### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 9 -00 163 -CR

Br ian Cur ti s M usg r ov e , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRICT NO. CR-01 -42 1 , HO NORAB LE CHARLES R. RAMSAY , JUDGE PRESIDI NG

M E M O R

A N D UMO P I N I O N
In J anuar y 2002, appellant B rian Curtis Musgr ove wa s adjudged guilty of fe lony drivingwhile intox icated. SeeTe x. Pe na l Cod e Ann. § 4 9. 04 (a ) ( Wes t 20 03 ), § 4 9. 09 (b )( 2) (We st Supp. 2009). His punishment was assessed a t ten y ear s in prison and a $1500 fine , but imposi tion of sentenc e wa s suspended a nd he wa s place d o n co mmunity supervision. In Fe bruar

y 2009, the court re voked super

vision and imposed sentence following a hear ing on the State’s amende d motion to revoke
. In a single point of err or, appe llant contends that an e x hibit was err oneously admitted at the hea ring . We affir

m the revoc ation order
. The am en d ed motion to revoke a lleg ed that appe llant violated his supervisory conditions by , among o t h erthings, c ommitt ing the offe nse of ha rassment. Se eid . § 42 .0 7 ( Wes t 2003). The S tate sought to prove this alleg ation throug h the testimony of Glenn O g den and his wife , Daphne L azo. Og den testified that he had known appellant for year s, but that the relationship had2

c ha ng e d d ur ingthe “ la st e ig ht m onths or so .” Og de n s a id t

hat a pp e lla nt h a d b e c ome “ inc re a sin g ly infatuate d with my

wife a nd daughter. He would bringg ifts for my daughter. He would call my wife at work. H e would ema il things, poems and suc h, pictures.” Eventually , Og den had aske d appellant to stop communicating w ith him and his wife. L azo’s testimony was similar. She said that appe llant obviously “had a crush” on her

and that, at f

irst, it was “kind of cute .” B ut when appe llant beg an to make re peate d telephone c alls to her home, se nd her of fensive e mail, and attempt t o see he r at he r work, she be g an to fee l uncomforta ble and “cr eepy .” Og den and L azo identified State’s exhibit s one and two as copies of emails they rec eived f rom appe llant, one bef

ore a nd the other a fter the y

asked him to st op his communications. Appellan t ac kn o wl edg ed sendingthe emails, both of which contained se x ually

expli cit photogr aphs. Appe llant testified that he meant them only for Og den and ha d n ot i nte nd e d f

or L a zo to se e the m. Th e su bje c t of a pp e lla nt’ s p oint of e rr or

is St ate ’s e xhibi t thre e . T his e xhibi t w a s a copy of an on- line classified a dvertisement. The ad purpor ts to have bee n place d by

a man a nd wife who live in Hay s County
. The ad solicits persons who are interested in e ng ag ing in se x ual ac tiviti es with the couple, and it contains several sex ually expli cit photogr aphs (but shows no fac es). The ad
a dv ise s th os e int e re ste d to ca ll a tel e ph on e numbe r tha t w a s id e nti fi e d b y

Og de n a s h is a

nd L a zo’ s. Og den and L azo denied postingthe ad or beingthe per sons pictured, a nd they testified that they lear ned of the ad’s ex istence only when persons beg an calling their home i n response to it. Og den te sti fi e d th at on e of

the ph oto g ra

ph s in the a d h a d p re vio us ly

be e n d e sc ri be d to him

by a pp e lla nt, who told Og den that he had seen it at a “swing er’ s site” and ha d assumed that it was a photogr aph3

of Og de n a nd L a zo. Og de n te sti fi e d that be c a us e of thi s, he a ssume d th at a

pp e lla nt w a s r e sp on sib le for postingthe ad.

Appellant conte nds that the trial court erre d by admitting exhibit t hree beca use it was not properly

authenticated. The r equire ment of authe ntication o r i dentification as a condition pr e c e de nt t o a dmi ssi bil ity is satis fi e d by

e vid e nc e su ff

ic ie nt t o s up po rt

a fi nd ingthat th e matte r i n question is what its proponent claims. Tex. R. Evid. 901(a)
. Appellant argues that the exhibitwas not authenticate d beca

use the State fa ile d t o s h o w t h at he wa s responsible for placingthe ad. Appellant re lies on opinions discussing the authentication of emails purporting to be sent from the defe ndant. Se eVa rk

on y i v . S tate , 276 S.W .3d 27, 34-35 (Tex. A pp.—El Paso 200 8 , p et
. ref’d); S h e a v . Sta te , 16 7 S.W.3 d 9 8, 10 4- 05 (T e x. Ap p. —Wa c o 2 00 5, pe t. r e f’ d) ; Ma ssi mo v . S tate , 144 S.W .3d 210, 215-17 (Te x . App.—For t Worth 2004, no pet.). Unlike the ema ils at i ssue i n the opi nions cited by appellant, appellant’s identit y as the per son who place d the ad did not g o to the authenticity of the e x hibit. I t was undisputed below that exhibi t three w as an a uthentic copy

of an a ctual on-line c lassified adve rtisement. Whether appellant plac ed the a d did not go to the a uthenticity

of the e x hibit, but to his guilt of the ha rassment offe nse alleg ed in the motion to revoke.

Even if e x hibit three wa s err oneously admitte d, the er

ror wa s harmless. The hara ssment alleg ation was one of seve ral violations contained in the motion to revoke . Amongthe other a lleg ed violations were that appellant ha d failed to re port to his probation off icer and had f ailed to pay his supervision fee s. Appellant’s probation officer testified to t hese violations, which appellant a dmitted in his own testimony . Only one violation is nece ssary to support the re vocation4

of community

supervision. Sa nc he

z v . S tate , 60 3 S.W. 2d 86 9, 87 1 ( Te x. Cr im. Ap p. 19 80 ). B e c a us e exhibi t thr ee related only

to the hara ssment alleg ation, and bec ause the revoc ation order is supported by other unc halleng ed violations, any err or in the admission of t he ex hibit did notaff ect a ppellant’s substantial rig hts. See Tex. R. App. P . 44.2(b).

The point of err or is ove rruled, and the order revoking communi t y s upervision is affirme d.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Puryear and Pember

ton Affir med Filed: Nove mber 20, 2009 Do No t Pu

bli sh