Brian Curtis Musgrove v. State ( 2009 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-09-00163-CR
    Brian Curtis Musgrove, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
    NO. CR-01-421, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
    MEMORANDUM OPINION
    In January 2002, appellant Brian Curtis Musgrove was adjudged guilty of felony
    driving while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West
    Supp. 2009). His punishment was assessed at ten years in prison and a $1500 fine, but imposition
    of sentence was suspended and he was placed on community supervision. In February 2009, the
    court revoked supervision and imposed sentence following a hearing on the State’s amended motion
    to revoke. In a single point of error, appellant contends that an exhibit was erroneously admitted at
    the hearing. We affirm the revocation order.
    The amended motion to revoke alleged that appellant violated his supervisory
    conditions by, among other things, committing the offense of harassment. See 
    id. § 42.07
    (West
    2003). The State sought to prove this allegation through the testimony of Glenn Ogden and his wife,
    Daphne Lazo. Ogden testified that he had known appellant for years, but that the relationship had
    changed during the “last eight months or so.” Ogden said that appellant had become “increasingly
    infatuated with my wife and daughter. He would bring gifts for my daughter. He would call my wife
    at work. He would email things, poems and such, pictures.” Eventually, Ogden had asked appellant
    to stop communicating with him and his wife. Lazo’s testimony was similar. She said that appellant
    obviously “had a crush” on her and that, at first, it was “kind of cute.” But when appellant began
    to make repeated telephone calls to her home, send her offensive email, and attempt to see her at her
    work, she began to feel uncomfortable and “creepy.” Ogden and Lazo identified State’s exhibits one
    and two as copies of emails they received from appellant, one before and the other after they asked
    him to stop his communications. Appellant acknowledged sending the emails, both of which
    contained sexually explicit photographs. Appellant testified that he meant them only for Ogden and
    had not intended for Lazo to see them.
    The subject of appellant’s point of error is State’s exhibit three. This exhibit was a
    copy of an on-line classified advertisement. The ad purports to have been placed by a man and wife
    who live in Hays County. The ad solicits persons who are interested in engaging in sexual activities
    with the couple, and it contains several sexually explicit photographs (but shows no faces). The ad
    advises those interested to call a telephone number that was identified by Ogden as his and Lazo’s.
    Ogden and Lazo denied posting the ad or being the persons pictured, and they testified that they
    learned of the ad’s existence only when persons began calling their home in response to it. Ogden
    testified that one of the photographs in the ad had previously been described to him by appellant,
    who told Ogden that he had seen it at a “swinger’s site” and had assumed that it was a photograph
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    of Ogden and Lazo. Ogden testified that because of this, he assumed that appellant was responsible
    for posting the ad.
    Appellant contends that the trial court erred by admitting exhibit three because it was
    not properly authenticated. 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. Tex. R. Evid. 901(a). Appellant argues that the exhibit was
    not authenticated because the State failed to show that he was responsible for placing the ad.
    Appellant relies on opinions discussing the authentication of emails purporting to be sent from the
    defendant. See Varkonyi v. State, 
    276 S.W.3d 27
    , 34-35 (Tex. App.—El Paso 2008, pet. ref’d);
    Shea v. State, 
    167 S.W.3d 98
    , 104-05 (Tex. App.—Waco 2005, pet. ref’d); Massimo v. State,
    
    144 S.W.3d 210
    , 215-17 (Tex. App.—Fort Worth 2004, no pet.).
    Unlike the emails at issue in the opinions cited by appellant, appellant’s identity as
    the person who placed the ad did not go to the authenticity of the exhibit. It was undisputed below
    that exhibit three was an authentic copy of an actual on-line classified advertisement. Whether
    appellant placed the ad did not go to the authenticity of the exhibit, but to his guilt of the harassment
    offense alleged in the motion to revoke.
    Even if exhibit three was erroneously admitted, the error was harmless. The
    harassment allegation was one of several violations contained in the motion to revoke. Among the
    other alleged violations were that appellant had failed to report to his probation officer and had failed
    to pay his supervision fees. Appellant’s probation officer testified to these violations, which
    appellant admitted in his own testimony. Only one violation is necessary to support the revocation
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    of community supervision. Sanchez v. State, 
    603 S.W.2d 869
    , 871 (Tex. Crim. App. 1980). Because
    exhibit three related only to the harassment allegation, and because the revocation order is supported
    by other unchallenged violations, any error in the admission of the exhibit did not affect appellant’s
    substantial rights. See Tex. R. App. P. 44.2(b).
    The point of error is overruled, and the order revoking community supervision
    is affirmed.
    __________________________________________
    Jan P. Patterson, Justice
    Before Justices Patterson, Puryear and Pemberton
    Affirmed
    Filed: November 20, 2009
    Do Not Publish
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Document Info

Docket Number: 03-09-00163-CR

Filed Date: 11/20/2009

Precedential Status: Precedential

Modified Date: 9/6/2015