## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00418 - CR

JAIRO CHAVEZCASARRUB IAS APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRI CT COURT NO. 1 OF TA RRANT COUNTY

TRIAL COURT NO. 1337 507D

---------- 

### MEM ORANDUM OPINION 1

---------- I. I NTRODUCTION Appellant Jairo Chavezcasarrubias appeals his conviction s and twenty
year sentence s for indecency with a child by contact and for sexual assault of a child under 17 years of age

. In four issue s , Chavezcasarrubi as challenges the trial court’s rulings pertaining to the admission and exclusion of evidence and to

1 See Tex. R. App. P. 47.4.2

the trial court’s overruling his objection to the State’s argument during punishment. In this opinion, we will refer to the minor complainant as Girl. An d because the issues in this case are evidentiary matters, and in an attempt to protect Girl’s identity and privacy, we will recite only the facts necessary to the disposition of each of Chavezcasarrubias’s issues as we a ddress them , and we will affirm. II
. DISCUSSION A. Admitted Text Messages In his first issue, Chavezcasarrubias argues that the trial court abused its discretion by admitting text messages from Girl’s phone that he claims were not “sufficiently connected” to him. These text messages betwe en Chavezcasarrubias and Girl contain communications that appear to acknowledge that they had engaged in sexual intercourse. The State first argues that Chavezcasarrubias’s complaint at trial does not comport with the complaint he now brings on appeal

— Chav ezcasarrubias objected several times that these text messages were “hearsay.” See Burleson v. State , 802 S.W.2d 429, 439 n.2 (Tex. App.

— Fort Worth 1991, pet

. ref ’ d) (“[P]roblems of authentication and hearsay are not interchangeable.”). The State also arg ues that the trial court did not abuse its discretion by determining that the text messages were properly authenticated. We conclude that the trial court did not abuse its discretion by admitting the text messages.3

As to the State’s argument that Chavezca sarrubias has failed to preserve this argument for our review because his objections at trial were “hearsay” objections and not ones sounding in authentication, we disagree that the parties at trial did not understand Chavezcasarrubias’s objection s to be i ssues of authentication. See Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“In determining whether a complaint on appeal comports with a complaint made at trial, we look to the context of the objection and the shared understanding of the par ties at the time.”). Here, the trial court clearly understood Chavezcasarrubias’s objection to be one pertaining to authentication of the text messages. Indeed, when Chavezcasarrubias referred to his objection that the State had “failed to show that it is an exception to the hearsay rule,” the trial c ourt overruled Chavezcasarrubias’s objection , specifically citing to authentication factors , and the trial court stated that the texts would be allowed into evidence “under Rule 901.” See Tex. R. Evid. 901 (“ Authenticating or Identifying Evidence ” ). Further, Chavezcasarrubias conducted a voir dire of the State’s sponsoring witness, Girl, and the questions asked pertained to whether it could be determined that the text messages had originated from Chavezcasarr ubias. Thus, we will review the merit s of Chavezcasarrubias’s issue. We review a trial court’s evidentiary ruling using an abuse of discretion standard. Tienda v. State , 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); Martinez v. State , 327 S.W.3d 727, 736 ( Tex. Crim. App. 2010) , cert. denied , 1314

S. Ct. 2966 (2011) . A trial court does not abuse its discretion unless its decision is outside the zone of reasonable disagreement. Tienda , 358 S.W.3d at 638. There is no abuse of discretion if the trial court “ r easonably believes that a reasonable juror could find that the evidence has been authenticated or identified. ” Druery v. State , 225 S.W.3d 491, 502 (Tex. Crim. App. ), cert. denied , 552 U.S. 1028 ( 2007). The issue of authentication arises when the relevanc y of evidence is conditioned on its identity. Campbell v. State , 382 S.W.3d 545, 5 48

– 49 (Tex. App.

— Austin 2012, no pet.). Authentication is generally accomplished by direct testimony from a witness with personal knowledge or by circumstantial evidence. S ee Tex. R. Evid. 901; Manuel v. State , 357 S.W.3d 66, 74 (Tex. App.

— Tyler 2011, pet. ref ’ d) (stating “proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness”). Previous exhibits found to be authentica ted include emails, I nternet chat room conversations, and text
messages. Tienda , 358 S.W.3d at 638; Ma nuel , 3 5 7 S.W.3d at 7 4 . The Tienda court, however, cautioned that an electronic message purporting to come from a certain address, or a respondent in a communication purporting to be a particular individual, or a text message emanating from a device assigned to the purported author, without more, is insufficient to support a finding of authenticity. 358 S.W.3d at 64 1

– 4 2. For authentication by a witness w ith knowledge of an electronic communication, a witness qualifies as having knowledge when he participated in5

an exchange of messages and can testify to an exhibit ’ s fair and accurate depiction of the messages exchanged. Tex. R. Evid. 901(b)(1); see also Aekins v. State , No. 04

- 13

- 0006 4

- CR, 2013 WL 5948188, at *5

– 6 (Tex. App.

— San Antonio Nov. 6, 2013) (mem. op., not designated for publication) , a ff ’ d , 447 S.W.3d 270 (Tex. Crim. App. 2014) ; Ussery v. State , No. 03

- 07

- 00116

- CR, 2008 WL 269439, at *7 (Tex. Ap p.
— Austin Jan. 30, 2008, pet. ref ’ d) (mem. op., not designated fo r publication) (stating witness’ s testimony that exhibits were “fair and accurate copies” of messages she had exchanged with defendant was sufficient to authenticate emails). In this case, Ch avezcasarrubias contends that the State failed to adequately demonstrate that the text messages received by Girl were messages from Chavezcasarrubias himself. But the State elicited testimony from Girl that the text messages were a true and accurate depic tion of text messages between herself and Chavezcasarrubias. Further, Girl testified that she had witnessed Chavezcasarrubias enter the phone number that the text messages were received from into her phone; that Chavezcasarrubias had previously given her accurate instructions on what to wear and where to be through text messages sent from this same number; that she knew that the phone number belonged to Chavezcasarrubias because she had called him on it and recognized his voice when he answered; and that t he text messages contained information with which only she and Chavezcasarrubias would have bee n familiar.6

We conclude that Girl’s testimony concerning the text messages indicates that Chavezcasarrubias was the author of the messages sent to Girl’s phone. See Tienda , 358 S.W.3d at 641 (“Sometimes 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.”). Thus, the trial cour t did not abuse its discretion by overruling Chavezcasarrubias’s objections to the text messages being introduced into evidence. See Manuel , 357 S.W.3d at 76

– 77 , 81

– 82 (holding suffici ent authentication of defendant’ s phone number after complainant testif ied to receiving phone calls, text messages, and voicemails from the phone number and because c omplainant recognized defendant’ s voice and knew the phone number as defendant’s). We overrule C havezcasarrubias’s first issue. B. Text Messages from Another Pe rson In his second issue, Chavezcasarrubias argues that the trial court “erred in excluding evidence of a text message from a young man who also wanted to have sex with” Girl. Specifically, Chavezcasarr ubias a rgues that his Sixth Amendment r ight to cross

- examination was violated by the trial court’s decision to exclude evidence regarding a text message allegedly from a young man, Boy, inquiring about having sex with Girl

. The State argues that Chavezcasarrubias failed to preserve this issue for our review . We agree with the State. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds7

for the desired ruling if they are not apparent from the context of t he request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State , 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh ’ g), cert. denied , 526 U.S. 1070, 119 S. Ct. 1466, 1472 (1999). At trial, Chavezcasarrubias argued that Girl’s testimony t hat she had texted with him only regarding sex was “misleading” and that her testimony had “opened the door

. . . to talking about any kind of text messages about sex with other people.” Chavezcasarrubias argued that he should be allowed to question Girl about, and ostensibly introduce, the text message from Boy who allegedly had inquired about having sex with her . But at no time did Chavezcasarrubias complain that the trial court’s exclusion of Boy’s text message, or the trial court’s ruling forbidding q uestions regarding the message, violated his Sixth Amendment

r ight to cross

- examination. See Reyna v. State , 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding that a proffer of evidence for purposes of credibility did not preserve a Confrontation Clause argument for appeal because such a proffer did not bring the judge ’ s attention to the appropriate evidence rule or statute); see also Pointer v. Texas , 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965) (“It cannot seriously be doubted at this late date that the right of cross

- examination is included in the right of an accused in a criminal case to confront the witnesses against him.”)

. The Reyna case is particularly instructive to our disposition of this issue. In Reyna , the defendant, charged with indecency with a child, sought to cross

-8

examine the complainant about a false allegation of sexual abuse that the complainant had allegedly made against another. 168 S.W.3d at 174. In support of admission, the defendant argued that the evidence went to the credib ility of the complainant. Id

. at 179. Later, on appeal, the defendant argued that the exclusion of the evidenc e violated his Sixth Amendment r ight to Confrontation. Id

. The Texas Court of Criminal Appeals held that the defendant forfeited review of the confrontation issue because the credibility argument he made in the trial court could have been based on either the rules of evidence or the right to confrontation; thus, the trial argument did not sufficiently bring to the trial court’s attention the bas is for the request. Id

. Similarly, in the present case, Chavezcasa r rubias argued that Boy’s text message should have been admitted because Girl’s testimony was “misleading” and because she had “opened the door” regarding whether she had texted other
perso ns regarding sex. But Chavezcasar r ubias did not sustain his record burden of explaining to the trial court, and by extension to us, why Boy’s text message was admissible

— whether under an evidentiary rule or statute, as an exception to an evidentiary rule or statute, or under a constitutional provision. We therefore overrule Chavezcasarrubias’s second issue. C. Girl’s Knowledge of Sexual Activity and Websites In his third issue, Chavezcasar r ubias argues that the trial court abused its discretion by not adm itting evidence that Girl’s knowledge of the “various sexual positions” that she testified to having engaged in with him came from “studying9

pornography, not from her encounter with” him. Chavezcasar r ubias’s argument is predicated on the notion that he sh ould have been allowed to introduce evidence of, and question Girl regarding, pornograph ic websites that she allegedly had visited. The State argues that Chavezcasar r ubias has failed to preserve this issue for our revi ew. We agree with the State. To pres erve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. See Tex. R. App. P. 33.1, 33.2; Tex. R. Evid. 103(a)(2). If the excluded evidence is not apparen t from the context of the record, it must be brought forward either through a timely offer of proof or a formal bill of exception. Barnard v. State , 730 S.W.2d 703, 71 7

– 1 8 (Tex. Crim. App. 1987) , cert. denied , 485 U.S. 929 (1988) ; Jenkins v. State , 948 S. W.2d 769, 775 (Tex. App.

— San Antonio 1997, pet. ref ’ d). Chavezcasar r ubias does not dispute the State’s argument that he failed to preserve this issue for our review. In fact, during oral argument before this court, Chavezcasa r rubias admitted that his offe r of proof made at trial did not contain evidence that Girl had seen the specific types of sexual acts that she had described having participated in with him via any of the websites she allegedly had visited. Instead, Chavezcasa r rubias argued that the tri al court “shut [ him ] down” from making a full and proper offer of proof. Our reading of the record not only belies this contention, it appears that the trial court went to extraordinary measures to allow Chavezcasarrubias to make his offer of proof. Inde ed, during10

a hearing held outside the jury’s presence pertaining to Girl’s alleged history of visiting pornographic websites, Chavezcasar r ubias contended that he was unprepared to make a proper offer of proof and that he would need to retrieve pertinent in formation in order to do so. The trial court stated that it would allow Chavezcasar r ubias to retrieve the pertinent information and make a formal ruling only after Chavezcasar r ubias had made his full offer of proof. True to its word, the trial court late r held a second hearing outside the presence of the jury where Chavezcasa r rubias questioned Girl about whether she had visited certain websites. Girl averred that she had visited at least one of the websites. Chavezcasa r rubias, however, never questioned G irl or otherwise proffered any evidence or testimony concerning whether the websites that Girl allegedly had visited contained depictions of the types of sexual acts that she had testified to having participated with Chavezcasarrubias in, nor did he even q uestion her about whether these websites contained such information. Thus, Chavezcasar r ubias has failed to bring forth a record containing the excluded evidence he now complains about. See Shafer v. State , 82 S.W.3d 553, 555 (Tex. App.

— San Antonio 2002, pet ref’ d.) (holding that defendant failed to preserve claim that evidence of complainant’s consensual sexual history was relevant because defendant did not file a timely bill of exceptions nor point to any evidence in record setting forth the excluded evi dence). We overrule Cha vezcasarrubias’s third issue.11

D. The State’s Argument at Punishment In his fourth issue, Chavezca sa r rubias argues that the trial court erred by overruling his objection to the State’s argument, made during punishment, that if Girl “ were six months younger , ” he would have been facing a higher degree of punishment range. The State argues that Chavezcasar r ubias failed to preserve this issue for our review as well. We agree with the State. To preserve error for appellate review, a part y must object when improper argument is made and obtain a ruling on that objection. Tex. R. App. P. 33.1(a); Johnson v. State , 233 S.W.3d 109, 114 (Tex. App.

— Houston [14th Dist.] 2007, no pet.). The objection must be made at the earliest possible opportu nity. Espinosa v. State , 194 S.W.3d 703, 708 (Tex. App.

— Houston [14th Dist.] 2006, no pet.). And an objection must be lodged each time the allegedly improper argument is made. Haliburton v. State , 80 S.W.3d 309, 315

– 16 (Tex. App.

— Fort Worth 2002, no pet. ); Briones v. State , 12 S.W.3d 126, 129 (Tex. App.

— Fort Worth 1999, no pet.). Failure to object to jury argument at trial forfeits the right to raise the issue on appeal. T ex . R. A pp . P. 33.1; Simpson v. State , 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). Alt hough Chavezcasa r rubias objected the second time the State made the complained

- of argument, he did not object to the State ’s having argued the very same argument several record paragraphs earlier. Thus, Chavezcasa r rubias did not lodge an objection eac h time this allegedly improper argument was made, and he has failed to preserve this issue for our review. See Briones , 12 S.W.3d12

at 129 (holding that defendant failed to preserve any error in prosecutor’s allegedly improper argument made during punishmen t phase of trial for sexual assault of a child because defendant did not object when prosecutor made other comments to same effect). We overrule Cha vezcasarrubias’s fourth issue. I II
. C ONCLUSION Having overruled all four of Chavezcasa r rubias’s issue s on appeal, we affi rm the trial court’s judgment s

.

/s/ Bill Meier BILL MEIER JUSTICE PANEL: GARDNER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: October 15 , 2015