Charlie Frelix III v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00290-CR
CHARLIE FRELIX III, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1491849D, Honorable David C. Hagerman, Presiding
September 13, 2019
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Following a jury trial, appellant Charlie Frelix III was convicted of the second-
degree felony offense of sexual assault of a child under seventeen years of age1 and
sentenced to a term of imprisonment of fifteen years.2 Appellant challenges his conviction
through two issues. We will affirm.
1 TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).
2 TEX. PENAL CODE ANN. § 12.33 (West 2011). This is a second-degree felony
punishable by imprisonment for any term of not less than two years or more than twenty
years and a fine not to exceed $10,000.
Background
Appellant was charged via a four-count indictment with one count of continuous
sexual assault of a child under the age of fourteen and three counts of aggravated sexual
assault of a child under the age of fourteen. After hearing the evidence, the jury found
appellant not guilty of the four charged offenses, but guilty of a lesser-included offense to
one count, sexual assault of a child under the age of seventeen.
The complainant, D.W., lived with her father in an apartment complex in Fort
Worth. The father testified they lived in those apartments for “about a year and a half”
when D.W. was “13, 14 years old . . . .” When she was thirteen, appellant, a man in his
twenties, began visiting the family’s apartment. At some point, the father testified, he
noticed D.W. was frequently away from the apartment. He would see her enter a friend’s
nearby apartment and would observe appellant going in and out of the apartment “all the
time.”
D.W. testified that at a point during the events, her relationship with appellant
became sexual. During her testimony, she acknowledged that appellant put his penis in
her vagina, that appellant’s mouth went on her vagina, and appellant’s penis went into
her mouth. She told the jury these acts took place in her friend’s apartment, at appellant’s
home, and “probably” in appellant’s car. Later in her testimony, D.W. admitted that she
has “a history of making up things and lying.”
D.W. also testified that around the time she had a relationship with appellant, she
and a female friend decided to become prostitutes to make money. She said she was
“picked up” by police a couple of times for prostitution and was later arrested for the
offense. During a discussion with an officer about her involvement in prostitution, D.W.
2
told about her relationship with appellant. As a result of that conversation, D.W. went to
Cook Children’s Hospital for a sexual assault examination.
D.W. also was interviewed by a Homeland Security agent working with Fort Worth
police on human trafficking cases. Based on information he received from D.W., the
agent identified Facebook accounts he believed belonged to D.W. and to appellant. He
obtained a search warrant for records from Facebook and received from the company a
volume of pages for each account. The State offered into evidence pages containing
iMessages identified as exchanged between appellant and D.W. During cross-
examination, the agent acknowledged his lack of personal knowledge regarding the
records and acknowledged he relied on Facebook to deliver the proper records. D.W.
testified outside the presence of the jury to conversations she had with appellant through
Facebook and agreed the proffered records contained messages they exchanged.
Appellant objected the documents were not properly authenticated. The court overruled
the objection, the documents were admitted into evidence, and the State read parts of the
exhibit to the jury.
Appellant now appeals his conviction, arguing the evidence at trial was insufficient
to support his conviction for sexual assault of a child under the age of seventeen and
arguing the trial court erred by admitting the Facebook records into evidence.
Analysis
Issue One - Sufficiency of the Evidence
In considering whether the evidence is sufficient to support a conviction, we review
all the evidence in the light most favorable to the verdict and assume that the trier of fact
3
resolved conflicts in the testimony, weighed the evidence, and drew reasonable
inferences in a manner that supports the verdict. Ryder v. State, 514 S.W.3d 391, 396
(Tex. App.—Amarillo 2017, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 318
(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). For this purpose, we consider evidence that
was improperly admitted before the jury, as well as that properly admitted. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Ryder, 514 S.W.3d at 396. The jury
is the sole judge of a witness’s credibility, and the weight to be given the testimony.
Ryder, 514 S.W.3d at 396 (citing Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010)). We consider only whether the jury reached a rational decision. Id. (citing Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). The testimony of a child sexual
abuse victim alone is sufficient to support a conviction for sexual assault of a child under
the age of seventeen. TEX. CODE CRIM. PROC. ANN. art. 38.07(a).
To support the jury’s finding appellant was guilty of the lesser-included offense of
sexual assault of a child under the age of seventeen, under the indictment in this case,
the State had to prove appellant intentionally or knowingly caused his sexual organ to
contact the sexual organ of D.W., a child younger than seventeen years of age. TEX.
PENAL CODE ANN. § 22.011(a)(2)(C), (c)(1). Knowledge of the victim’s age is not an
element of the offense. See id. (setting forth elements of offense).
D.W., sixteen at the time of trial, testified she and appellant were in a relationship
and engaged in sexual behavior, including penetrating sex, when she was thirteen years
old and appellant was in his twenties. D.W. also testified she engaged in other sexual
acts with appellant, including penile-oral contact and vaginal-oral contact. She told the
4
jury these acts occurred frequently and in several locations. The jury could have seen
some uncertainty in the testimony regarding D.W.’s age at the time their sexual
relationship began. D.W.’s testimony alone is sufficient to support appellant’s conviction
for the lesser-included offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a). See also
Taylor v. State, 555 S.W.3d 765, 774-75 (Tex. App.—Amarillo 2018, pet. ref’d) (finding
the child victim’s testimony was sufficient evidence of each of the essential elements of
the offenses for which the defendant was convicted).
Appellant argues the only evidence supporting his conviction came from D.W., an
admitted liar. He contends that because D.W. herself and other witnesses testified that
she often lied and made up stories, her testimony should not have been believed and
thus was not sufficient to support his conviction. Appellant’s entire argument here is that
D.W. was not credible. But it is for the jury to determine the credibility of witnesses.
Ryder, 514 S.W.3d at 396 (citing Isassi, 330 S.W.3d at 638). See also Taylor, 555 S.W.3d
at 774. As the reviewing court, we “should not substantially intrude upon the jury’s role
as the sole judge of the weight and credibility of witness testimony.” Vasquez v. State,
67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (citation omitted). As noted, D.W.’s testimony
supported each element of the offense of sexual assault of a child under the age of
seventeen. The jury, as evidenced by its verdict finding guilt, believed D.W.’s testimony.
Further, as set forth above, in a sufficiency review, the reviewing court considers
all admitted evidence, regardless whether it was properly or improperly admitted. Winfrey
v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (citations omitted). Therefore, in
addition to D.W.’s testimony, we also consider the Facebook iMessages that D.W.
testified were messages she and appellant exchanged. Those messages included
5
discussion of the sexual relationship between D.W. and appellant when D.W. was under
the age of seventeen. This evidence also supports appellant’s conviction.
We find the evidence was sufficient to support appellant’s conviction and resolve
appellant’s first issue against him.
Admission of Facebook Records
In his second issue, appellant contends the trial court abused its discretion in
admitting into evidence the Facebook records from D.W.’s and appellant’s accounts that
contained conversations between the two. Appellant asserts the records were not
properly authenticated.
A trial judge has wide discretion in the admission of evidence at trial. Ryder, 514
S.W.3d at 398 (citing Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007);
Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on reh’g)).
We review the trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Id. (citing Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App.
2010)). Under an abuse of discretion standard, we do not disturb the trial court’s decision
if the ruling was within the zone of reasonable disagreement. Id. (citation omitted). We
will affirm the trial court’s ruling if it was correct under any theory of law applicable to the
case. Id. (citing State v. Esparza, 413 S.W.3d 81, 82 (Tex. Crim. App. 2013)).
Under Rule of Evidence 901(a), the proponent of proffered evidence “must
produce evidence sufficient to support a finding that the item is what the proponent claims
it is.” TEX. R. EVID. 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
6
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.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (citing Tienda v.
State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). The trial court’s determination
whether the proponent has met this threshold requirement may be reviewed on appeal
for an abuse of discretion and “should not be countermanded so long as it is within the
zone of reasonable disagreement.” Id.
Evidence may be authenticated in several ways, including through the testimony
of a witness with knowledge, by distinctive characteristics and the like, by comparison
with other authenticated evidence, or by circumstantial evidence. Tienda, 358 S.W.3d at
638; TEX. R. EVID. 901(b). Electronically stored evidence such as social media content
presents some unique authentication issues because such evidence is susceptible to
fabrication, hacking, and manipulation. Id. But, courts in many jurisdictions have
admitted “[p]rintouts of emails, internet chat room dialogues, and cellular phone text
messages . . . when found to be sufficiently linked to the purported author so as to justify
submission for the jury for its ultimate determination of authenticity.” Tienda, 358 S.W.3d
at 639 (collecting cases).
Addressing the authentication of Facebook messages, the Third Court of Appeals
cited two authentication concerns with respect to the identity of a message’s purported
author. Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.) (citing
Griffin v. State, 419 Md. 343, 19 A.3d 415, 420-21 n.6 (Md. 2011)). The first concern
recognizes that a person viewing a Facebook profile cannot know whether the profile is
legitimate because “anyone can establish a fictitious profile under any name.” Id. The
7
second concern is based on the risk that a person may obtain a user’s name and
password, gain access to the user’s Facebook account and generate a message
purporting to be authored by the user. Because of that risk, a “person viewing
communications on or from an account profile cannot be certain that the author is in fact
the profile owner.” Id. For those reasons, the court noted, that such a communication on
its face purports to originate from a particular person’s account is generally insufficient
standing alone to authenticate that person as the communication’s author. Id. (citing
Tienda, 358 S.W.3d at 642).
The search warrant issued in this case, addressed to Facebook, Inc., is in
evidence. It identified the five accounts for which records were sought by name and
account ID. Both of the accounts listed for appellant on the warrant show his name as
“Charlie Frelix” and list a numeric account ID.
The list of messages printed on State’s Exhibit 1 identifies each message by
author, recipient, date and time sent, and the body of the message. On each message
listed, appellant’s name, whether shown as author or recipient, is accompanied by a
numeric entry corresponding to the account ID for one of his accounts as listed in the
search warrant.
From this information, it can fairly be said that State’s Exhibit 1 contains
communications that on their face purport to originate from appellant’s Facebook account.
The State’s witnesses did not disclose how they identified the Facebook accounts the
8
Homeland Security agent believed belonged to D.W. and appellant.3 The evidence in the
record thus leaves open the possibility that Facebook, Inc. produced records from an
account not created by appellant, though standing in his name. Campbell, 382 S.W.3d
at 549. And the possibility exists that State’s Exhibit 1 accurately reproduces messages
sent between D.W.’s and appellant’s accounts, but by an author other than appellant. Id.
Though the exhibit on its face may not for those reasons provide enough information to
authenticate the messages as those sent to D.W. by appellant, review of the messages
themselves in light of testimony the court heard sufficiently fills the gap.
We note first that D.W.’s participation in the messaging is corroborated by a
photograph attached to a message she is shown to have sent to appellant. The
photograph is of D.W.,4 and shows most of her face. State’s Exhibit 1 contains a message
from D.W. to appellant, sent some twenty seconds after the photograph, reading, “lg that’s
cute.” Appellant is shown to have responded less than a minute later with a message
reading, “yea it is but you shor you wont to be with me??????”
The court also could have considered the testimony of D.W.’s father, who testified
to his observations of the relationship between appellant and his daughter. As noted, he
said during the time they lived in the apartments, he became concerned that D.W. and
appellant frequently appeared to be in a nearby apartment at the same time. He testified
he and his wife later found the two together in appellant’s car at the apartment complex
3 Asked whether he could testify “about the authenticity of the records,” the agent
replied that “Facebook does give us certificate of authenticity.” No such certificate is in
evidence and its contents were not further described.
4During cross examination after admission of the exhibit, D.W. confirmed she is
the person shown in the photograph. Even without her testimony, the trial court could
have reached that conclusion from her appearance before the court.
9
where the family had moved and told appellant to stay away from D.W. D.W. flew into a
rage and threatened to slash his tires. The father’s wife called police. The evidence thus
showed a relationship existing at that time between D.W., then about thirteen, and
appellant, in his twenties, that her father considered inappropriately close.
State’s Exhibit 1 contains messages reflecting a personal relationship between the
messengers consistent with that D.W.’s father said he and his wife observed. The
contents reflect also discussion of the messengers’ sexual relationship.
D.W. testified she and appellant each had Facebook profiles, under their own
names. She said the two communicated through Facebook Messenger. She described
for the court the procedure used for Messenger communications on Facebook. She
agreed they communicated frequently about their relationship, including conversations
about sex. And in later testimony before the admission of State’s Exhibit 1, D.W. agreed
she knew her conversations on Facebook were with appellant, and that those
conversations with him were contained in the exhibit. See Norris v. State, No. 06-16-
00150-CR, 2017 Tex. App. LEXIS 3724, at *3-4 (Tex. App.—Texarkana Apr. 27, 2017,
pet. ref’d) (mem. op., not designated for publication) (finding Facebook Messenger texts
sufficiently authenticated).
Despite the evidence of D.W.’s later prostitution, the court heard no evidence she
had a sexual relationship with any other person during the time period reflected in the
messages. See Butler, 459 S.W.3d at 604 (noting record in that case failed to suggest
any other likely author of disputed text messages). And, unlike some other Texas cases,
this record contains no evidence reflecting appellant’s denial he was the author of the
messages attributed to him in State’s Exhibit 1. See Campbell, 382 S.W.3d at 550
10
(purported author of Facebook message denied sending it); Massimo v. State, 144
S.W.3d 210, 216-17 (Tex. App.—Fort Worth 2004, no pet.) (defendant asserted emails
sent on her behalf by an impersonator).
For those reasons, we find the trial court did not err in admitting the Facebook
documents and overrule appellant’s second issue.
Conclusion
Having resolved each of appellant’s issues against him, we affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
11