Opinion filed February 8, 2024

In The

Eleventh Court of Appeals __________

No. 11-22-00149-CR

__________

FABIAN ANDRES ORTEGA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-20-1430-CR

M E M O R A N D U M O P I N I O N

Appellant was convicted of aggravated sexual assault of a child, a first-degree 

felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v), (e), (f)(1) (West 2019). 

A jury found him guilty and assessed his punishment at fifty years’ imprisonment in 

the Correctional Institutions Division of the Texas Department of Criminal Justice,

and the trial court sentenced him accordingly. On appeal, Appellant challenges his 

conviction in three issues. First, he contends that the evidence is legally insufficient 
2

to sustain his conviction. He then contests the admissibility of incriminating 

Snapchat messages. And finally, he claims that he received ineffective assistance of 

counsel. We affirm.

Factual Background

When Appellant was nineteen years old, he found out that he had a fourmonth-old daughter, B.S.M. Appellant lived with his parents in Odessa and coparented amicably with the child’s mother, B.G., until August 26, 2020. Pursuant 

to a custody agreement, B.S.M. visited Appellant and his parents every Tuesday and 

Thursday from 6:00 p.m. to 8:00 p.m. and every first, third, and fifth weekend of the 

month. Appellant took B.S.M. on fishing trips and other weekend vacations. 

Appellant even used a photograph of himself and B.S.M. as one of his profile 

pictures on Tinder, a dating app. 

From March 12 to March 15, 2020, Appellant traveled alone to Del Rio for a 

fishing trip. While in his room at a Motel 6, he logged into Tinder and matched with 

a transgender woman named Fernando “Fern” Garcia. Garcia and Appellant

sexually “messed around,” and continued to communicate for months thereafter via 

text message, video calls, Snapchat, and Tinder. Their conversations were primarily 

“sexual, like masturbation, things like that,” including sending nude photographs 

and videos. But Appellant shared personal information with Garcia as well, such as 

B.S.M.’s existence and age.

In August of 2020, Appellant advised Garcia that he may be returning to Del 

Rio with B.S.M. Appellant then told Garcia his “rule” was that when he and B.S.M. 

are together, they “don’t wear clothes.” This gave Garcia “a bad gut feeling,” so she 

asked for clarification. Appellant continued, “I want my daughter to see me so she 

can learn how to take care of daddy.” Appellant’s Snapchat messaging was sexually 

explicit—that he put “honey or cereal over his penis and would let [B.S.M.] lick it 

off of him,” how he would “guide the cum to her mouth with [his] dick,” and that he 
3

planned to allow other men to “use” B.S.M. sexually.1 He recounted making B.S.M. 

rub his penis “up and down,” and said it “[f]eels so good.” As proof, Appellant sent 

Garcia a closeup photograph of a child that he represented to be B.S.M. with 

Appellant’s semen in her mouth, and with the caption, “[c]an barely see it.” 

Garcia reported the sexual assault to police and spoke to FBI agents stationed 

in Del Rio. On August 24, 2020, FBI agents from the Midland office met with

Appellant at his parents’ home, and he acknowledged that his Snapchat usernames 

were “Run_forest”2 and “Caramel Twisty.” He claimed that he had deleted his 

Snapchat account “30 days prior” but later admitted to accessing it within the 

preceding thirty days. Appellant then declared that he had given his username and 

password to “[a] contact . . . he made online,” and “didn’t really know what they did 

on it.” 

On August 26, B.G. and her mother, J.M., received a visit from the 

Department of Family and Protective Services (the Department), advising them of 

the allegations. B.S.M., who only spoke “[o]ne to two words” at the time, underwent 

a forensic interview but was “too young” to articulate any abuse. The results of her 

sexual assault exam were likewise inconclusive.

Investigator Heidi Zavala with the Ector County Sheriff’s Office traveled to 

Del Rio to meet with Garcia and subpoenaed Motel 6 records that confirmed 

Appellant’s stay from March 12 to March 15. Appellant was charged with and 

ultimately convicted of aggravated sexual assault of B.S.M., a child younger than 

six years of age, by intentionally or knowingly causing B.S.M.’s mouth to contact 

Appellant’s sexual organ. See PENAL § 22.021(a)(1)(B)(v), (e), (f)(1). 

1

Because Appellant’s conviction hinges upon the content of the Snapchat messages, we include the 

full text of them in this opinion despite their explicit nature. 

2

Appellant gave Garcia the Snapchat name “Run_forest1,” but FBI Agent Scott Livingstone 

referred to it simply as “Run_forest.” 
4

The Admission of Snapchat Messages

Appellant’s first two issues hinge on whether the evidence was sufficient to 

show that he authored the explicit Snapchat messages discussing the sexual acts he 

committed against B.S.M. Accordingly, we first address Appellant’s second issue 

in which he asserts that the trial court abused its discretion by admitting the messages 

because they were not properly authenticated and because they contained 

inadmissible hearsay.

We note that the propriety of the trial court’s ruling on the admissibility of the 

Snapchat messages is irrelevant to our analysis of the sufficiency of the evidence to 

support Appellant’s conviction. In this regard, when conducting a sufficiency 

review, we consider all the evidence admitted at trial, including pieces of evidence 

that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 

(Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 

2007). Here, because our discussion of the admissibility of the Snapchat messages 

also concerns their evidentiary strength, we address Appellant’s admissibility issue 

first. 

Whether to admit evidence at trial is a preliminary question to be decided by 

the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. 

Crim. App. 2012). We review a trial court’s admission or exclusion of evidence for 

an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 

2019). The trial court’s decision will be upheld as long as it was within the “zone 

of reasonable disagreement.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. 

App. 2018). We will not reverse a trial court’s evidentiary ruling, even if the trial 

court’s reasoning is flawed, if it is correct on any theory of law that finds support in 

the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 82–83, 93

(Tex. Crim. App. 2016).
5

As a condition precedent to admissibility, “the proponent must produce 

evidence sufficient to support a finding that the item is what the proponent claims it 

is.” TEX. R. EVID. 901(a); Tienda, 358 S.W.3d at 638. But authenticity is ultimately 

a question for the jury; the trial court is merely the gatekeeper, and itself need not be 

persuaded that the proffered evidence is authentic. Butler v. State, 459 S.W.3d 595, 

600 (Tex. Crim. App. 2015); Tienda, 358 S.W.3d at 638; see also Cain v. State, 621 

S.W.3d 75, 79 (Tex. App.—Fort Worth 2021, pet. ref’d). Under this “liberal 

standard of admissibility,” the trial court must simply decide whether the proponent 

has supplied facts sufficient to support a reasonable jury determination that the 

proffered evidence is authentic. Butler, 459 S.W.3d at 600 (quoting Cathy Cochran, 

Texas Rules of Evidence Handbook 922 (7th ed. 2007–08)).

“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 

(citing TEX. R. EVID. 901(b)). For example, when authenticating text messages, a 

witness might have knowledge of the authorship thereof because they “contained 

information that only the purported sender could be expected to know,” or “the 

purported sender has responded to an exchange of electronic communications in 

such a way as to indicate circumstantially that he was in fact the author of the 

particular communication.” Tienda, 358 S.W.3d at 640–41. 

Here, Garcia and Appellant developed a familiarity with each other and spoke 

to each other over video calls, phone calls, text messages, and Snapchat in the 

months following their rendezvous in Del Rio. Appellant had two Snapchat 

usernames—Run_forest1 and Caramel Twisty—and admitted to FBI agents that 

these were his usernames. On video calls with Appellant, Garcia could see his face, 

and Appellant sent her sexually explicit photographs and videos of his penis. 
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Moreover, the content of the Snapchat messages was consistent with 

Appellant’s knowledge and awareness that the recipient, Garcia, had a sexual 

relationship with him, lived in Del Rio, and knew he had a daughter. When 

Appellant brought up bringing B.S.M. along on his next trip to Del Rio, he gave no 

background or introductory information; presumably he had already discussed her 

age and existence with Garcia. Such details known only to someone close to the 

situation at the time constitute “distinctive characteristics and the like” to support a 

rational inference by the factfinder that Appellant authored the messages. See

TEX. R. EVID. 901(b)(4); Butler, 459 S.W.3d at 603–04 (“Conversations and events 

that precede or follow the communications at issue, when identified or referred to 

within the written communication, can provide contextual evidence demonstrating 

the authenticity of such communications.”).

“It is, of course, within the realm of possibility that [Appellant] was the victim 

of some elaborate and ongoing conspiracy” initiated by his unknown online contact 

to whom he purportedly gave his Snapchat login information. See Tienda, 358 

S.W.3d at 645. Conceivably, some unknown malefactor used Appellant’s Snapchat 

account to concoct boastful messages about sexually assaulting B.S.M., was aware 

that Appellant and Garcia had previously engaged in phone and video sex, and had

engaged in sex in Del Rio months prior. See id. at 646. “But that [was] an alternate 

scenario whose likelihood and weight the jury was entitled to assess once the State 

had produced a prima facie showing” that it was Appellant, not some unidentified 

deviant, who created these incriminating messages and the photograph. See id.

We thus conclude that the State presented enough evidence to “bridge the 

logical gap and permit a proper inference that the purported author sent the 

message[s].” Butler, 459 S.W.3d at 602. The trial court had sufficient evidence to 

determine that the Snapchat messages were authentic and were sent and authored by 

Appellant.
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Appellant also asserts that the messages contained hearsay, which rests on the 

premise that they were not properly authenticated. Because the trial court had

sufficient evidence to determine that the messages were sent and authored by 

Appellant, and the trial court did not abuse its discretion in admitting the messages 

as authored by him, Appellant’s statements therein were admissions and were 

therefore not hearsay. See TEX. R. EVID. 801(e)(2)(A). We overrule Appellant’s 

second issue.

Sufficiency of the Evidence

In his first issue, Appellant argues that the evidence was legally insufficient 

to establish that the child depicted in the closeup explicit photograph was in fact 

B.S.M. Appellant further contends that State’s evidence is “inherently unreliable” 

because “nothing definitively connects [Appellant] to having sent the messages.” 

To support this contention, he directs our attention to “law enforcement negligence,” 

the inconclusive results from B.S.M.’s sexual assault examination, and the lack of 

an outcry. 

We review a challenge to the sufficiency of the evidence under the standard 

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review 

all the evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Garcia v. State, 667 S.W.3d 756, 761 

(Tex. Crim. App. 2023).

When conducting a sufficiency review, we defer to the factfinder’s role as the 

sole judge of the witnesses’ credibility and the weight their testimony is to be 

afforded. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007); Dority v. State, 

631 S.W.3d 779, 784–85 (Tex. App.—Eastland 2021, no pet.) (We may not 

reevaluate the weight and credibility of the evidence to substitute our judgment for 
8

that of the factfinder.). “This familiar standard gives full play to the responsibility 

of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, 

and to draw reasonable inferences from basic facts to ultimate facts.” Garcia, 667 

S.W.3d at 761 (quoting Jackson, 443 U.S. at 319). When the record supports 

conflicting inferences, we presume that the factfinder resolved the conflicts in favor 

of the verdict, and we defer to that determination. Id. at 762.

“Each fact need not point directly and independently to the guilt of the 

appellant, as long as the cumulative force of all the incriminating circumstances is 

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007). We do not use a “divide and conquer” strategy, consider what evidence 

could have or should have been presented, nor do we speculate about evidence that 

the State did not present. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 

2015); see Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012); see also 

Espinoza v. State, No. 11-19-00232-CR, 2022 WL 3903774, at *5 (Tex. App.—

Eastland Aug. 31, 2022, pet. ref’d) (mem. op., not designated for publication). 

Finally, we do not review the sufficiency of the police investigation; we review the 

evidence presented at trial. Espinoza, 2022 WL 3903774, at *5.

As relevant to this case, a person commits the offense of aggravated sexual 

assault by intentionally or knowingly causing the mouth of a child under six years 

of age to contact his sexual organ. PENAL § 22.021(a)(1)(B)(v), (e), (f)(1). Without 

repeating Appellant’s acts as explicitly set out in the factual background above, the 

jury, in its discretion as the factfinder, was entitled to believe the evidence supporting 

its conclusion that Appellant caused the mouth of B.S.M. to contact his sexual organ. 

As to those acts, Appellant promised Garcia that he would “show [her] when 

[B.S.M.] comes back” for her scheduled visitation. 

Attacking the sufficiency of that evidence, Appellant suggests that securing 

business records from Snapchat was “the only way” to confirm that Appellant 
9

authored the messages. However, as established, Appellant “definitively 

connect[ed]” himself to having sent the messages when he verified his Snapchat 

usernames to FBI agents and admitted that he had accessed his account in August of 

2020. Moreover, the fact that he communicated with the same style and knowledge 

that only he would possess is further indicative of his authorship of the trial exhibits 

at issue. See Tienda, 358 S.W.3d at 645–47; Butler, 459 S.W.3d at 602–04. As we 

have said, the State supplied the trial court with enough evidence to connect 

Appellant to the Snapchat messages, and the jury, by its verdict, concluded that 

Appellant was the sender. We defer to the determination of the factfinder, and we

find the evidence legally sufficient to support its determination. See Brooks, 323 

S.W.3d at 899. 

With respect to the photograph, Appellant’s father and sister testified that 

Appellant was “[n]ever alone” with B.S.M., and that the child in the photograph was 

not her. But the jury heard B.G. testify that she was sure that the photograph depicted 

her daughter. J.M., B.S.M.’s grandmother, was “about 80 percent” sure that it was 

a closeup of B.S.M. Additionally, Investigator Zavala conducted a comparative 

“image search” using the photograph and could not find that image on the internet.

Investigator Zavala likewise revealed that while they were executing the search 

warrant, which occurred after Appellant was contacted by the FBI and the 

Department, Appellant’s father confessed to deleting sexually explicit photographs 

of a girl from Appellant’s phone. Appellant sent the photo contemporaneous with 

his detailed account of sexually assaulting his two-year-old daughter. Based on the 

evidence, we find that the jury as the sole judge of witness credibility could have 

rationally found that the child in the photograph was B.S.M. See Garcia, 667 

S.W.3d at 761–62.

The jury’s decisions in weighing the evidence and weighing the testimony of 

the trial witnesses constitute credibility determinations to which we must defer. See 
10

Brooks, 323 S.W.3d at 899. And we cannot speculate about what the evidence could 

have or should have shown. See Merritt, 368 S.W.3d at 526. Viewing the evidence 

presented at trial in the light most favorable to the verdict, we conclude that a rational 

trier of fact could have found the essential elements of the offense for which 

Appellant was convicted. See Jackson, 443 U.S. at 319. We overrule Appellant’s 

first issue.

Ineffective Assistance of Counsel

In his third issue, Appellant contends that his trial counsel was ineffective 

when counsel failed to object to evidence of Appellant’s sexual preference and 

orientation and to the admission of the photographs showing his genitals. He argues 

that his sexual orientation was “[i]rrelevant and highly prejudicial,” and that the 

admission of the photographs was “truly incomprehensible . . . and even more 

outrageous that trial counsel made no efforts to prevent it.” 

Under the two-pronged test in Strickland v. Washington, a defendant 

challenging counsel’s representation must establish that his counsel’s performance 

(1) was deficient, and (2) prejudiced his defense. 466 U.S. 668, 687 (1984); Hart v. 

State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). To establish that counsel’s 

actions were deficient, the defendant must show by a preponderance of the evidence 

that counsel’s actions fell below an objective standard of reasonableness. Hart, 667 

S.W.3d at 781. Our review of counsel’s representation is highly deferential, and we 

indulge a strong presumption that counsel’s conduct was not deficient. Nava v. 

State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Courts should consider the 

reasonableness of counsel’s actions at the time and in light of all the circumstances, 

rather than viewing such actions through the benefit of hindsight. Hart, 667 S.W.3d

at 782. “Counsel’s actions are considered deficient only if the court finds, as a matter 

of law, that ‘no reasonable trial strategy could justify trial counsel’s acts or 
11

omissions, regardless of his or her subjective reasoning.’” Id. (quoting Lopez v. 

State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).

Moreover, the record must affirmatively demonstrate trial counsel’s alleged 

ineffectiveness. Johnson v. State, 624 S.W.3d 579, 585 (Tex. Crim. App. 2021). 

Trial counsel should generally be given an opportunity to explain his actions before 

being found ineffective. Id. at 586. “In the face of an undeveloped record, counsel 

should be found ineffective only if his conduct was ‘so outrageous that no competent 

attorney would have engaged in it.’” Id. (quoting Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005)). A silent record that provides no explanation for 

counsel’s actions will not overcome the strong presumption of reasonable assistance. 

Id.

Evidence of one’s sexual orientation may be admissible if it is relevant to the 

issues in the case. See, e.g., Whitmire v. State, 183 S.W.3d 522, 528–30 (Tex. 

App.—Houston [14th Dist.] 2006, pet. ref’d); Woods v. State, No. 07-22-00208-CR, 

2023 WL 4924076, at *1–2 (Tex. App.—Amarillo Aug. 1, 2023, no pet.) (mem. op., 

not designated for publication). The failure to object to proper questions and 

admissible testimony is not ineffective assistance. Ex parte Jimenez, 364 S.W.3d 

866, 887 (Tex. Crim. App. 2012). 

Here, Appellant has failed to show that evidence of his bisexuality, and the 

explicit content he sent to Garcia, were inadmissible. As set forth above, Garcia 

explained that her legal name is Fernando J. Garcia, but she goes by “Fern,” and uses 

the pronouns “[s]he, her.” As the person who reported the instant offense to police, 

she gave the background information of sexual relations and intimate familiarity

leading up to Appellant’s social media confession that he coerces his two-year-old 

daughter into performing oral sex on him. She told the jury how she met Appellant, 

had a sexual relationship with him, and they continued talking until August 20, 2020. 
12

The State provided the jury with various messages sent to Garcia by Appellant in 

support of Garcia’s testimony, including the photographs of Appellant’s genitals.

Had Appellant’s counsel objected to Garcia’s testimony and the photographs, 

the trial court would have had a basis on which it could properly rule upon such 

objections. The testimony and photographs were admissible contextual background 

evidence, “once called ‘res gestae’ of the offense.” Mayes v. State, 816 S.W.2d 79, 

86 (Tex. Crim. App. 1991). The trial court likewise could have admitted the 

photographs of Appellant’s erect penis because they were so “inextricably 

intertwined” in the sexual conversations preceding Appellant’s incriminating 

statements, such that they were “necessary to complete the story of the alleged 

offense.” See Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010) (internal 

quotation marks omitted). Appellant’s sexuality was indeed related to the 

circumstances surrounding the charged offense, in that the ongoing sexual 

partnership with Garcia might invite trust and explain Appellant’s reason for

confiding in detail his other sexual conduct. It may lend credence to the likelihood

of Appellant expressing his intent to let other men perform sexual acts on both him 

and B.S.M. and “show [Garcia] when [B.S.M.] comes back” for her scheduled 

visitation. In this light, sending the graphic photograph of B.S.M. would be 

consistent with Appellant sending other sexually explicit photos—like that of his 

penis—to Garcia.

We further note that we have found nothing in the record to substantiate 

Appellant’s claim that the State negatively portrayed his sexual preferences in an 

attempt to cultivate unfair prejudice. Rather, while discussing Garcia’s “life 

choices,” the State encouraged the jurors to set aside any potential biases and focus 

on her credibility. 

On this record, trial counsel’s failure to object does not support an ineffective 

assistance claim. See Prine v. State, 537 S.W.3d 113, 117–18 (Tex. Crim. App. 
13

2017). Appellant’s trial counsel could have logically concluded that the contested 

evidence was admissible, rendering any objections thereto futile. See Jimenez, 364 

S.W.3d at 887. Moreover, we cannot say that trial counsel’s conduct was not “so 

outrageous that no competent attorney would have engaged in it.” Prine, 537 

S.W.3d at 116–17 (quoting Goodspeed, 187 S.W.3d at 392). Because nothing in the 

record affirmatively demonstrates that trial counsel’s failure to object constituted 

deficient performance, we overrule Appellant’s third issue.

This Court’s Ruling

We affirm the judgment of the trial court.

W. BRUCE WILLIAMS

JUSTICE

February 8, 2024

Do not publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.