Lewis Lavon Jones v. State ( 2017 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00110-CR
LEWIS LAVON JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Panola County, Texas
Trial Court No. 2013-C-0310
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Although Lewis Lavon Jones had been considered a trusted friend of the family since the
early 1980s1 and was even called Uncle Lewis, evidence at his trial for indecency with a child by
sexual contact was that he not only texted the family’s son, Junior,2 a photograph of Jones’ penis,3
1
Father testified that James frequently stayed the night at his home, that he had been around his two daughters since
they were small children, and that, when Junior was young, Jones stayed in a camper about fifty yards from the house.
Father thought of Jones “as a brother.”
2
To guard the child victim’s privacy, we refer to him, his father, and the victim’s sister by the pseudonyms Junior,
Father, and Sister, respectively. See TEX. R. APP. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).
3
Father testified that one day he was driving home with Junior when the camper he was towing had a flat tire. Because
the battery on his cell phone was dead, he borrowed Junior’s cell phone, and he saw that someone had texted Junior a
photograph of a man’s penis. Father testified that State’s Exhibit 1 was a photograph of Junior’s cell phone, and the
photograph on the phone’s screen was the same photograph he saw that day. Junior told him “who it was” and that
“it had been happening for quite a while, but he just deleted [the photographs].” Father asked Junior if the person had
made “him put his hands on him or had he touched him or have anything to do with him,” and Junior said, “No.”
Father called his daughter, Junior’s thirty-four-year-old Sister, and asked her to speak with Junior because
he knew that Junior would “talk with her about things that he [would not] normally talk to [him] about.” Sister testified
that Father called her, told her what he saw on Junior’s cell phone, and said Jones had sent it. Father asked her to talk
with Junior to see what happened. She asked Junior if Jones had ever done anything to him or if he had ever made
Junior touch him on his penis. After hearing what Junior had to say, she called the sheriff’s office, eventually speaking
with Sarah Fields, an investigator with the Criminal Investigation Division of the Panola County Sheriff’s Department,
who set up an appointment for the next day at the Child Advocacy Center where Kishla Salazar, the executive director
of the Rusk/Panola Children’s Advocacy Center, conducted the forensic interview of Junior.
Junior testified that he was fourteen years’ old and in the eighth grade. He confirmed his address and the
identities of his family members. He testified that he had known Jones his entire life and that he and his sisters grew
up around him. He knew that he was in court about an incident that occurred between him and Jones. His dad found
out about the incident because Jones had been sending photographs of his penis to Junior’s phone, and his dad saw
one of the photographs. Junior testified that Jones told him that the photographs were of Jones’ penis.
2
but he caused Junior to touch and stroke Jones’ penis.4 The Panola County, Texas, jury found
Jones guilty, and the trial court sentenced Jones to fifteen years’ incarceration.5
On appeal, Jones argues that the trial court erred in sentencing him because he did not
waive his decision to have the jury determine punishment, in admitting text messages into
evidence, and in assessing him the cost of preparing the appellate record. We affirm the trial
court’s judgment because (1) Jones waived his election to have the jury determine punishment,
(2) there was no error in admitting photographs of the text messages, and (3) Jones failed to
properly request a free record.
(1) Jones Waived His Election To Have the Jury Determine Punishment
Jones contends that the trial court erred in assessing his punishment because he had elected
to have the jury serve that function.6 On this record, Jones waived that election.
Under Article 37.07, Section 2(b), of the Texas Code of Criminal Procedure, a criminal
defendant has a statutory right to have the jury assess punishment if he “so elects in writing before
the commencement of the voir dire examination of the jury panel.” TEX. CODE CRIM. PROC. ANN.
4
Junior testified that, on the day of the sexual contact, he was on Hills Lake Road right by the lake hunting arrowheads
with his Father and Jones when something happened between Jones and him. The three of them had arrived about an
hour before dark, and Junior testified that, while hunting arrowheads, Father and Jones had separated and gone to
different points on the bank. According to Father, he never lost sight of Junior for more than thirty minutes, and he
was never more than a couple of hundred yards away from him, but he remembered that Jones and Junior were both
near his Jeep. Because it was a chilly night, Junior was running back and forth between his Father, the fire they had
built, and Jones. Junior testified that Jones made him touch his penis and stroke it back and forth until some liquid
stuff came out. Jones told him not to tell anyone or “otherwise we would get in trouble.” He then washed his hands
in a mud hole and went back to the fire.
5
Due to a prior felony conviction, the enhanced range of punishment was five to ninety-nine years or life. See TEX.
PENAL CODE ANN. § 12.42 (West Supp. 2016).
6
Even if this issue had not been waived, Jones states that he “does not seek a remand solely for a new punishment
hearing before a jury.”
3
art. 37.07, § 2(b) (West Supp. 2016). The defendant may change his prior election “if a finding of
guilt is returned . . . with the consent of the attorney for the State.” Id. If the accused exercises
his statutory right and elects for the jury to assess punishment, but allows the trial court to assess
punishment without objection, “it is presumed” that the defendant agreed to the change and waived
his right. See Hackey v. State, 500 S.W.2d 520, 521 (Tex. Crim. App. 1973); Mangham v. State,
833 S.W.2d 705, 708 (Tex. App.—Houston [1st Dist.] 1992, no pet.).
Before trial, the trial court granted Jones’ written motion electing to have the jury assess
punishment. During voir dire, however, the State informed the panel that they would not be
assessing punishment, and neither party questioned the panel regarding punishment. After two
days of testimony and evidence during the guilt/innocence phase of the trial, the jury returned a
verdict of guilty. Even though no change of election appears in the record, the trial court stated
that “the defendant in this case has elected to go to the court for punishment” and discharged the
jury, all without objection by either party. After hearing the evidence on punishment, the trial
court sentenced Jones to fifteen years in prison, and the final judgment reflects that Jones “elected
to have the Court assess punishment.”
Here, even though Jones had previously elected in writing to have the jury assess
punishment, he failed to object when the trial court dismissed the jury and assessed punishment.
He also failed to take issue with statements made at other times that he had chosen to have the
court assess punishment. In the absence of evidence to the contrary, we must presume that Jones
waived his statutory right. We overrule this point of error.
4
(2) There Was No Error in Admitting Photographs of the Text Messages
Jones also asserts that the trial court erred in admitting State’s Exhibits 1, a photograph of
a “screen-shot” of a texted photograph on Junior’s cell phone, and State’s Exhibits 3–8, text
messages purportedly between Jones and Father, because the “State produced absolutely no
predicate evidence to support” their admission.
We review for an abuse of discretion a trial court’s decision to admit or exclude evidence.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only
if the 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); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not substitute our own
decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case.
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Authentication is a condition precedent to an exhibit’s admissibility. See TEX. R. EVID.
901; Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (quoting TEX. R. EVID. 901(a)).
“[T]ext messages may be authenticated by ‘evidence sufficient to support a finding that the matter
in question is what its proponent claims.’” Id. at 600–01 (quoting TEX. R. EVID. 901(a)). The trial
court has the gate-keeping role of preliminarily determining whether the proponent of the item has
supplied enough facts “to support a reasonable jury determination that the proffered evidence is
authentic,” while the fact-finder must determine whether the proffered evidence is what it purports
to be. Id. at 600.
5
“In performing its Rule 104 gate-keeping function, the trial court itself need not be
persuaded that the proffered evidence is authentic.” Tienda v. State, 358 S.W.3d 633, 638 (Tex.
Crim. App. 2012) (citing TEX. R. EVID. 104). “The preliminary question for the trial court to
decide is simply whether the proponent of the evidence has supplied facts that are sufficient to
support a reasonable jury determination that the evidence he has proffered is authentic.” Id. “This
has been aptly described as a ‘liberal standard of admissibility.’” Butler, 459 S.W.3d at 600
(quoting Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK 922 (7th ed. 2007–08)). “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.; Tienda, 358 S.W.3d at 638.
Authentication of a text message “can be accomplished in myriad ways, depending on the
unique facts and circumstances of each case, including through the testimony of a witness with
knowledge[,] . . . through evidence showing distinctive characteristics,” or “by comparison with
other authenticated evidence.” Butler, 459 S.W.3d at 601; Tienda, 358 S.W.3d at 638. A witness
might have knowledge of the authorship of a text message if the witness was “the actual author of
the text message.” Butler, 459 S.W.3d at 601. While an association of a cell phone number or a
Facebook account with a particular individual alone “might be too tenuous,” other evidence, such
as the text “message’s ‘appearance, contents, substance, internal patterns, or other distinctive
characteristics,’” can support a conclusion that the message was sent by a particular author. Id. at
601, 602 (quoting TEX. R. EVID. 901(b)(4)).
6
(a) State’s Exhibit 1, Photograph on Junior’s Cell Phone
State’s Exhibit 1 is a photograph from the screen of a Verizon cell phone; at the top of the
cell phone’s screen is the word “INBOX”; the screen appears to show a photograph of a man’s
penis; the bottom of the screen shows “CB#: 903-216-7059.” Father testified that, when the
battery of his cell phone died, he borrowed his son’s cell phone for a moment and saw a photograph
of a man’s penis on the screen. Seeing the photograph is “how [he] found out.” When shown
State’s Exhibit 1, he testified, “[T]hat’s the cell phone,” and that the picture shown on the screen
is a fair and accurate representation of the image he saw that day on Junior’s cell phone. When
State’s Exhibit 1 was offered into evidence, Jones objected, arguing, “[T]here hasn’t been a proper
predicate laid.”
The investigation in this case began after Father saw a photograph on Junior’s cell phone,
and Father testified that State’s Exhibit 1 shows both Junior’s cell phone and the photograph of a
penis he saw on it. Therefore, we find there is sufficient evidence for the trial court to have made
the preliminary determination that the photograph is what the State purported it to be—a
photograph of a man’s penis from Junior’s cell phone.7 See Butler, 459 S.W.3d at 600–01. Finding
no abuse of discretion, we overrule this point of error.
7
During his recorded interview, which was played for the jury later in the trial, Jones admitted that he sent photographs
of his penis to Junior’s phone. He understood that “there are pictures on his phone . . . the pictures are there, uh-huh.”
He admitted that he was “guilty of sending some pictures.” Even though the interview was played after the exhibit
was admitted, evidence prematurely admitted in error may be rendered admissible by subsequently admitted evidence.
See Searcy v. State, 231 S.W.3d 539, 545 (Tex. App.—Texarkana 2007, pet. ref’d); James v. State, 102 S.W.3d 162
(Tex. App.—Fort Worth 2002, pet. ref’d).
7
(b) State’s Exhibits 3–8, Photographs of Text Messages on Father’s Cell Phone
Father testified that, after seeing the photograph on Junior’s cell phone, he confronted and
communicated with Jones through a series of text messages. Father recognized State’s Exhibits
3–8 as screenshots of some of the text messages he had exchanged with Jones. Without any further
questions or testimony regarding the content or context of the text messages, the State then offered
them into evidence, and Jones objected, arguing that “there’s been an inadequate predicate laid.”
Father testified that he asked Jones what he was doing texting photographs to Junior and
that in reply, Jones texted (State’s Exhibit 3), “Not my place but lot o shit I thot u knew.” Father
asked what it was that he “didn’t know about,” and Jones texted (State’s Exhibit 4), “Ask [Junior].”
When Father asked Jones whether he had told his mother about “his little picture sending,” Jones
replied (State’s Exhibit 5), “Iv done enuf to her already BUT IF U WANT TO DRIVE THE LAST
NAIL.” In direct reply, Father texted (State’s Exhibits 6–7), “Your the one that drove every nail
in her coff . . . and im driving everyone of urs.” Jones responded with a text (State’s Exhibit 8)
stating “uneed to kill evbody involvd including some ur family.” State’s Exhibit 2, which Jones
does not challenge on appeal, is a picture of a cell phone screen, showing Jones’s name and the
telephone number 903-216-7059.
Here, Father testified that he and Jones communicated through a series of text messages
and that State’s Exhibits 3–8 were accurate photographs of those text messages. State’s Exhibits
3, 4, and 8, all purportedly messages from Jones to Father, show a “Callback #: 903-216-7059,”
which is listed as Jones’ phone number in State’s Exhibit 2. We find there is sufficient evidence
for the trial court to have made the preliminary determination that the text messages were what the
8
State purported them to be—the text messages between Jones and Father. See id. at 600–01. Even
if the exhibits were admitted prematurely or in error, Father’s subsequent explanation of the
messages provides further authentication, and the jury later heard the recorded interview where
Jones admitted to texting Father in response to his telephone calls, thereby rendering the exhibits
admissible or their admission harmless. See Searcy, 231 S.W.3d at 545; James, 102 S.W.3d 162.
Finding no abuse of discretion, we overrule this point of error.
(3) Jones Failed To Properly Request a Free Record
The trial court found Jones to be indigent, having appointed counsel for him twice at trial
and once again on appeal, specifically finding that Jones had “completed an indigent
statement/request for appointed counsel” and that he “qualifie[d] for such appointed counsel.” The
final judgment in this case assessed only court costs against Jones, but thereafter, a bill of costs
was filed, charging the defendant an additional $223.00 for the record on appeal. Jones contends
that the trial court erred in assessing him the $223.00 cost of preparing the appellate record.8
Indigent criminal defendants can make themselves entitled to a free record on appeal. See
Griffin v. Illinois, 351 U.S. 12, 18–19, (1956); Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim.
App. 1986). Even though Jones was found indigent and appointed appellate counsel, a defendant
may be indigent for the appointment of counsel but not indigent as to the preparation of the record
on appeal. See Castillo v. State, 595 S.W.2d 552, 554 (Tex. Crim. App. 1980). Under Rule 20.2
of the Texas Rules of Appellate Procedure, in order to obtain the appellate record free of charge,
an indigent appellant must, within the time for perfecting the appeal, file a motion for a free record
8
The State agrees it was error to assess the cost of the record as part of the bill of costs.
9
and an affidavit of indigence. TEX. R. APP. P. 20.2. Texas caselaw requires the indigent appellant
to exercise due diligence in asserting his indigence by timely filing the required motion and
affidavit and to present evidence to sustain his assertion of indigence in the hearing on the motion.
See Gray v. State, 928 S.W.2d 561, 562 (Tex. Crim. App. 1996); Abdnor, 712 S.W.2d at 140–41;
Sparkman v. State, 55 S.W.3d 625, 633 (Tex. App.—Tyler 2000, no pet.).
Though Jones filed a written designation specifying matters for inclusion in the clerk’s
record, he failed to file the required motion for a free record or the required affidavit of indigence.
See TEX. R. APP. P. 20.2. Therefore, Jones has failed to diligently assert his indigence for the
purposes of obtaining a free record. Accordingly, we deny this point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 4, 2017
Date Decided: May 24, 2017
Do Not Publish
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