This post examines an opinion from the Court of Appeals of Texas – Texarkana: Walker v. State, 2016
WL 1600268
(2016). As courts
usually do, the Court of Appeals began by explaining how the case arose:
Edgar Llorens was robbed at Eddie's
Tire Shop, his business in McLennan County, by three men, each armed
with a handgun and each having his face at least partially covered. Though
video surveillance cameras recorded the robbers and Llorens, Llorens could not
identify any of the men. Bronchea Gerad Walker was charged with aggravated
robbery, along with Oliver Johnson and Willie Clark, who by definition are
accomplices. Much evidence came from Johnson's testimony concerning the robbery
and regarding text messages exchanged between Walker's and Johnson's cell
phones. From his conviction for which he received a sentence of twenty-three
years' incarceration, Walker appeals, urging two points of error, both related
to the status of Johnson and Clark as accomplices.
Walker v. State, supra.
The brief Walker filed on appeal noted that, when
interviewed by police, Llorens said
men came and held him at gunpoint
around 8:00 that morning. . . . He allowed them to take a few hundred dollars
that were in his pocket. . . . One of the men searched the desk in Llorens's
office and took a camera and a radar detector. . . . The State then published a
video recording marked as State's Exhibit 1 . . . to the jury. . . .
After the State played the recording
from Camera 1,4 Llorens explained that the men arrived at around 8:03 and had
left by 8:04:18. He then went outside and called the police. . . . The State
then played the recording from Camera 2. . . . Llorens testified that all three
men had guns. . . . One of them shoved him after Llorens said he did not have
any money other than the money in his pocket. . . . This man had a white
t-shirt and a black ski mask. . . . Llorens later testified that this man put a
`gun in my face.’ . . .
Appellant’s Brief, Walker v. State, supra.
The Court of Appeals went on to note that Walker’s two
arguments on appeal both dealt with whether text messages from Johnson’s cell
phone were properly admitted at his trial.
Walker v. State, supra. More precisely, Walker argued that (i) the
text messages from Johnson’s phone “constituted inadmissible hearsay”; and (ii)
the trial testimony of Walker’s accomplices, Johnson and Clark, was not
sufficiently corroborated. Walker v.
State, supra. (In a footnote, the
court explains that “Johnson and Walker exchanged a series of text messages on
August 9 and August 14, 2013, in which they ostensibly discussed plans for the
robbery that took place on August 14, 2013.”) The court took up each argument,
in this order. Walker v. State, supra.
Walker argues that text messages from Johnson's cell phone were not sufficiently
authenticated and therefore constituted inadmissible hearsay, as there was insufficient evidence to connect those
messages with Walker. We disagree.
We review the admissibility of evidence
for an abuse of discretion and will reverse the trial court's decision only if
its ruling lies outside the zone of reasonable disagreement. Butler v.
State, 459 S.W.3d 595, 600 (Texas Court of Criminal Appeals 2015); Tillman
v. State, 354 S.W.3d 425, 435 (Texas Court of Criminal Appeals 2011).
A text message, a short, typed communication typically sent and received using
cellular telephones, is, like other evidence, authenticated when evidence
supports a finding that it is what its proponent claims it to be. Butler
v. State, supra; see TEXAS RULES OF EVIDENCE 901(a) (proponent
must produce evidence sufficient to support finding that item is what proponent
claims). While a text shown to have originated from a particular individual's
cell phone might point to him or her as the probable author of that message,
the proponent needs other authenticating information, given that someone else
could have used the individual's phone. Butler v. State, supra. The
proponent of a text message as evidence could authenticate the message in
various ways, including use of a witness who has knowledge about the message or
pointing out distinctive characteristics of the message that tend to connect it
to a particular person. Butler v. State, supra; see TEXAS RULES OF
EVIDENCE 901(b)(1), (4). Here, the State
provided both types of authenticating evidence.
Walker v. State, supra.
The court went on to explain that
[I]n addition to evidence that the
number of the cell phone originating the messages was linked to
Walker, within the messages themselves is information that tends to
connect them with Walker as the author. (In a footnote, the court explains that
Johnson testified that the text
messages originated from `Bshay,’ identified by Johnson as Walker. Haywood
Sawyer, who at the time of trial was an investigator with the Bellmead Police
Department, testified that he extracted Walker's cell phone number from
Johnson's cell phone by looking at the contacts and getting the number for
`Bshay.’ Sawyer then ran this number through a Facebook search engine. Sawyer
explained that the search engine will tie the number to a person with a
Facebook account, if that person listed his telephone number on Facebook when
the account was initiated or updated. The number Sawyer extracted from
Johnson's cell phone for `Bshay’ matched Walker's Facebook account, and Sawyer
was able to obtain a correct spelling of Walker's name.
Walker v. State, supra. The court also noted that the
author of the messages knew when
Walker's mother left the house for work and the fact that Walker did not own a
car. Johnson testified from his years of dealing with Walker and from the
fact that intervening voice calls came from the same telephone that Walker
was originating the text messages and calls from that number, as was his
custom.
Walker v. State, supra. In yet another footnote, the court explained
that
Johnson testified that he and Walker
discussed plans for the robbery on their cell phones during the time they were
also discussing these plans via text messages. Johnson and Walker exchanged
twenty-seven cell phone calls on August 10 through August 12, and nine
additional calls on August 13 and 14. The cell phone record reflecting this
series of calls was an accurate depiction of an image from Johnson's cell phone
showing the history of calls between Johnson and the contact known as `Bshay.’
Walker v. State, supra.
The Court of Appeals then took up the substance of Walker’s
argument, noting that
Walker claims that, since Johnson was
an accomplice, his testimony authenticating the text messages, without
corroboration, cannot be used to support Walker's conviction. We disagree. The
authentication rule requires the proponent of evidence to supply supporting
information sufficient to support a finding that the item of evidence is what
the proponent claims it is. TEXAS RULES OF EVIDENCE 901. Here, we are
concerned solely with Johnson's testimony that the text messages he received
were from Walker. The purpose of the authentication rule is to ensure the
trustworthiness of the information offered into evidence. See Venable
v. State, 113 S.W.3d 797, 800 (Court of Appeals of Texas –Beaumont
2003, pet. ref'd). There is no rule that would require the trial court to
permit only those witnesses whom it finds credible and sufficiently
disinterested to testify regarding authentication. The credibility of a witness
is a question for the jury. The trial court has discretion to admit evidence
that a reasonable juror could find sufficiently identified. Druery v.
State, 225 S.W.3d 491, 504 (Texas Court of Criminal Appeals 2007).
In contrast, the policy underlying the
accomplice-witness rule is to make sure that a conviction is not based solely
on testimony of a biased accomplice who perhaps has good reason to incriminate
the defendant. Accomplices often strike bargains with the State, in which the
State agrees to a favorable sentencing recommendation in return for the
accomplice's testimony against the defendant. See Blake v.
State, 971 S.W.2d 451, 460 (Texas Court of Criminal Appeals 1998).
Additionally, `those accused of crimes tend to try to place the responsibility
for the commission of the crime on the other participants while downplaying their
own participation, often in order to avoid the consequences of criminal acts.’ Blake v. State, supra. Consequently, the
rule was designed to prevent a defendant from being wrongly convicted. Blake v. State, supra.
Walker v. State, supra.
It went on to explain that the
authentication rule and the
accomplice-witness rule thus fulfill different purposes at trial. The
authentication rule is an evidentiary rule that guards against admitting
evidence unless it is supported by evidence suggesting that it is what the
proponent claims it is. The accomplice-witness rule is not an evidentiary rule,
but is designed to protect the defendant from being wrongfully convicted on the
testimony of an accomplice alone.
We see no reason to append the
additional requirement of corroboration to the authentication rule when the
authentication testimony is offered by an accomplice, and decline to hold that
such a requirement is mandated either under the authentication rule or the
accomplice-witness rule.
Because the trial court acted within
its discretion to find that the text messages were properly authenticated, they
were properly admitted into evidence.
Walker v. State, supra.
The Court of Appeals therefore
held that “[b]ecause the trial court acted within its discretion to find that
the text messages were properly authenticated, they were properly admitted into
evidence.” Walker v. State, supra.
It then took up Walker’s argument
that “there is no evidence corroborating the trial testimony of accomplices
Johnson and Clark and that, therefore, his conviction cannot stand.” Walker v. State, supra. It went on to explain that
[t]here is no dispute that Johnson and
Clark were accomplices. Walker's claim is that no, or insufficient, evidence in
this record, other than accomplice testimony within the meaning of Article
38.14 of the Texas Code of Criminal Procedure, tends to connect Walker with the
commission of the charged offense. See Id. We find in
this record sufficient evidence tending to connect Walker with the robbery in
question.
Walker v. State, supra. In a
footnote, the court quoted the article in question:
`A conviction cannot be had upon the
testimony of an accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of an offense.’ Article 38.14
of the Texas Code of Criminal Procedure.
The Court of Appeals went on to
explain that the
[t]he corroborating evidence needed to
allow use of accomplice-witness testimony need only tend to connect the
defendant with the crime; it need not be sufficient alone to establish
guilt. Castillo v. State, 221 S.W.3d 689, 691 (Texas Court of
Criminal Appeals 2007); Medrano v. State, 421 S.W.3d 869, 883
(Texas Court of Appeals -- Dallas 2014, pet. ref'd). Instead, the evidence must
only link the defendant in some way to the commission of the offense such that
rational jurors could conclude that this evidence sufficiently tends to connect
the defendant to the offense. Malone v. State, 253 S.W.3d 253,
257 (Texas Court of Criminal Appeals 2008). Such corroboration may come from
small details. Trevino v. State, 991 S.W.2d 849, 852 (Texas
Court of Criminal Appeals 1999); Medrano
v. State, supra. Based on the particular facts and circumstances of each
case, our analysis involves the combined force of all the non-accomplice
evidence that tends to connect the accused to the offense. Smith v.
State, 332 S.W.3d 425, 442 (Texas Court of Criminal Appeals 2011); Medrano v. State, supra.
Walker v. State, supra.
The court then applied the above
principles to the issue in this case, explaining that the
[o]fficers were able to gain access to
Johnson's cell phone containing text messages and voice call logs reflecting
communications with a `Bshay,’ whom officers were able to identify
independently as Walker. The text messages are communications between Johnson
and Walker, ostensibly planning the robbery. Walker contends that the text
message evidence is inadmissible and therefore cannot be used to corroborate
the accomplice-witness testimony. We have determined that the text messages
were admissible. Even if they were improperly admitted, they should be
considered in our review of the sufficiency of corroborating evidence. Medrano v. State, supra. Walker next argues that, at most, the text
messages connect Walker to Johnson, but not to the commission of the offense.
We disagree.
The text messages from Friday, August 9
reveal (1) that Walker and Johnson were looking for some `wheels’ and the time
at which those wheels would be needed at Walker's house early that morning, (2)
that Walker reassured Johnson that they would not come out `empty handed,’ (3)
that they both needed money, (4) that Walker was skeptical about letting
someone he did not know drive, even though that person would not say anything,
(5) that Walker stated that he would wait, rather than to get it done on that
morning with a driver he did not know, and that they could `go anytime of the week.’
The text messages from Wednesday, August 14 reveal (1) that, at 2:17 a.m.,
Walker told Johnson, `We [are] on 4 2mrrw,’ (2) that Walker told Johnson that
he was up at 6:17 a.m., but asked Johnson to wait until about 6:45 to leave,
and (3) that, when Johnson told Walker he was on his way at 6:50 a.m., Walker
told him, `[W]ait till My [mother] leave[s].’ Johnson explained that Walker was
asking him to wait until his mother left for work. The robbery took place at
8:00 a.m. that morning.
These text messages establish that
Walker needed a car for the purpose of getting money, that he did not trust
someone that he did not know to drive the car, even though he was assured that
the driver would not talk, and that he did not want Johnson to pick him up
until his mother left for work on the morning of August 14, slightly more than
one hour before the robbery took place. Additional non-accomplice evidence
showed that Walker's mother was scheduled to arrive at work on the morning of
the robbery at 7:00 a.m., that she worked her usual shift that day, and that
Johnson was at the scene of the robbery that morning.
Walker testified in his own defense and
admitted to having known Johnson for several years and having texted Johnson as
reflected in the messages introduced into evidence. He explained that the text
messages reflected his agreement to front Johnson marihuana so Johnson could
sell it to get money. Walker further testified that he and Johnson were set to
do a drug deal the morning of August 14 at the same time the robbery happened.
The jury could have found this testimony lacked credibility and was simply an
attempt to explain away incriminating evidence. The totality of this evidence
would permit a reasonable fact-finder to conclude that the text messages tend
to connect Walker to the robbery. See Cerna v. State, 441
S.W.3d 860, 866 (Texas Court of Appeals -- Houston [14th Dist.] 2014, pet.
ref'd) (among other things, fact that defendant exchanged text messages
with accomplice just before murder corroborated testimony of accomplice).
Also, Walker's physical characteristics
are said to be consistent with physical characteristics of one of the robbers
captured by the video recordings of the robbery, other than Clark and Johnson.
That, too, tends to connect Walker with the crime.
We find sufficient corroboration of
Clark's and Johnson's testimony at trial to allow its admission and, thus,
Walker's conviction.
We affirm the judgment of the trial
court.
Walker v. State, supra.
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