Johnny Ray Ryder, Jr. v. State ( 2019 )

Affirmed and Opinion filed July 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00148-CR
JOHNNY RAY RYDER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 79985-CR
OPINION
A jury found Appellant Johnny Ray Ryder, Jr. guilty of four counts of
aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (Vernon
2019). The jury sentenced Appellant to four life sentences; the trial court’s final
judgment states that these life sentences are to run consecutively. In three issues,
Appellant asserts (1) the evidence is insufficient to support the convictions; (2) the
trial court erred by admitting evidence of certain extraneous offenses; and (3) the
trial court erred by admitting Facebook messages that were not properly
authenticated. For the reasons below, we affirm.
BACKGROUND
Appellant was arrested and charged with four counts of aggravated sexual
assault of a child. Appellant proceeded to a jury trial in February 2018.
Complainant, Appellant’s daughter, testified at trial. Complainant met
Appellant for the first time when she was 13 years old, after having been removed
from her mother’s custody by the Texas Department of Family and Protective
Services (“DFPS”). Complainant moved into Appellant’s Lake Jackson house in
the summer of 2013; Complainant lived at the house with Appellant, Appellant’s
wife Tiana Ryder, and Tiana’s son.1
Complainant testified in detail regarding two incidents of sexual assault that
form the basis of Appellant’s convictions. The first incident occurred in December
2013, when Complainant was 13 years old. According to Complainant, a
Christmas party was held at Appellant’s house during which she was given
alcohol. Complainant recalled drinking too much and said she went to the
bathroom in her bedroom to vomit.
Stating that she “was really drunk” and that “[e]verything was dizzy,”
Complainant said she walked out of the bathroom and was met by Appellant.
According to Complainant, Appellant asked her if she “was okay” and if she was
“having a good time.” Complainant testified that Appellant hugged her and started
rubbing her back and butt. According to Complainant, Appellant told her he “had
a surprise” for her and showed her a bottle of strawberry lubrication. At some
point, Appellant took off his necklace that had his wedding ring on it and Tiana
1
Because Tiana shares the same last name as Appellant, we refer to her by her first name
to avoid confusion.
2
became upset and was mad at Appellant about it.
Appellant and Complainant walked out of Complainant’s bedroom and into
Appellant’s bedroom. Appellant and Complainant lay on the bed; Tiana walked
into the bedroom and lay on the bed with Appellant and Complainant.
Complainant was in the middle of the two adults. Complainant said Appellant
opened the lube and let her “taste it and Tiana, both of us.” Complainant testified
that Appellant and Tiana “started making out over the top” of her while Appellant
was “rubbing on [her] leg.” Complainant said Appellant instructed her to take off
her shorts. Complainant took off her shorts and sat down on the bed; Appellant
kept trying to get her to come in a little. “Like he would reach over and rub [her]
leg and try to get [her] to join in.” Appellant and Tiana were on their knees on the
bed kissing and Appellant reached for Complainant and pulled her into the bed.
Appellant and Tiana starting kissing Complainant and she also kissed Tiana.
Complainant testified that Tiana walked out of the bedroom and told the
remaining party guests to leave the house. While Tiana was out of the bedroom,
Complainant said Appellant took off her shirt and underwear and performed oral
sex on her. Tiana returned to the bedroom and, according to Complainant, “it
started getting really heated.” Complainant was on the bed and Tiana was on her
knees performing oral sex on the Complainant at the same time that Appellant was
having “doggy style”2 sex with Tiana. Appellant then had sex with Complainant,
putting his penis in her vagina and anus. While Appellant was having sex with
Complainant, Tiana “was trying to get in front of” Complainant and “wanted”
Complainant to perform oral sex. Tiana laid down on the bed and Complainant, on
her knees, performed oral sex on Tiana while Appellant was having “doggy style”
2
Complainant described “doggy style” sex as sex where the man penetrates the woman
from behind. While we normally strive not to graphically describe sexual activities in our
opinion, given the causation issue, we do so here.
3
sex with Complainant.
Complainant testified that her stomach started to hurt and she felt dizzy,
after which she fell off the bed. Complainant said Appellant and Tiana gave her a
pillow and blanket and she “laid there on the floor for a little while.” Complainant
slept for a short while before returning to her bedroom.
Complainant testified about a separate incident that occurred several days
later at a New Year’s Eve party held at Appellant’s house. Complainant said she
was drinking alcohol in the living room when Appellant and Tiana “started
kissing.” Complainant said “Tiana came over . . . and started kissing on me, like
you can get in, too. Don’t be afraid.” Complainant testified that she went in
Appellant’s bedroom with Appellant and Tiana and “pretty much the same thing
happen[ed].” Complainant said she again had sexual intercourse with Appellant
during which he put his penis in her vagina. Appellant then had sexual intercourse
with Tiana, during which he rubbed Complainant’s clitoris and put his fingers
inside her vagina. Complainant testified that the incident lasted for “maybe an
hour.” Afterwards Appellant, Complainant, and Tiana returned to the living room
and watched the New Year’s Eve ball drop on television.
Complainant testified regarding her interactions with Appellant after the
incidents at the Christmas party and New Year’s Eve party discussed above; this
testimony described several of the extraneous offenses Appellant challenges on
appeal. These incidents are summarized as follows:
 Appellant had a “sit-down” with Complainant and Tiana to “talk
about everything that happened.” During the sit-down, Appellant,
Complainant, and Tiana discussed “basically like rules . . . like we had
to find a compromise between us two where [Appellant] could get
what he want[ed] and [Complainant] [could] still get stuff that [she]
want[ed].” Complainant agreed to provide Appellant “sexual things”
in exchange for “little freedoms” like going to beach parties, spending
4
the night at friends’ houses, and smoking marijuana. Complainant
was told she could not tell anyone about the sexual encounters.
 During some sexual encounters, Complainant would urinate on
Appellant. While she was urinating, Appellant would masturbate and
“sometimes . . . stick his finger up [Complainant’s] vagina.”
 Complainant was required to give Appellant her underwear at the end
of the day. Appellant would put Complainant’s underwear on her
stuffed frog, which he would use while masturbating.
 Complainant described “quickies” with Appellant, where he would
have sexual intercourse with her at “random moments.”
 While he was masturbating, Appellant would instruct Complainant to
insert a phallic instrument into his anus.
 Appellant gifted Complainant a sex toy during Christmas 2014.
 Complainant said Appellant “had a lot” of sex toys that they used “on
some occasions.”
Complainant said her sexual relationship with Appellant lasted “[f]or most of 2014
going into 2015.” In July 2015, Complainant started dating J.V., whom she knew
through work and school.3 J.V. moved in to Appellant’s house that same month.
Complainant said Appellant was “jealous” of her relationship with J.V. and told
her she “spent too much time with” J.V. According to Complainant, Appellant
wanted J.V. to move out of the house and gave him “formal notice to vacate” in
March 2016.
On March 28, 2016, Complainant and J.V. went to the Lake Jackson police
station and Complainant reported Appellant’s actions to Detective Rachel Pierce.
Detective Pierce collected Complainant’s cell phone and photographed sexually-
explicit messages sent from Appellant to Complainant on Facebook Messenger.
These photographs of Appellant’s and Complainant’s messages were admitted into
3
Because J.V. was a minor when the underlying offenses were committed, we refer to
him using an alias. See Tex. R. App. P. 9.10(a)(3), (d).
5
evidence at Appellant’s trial.
Complainant also testified regarding the DFPS caseworkers with whom she
had worked, stating she “had like three or four” caseworkers during the time she
lived at Appellant’s Lake Jackson house. Complainant said she did not report the
sexual abuse to any of the caseworkers except Leonor Salazar. Complainant said
she met with Salazar in February 2014 and told Salazar she “had been sexually
assaulted by [Appellant].” Complainant testified that Salazar told her that she was
lying. Afterwards, Complainant said she made up her mind that she “wasn’t going
to tell anybody else” because she “didn’t want to go back into a foster family.”
Ten additional witnesses testified at Appellant’s trial — relevant portions of
their testimony are summarized below.
 Crystal Wilson, a DFPS investigator. Wilson met with Complainant
after Complainant disclosed the sexual abuse allegations to Detective
Pierce. After meeting with Complainant, Wilson interviewed
Appellant twice. Wilson discussed with Appellant the “sexual nature”
of the messages he sent Complainant. After reviewing one of the
messages, Wilson testified that Appellant admitted to sending the
message and said it “was a joke.”
 Kristi Bellomini, a forensic interviewer at the Brazoria County
Alliance for Children. Bellomini interviewed Complainant on March
31, 2016. Complainant discussed the sexual incidents with Bellomini;
Bellomini testified that Complainant “was very detailed with what it
was that she shared with me.” On cross-examination, Bellomini
testified that Complainant did not discuss an incident that occurred on
New Year’s Eve.
 Leslie Klug, cast manager at Fearshire Farms, a haunted house in
Angleton, Texas. Klug worked with Appellant at Fearshire Farms.
On one occasion, Klug used Appellant’s phone and found on the
phone “some emails and some pictures that concerned” her. Klug
passed this information on to Detective Pierce.
6
 Detective David Hawkins, with the Lake Jackson Police Department.
Detective Hawkins assisted with executing a search warrant at
Appellant’s house on March 31, 2016. Detective Hawkins testified
regarding the numerous sex toys found at Appellant’s house.
 Detective Stephen Bailey, with the Lake Jackson Police Department.
Detective Bailey also testified regarding the search warrant executed
at Appellant’s house on March 31, 2016.
 Detective Rachel Pierce, with the Lake Jackson Police Department.
Detective Pierce testified regarding her meeting with Complainant on
March 28, 2016. Detective Pierce said she “collected [Complainant’s]
phone at that time and . . . also took some photographs from her
Facebook account.” Detective Pierce also discussed the search
warrant executed at Appellant’s house. On cross-examination,
Detective Pierce acknowledged that (1) Complainant did not discuss
the New Year’s Eve incident with her; (2) Complainant did not say
anything about “tasting some type of lubricant along with Tiana;” and
(3) she was not able to verify that Complainant had told a DFPS
caseworker about the sexual incidents.
 Stacy Casey, a DFPS caseworker at the Angleton office. Casey
testified that she had home visits with Complainant “several years
ago” and met with Complainant approximately 12 times at
Appellant’s house. Casey testified that she did not “see any sex toys
laying out in the open” at Appellant’s house.
 Leonor Salazar, a DFPS caseworker in San Antonio. Salazar testified
that Complainant did not tell her about the sexual abuse allegations.
Salazar denied telling Complainant she was lying about the
allegations.
The jury returned a verdict finding Appellant guilty of four counts of aggravated
sexual assault. For each count, the jury sentenced Appellant to life in prison; the
trial court’s final judgment states that these sentences are to run consecutively.
Appellant timely appealed.
7
ANALYSIS
In three issues, Appellant asserts (1) the evidence is insufficient to support
the aggravated sexual assault convictions; (2) the trial court erred by admitting
evidence of Appellant’s extraneous offenses; and (3) the trial court erred by
admitting Facebook messages that were not properly authenticated. We address
these issues below.
I. Sufficient Evidence Supports Appellant’s Aggravated Sexual Assault
Convictions.
The jury found Appellant guilty with respect to four counts of aggravated
sexual assault of a child:
1. On or about December 23, 2013, Appellant intentionally or knowingly
caused the sexual organ of Complainant, a child younger than 14
years of age and not the Appellant’s spouse, to contact Appellant’s
sexual organ.
2. On or about December 23, 2013, Appellant intentionally or knowingly
caused the anus of Complainant, a child younger than 14 years of age
and not the Appellant’s spouse, to contact Appellant’s sexual organ.
3. On or about January 3, 2014, Appellant intentionally or knowingly
caused the sexual organ of Complainant, a child younger than 14
years of age and not the Appellant’s spouse, to contact Tiana Ryder’s
mouth.
4. On or about January 3, 2014, Appellant intentionally or knowingly
caused the mouth of Complainant, a child younger than 14 years of
age and not the Appellant’s spouse, to contact Tiana Ryder’s sexual
organ.
Appellant argues the evidence is legally insufficient to support his convictions.
A. Standard of Review
To assess the legal sufficiency of the evidence to support a criminal
conviction, we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences
8
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007); Lashley v. State, 401 S.W.3d 738, 743 (Tex. App.—Houston [14th Dist.]
2013, no pet.). We may not substitute our judgment for that of the jury by
reevaluating the weight and credibility of the evidence. Montgomery v. State, 369
S.W.3d 188, 192 (Tex. Crim. App. 2012); see also Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). We instead “give deference to ‘the responsibility of
the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.’” Hooper, 214
S.W.3d at 13 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
The jury is permitted to draw multiple reasonable inferences from facts as
long as each inference is supported by the evidence presented at trial. Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of
the verdict and therefore defer to that determination.” Id. (citing Jackson, 443 U.S.
at 326).
Each fact need not point directly and independently to the defendant’s guilt
as long as the cumulative force of all the incriminating circumstances is sufficient
to support the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is
equally as probative as direct evidence in establishing guilt, and circumstantial
evidence alone can be sufficient to support a conviction. Id.
B. Legally Sufficient Evidence Supports the Jury’s Verdicts With
Respect to Counts One and Two.
Appellant argues the jury’s “guilty” verdicts with respect to Counts One and
Two are supported only by Complainant’s testimony. Appellant argues
Complainant’s testimony is outweighed by the following considerations:
9
1. In her testimony, Salazar denied that Complainant disclosed to her the
sexual abuse allegations. Salazar also denied calling Complainant a
liar.
2. Appellant asserts Complainant’s allegations were retaliation for J.V.’s
eviction. At trial, Complainant testified that she was “very upset”
when Appellant gave J.V. notice to vacate Appellant’s house.
3. Appellant asserts Complainant had numerous DFPS caseworkers but
did not disclose to them the sexual abuse allegations. Caseworker
Casey testified that Complainant did not tell her about any sexual
incidents with Appellant.
4. Appellant points out that, although several people attended the 2013
Christmas party at his house, “[n]o witness from the Christmas party”
came forward regarding the alleged sexual incident.
5. Complainant’s testimony differed from the allegations she reported to
Detective Pierce. In her testimony, Detective Pierce acknowledged
Complainant did not tell her about the incident on New Year’s Eve or
tell her that Appellant made Complainant taste lubricant.
The essential elements of aggravated sexual assault of a child are outlined in Texas
Penal Code section 22.021. A person commits the offense “if the person
intentionally or knowingly . . . causes the penetration of the anus or sexual organ of
a child by any means . . . [and] the victim is younger than 14 years of age.” Tex.
Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). Under Texas law, the
uncorroborated testimony of a child victim, standing alone, is sufficient to support
a conviction for aggravated sexual assault. Garcia v. State, 563 S.W.2d 925, 928
(Tex. Crim. App. [Panel Op.] 1978); see also Lane v. State, 174 S.W.3d 376, 386
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); and Jensen v. State, 66 S.W.3d
528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Here, Complainant testified that, during a December 2013 Christmas party at
Appellant’s house, Appellant met her in her bedroom, hugged her, and started
rubbing her back and butt. Appellant told Complainant he “had a surprise” for her
and showed her a bottle of strawberry lubrication. Appellant and Complainant
10
walked into Appellant’s bedroom and lay on the bed; they were joined by Tiana.
Appellant and Tiana started “making out over the top” of Complainant while
Appellant rubbed Complainant’s leg. Appellant instructed Complainant to take off
her shorts and Appellant and Tiana started kissing Complainant. Complainant
testified that Appellant proceeded to have sex with her and put his penis in her
vagina and anus.
Complainant testified about a separate incident that occurred several days
later at a New Year’s Eve party held at Appellant’s house. Complainant testified
that she went into Appellant’s bedroom with Appellant and Tiana and “pretty
much the same thing happen[ed].” Complainant said Appellant “put his penis in
[her] vagina.”
The jury heard additional testimony from Complainant discussing separate
sexual incidents with Appellant. The jury also heard testimony from other
witnesses that provides circumstantial evidence supporting Complainant’s
allegations:
 Investigator Wilson testified that she met with Appellant after
Complainant disclosed the sexual abuse allegations. Investigator
Wilson discussed with Appellant the “sexual nature” of the messages
he sent Complainant. After reviewing one of the messages,
Investigator Wilson testified that Appellant admitted to sending the
message and said it “was a joke.”
 Bellomini and Detective Pierce testified regarding the statements
Complainant made to them about the sexual abuse allegations.
 Complainant and Detective Pierce also testified regarding numerous
sexually-explicit Facebook messages sent from Appellant to
Complainant.
 Detective Hawkins and Detective Bailey testified regarding the search
warrant executed at Appellant’s house on March 31, 2016. The
detectives identified several pieces of evidence that corroborated
Complainant’s allegations.
11
The State’s exhibits 1-30 also were admitted into evidence and include numerous
Facebook messages between Appellant and Complainant, many of which contain
sexually-explicit pictures and statements. The entirety of this evidence, considered
in the light most favorable to the verdict, is sufficient to support the jury’s “guilty”
verdicts with respect to Counts 1 and 2. See Garcia, 563 S.W.2d at 928; Lane, 174
S.W.3d at 386; and Jensen, 66 S.W.3d at 534.
To support his sufficiency challenge, Appellant points to alleged
inconsistencies between Complainant’s testimony and other evidence. Appellant
also asserts Complainant’s disclosure of the allegations was retaliation for J.V.’s
eviction. But these arguments primarily concern Complainant’s credibility as a
witness. See, e.g., Moody v. State, 543 S.W.3d 309, 314 (Tex. App.—Eastland
2017, pet. ref’d); and Tran v. State, 221 S.W.3d 79, 88 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d). We defer to the jury’s responsibility to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences,
and we do not disturb these determinations on appeal. See Hooper, 214 S.W.3d at
13.
We overrule Appellant’s legal sufficiency challenges to the jury’s “guilty”
verdicts with respect to Counts 1 and 2.
C. Legally Sufficient Evidence Supports the Jury’s Verdicts With
Respect to Counts Three and Four.
Appellant summarily asserts the jury’s “guilty” verdicts with respect to
Counts 3 and 4 are not supported by legally sufficient evidence because “Tiana
freely participated in the sex,” Complainant never testified that Appellant caused
Tiana to have sex with her, and “[t]he State never argued that Appellant was a
party to Tiana’s criminal behavior.” Appellant does not cite any case law or other
authority to support his challenge.
12
As relevant to this analysis, Texas Penal Code section 22.021 states that a
defendant commits aggravated sexual assault if the defendant intentionally or
knowingly (1) “causes the sexual organ of a child to contact or penetrate the mouth
. . . of another person,” or (2) “causes the mouth of a child to contact the . . . sexual
organ of another person.” Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (v). We
construe Appellant’s argument regarding Counts 3 and 4 as a challenge to
causation. There are very few cases discussing section 22.021(a)(1)(B)(iii) and
(v).
However, Appellant is focusing on the wrong causal element. The statute
does not require that the State prove that Appellant caused Tiana to engage in oral
sex with the Complainant. Instead the statute focuses on whether Appellant caused
the sexual organ of a child to contact the mouth of another or whether he caused
the child to contact the sexual organ of another.
Under the Texas Penal Code, “[a] person is criminally responsible if the
result would not have occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was clearly sufficient
to produce the result and the conduct of the actor clearly insufficient.” Id. § 6.04
(Vernon 2011). This standard requires that a “but for” causal connection be
established between the defendant’s conduct and the resulting harm. See id.; see
also Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); and Wooten v.
State, 267 S.W.3d 289, 295 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
When concurrent causes are present, the “but for” requirement is satisfied if either
(1) the defendant’s conduct by itself is sufficient to have caused the harm; or
(2) the defendant’s conduct coupled with another cause is sufficient to have caused
the harm. Robbins, 717 S.W.2d at 351; Wooten, 267 S.W.3d at 296. But “[i]f the
additional cause, other than the defendant’s conduct, is clearly sufficient, by itself,
13
to produce the result and the defendant’s conduct, by itself, is clearly insufficient,
then the defendant cannot be convicted.” Robbins, 717 S.W.2d at 351 (emphasis in
original).
The existence of a causal connection is a question for the jury’s
determination. Fountain v. State, 401 S.W.3d 344, 358 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d). The jury may rely on circumstantial evidence to
establish this causal connection. Garcia v. State, 112 S.W.3d 839, 852 (Tex.
App.—Houston [14th Dist.] 2003, no pet.).
Complainant testified that she was intoxicated when Appellant approached
her in her bedroom at the December 2013 Christmas party. Appellant encouraged
her to drink at the party. Appellant initiated the sexual activity between
Complainant, Tiana, and himself. While Appellant and Tiana were making out,
Appellant rubbed on Complainant’s leg and instructed her to take off her shorts.
Tiana left the room and, while she was out, Appellant continued to encourage
Complainant’s participation by removing her shirt and performing oral sex on her.
Tiana returned to the bedroom and, while she had sex with Appellant, Tiana
performed oral sex on Complainant. And while Appellant had sex with
Complainant, Complainant performed oral sex on Tiana.
Other circumstantial evidence of causation came after the described events.
At first, Tiana was involved in other sexual encounters with Appellant and
Complainant, but there were also sexual encounters that involved only Appellant
and Complainant. Complainant never testified to any sexual encounter occurring
with Tiana without Appellant. Tiana also became jealous of the time that
Appellant spent having sex with Complainant. From this a rational jury could infer
that it was Appellant who proximately caused the Complainant’s sexual organ to
contact the mouth of Tiana.
14
Viewing this evidence in the light most favorable to the verdict, a reasonable
juror could conclude that Appellant (1) caused Complainant’s sexual organ to
contact Tiana’s mouth, and (2) caused Complainant’s mouth to contact Tiana’s
sexual organ. See Tex. Penal Code Ann. §§ 6.04; 22.021(a)(1)(B)(iii), (iv); see
also Robbins, 717 S.W.2d at 351; Wooten, 267 S.W.3d at 295-96.
Moreover, even though Tiana’s conduct operated as a concurrent cause with
respect to the underlying offenses in Counts 3 and 4, the evidence does not show
that Tiana’s conduct alone was “clearly sufficient, by itself,” in order to negate the
element of causation. See Tex. Penal Code Ann. § 6.04; Robbins, 717 S.W.2d at
351. Tiana and Complainant performed oral sex on each other only after Appellant
(1) initiated the sexual encounter, (2) instructed Complainant to remove her
clothes, (3) performed oral sex on Complainant, and (4) escalated the encounter to
include sexual intercourse. Reviewing this evidence, a reasonable juror could
conclude that the harm underlying Counts 3 and 4 was the result of Appellant’s
conduct coupled with Tiana’s. See Robbins, 717 S.W.2d at 351; see also Wooten,
267 S.W.3d at 296.
We overrule Appellant’s legal sufficiency challenges to the jury’s “guilty”
verdicts with respect to Counts 3 and 4.
II. The Trial Court Did Not Err by Admitting Evidence of Extraneous
Offenses.
Challenging the trial court’s admission of 17 extraneous offenses, Appellant
argues the evidence was “more prejudicial than probative because the State’s
purpose of admitting these extraneous offenses were [sic] purely inflammatory and
hardly probative and relevant.”4 See Tex. R. Evid. 403. But as the State points out
4
As necessary to preserve this issue for appellate review, Appellant raised his Rule 403
objection at trial and received a ruling. See Tex. R. App. P. 33.1(a).
15
in its brief, the jury only heard evidence with respect to ten of these offenses.5 We
therefore examine Appellant’s challenge with respect to these ten offenses, which
we summarize below:
1. Complainant urinated on Appellant at his request.
2. Appellant performed oral sex on Complainant.
3. Appellant masturbated while touching Complainant.
4. Appellant kept Complainant’s underwear to use while masturbating.
5. Appellant instructed Complainant to insert a phallic instrument into
his anus.
6. Appellant required Complainant to have sex with him in exchange for
the ability to go places and participate in activities with friends.
7. Appellant had “quickies” with Complainant when Tiana was not in
the room.
8. Appellant allowed Complainant to drink alcohol and use drugs.
9. While executing a search warrant, police found various sex toys at
Appellant’s house.
10. Appellant gifted Complainant a sex toy during Christmas 2014.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
Evidence of extraneous offenses generally is not admissible at the guilt-
5
Appellant also challenges the admission of evidence that he performed oral sex on
Tiana in front of Complainant and J.V. But when Complainant brought this issue up in her
testimony at trial, defense counsel objected under Texas Rules of Evidence 403 and 404(b) and
the trial court sustained the objection. Defense counsel did not request further relief after the
objection was sustained. Because Appellant received all the relief he requested, he did not
preserve this issue for appellate review. See Caron v. State, 162 S.W.3d 615, 617 (Tex. App.—
Houston [14th Dist.] 2005, no pet.).
16
innocence phase of trial to prove that a defendant acted in conformity with his
criminal nature and character. Tex. R. Evid. 404(b); see also Beam v. State, 447
S.W.3d 401, 403 (Tex. App.—Houston [14th Dist.] 2014, no pet.). But when a
defendant is charged with the sexual assault of a child, evidence of a previous
offense or bad act involving the same child may be admissible under article 38.37
of the Texas Code of Criminal Procedure, which states:
[E]vidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged offense
shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and (2) the
previous and subsequent relationship between the defendant and the
child.
Tex. Code Crim. Proc. Ann. art. 38.37 § 1(b) (Vernon Supp. 2018); see also Beam,
447 S.W.3d at 403.
By its terms, article 38.37 permits the introduction of extraneous offense
evidence notwithstanding the limitations imposed by Texas Rule of Evidence
404(b). See Tex. R. Evid. 404 (extraneous offense evidence inadmissible “to prove
a person’s character,” but admissible “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident”). But setting aside the issue of admissibility under article 38.37,
the extraneous offenses listed above also would have been admissible under Rule
404(b) as evidence of Appellant’s motive with respect to the charged offenses. See
id.
When evidence of a defendant’s extraneous acts is relevant and admissible
under article 38.37 and/or Tex. R. Evid. 404(b), the trial court still is required to
conduct a Rule 403 balancing test in response to a proper objection or request.
Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d). Rule 403 authorizes a trial court to exclude relevant evidence if its
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probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. Tex. R. Evid. 403; see also id. Rule 403 favors the
admissibility of relevant evidence and it is presumed that relevant evidence will be
more probative than prejudicial. Beam, 447 S.W.3d at 404-05. We consider the
following factors when analyzing a Rule 403 challenge on appeal: (1) the probative
value of the evidence; (2) the potential to impress the jury in some irrational yet
indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s
need for the evidence. Id. at 405 (citing State v. Mechler, 153 S.W.3d 435, 440
(Tex. Crim. App. 2005)).
Beginning with the first factor, the extraneous offense evidence was offered
to support a disputed fact: whether Appellant sexually assaulted Complainant. At
trial, defense counsel elicited testimony highlighting discrepancies in
Complainant’s testimony and argued to the jury that Complainant lied about her
interactions with Appellant. Evidence of Appellant’s extraneous acts therefore was
probative to rebut Appellant’s theory that Complainant fabricated her allegations.
See Caston v. State, 549 S.W.3d 601, 612 (Tex. App.—Houston [1st Dist.] 2017,
no pet.); Beam, 447 S.W.3d at 404-05. This factor weighs in favor of admission.
The second Rule 403 factor requires us to consider whether the extraneous
offense evidence had the potential to irrationally impress the jury. Here, most of
the extraneous offenses were similar to the charged offenses in that they involved
sexual contact between Appellant and Complainant. “Whenever the extraneous
offense is similar to the charged offense, there is always a potential that the jury
may be unfairly prejudiced by the defendant’s character conformity.” Beam, 447
S.W.3d at 405. But the impermissible inference of character conformity was
minimized by the inclusion of a limiting instruction. See Lane v. State, 933
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S.W.2d 504, 520 (Tex. Crim. App. 1996). Moreover, Appellant did not
demonstrate how the extraneous offense evidence was any more heinous than the
evidence pertaining to the charged offenses. See Robisheaux v. State, 483 S.W.3d
205, 220 (Tex. App.—Austin 2016, pet. ref’d) (holding any potential to suggest a
decision on an improper basis was ameliorated somewhat by the fact that the
extraneous offense testimony was “no more serious than the allegations forming
the basis of the indictment”). This factor weighs in favor of admission.
The third factor evaluates the time during trial that the proponent required to
develop the evidence of the extraneous offenses. Testimony discussing the
extraneous offenses took approximately 20 pages of the State’s case-in-chief,
which totaled over 450 pages. This factor weighs in favor of admission.
The final factor examines the proponent’s need for the extraneous offense
evidence. Here, the State’s need was strong because the fact at issue was whether
Appellant committed the underlying sexual assaults. See Lane, 933 S.W.2d at 521
(holding that the need for extraneous offense evidence is greatest when the
evidence supported an element of a “hotly contested issue”). This factor weighs in
favor of admission.
Balancing all of the Rule 403 factors, we conclude the trial court acted
within the zone of reasonable disagreement when it determined that the probative
value of the extraneous offense evidence was not substantially outweighed by its
prejudicial effect. We overrule Appellant’s second issue.
III. The Trial Court Did Not Err by Admitting the Facebook Messages Into
Evidence.
In his third issue, Appellant challenges the admission into evidence of
(1) the State’s exhibits 1-30, which are photographs of the Facebook Messenger
messages Complainant showed Detective Pierce on March 28, 2016, and (2) the
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State’s exhibits 37, 37-A, and 37-B, which are Facebook’s business records
pertaining to the messages in exhibits 1-30. Appellant argues these exhibits were
not properly authenticated.
We review the trial court’s admission of evidence for an abuse of discretion.
Martinez, 327 S.W.3d at 736. To properly authenticate an item of evidence, “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); see also Tienda v. State,
358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Whether the proponent has crossed
this threshold is a preliminary determination for the trial court. Tex. R. Evid.
104(a); see also Tienda, 358 S.W.3d at 638. Evidence is properly authenticated if
the proponent supplies “facts that are sufficient to support a reasonable jury
determination that the evidence he had proffered is authentic.” Tienda, 358
S.W.3d at 638. “The proponent of the evidence does not need ‘to rule out all
possibilities inconsistent with authenticity, or prove beyond any doubt that the
evidence is what it purports to be.’” Jones v. State, 572 S.W.3d 841, 848 (Tex.
App.—Houston [14th Dist.] 2019, no pet. h.) (quoting Campbell v. State, 382
S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.)).
Rule 901 provides a non-exclusive list of methods for the authentication of
evidence, including witness testimony, appearance, contents, substance, or other
distinctive characteristics taken in conjunction with circumstances. Tex. R. Evid.
901(b); see generally Campbell, 382 S.W.3d at 549 (noting that Rule 901 “does
not erect a particularly high hurdle” and may be satisfied by circumstantial
evidence (internal quotation omitted)).
Here, the State’s exhibits 1-30 were properly authenticated through witness
testimony and circumstantial evidence, including the contents and characteristics
of the messages themselves. Before exhibits 1-30 were admitted, Complainant
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testified that (1) the exhibits were the same images that she showed Detective
Pierce and allowed her to photograph, and (2) the contents of the messages were
“something that would be between [her] and [Appellant].” Exhibits 1-30 also
show (1) all the messages were sent by a Facebook profile belonging to a person
named “John Ryder;” (2) on exhibit 1, the message shows that “John Ryder” is
employed at “Fearshire Farms” and lives in Lake Jackson; (3) many of the exhibits
contain sexually-explicit pictures and statements; (4) in the pictured messages in
exhibits 8, 17, and 25, the sender refers to the recipient as his “daughter;” (5) in the
pictured messages in exhibits 12 and 25, the sender refers to himself as “dad;”
(6) the messages mention other interactions discussed in Complainant’s testimony,
including Appellant’s use of Complainant’s underwear to masturbate; and (7) the
messages discuss the amount of time Complainant was spending with J.V. This
evidence is sufficient to support a reasonable jury determination regarding the
authenticity of the State’s exhibits 1-30. See, e.g., Campbell, 382 S.W.3d at 553;
see also Laurentz v. State, No. 01-12-00269-CR, 2013 WL 5604740, at *4-5 (Tex.
App.—Houston [1st Dist.] Oct. 10, 2013, no pet.) (mem. op., not designated for
publication).
The State’s exhibits 37, 37-A, and 37-B also were properly authenticated.
These exhibits contain (1) Facebook’s business records pertaining to the messages
in exhibits 1-30, and (2) a “Certificate of Authenticity of Domestic Records of
Regularly Conducted Activity.” This Certificate of Authenticity sufficiently
complies with the requirements of self-authentication outlined in Rule 902(10)(B),
obviating the State’s need to produce additional extrinsic evidence to satisfy the
authentication threshold. See Tex. R. Evid. 902(10)(B); see also Murray v. State,
534 S.W.3d 540, 545 (Tex. App.—San Antonio 2017, no pet.).
We overrule Appellant’s third issue.
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CONCLUSION
We overrule Appellant’s issues on appeal and affirm the trial court’s
judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Christopher, Hassan, and Poissant.
Publish — Tex. R. App. P. 47.2(b).
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