Butler, Billy Dean , 459 S.W.3d 595 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0456-14
BILLY DEAN BUTLER, Appellant
v.
THE STATE OF TEXAS, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
BEE COUNTY
Y EARY, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, K EASLER, H ERVEY, A LCALA, R ICHARDSON and N EWELL, JJ., joined.
J OHNSON, J., concurred in the result.
OPINION
Appellant was convicted of the aggravated kidnapping of his girlfriend, Ashley Salas.
On direct appeal, he complained that the trial court admitted certain text messages into
evidence that Appellant claimed were not properly authenticated. The State introduced the
text messages through Salas, who testified that she recognized Appellant’s phone number
displayed on the text messages, that the text messages were from Appellant, and that
BUTLER — 2
Appellant even called her from that phone number at some point during the course of their
text messaging back and forth.
Relying upon this Court’s opinion in Tienda v. State, 358 S.W.3d 633 (Tex. Crim.
App. 2012), the Corpus Christi Court of Appeals held that Salas’s testimony did not
adequately serve to authenticate the text messages. Butler v. State, No. 13-12-00608-CR,
2014 WL 1272232, at *4 (Tex. App.—Corpus Christi Mar. 27, 2014) (not designated for
publication). Finding that the trial court erred by admitting the text messages and that their
admission into evidence was not harmless, the court of appeals reversed Appellant’s
conviction. Id. at *4-6. Justice Perkes dissented. Id. at *6-7. We granted the State’s petition
for discretionary review in order to examine the court of appeals’s application of our holding
in Tienda, and we now reverse.
BACKGROUND
Salas testified that, as of August 18 of 2011, she and Appellant had been living
together for four or five months in a house in Beeville. That morning Salas received a phone
call from her grandmother in nearby Kenedy, who was undergoing cancer treatment and did
not expect to live for long. Salas decided to drive to Kenedy to join other family members
in visiting her grandmother.
Appellant was unhappy with Salas’s decision to visit her grandmother, and he began
to harass her on her mobile phone, calling and texting her repeatedly from the time she left
the house and continuing throughout the afternoon and into the evening. He accused her of
BUTLER — 3
using the family visit as a cover for infidelity. At about 9:00 o’clock, Salas heard her car start
outside, and she saw Appellant drive it away. Appellant immediately sent Salas a text
message to say that she could find her car on the side of the highway. When Salas later
returned with her mother to Beeville, she found her car and drove it to her mother’s house,
arriving at about 11:00 o’clock. Appellant found Salas there and apologized profusely,
eventually persuading her to return to their home.
On the drive back to their house, Appellant once again accused Salas of infidelity and
began to strike her. When she tried to exit the car, he restrained her by her hair. Once back
at the house, Appellant pushed Salas inside and demanded to know the identity of her lover.
He tore her clothes off and began to punch her and pull her hair. He would not let her leave
the house, and for the rest of the night he continued intermittently to interrogate, threaten,
berate, smother, strangle, kick, and otherwise batter her until she eventually fell asleep at
around daylight. When she awoke later that morning, Appellant acted as if he did not know
what had happened to her. Salas’s mother came in the afternoon and called an ambulance to
take her to the hospital. A police detective photographed the numerous abrasions and
contusions on Salas’s face and body. Appellant was then arrested and charged with
aggravated kidnapping.1
Prior to trial, Salas gave a written statement to Appellant’s attorney in which she
1
See TEX . PENAL CODE § 20.04(a)(3), (4), (5) (“A person commits an offense if he
intentionally or knowingly abducts another person with the intent to . . . facilitate the commission
of a felony or . . . inflict bodily injury on him or . . . terrorize him[.]”).
BUTLER — 4
provided a different account of the beating she had endured. She explained that she had
arrived back at the house by herself only to find one of Appellant’s friend’s girlfriends and
another woman sitting on the couch. Suspecting Appellant of infidelity, she attacked the
women but suffered the worse for the encounter. On cross-examination, Salas admitted to
making the written statement, but she denied that it was truthful, explaining that Appellant
had persuaded her to concoct this alternative story several months after the incident when she
discovered she was pregnant with his child.
The week before trial began, Appellant and Salas shared an exchange of text messages
in which, Salas believed, Appellant threatened “to come and hurt [her] or [her] family”
should she testify against him. The State offered State’s Exhibit 57, encompassing a number
of photographs of the text messages taken from Salas’s Blackberry. The text messages,
spanning a period of about eight minutes, read:2
3612153899: And add this cuz ur fon is taped that y u tex I’ll kill u
myself bitch
3612153899: Pipe in ur mouth ho
3612153899: I can’t wait your teeth r going in ur throat
Salas: Ok I said it once versus u sayin it over 10 times ok mmm
wat u Don’t b a pussy tell me
3612153899: Snithin ass bitch ur dead I hope u lived it out cuz ur scum
snitching bitching ass
2
The text messages are set forth in italics here because they were set out in their original
form in italics.
BUTLER — 5
3612153899: I’ll start with ur mono first
Salas: Who I can’t understand ur writing
3612153899: Ur the pussy u run to the cops after u fuck me over
3612153899: Shut up bitch
Salas: And wat??
Salas: Have some balls & take responsibly for your own
ACTIONS
Salas: U did the crime
3612153899: They sent u in there to take pics of me
3612153899: U deserved it
Salas: I deserved wat
3612153899: Liers need that
3612153899: Lmfao
3612153899: Everyone counted
The trial court admitted this exhibit over Appellant’s objection that, among other things, the
“proper predicate” was lacking.
The State offered the text messages after laying the following predicate through
Salas’s testimony:
Q. What is [Appellant’s] phone number?
A. 361-215-3899.
Q. Does that number appear on all the pages of the exhibit?
BUTLER — 6
A. Yes.
Q. How do you know that that is [Appellant’s] telephone number?
A. Because that’s where he called me from and that’s what’s on the
same exhibit in front of me.
Q. You’ve read the text messages in the exhibit?
A. Yes.
Q. Who sen[t] you those text messages?
A. He did.
Q. How do you know that it was him?
A. Because he was the one texting me back and forth and he had
even called in between the conversations talking mess.
The jury found Appellant guilty. Appellant pled true to one enhancement count for a prior
aggravated assault, and the trial court assessed his punishment at fifty years’ confinement in
the penitentiary and a fine of $10,000.
On appeal, the court of appeals found the State’s predicate inadequate to establish that
Appellant was the author of the text messages attributed to number 361-215-3899. Even
Salas’s testimony that Appellant had called her “in between the conversations talking mess”
failed, in the eyes of the court of appeals, to “provide a sufficient link between [Appellant]
and the text messages to warrant the ultimate submission of the text message transcript to the
jury.” Butler, 2014 WL 1272232, at * 4. The court of appeals elaborated:
If the State sought to authenticate the text messages solely through Salas,
rather than through the cellular phone company or any other means, it could
BUTLER — 7
have done so by further developing Salas’s testimony to include other
circumstantial evidence that would have linked [Appellant] to the text
messages or to the telephone that was used to send the messages, such as
whether [Appellant] identified himself, how she knew it was [Appellant]
calling, or how she recognized his voice.
Id.
THE LAW OF AUTHENTICATION
“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question
is what its proponent claims.” T EX. R. E VID. 901(a). In a jury trial, it is the jury’s role
ultimately to determine whether an item of evidence is indeed what its proponent claims; the
trial court need only make the preliminary determination that the proponent of the item has
supplied facts sufficient to support a reasonable jury determination that the proffered
evidence is authentic. Tienda, 358 S.W.3d at 638. The trial court’s determination of whether
the proponent has met this threshold requirement is subject to appellate review for an abuse
of discretion and should not be countermanded so long as it is within the zone of reasonable
disagreement. Id. This has been aptly described as a “liberal standard of admissibility.”
Cathy Cochran, T EXAS R ULES OF E VIDENCE H ANDBOOK 922 (7th ed. 2007-08).
CELL PHONE TEXT MESSAGES
Text messages are “short messages [sent] over a cellular phone network, typically by
means of a short message service (SMS).” Steven Goode, The Admissibility of Electronic
Evidence, 29 R EV. L ITIG . 1, 16 n.66 (Fall 2009). As with other types of evidence, text
BUTLER — 8
messages may be authenticated by “evidence sufficient to support a finding that the matter
is what its proponent claims.” T EX. R. E VID. 901(a). This can be accomplished in myriad
ways, depending upon the unique facts and circumstances of each case, including through
the testimony of a witness with knowledge or through evidence showing distinctive
characteristics. T EX. R. E VID. 901(b)(1) (testimony of a witness with knowledge); T EX. R.
E VID. 901(b)(4) (distinctive characteristics and the like); see, also Goode, supra, at 16-19,
31-33.
A witness might have “knowledge” of the authorship of a text message for a number
of reasons. One reason might be that the witness is the actual author of the text message.
Tienda, 358 S.W.3d at 640. Another reason might be that the witness personally observed
the purported author actually type and/or send the message. Id. A witness might also claim
to have knowledge that a text message came from a phone number known to be associated
with the purported sender. The association of a cell-phone number with a particular
individual might suggest that the owner or user of that number may be the sender of a text
message. Indeed, the suggestion may be quite strong. Unlike so-called “land lines,”
commonly utilized by an entire household, cell phones tend to be personal and user-specific.3
3
Both the United States Supreme Court and this Court have lately recognized that cell phone
users can have a reasonable expectation of privacy in the content of their cell phones, noting the
plethora of highly personal information that may be found there—suggesting a certain unique
relationship between owner and cell phone. See Riley v. California, 134 S. Ct. 2473, 2489 (2014)
(“The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact
minicomputers that also happen to have the capacity to be used as a telephone. They could just as
easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries,
albums, televisions, maps, or newspapers.”); State v. Granville, 423 S.W.3d 399, 417 n.66 (Tex.
BUTLER — 9
Still, evidence that merely shows the association of a phone number with a purported
sender—alone—might be too tenuous. We have advised caution in the event a trial court
finds that this is the only fact underlying a witness’s knowledge linking a text message to the
purported author.4 A logical gap may still exist—a gap that we can recognize by reason and
common sense—because, as we recognized in Tienda, “cell phones can be purloined,” 5 and
a cell-phone number does not necessarily establish the identity of the user at a particular
moment in time with the same definitiveness that fingerprints, signatures, photographs, or
DNA may establish the identity of the perpetrator of a crime.
In isolation, a cell phone number is in some respects similar to a return address on a
letter. If the return address is the location where the purported author happens to live, it may
suggest that the person who lives at the address is the author of the letter. Or it might not—at
least not on its own, if multiple people happen to live at or have access to that same address.
But a letter bearing the return address of a purported author, combined with other
Crim. App. 2014) (noting the different relationship people have with their phones than they did in
the past). Along the way, the Supreme Court remarked that cell phones “place vast quantities of
personal information literally in the hands of individuals” and “are now such a pervasive and
insistent part of daily life that the proverbial visitor from Mars might conclude they were an
important feature of human anatomy.” Riley, 134 S. Ct. at 2484-85. “Now it is the person who is not
carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly
three-quarters of smart phone users report being within five feet of their phones most of the time,
with 12 % admitting that they even use their phones in the shower.” Id. at 2490. Any parent or
teacher can confirm how difficult it can be to separate a teenager from his cell phone.
4
Mindful that “cell phones can be purloined[,]” we observed in Tienda that, the fact “that
a text message emanates from a cell phone number assigned to the purported author . . . without
more,” might be “[in]sufficient to support a finding of authenticity.” 358 S.W.3d at 641-42.
5
Id. at 641.
 BUTLER — 10
circumstances including its appearance and contents, may be sufficient to authenticate a letter
as having been sent by the person purported to be its author.6
As with evidence in general, authenticating evidence may be direct or circumstantial.7
6
See, e.g., United States v. Thompson, 449 F.3d 267, 274-275 (1st Cir. 2006)(finding an
anonymous letter properly admitted as an admission of the defendant where the sponsoring witness
testified that the return address was known to him to be the address of the defendant and other
circumstances tended to suggest that the letter had been written by the defendant); State v. Brown,
783 N.E.2d 539, 548-549 (Ohio. App. 2002) (finding a letter properly authenticated as having been
authored by the defendant after observing that the return address on the letter was the same county
jail where the defendant was incarcerated, along with a number of other factors, such as the date the
letter was written, the fact that it was addressed to the judge presiding over the defendant’s trial, the
fact that it mentioned that a hearing that was scheduled in the case did not take place when it was
scheduled, the fact that it discussed the defendant’s history in the correctional system, and the fact
that it was signed with the defendant’s name).
As the Tyler Court of Appeals has also observed:
Another traditional method of authentication permitted by Rule 901 is the
“reply-letter doctrine.” Varkonyi v. State, 276 S.W.3d 27, 35 (Tex. App.—El Paso
2008, pet. ref’d) (citing Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK,
Article IX, at 915 (6th ed. 2005). Under this doctrine, a letter received in the due
course of mail purportedly in answer to another letter is prima facie genuine and
admissible without further proof of authenticity. Id. This doctrine applies to e-mails.
Id. Therefore, an e-mail is sufficiently authenticated when a person responds to an
e-mail that was sent to the person’s e-mail address. Id. This rule has been applied to
other types of messages by analogy. See, e.g., People v. Pierre, 41 A.D.3d 289, 838
N.Y.S.2d 546, 548-49 (N.Y.App.Div. 2007) (applied to instant message where
person sent instant message to screen name and received reply, content on reply
supported conclusion that message was sent by defendant, and no evidence was
admitted to show anyone else had motive or opportunity to impersonate defendant
by using his screen name).
Manuel v. State, 357 S.W.3d 66, 75-76 (Tex. App.—Tyler 2011, pet. ref’d).
7
See Wallace v. State, 782 S.W.2d 854, 858 (Tex. Crim. App. 1989) (finding that “the
predicate for admission of audio tapes may be proven with circumstantial evidence”); and see also,
e.g., United States v. Haldeman, 559 F.2d 31, 107 (D.C. Cir. 1976) (en banc) (“Although the
evidence bearing on admissibility should be carefully scrutinized to see if it measures up . . . it may
be circumstantial or direct, real or testimonial, and need not conform to any particular model.”).
BUTLER — 11
In cases where a sponsoring witness may testify to an association between a cell-phone
number and a purported author, other evidence may be available that might bridge the logical
gap and permit a proper inference that the purported author sent the message. The other
evidence might include the message’s “appearance, contents, substance, internal patterns, or
other distinctive characteristics,” which considered in conjunction with other circumstances
support a conclusion that a message indeed emanated from the purported author. T EX. R.
E VID. 901(b)(1).
For example, a cellular-phone company may provide records to show that a text
message originated from the purported sender’s phone “under circumstances in which it is
reasonable to believe that only the purported sender would have had access to the . . . cell
phone.” Tienda, 358 S.W.3d at 640. In other cases, the purported sender of a message may
respond in such a way as to indicate his or her authorship of the message, such as by calling
the recipient to confirm receipt of the message. Id. at 641. And in still other cases, the content
and/or context of a particular exchange of messages may create an inference supporting the
conclusion that it was in fact the purported author who sent them. See Id. at 641 & n.34.8
ANALYSIS
In the instant case, Salas testified that the text messages at issue emanated from phone
number 361-215-3899. She had personal knowledge that this was Appellant’s phone number,
8
See also, Massimo v. State, 144 S.W.3d 210 (Tex. App. - Forth Worth 2004, no pet.) (in an
electronic communications harassment case, addressing both circumstances and content related
factors, such as the fact that the offending email was sent shortly after an altercation between the
defendant and the victim and referenced the altercation).
BUTLER — 12
presumably from past experience. The court of appeals believed that the State’s predicate
failed to establish any more than the bare fact that the text messages emanated from
Appellant’s personal phone. Butler, 2014 WL 1272232 *4 (“Salas’s testimony states that she
had personal knowledge that it was Butler’s telephone number because he had called her
from that number before. This testimony, without more, is exactly the type of evidence that
the Tienda Court warned about in authenticating text messages.”). It concluded there was
insufficient accompanying indicia of Appellant’s authorship. Id. In our view, however, there
was other evidence that bridged the gap and supplied the necessary predicate.
Asked how she knew it was Appellant’s number, Salas replied: “[b]ecause that’s
where he called me from[.]” But how did she know that it was Appellant who was using that
phone to send her the particular text messages at issue in this case? According to Salas,
“Because he was the one texting [her] back and forth and he had even called in between the
conversations talking mess.”9 Although Salas’s responses are not without ambiguity, a
rational jury could conclude that Salas recognized the texts to be coming from Appellant on
this occasion (and not someone else who might have purloined his phone) because: (1) he
had called her from that number on past occasions; (2) the content and context of the text
messages convinced her that the messages were from him; and (3) he actually called her from
that same phone number during the course of that very text message exchange.
Aside from the fact that appellant had called Salas in the past from phone number
9
Emphasis added.
BUTLER — 13
361-215-3899, the content and context of the text messages themselves constituted additional
circumstantial evidence of the authenticity of the messages. See T EX. R. E VID. 901(b)(4)
(distinctive characteristics and the like). When considering the admissibility of text messages,
just as when considering the admissibility of letters, emails, instant messages, and other
similar written forms of communications, courts must be especially cognizant that such
matters may sometimes be authenticated by distinctive characteristics found within the
writings themselves and by comparative reference from those characteristics to other
circumstances shown to exist by the evidence presented at trial.10 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.11
Take, for example, the text-message exchange in this case, which occurred the week
before Appellant’s trial began. One particular text message sent from Appellant’s phone
during the exchange stated: “Snithin ass bitch ur dead I hope u lived it out cuz ur scum
snitching bitching ass.” Appellant certainly had a reason to consider Salas a “snitch” since
10
Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK 934 (7th ed. 2007-08) (“[T]he
language of the rule . . . obviously is aimed at permitting items to be authenticated by distinctive
circumstantial evidence, [and t]hus, letters and other items may be authenticated by distinctive
characteristics such as the document’s contents, appearance, and location.”).
11
See id., at 936 (“Factors to consider in determining the authenticity of e-mails and instant
messages include . . . (6) any other circumstances, such as conversations or events either before or
after the e-mail or instant message that tend to make it more likely that this message came from a
certain person.”).
BUTLER — 14
she was likely going to be the principal witness against him at his upcoming trial. Similarly,
Appellant had a motive to try to prevent her from testifying against him at his trial by making
threats to both her and her family. The record fails to suggest anybody else who might have
had a similar motive to threaten Salas and her family in the week before Appellant’s trial
began.12
What’s more, another of the text messages indicated a belief that the recipient of the
message had complained about the sender to the police. Specifically, this message stated: “Ur
the pussy u run to the cops after u fuck me over.” Who else other than Appellant might have
complained—one week before appellant’s trial—that Salas had “fuck[ed] [him] over” and
“run to the cops”? A rational inference is certainly available under the circumstances that
Appellant was the author of these profane and threatening text messages.
Finally, it is at least implicit in Salas’ ultimate response (to the question: “How do you
know that it was him?”) that she knew it was Appellant who was texting her from his phone
because of a contemporaneous call she received from a person whose voice she recognized
to be Appellant’s. She testified that “he had even called in between the conversations talking
mess.” The timing of that phone call (“in between the conversations”) is yet another
12
See Honorable Paul W. Grimm, Lisa Yurwit Bergstrom & Melissa M. O’Toole-Loureiro,
SYMPOSIUM: Keynote Address: Authentication of Social Media Evidence, 36 AM . J. TRIAL ADVOC.
433, 458 (Spring 2013) (“When all that the objecting party offers is speculation or conjecture about
who, other than the putative creator, ‘could’ have created the evidence, such questions are properly
left to the jury in determining how much weight, if any, to give to the evidence -- provided that the
trial judge is convinced that the proponent has met the relatively low threshold required by Rule
901(a) of producing facts that would be sufficient for a reasonable jury to conclude that the evidence
was created by the putative creator.”).
BUTLER — 15
circumstance which made it reasonable for Salas (and hence, the jury) to conclude that
Appellant was the person who controlled the phone at the time that the text messages at issue
were generated.
The State could have endeavored to make all of these circumstantial indicia of
authenticity more explicit and less ambiguous than it did. However, under the circumstances
presented in this case, we cannot agree with the court of appeals that the trial court abused
its discretion to conclude that there was sufficient evidence to support a jury finding that the
text messages were indeed what the State and Salas purported them to be—namely, a text-
message exchange between Salas and Appellant.
Appellant insists that, because Salas’s credibility was seriously impeached by the fact
that she had given a statement implicating someone other than Appellant in the beating she
endured,13 the trial court erred to conclude her testimony could be relied upon to establish his
authorship of the text messages. We disagree. Rule 901 provides for authentication “by
evidence sufficient to support a finding that the matter is what its proponent claims.” T EX.
R. E VID. 901. It requires merely “sufficient” evidence “to support” authentication. It does not
13
Indeed, the trial judge observed (out of the jury’s presence):
And this -- this witness is something else.
She’s already made two completely different stories under oath as to what
happened.
***
She’s -- she’s acting rather bizarrely for a witness that’s supposed to come in
that’s been beaten up.
BUTLER — 16
ordinarily require the trial court to make a threshold determination of the credibility of the
evidence proffered by the proponent to establish authenticity. And as particularly applied to
Rule 901(b)(1), it does not contemplate that, as a condition of admissibility, the trial court
should have to find that the “witness with knowledge” is necessarily worthy of belief. T EX.
R. E VID. 901(b)(1).
Nothing in Rule 901 suggests that a witness whose credibility has been questioned in
some way is precluded by that fact from sponsoring evidence as a “witness with knowledge.”
Id. Even when a trial court judge personally harbors some doubt as to the general credibility
of a sponsoring witness, a decision to admit particular evidence sponsored by that witness
may not necessarily be outside the zone of reasonable disagreement.14 So long as the ultimate
fact-finder could rationally choose to believe the sponsoring witness, and the witness’s
testimony would establish that the item proffered “is what its proponent claims[,]” the trial
court will not abuse its discretion to admit it.15 As we said in Tienda, “[t]he ultimate question
whether an item of evidence is what its proponent claims [is] a question for the fact-
14
Tienda, 358 S.W.3d at 638 (“If the trial court’s ruling . . . is at least ‘within the zone of
reasonable disagreement,’ a reviewing court should not interfere.”).
15
We do not discount a remote possibility that, under some yet unknown set of facts, the
balance of the record may so irrefutably contradict a sponsoring witness’s authentication testimony
that it might be appropriate for the trial court to determine that no rational ultimate fact-finder could
choose to believe the sponsoring witness’s testimony. Cf. Carmouche v. State, 10 S.W.3d 323, 331-
33 (Tex. Crim. App. 2000) (in the context of an appellate review of a motion to suppress, despite
a reviewing court’s usual deference to the fact and credibility determinations of the trial court as
original fact-finder, the trial court could not rationally accept the testimony of a law enforcement
officer whose testimony was conclusively refuted by the videotape taken from his patrol car). This
is not such a case.
BUTLER — 17
finder—the jury, in a jury trial.” Tienda, 358 S.W.3d at 638.
In this case, the jury could have rationally chosen to believe Salas’s testimony about
the text message exchange, despite her equivocation with respect to the offense itself. Salas
explained her equivocation at trial, and a rational jury might readily have accepted her
explanation as credible. The jury might also have found her testimony about the text-message
exchange to be reliable and therefore concluded that Appellant was the one and only author
who composed the messages and the threats contained therein.16 The trial court’s decision
to admit the content of the text messages and leave the ultimate question of authenticity to
the jury was well within the zone of reasonable disagreement.
CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and remand the cause
to that court to consider any other issues that were properly before the court.17
DELIVERED: April 22, 2015
PUBLISH
16
See, e.g., State v. Thompson, 777 N.W.2d 617, 626 (N.D. 2010) (“Here, the district court
heard sufficient evidence from the complainant, including the circumstances of that day and his
knowledge of Thompson’s cell phone number and signature on text messages, to authenticate the
complainant’s testimony about the text messages he received on October 31, 2008.”); People v.
Chromik, 946 N.E.2d 1039, 1056 (Ill. App. Ct. 2011) (citing Thompson to hold that text messages
were properly authenticated by, among other things, the victim’s testimony).
17
Although Appellant brought only a single point of error on direct appeal, it appears he may
have made more than one substantive argument. Having reversed the conviction on the basis of
Appellant’s argument with respect to authentication, the court of appeals found it unnecessary to
address his alternative arguments that the text messages were also inadmissible because they were
simply irrelevant, or inadmissible under Rules 403 and 404(b) of the Texas Rules of Evidence.
Butler, 2014 WL 1272232, at *2 & *6 n.4.