises when “the rele vancy of any evidenc e depends upon its identity , source , or connec tion

w it h a p a r ti c u la r p e r s o n , p la c e , th in g , o r e v e n t. ” S h e a v . S ta te , 1 6 7 S. W. 3 d 9 8 , 1 0 4 ( T e x. A p p . — Wa c o 2005, pet. re f’d)

. Evidence has no relevanc e if it is not authentically what the pr oponent claims it to be. Tienda , 358 S.W .3d at 638.

The require ment o f authentica tion or identification is a condition prec edent to admissibili ty and is sa tisfied by evidenc e sufficie nt to support a finding that the matter in que stion is what the proponent claims it is. Tex. R. Evid. 901(a)

. Whet h er the proponent of evidenc e has satisfied the threshold require ment of authenticity is one of the preliminary questions to be decide d b y t h e court. Tienda , 358 S.W .3d at 638. Howeve r, rule 901 “does not ere ct a particula rly high hurdle, and that hurdle may be clea red by circ umstantial evidenc e.” Peter T. Hoffma n, Texas Rules of Evidenc e Handbook , Article I X at 948 (8th ed. 2008-09) (quoting United States v. Chin , 371 F.3d 3 1 , 37 (2d Cir. 2004)). The proponent of evidenc e does not need to “rule out all possibili t i es inconsistent with authenticity , or to prove bey ond any doubt that t h e ev idence is what it purports to be.” Id

. I n fac t, in perf orming its g ate- keeping function under rule 104, the trial court itself need not be persua ded that the proff ere d evidenc e is a

uthentic. Tienda , 358 S.W .3d at 638. Rather, the ultimate question of whether an item of evidenc e is what the proponent claims is a question for the

5fac t finder. Id

. I n a jury trial, the preliminary question for the trial court to decide is simply whether

the proponent of the proff ere d evidenc e has supplied fac ts that are sufficie nt to support a rea sonable jury deter mination that the evidenc e is authentic. Id .; see also Manuel v. State , 357 S.W .3d 66, 74 (Tex. App.—Ty ler 2011, pe t. ref’ d) (“ The propone nt must onl y produce sufficie nt evidence that a

rea sonable fa ct finder

could prope rly

find g enuinene ss.”). An appellate court revie ws a trial court’s decision as to whether evidenc e is proper ly authentica ted for a

n abuse of discretion. Tienda , 358 S.W .3d at 638. A trial c ourt does not abuse its discretion when it rea sonably believes that a rea sonable juror could find that the ev i d en ce has b e e n a u th e n ti c a te d

. D r u e r

y v . S ta te , 2 2 5 S. W. 3 d 4 9 1 , 5 0 2 ( T e x. Cr im

. A p p . 2 0 0 7 )

. I f th e tr ia l c o u

r t’ s ruling is at least “within the zone of re asonable disag ree ment,” we will not int erf ere . Id

.
DISCUSSIO N Rule 901 of the Texas Rules of Evidence provides a nonexclusive list of methods for authentica tion of evidenc e. See Tex. R. Evid. 901. For example, evidenc e may be authentica ted by testimony from a witness with knowledg e that a matter is what it is claimed to be. Id

. R. 901(b)( 1). E v i d en ce may also be authentica ted by “appe ara nce, contents, substance, internal patterns, o r other distinctive char acte ristics, taken in conjunction with circ umstances.” Id

. R. 901(b)( 4). I n the context of communications, the authentica tion issue that g ener ally arises is whether the evidenc e is sufficie ntly linked to the purported author. Wit h respe ct to elec tronic communications—such as

e-ma ils, text messag es, and as in this case , Fa cebook—the rules of evidenc e, including rule 901, are considere d at least g ener ally “ade quate to the t ask.” See Tienda , 358 S.W .3d at 638. Printouts of

6emails, internet chat room dialog ues, and text messag es have all been admitted into evidenc e when

found to be sufficie ntly linked to the purported author so as to justify the submissi on to the jury for its ult imate deter

mination. See id . at 639. Howeve r, in evalua ting whether an elec tronic communication has been sufficie ntly linked to the purported author, we rec og nize that elec tronic communications are susceptible to fabr ication and manipulat i o n . S ee id

. at 641 (explaining that some courts, “mindful that the provena n ce o f such electronic writings can s ometimes be open to question,” have held t hat prim a f a c ie a u th e n ti c it y w a s n o t d e mo n s tr a

te d )

. F o r e xa

mp le , s o c ia l n e tw o r

k in g w e b s it e s , s u c h a s F a c e b o o k and My Space, allow users to es t ab l i s h an online acc ount, cre ate a profile, and then invite others to a cce ss that profile as a

“fr iend.” See D oe v. MySpac e, Inc ., 474 F. Supp. 2d 843, 845-46 (W.D. Tex. 2007); see also Griffin v. State , 19 A. 3 d 4 1 5 , 420-21 n.6 (Md. 2011) (noting that My Space and Fa cebook work in same way ). Acc ording ly , with respe ct to identity , Fa cebook pre s ents an authentica tion conce rn that is twofold. First, beca use any one can establish a fictitious profile under any name, the pe rson viewing the profile ha s no way of knowing whether the profile is le g itimate. Griffin , 19 A.3d at 421 (citing David Hec tor Montes, Living Our Lives On l ine: The Privacy I m p li c a ti o n s o

f O n li n e S

o c ia l Ne tw o r

k in g , J. L

. & Po l’ y f

o r th e I n f o . So c ’ y , Sp r in g 2 0 0 9 , a

t 5 0 7 , 5 0 8 )

. Second, beca

use a person may g ain acc ess to another person’ s acc ount by obtaining the user’ s name and password, the person viewing communications on or from an acc ount profile cannot be cer tain that the author is in fac t the profile owner . Id

. Thus, the fac t tha t a n elec tronic communication on its fac e purports to orig inate from a cer tain person’ s social networ k i n g ac co u nt is g ener ally insufficient standing alone to authentica te that person as the author of the comm u n i ca t i o n. See 7Tienda , 358 S.W .3d at 642. Howeve r, the most appropr iate method for authentica ting elec tronic

evidenc e, as with any kind of evidenc e, “wil l o ft en d ep end on the nature of the evidenc e and the circ umstance of

the par ticular c ase.” Id . at 641. T h e T e x a s C o u

r t o f C r i m i n a l A

p p e a ls r e c e n tl y a d d

r e s s e d th e a

u th e n ti c a ti o n o f p r in

to u ts of social- n et wo rk i ng websites in Tienda, 358 S.W .3d at 638-47. I n that case , the State offe red evidenc e associate d with three My Space persona l profiles, including acc ount i n formation and printouts of profile pag es on which photogr aphs, comments, and music wer e posted. Id

. at 642. At trial, the defe ndant did not a dmit that he had authore d the pag es. Id

. at 647. Fur ther, the State did not attempt to authentic ate the pag es throug h the results of an examination of the defe ndant’s internet h i s tory or hard drive, nor did the State attempt to link the pag es to the defe ndant thr o u gh an employ ee of the social-ne tworking website. Id

. Upon the State’s offe ring , defe nse counsel objected to the admission of the evidenc e, emphasizing that the case -spec ific fac ts ref ere nced in the My Space messag es associate d with the acc ount “we re not fac ts solely within the defe ndant’s knowledg e, but

wer e known to the dece ased’ s family , friends, and prac tically any third party interested in the case .” Id

. at 636. Neve rtheless, the trial court admitted the evidenc e over defe ndant’s objection. Id

. at 635.

On appeal, t he court of criminal appea ls held t hat t here was “ample circum s t an t i al evidenc e—take n as a whole with all the individual particula r details considere d in combination—to support a finding that the My Space pag es belong ed to the appellant and that he cre ated and maintained them.” Id

. at 6 4 5

. Fo r example, the court of criminal appea ls noted that there wer e

numerous photogr aphs of defe ndant with his unique arm, body , and nec k t at t o os, as well as his distinctive ey eg lasses and ear ring

. There was also a ref ere nce to the victim’s death and music from 8his funer al, as well as ref ere nces to the defe ndant’s g ang and messag es ref err ing to the shooting. Id

. Whil e the court acknow ledg ed that it was “conc eivable” that someone else had fabr icated and maintained the My Space pag es, the court explained that this was a “sce nario whose likelihood and weig ht the jury

was e ntitled to assess.” Id. at 646. I n this case , the St a

te in tr o d u ced one exhibi t comprised of printouts of three Fa cebook messag es alleg ed to have been sent by Campbell to Ana’ s Fa cebook acc ount. Eac h messag e contain

a banner and date stamp at the top of the messag e stating, “Tra vis Campbell, Marc h 2 [t ime].” The first messag e states:

what was i thinking I am totally wr ong it don’t matter what y ou say or do to me i should ne ver put my hand on y ou, who is me to do that to y ou y ou g ive me nothing but love on y our ki d s , then now i disreg ard that i am so sorry y ou or [si c] the only person i g ot on my

side please help me ana

please i would love t o call u don’t lock me up please i am beg g ing y ou

Simi larly , a sec ond messag e, date d that same da y , states:

i did y ou bad something that y ou would never thaug h [si c] i am very sorry i am mad of my self, I am beg g ing y our fotg ivness [si c] please i can’ t sleep or eat i f — up the bes s [ s i c] t h i n g i ever have, i am sorry ana help me please i am wee k [si c] i don’t know what to do i am g oing to call u please answe r please don’t sign the paper please ana, I need to talk to u. Finally , a fina l messag e, also da ted Marc h 2, states: please help m e ana i cry ever y day i am s o f—i n g s tuppid [si c] for hurthig [ sic] u i am g uilty what wa s I t h inking please messag e me tell me y our mind let me talk please , I am so ashame [si c].

9At trial, the State attempted to impeach Campbell with the Fa ce b o o k messag es.

I n response , Campbell acknowl edg ed having a Fa cebook acc ount but denied sending Ana any Fa cebook messag es afte r the incident. C am p b ell claimed that both he and Ana, but no one else, had his F ace book acc ount pa ssword. I n order to a uthenticate the messag es, the State rec alled Ana to te s ti f y a b o u t th e o r ig in o f th e me s s a g e s . A n a te s ti f ie d th a t s h e r e c o g n iz e d th e p r in

to u ts a s me s s a g e s she had rec eived from Campbell on Marc h 2, 2011. She also testified that she did not send them to herse lf. Whil e Ana admitted that she had acc ess to Campbell’s Fa cebook acc ount at sometime befor e Marc h 2, she stated that both she and Campbell had chang ed their passwords befor e this date. Upon Ana’ s testimony , and over Campbell’s objection as to authenticity , the trial court admitted the messag es as a

single exhibi t. I n analy zing whether the evidenc e is sufficie nt to support the trial court’s ruling , we start by noting that the content of the messag es themselves purport to be messag es sen t from a F ace book acc ount bear ing Campbell’s name to an account bearing Ana’ s name. W hile this fact

a lo n e is in s u f

f ic ie n t to a u th e n ti c a te Ca mp b e ll a s th e a

u th o r , w h e n c o mb in e d w it h o th e r c ir c u

ms ta n ti a l evidenc e, the rec ord may

support a finding by

a ra tional jury

that the m essag es were authored and sent by Campbell. See id

. at 642; see also Commonwealth v. P u r dy , 945 N.E.2d 372, 381 (Mass. 2011) (explaining that e-ma il sent from Fa cebook acc ount bear ing defe ndant’s name not sufficie ntly authentica ted without a dditional “conf irming circ umstances” ). Acc ording ly , we examine w hether the re maining e vidence supports the trial cour t’s ruling

. T u rn i n g t o the Fa cebook messag es themselves, we find that the messag es contain internal char acte ristics that tend to connec t Campbell as the author. First, the unique speec h pattern

10prese nted in the messag es is consistent with the speec h pattern that Campbell, a native of J amaica ,

used in testify ing at trial. Second, the messag es ref ere nce the incident and potential char g es, which 3 at the time the messag es wer e sent, few people would have known about. See Massimo v. State , 144 S.W .3d 210, 216 (Tex. App.—For t Worth 2004, no pet.) (conc luding that “interna l char acte ristics”

serve d to authentica te e-ma ils, including fac t that e-ma il was s en t s h o rtly afte r alterc ation and ref ere nced alterc ation and fac t that contents of e-ma ils wer e written in same way in which appellant communicated)

. Thus, the contents of the messag es provide circ umstantial evidenc e supporting the trial court’ s ruling.

Fur ther, the undispute d t estimony provides circ umstantial evidenc e tending to

connec t Ca mpbell to the messag es. The undisputed testimony y ields the following : (1) Campbell had a Fa cebook acc ount; (2) only he and Ana ever had acc ess to his Fa cebook acc ount; and (3) Ana

rec eived the messag es bear ing Campbell’s name. This evidenc e sug g ests that only Campbell or Ana could have authore d the m essag es receive d in Ana’ s Fa cebook acc ount. I n addition, Ana told the jury that she could not a cce ss Ca mpbell’s acc ount, a nd there fore , she did not send the messag es to herse lf. Whil e thi s evidenc e certainly does n o t conclusively establish that Campbell authore d the

m es s ages—in fact, C ampbell i nsisted that he did not—the State was not require d to “‘r ule o u t al l possibili ties inconsistent with authenticity or prove bey ond any doubt th at t he evidenc e is what it purports to be.’” See Manuel , 357 S.W .3d at 7 4 (q u o t i n g Chin , 371 F.3d at 37). So long as the authenticity of the proff

ere d evidenc e was at least “within the zon e o f re asonable disag ree ment,”

For example, Ca mpbell testified at trial, “I took the knife, but I never pointed to [Ana]. I 3 take up the knife out of her way , her rea ch, and tell her that, this, y ou cannot play with knife beca use knife will g ive y ou a cut. Tha t’s why I take it. That’s the thing that I told the detective.” 11the jury was entitled to weig h the cre dibilit y of these witnesses and decide who was telling the truth.

See Tienda , 358 S.W .3d at 638, 645-46 (explaining that conce ivably someone could have concoc ted appellant’ s My Space pag e “[b] ut that is an alterna te scena rio whose likelihood and weig ht the jury

was entitled to assess once the State had produce d a prima fac ie showing that it was appellant, and

n o t s o m e u

n i d e n ti f ie d c o n s p ir a

to r s o r f r a u d a r ti s ts , w h o c r e a te d a n d ma in ta in e d th e s e M y S p a c e p a g e s ” )

. The facts and issues in this case are simil ar to those in a case decided b y our si ster court of appea ls i n Fort Worth. See Massimo , 144 S.W .3d at 216-17. I n that case , the defe ndant disputed the authenticity of a hara ssing e-ma il that the State alleg ed she had sent to the complainant. See id

. at 216-17. At trial, the defe ndant asser ted that someone was impersonating her and sent the

e-ma il on h er behalf

. Id. Howeve r, the court of appea ls conclude d that the trial did not abuse its d i s cre tion in admitting the e-ma il, explaining that the e-ma il contained char acte ristic evidenc e supporting the asser

tion that appellant had sent it. Id

. at 216. For example, the court pointed out that (1) the e-ma il was sent shortly afte r a phy sical alterc ation betwee n the defe ndant and complainant, and the e-ma il ref

ere nced the alterc ation; (2) the complainant rec og nized the e-ma il a ccount as the defe ndant’s and had previously rec eived m essag es from the acc ount; (3) only a few people knew about the things discussed in the e-ma il; (4) the complainant testified that the way in which the

e-ma il was written was the way in which the defe ndant would communicate; and (5) another witness testified that she had seen the defe ndant send simil ar hara ssing e-ma ils from a differ ent acc ount. Id

. Whil e this case invol v es Fa cebook messag es, as opposed to e-ma ils, the messag es in this case likewise include similar identify ing f eatur es. Fr om the rec ord befor e us—including (1) the simil arities betwee n the speec h pattern presen t ed i n t h e messag es and Campbell’s speec h pattern at trial; (2) the fac t that the messag es 12ref

ere nce the incident and wer e sent just a few day s afte r t h e i n ci d en t; (3) testimony establishing that only Campbell and Ana h av e ev er had acc ess to Campbell’s Fa cebook acc ount; and (4) Ana’ s t es timony that she did not have acc ess to Campbell’s Fa cebook acc ount at the time the messag es we re se nt—we conc lude that there was prima f acie evidenc e such that a re asonable jury could have found that the Fa cebook messag es wer e cre ated by Campbell. Acc ording ly , we cannot conclude that the tri al court abused its discretion in admitting the evidenc e over Campbell’s objection to authentica tion.

I n addition, even if the trial court had abused its discretion in admitting the Fa cebook

me s s a g e s a s e v id e n c e , w e w o u ld f in d th a t th e e r r o r w a s h a r ml e s s . Ca mp b e ll a r g u e s th a t th e a d mi s s io n of the messag es was harmful beca use Campbell and Ana had very differ ent uncorr oborate d stories

conce rning the eve nts leading to Ana’s injuries, a nd the Fa cebook me ssag es conta in an admission th a t Ca mp b e ll “ p u

t [h is ] h a n d s o n ” A n a . Ca

mp b e ll c o n te n d s th a

t th is a ll e g e d a d

mi s s io n w a s “ c r

u c ia l” to the jury ’s finding that Campbell had committed ag g rava ted assault.

The State contends that any err or in admitting the Fa cebook messag es was harmless beca use the State’s case ag ainst Campbell, even aside from the messag es, was substantial. The State argue s that while Campbell and Ana’ s stories differ drastica lly , the State prese nted extensive evidenc e corr oborating Ana’ s acc ount. First, Ana’ s neig hbor and cousin testified that Ana appea red to be in a st ate of shock shortl y afte r t he incident. Nex t , Gi b b s , the s exual abuse nurse ex aminer, testified that Ana had extensive phy sical injuries, including multipl e bruises, a perf orate d ear drum, trauma to the back of the throat, vag inal redne ss, and marks consistent with a two-prong fork. Gibbs also testified that Ana’ s injuries wer e consistent with her claim that she had been assaulted. Finally ,

13detec tives investiga ting Ana’ s home found a window with the scre en remove d, a broken cell phone,

a mea t fork, and knive s, just as Ana had de scribed the m.

Be cause err or in the ad m i s s i o n of evidenc e is non-constitutional, Campbell must show that t h e er ro r af

fe ct ed his substantial rig hts. Tex. R. App. P

. 44.2(b). A s ubstantial rig ht is aff ecte d when the err or has a substantial and injurious eff ect or influence in de termining the jury ’s

v e r d ic t

. R ic h v . S

ta te , 1 6 0 S. W. 3 d 5 7 5 , 5 7 7 ( T e x. Cr im

. A p p . 2 0 0 5 )

. Su

b s ta n ti a l r ig h ts a r e n o t a f f e c te d by the err oneous admission of evidenc e if , af t er ex am ining the rec ord as a whole, we have fair

a s s u r a n c e th a t th e e r r o r d id n o t in f

lu e n c e th e ju

r y , o r h a d b u t s li g h t e f

f e c t. M o ti ll a v . S ta te , 7 8 S. W. 3 d 352, 355 (Tex. Crim. App. 2002). I n making this deter mination, we consider whe t h er t he State emphasized the err or, whether the err oneo u s ly a d mi tt e d e v id e n c e w as cumulative, and whether it was elicited fr om an expert. Id . at 356.

I n this case , the testimony conce rning the Fa cebook messag es was not elicited from

an expert. I n addition, aside from impeaching Campbell with the messag es at trial, the State did not otherwise emphasize the messag es, including during its closing arg ument. Finally , upon revie w of the record, we conclude t hat t he message s were cu m ulative of other evidence

. At trial, Campbell testified as follows:

STATE: How did she hit y ou in y our fa ce? W ith her first or he r open ha nd? CAMPBEL L : Yes, she open hand she keep g oing like that. And I said, stop,

Ana, stop. I t was like a joke until it g et serious. STATE: Did it hurt? CAMPBEL L : Yes, it hurt, of course . But, y o u know, I ’m a man, I don’t

rea lly was, y ou know, g oing to hit her back, y ou know.
14And t h en she start to slap me. She start to slap me. And I said, Ana, stop. I f y ou don’t stop I ’m g oing to hit y ou back and y ou ain’t g oing to like it b eca use my one g oing to be harde r than your own. Tha t’s what I told her, y ou know. STATE: Did she eve ntually stop hitt ing y ou? CAMPBEL L : She never stop hitting me. She just take it as like a joke thing,

but she wer e hitting me ha rd. STATE: After y ou told her to stop, then what happe ned? CAMPBEL L : Then I hit her bac k. STATE: How did y ou hit her? CAMPBEL L : I hit her with my hand. STATE: Where did y ou hit her? CAMPBEL L : I n her f ace rig ht here

. Thus, Campbell’s own testimony was that he struck Ana. This testimony is entirely consistent with the statement in the Fa cebook messag e that Campbell claims was so cruc ial to the jury ’s verdic t—“it don’t matter what y ou say or do to me i should never put my hand on y ou.” I n light of the cumulative evidenc e in the rec ord demonstrating that Campbell struck Ana, we conclude that any err or in admitting the e vidence did not have a substantial and injurious eff ect on the jury ’s verdic t and should be disreg arde d. Campbell’s sole point of err or is overr uled.

CONCLUSION B e c a u s e th e tr ia l c o u

r t d id n o t a b u s e it s d is c r e ti o n in a d

mi tt in g th e F a c e b o o k me s s a g e s , we a ffirm the tria l court’s judg ment.

15__________________________________________ Diane M. H enson, Jus tice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed Aug ust 31, 2012 Publis h

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