Jairo Francisco Solano v. the State of Texas ( 2022 )

NO. 12-21-00197-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAIRO FRANCISCO SOLANO, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Jairo Francisco Solano appeals his conviction for engaging in organized criminal activity.
He presents six issues on appeal. We modify and affirm as modified.
BACKGROUND
Clint Lee, a Wal-Mart global investigator, received an email alert on December 20, 2019,
regarding a new Sam’s Club membership to purchase “high-end phones” in which the billing
address and Sam’s Club store were not in the same geographical area. Lee reviewed the
surveillance video and observed Appellant purchase an iPhone at the Tyler Sam’s Club on
Gregory Kyle’s account. He then learned that Appellant purchased another iPhone on the same
account at a local Wal-Mart earlier that day. Lee continued to review Appellant’s recent
transactions at Wal-Mart and Sam’s Club stores, which included more than fifty iPhone
purchases. Lee contacted Jeff Roberts, a financial crimes investigator with the Tyler Police
Department. Lee also spoke with Tyler Police Sergeant Ethan Johnson, told him about his
investigation, and gave him a description of Appellant.
Sergeant Johnson observed Appellant leave the Sam’s Club parking lot and initiated a
traffic stop. Another officer had called in Appellant’s license plate number and the plate number
was returned as invalid. Johnson stopped the vehicle because “the temporary tag did not have a
return.” Johnson later learned that dispatch mistakenly ran the wrong tag number. During
Johnson’s investigation, Appellant admitted purchasing a phone at Sam’s Club. When asked for
the receipt and contract, Appellant showed Johnson a contract for an iPhone under Olga de
Avila’s account and claimed he threw the Sam’s Club contract in the trash. Back at the Sam’s
Club parking lot, another officer found a plastic bag with numerous receipts and contracts, all
dated December 19 and 20, under AT&T wireless accounts belonging to Gregory Kyle and Amit
Chadha. The three victims later confirmed Appellant is not an authorized user on their
respective accounts and did not have permission to either upgrade or purchase phones on their
behalf. Police secured a search warrant for Appellant’s vehicle, and a subsequent search
revealed nineteen new iPhones in his car.
An investigation revealed that Appellant was involved in a scheme involving at least ten
other people in which they hacked wireless accounts and made unauthorized phone purchases.
They then sold the phones for a profit.
Appellant was subsequently charged by indictment with engaging in organized criminal
activity. The underlying offense being fraudulent possession of identifying information.
Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The jury ultimately
found Appellant “guilty” as charged. Following the punishment phase, the jury assessed
punishment at 30 years imprisonment and a $10,000 fine. This appeal followed. 1
1
We begin by noting that Appellant’s brief is practically devoid of references to the record. And his fact-
intensive first issue lacks record references completely. See TEX. R. APP. P. 38.1 (“Argument. The brief must
contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the
record”) (emphasis added). An appellant waives an issue on appeal if he does not adequately brief that issue by not
providing supporting arguments, substantive analysis, and appropriate citations to authorities and to the record.
Chaves v. State, 630 S.W.3d 541, 555 (Tex. App.–Houston [1st Dist.] 2021, no pet.) (citing Lucio v. State, 351
S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008);
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (defendant inadequately briefed complaint where he
neglected to present argument with citation to appropriate authority)); see also Ray v. State, 176 S.W.3d 544, 553
n.7 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d).
As the Texas Court of Criminal Appeals has emphasized, an appellate court has no obligation to construct
and compose issues, facts, and arguments with appropriate citations to authorities and the record for the appellant.
See Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at 673. A brief that fails to
apply the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1 and presents nothing for our
review. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). However, because we are able to
construe Appellant’s arguments in this case, we will consider them in the interest of justice.
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EVIDENTIARY SUFFICIENCY
In his first issue, Appellant contends the evidence is insufficient to support his
conviction. Specifically, he argues the evidence fails to prove he intended to conspire with two
or more people.
Standard of Review
The Jackson v. Virginia 2 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186.
A jury is free to believe all or any part of a witness’s testimony or disbelieve all or any
part of that testimony. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.–Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal sufficiency challenge
will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31,
41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State, 521
S.W.3d 822, 827 (Tex. App.–Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011)). Each fact need not point directly and independently
to the guilt of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. See Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as
each inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted
2
404 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
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to reach conclusions based on mere speculation or factually unsupported inferences or
presumptions. Id. An inference is a conclusion reached by considering other facts and deducing
a logical consequence from them, while speculation is mere theorizing or guessing about the
possible meaning of facts and evidence presented. Id. at 16.
The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.Applicable Law
A person commits the offense of engaging in organized criminal activity if he, with intent
to establish, maintain or participate in a combination or in the profits of a combination, commits
or conspires to commit an enumerated offense. See TEX. PENAL CODE ANN. § 71.02(a) (West
Supp. 2021). Fraudulent possession of identifying information is an enumerated offense. Id.
§ 71.02(a)(8). Section 32.51(b)(1) of the Texas Penal Code states: “A person commits an
offense if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or
uses an item of . . . identifying information of another person without the other person’s consent
or effective consent.” Id. § 32.51(b)(1) (West Supp. 2021). “‘Identifying information’ means
information that alone or in conjunction with other information identifies a person, including a
person’s . . . name and date of birth . . . social security number or other government-issued
identification number.” Id. § 32.51(a)(1)(A)(E). The offense is a second degree felony if the
number of items obtained, possessed, transferred, or used is more than ten but less than fifty. Id.
§ 32.51(c)(3).
Section 71.01(a) defines a “combination” as three or more persons who collaborate in
carrying on criminal activities. Id. § 71.01(a) (West 2011). The Court of Criminal Appeals has
construed this language as requiring a “continuing course of criminal activities.” Nguyen v.
State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999); Lashley v. State, 401 S.W.3d 738, 743 (Tex.
App.–Houston [14th Dist.] 2013, no pet.). It involves more than the intent to merely commit an
enumerated offense, a plan to commit a single act, or proof of working jointly to commit a
crime—it requires proof of continuity. Hart v. State, 89 S.W.3d 61, 63–64 (Tex. Crim. App.
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2002); Nguyen, 1 S.W.3d at 696–97. The activities do not have to individually be criminal
offenses to satisfy the statutory requirement, and a single criminal offense can be sufficient.
Nguyen, 1 S.W.3d at 697; see also Dowdle v. State, 11 S.W.3d 233, 236 (Tex. Crim. App. 2000)
(continuous activities after shooting included fleeing, regrouping, discussing plan of action, and
traveling to another country with stolen goods). However, the statute requires proof of intended
continuity, i.e., that “the appellant intended to establish, maintain, or participate in a group of
three or more, in which the members intend to work together in a continuing course of criminal
activities” that goes beyond a single, ad hoc effort. Nguyen, 1 S.W.3d at 697. Evidence must be
offered that allows a jury to infer that the group intended to continue engaging in illegality over a
period of time. See Lashley, 401 S.W.3d at 745.
Analysis
Appellant contends the evidence is insufficient to establish “ongoing combination
between [Appellant] and any conspirators.”
Gabriel Daigle, a senior investigator with AT&T’s asset protection department, testified
and detailed the scheme perpetrated by Appellant and his counterparts. Daigle’s investigation
began when he was contacted by Lee. Lee provided Daigle with a list of accounts on which 71
devices had been obtained. Daigle identified the accounts affected and looked for fraudulent
activity. Prior to the fraud claims, a new user (Appellant) was added to the account. The
account notes showed that someone claiming to be from AT&T contacted the account holder and
tricked the holder into providing their passcode and PIN. Appellant served as the “runner,”
traveling to different stores and purchasing new iPhones on the hacked accounts. A “handler”
communicated the PIN to Appellant so he could complete the purchase at the store. Daigle
estimated that, based on his investigation, Appellant was working with a group of approximately
ten people and a fake call center in the Dominican Republic. Appellant and his counterparts
could then sell the iPhones overseas for between $4,000 and $5,000 each. Daigle also testified
that he found fraudulent activity involving Appellant starting approximately five months prior to
his arrest.
Excerpts of messages from WhatsApp sent from Appellant’s phone also detailed the
scheme. In those messages, Appellant stated that he lived off the money he made from the
operation.
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The evidence at trial showed that Appellant used the identifying information of Olga de
Avila, Gregory Kyle, and Amit Chadha, without their authorization, to obtain cellular phones
from Wal-Marts and Sam’s Club from December 19 and 20, 2019. The evidence also showed
that Appellant was assisted by at least three other people: a hacker to gain the identifying
information and access the AT&T wireless accounts, an associate to contact the victims and
obtain the verification PIN numbers, and a third person who sent the PIN numbers to Appellant
while he purchased the new iPhones. Furthermore, the evidence showed that Appellant engaged
in this scheme over a period of several months. As a result, a rational jury could have found that
Appellant participated in a combination constituting a continuing course of criminal activities.
See TEX. PENAL CODE ANN. §§ 71.02(a), 71.01(a); Nguyen, 1 S.W.3d at 697. Accordingly, the
jury could find, beyond a reasonable doubt, that Appellant committed organized criminal
activity. Because the evidence is sufficient to support Appellant’s conviction, we overrule his
first issue.
MOTION TO SUPPRESS
In his second issue, Appellant urges the trial court erred when it denied his motion to
suppress. He contends the officer lacked a reasonable basis for the traffic stop and the length of
the detention was unreasonable. He urges all evidence obtained as a result of the stop should
have been excluded.
Standard of Review and Applicable Law
A criminal defendant who alleges a Fourth Amendment violation bears the burden of
producing some evidence that rebuts the presumption of proper police conduct. Amador v.
State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). A defendant meets his initial burden of
proof by establishing that a search or seizure occurred without a warrant. Id. The burden then
shifts to the state to prove that the search or seizure was nonetheless reasonable under the totality
of the circumstances. Id. at 672-73.
Reasonable suspicion exists if a law enforcement officer has specific articulable facts
that, when combined with rational inferences from these facts, would lead him to reasonably
suspect that a particular person has engaged, is engaging, or soon will be engaging in criminal
activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). In determining whether
reasonable suspicion existed, courts analyze the objective facts surrounding the detention, not the
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officer’s subjective reasons for it. Garcia v. State, 827 S.W.2d 937, 943-44 (Tex. Crim. App.
1992). The state need not show with absolute certainty that an offense occurred to show
reasonable suspicion. Garcia, 43 S.W.3d at 530.
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
We review de novo whether the totality of the circumstances is sufficient to support an
officer’s reasonable suspicion of criminal activity. State v. Cortez, 543 S.W.3d 198, 204 (Tex.
Crim. App. 2018). We uphold a trial court’s ruling on a motion to suppress under any legal
theory supported by the facts. Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013).
Analysis
During trial, Appellant urged that the evidence obtained as a result of the traffic stop
should be excluded. He urged that the officer lacked a reasonable basis for the stop and that his
detention was illegally prolonged. The trial court denied the motion to suppress.
Sergeant Johnson testified that he was contacted by Lee regarding an investigation that
Appellant was engaging in fraud at the Tyler Sam’s Club. After Lee gave Johnson a description
of Appellant, Johnson initiated a traffic stop when he observed Appellant leaving the Sam’s Club
parking lot. Appellant’s license plate number had been returned as invalid. Although Johnson
stopped the vehicle because “the temporary tag did not have a return,” he later learned that
dispatch mistakenly ran the wrong tag number. Appellant admitted to Johnson that he purchased
a phone at Sam’s Club and produced a contract for an iPhone under de Avila’s account.
Appellant claimed he threw the Sam’s Club contract in the trash. At the Sam’s Club parking lot,
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an officer found a plastic bag with numerous receipts and contracts, all dated December 19 and
20, under AT&T wireless accounts belonging to Gregory and Chadha. Pursuant to a search
warrant, officers searched Appellant’s vehicle and located nineteen new iPhones.
We first note that Appellant has not challenged the trial court’s finding that Sergeant
Johnson reasonably suspected Appellant committed fraud. He only challenges the finding that
Johnson reasonably believed Appellant to be driving with an invalid temporary license plate. “If
the appellant fails to argue a theory of law applicable to the case on appeal, that argument is
forfeited.” State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016). An appellant
procedurally defaults a theory of law applicable to the case if the appellant fails to advance that
argument on appeal. See id. at 614. Under these circumstances, the court of appeals will uphold
the trial court’s ruling without considering the merits of the unchallenged basis for the ruling.
See State v. Copeland, No. 13-11-00701-CR, 2015 WL 7039545, at *3 (Tex. App.–Corpus
Christi Nov. 12, 2015) (mem. op., not designated for publication), aff’d, 501 S.W.3d at 614.
Nevertheless, a detention may be prolonged “beyond the point when the purpose of the
initial stop is complete if there is a reasonable suspicion to believe another offense has been or is
being committed.” Lambeth v. State, 221 S.W.3d 831, 836 (Tex. App.—Fort Worth 2007, pet.
ref’d). Sergeant Johnson testified that the stop lasted approximately thirty minutes. During that
time, he questioned Appellant regarding the alleged fraud at Sam’s Club. He also discussed the
documentation Appellant gave him about another iPhone under a different account. Johnson
assigned another officer to search for the receipt and contract evidence Appellant claimed to
have discarded in the Sam’s Club parking lot. Appellant’s handing Johnson a phone that was not
contracted under his name confirmed the suspicions relayed by Lee and justified Appellant’s
continued detention for a fraud investigation.
Accordingly, the trial court could reasonably conclude that Johnson had specific
articulable facts that, when combined with rational inferences from these facts, led him to
reasonably suspect that Appellant had engaged, was engaging, or soon would be engaging in
criminal activity, and that Appellant’s detention was not illegally prolonged. See Garcia, 43
S.W.3d at 530; see also Lambeth, 221 S.W.3d at 836. For these reasons, we overrule
Appellant’s second issue.
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CHARGE ERROR
In his third issue, Appellant contends he was harmed when the trial court denied his
request for a jury instruction under Article 38.23 of the Texas Code of Criminal Procedure.
Standard of Review
We review a trial court’s refusal to give an instruction in its charge for an abuse of
discretion. See Steele v. State, 490 S.W.3d 117, 130 (Tex. App.–Houston [1st Dist.] 2016, no
pet.). A trial court abuses its discretion only if its 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).
We review alleged jury charge error in two steps—we first determine whether error
exists, and, if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d
738, 743–44 (Tex. Crim. App. 2005); Joshua v. State, 507 S.W.3d 861, 863–64 (Tex. App.–
Houston [1st Dist.] 2016, no pet). The degree of harm required for reversal depends on whether
the charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g) (setting forth analysis for determining whether jury charge error
requires reversal). If the charge error properly has been preserved by an objection or request for
instruction, reversal is required if the appellant suffered “some harm” from the error. Vega v.
State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). When the defendant fails to object or states that she has no objection to
the charge, we will not reverse for jury charge error unless the record shows the defendant
suffered egregious harm. See Ngo, 175 S.W.3d at 743–44. Thus, in considering Appellant’s
issue, we first must determine if there was error in the charge. See Joshua, 507 S.W.3d at 864.
Only if we find error do we address whether Appellant was harmed sufficiently to require
reversal. Id.
Applicable Law
Under Texas law, the Code of Criminal Procedure requires trial courts to exclude
evidence in a trial if the State obtained the evidence by violating the law. TEX. CODE CRIM.
PROC. ANN. art. 38.23 (West 2018). But if the evidence shows that a fact issue exists about
whether the police conduct was illegal, the trial court must submit an instruction to the jury that
informs the jury that “if it believes, or has a reasonable doubt, that the evidence was obtained in
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violation of the provisions of this Article, . . . [it must] disregard any such evidence so obtained.”
Id. art. 38.23(a).
There must be a genuine dispute about a material fact issue before an Article 38.23
instruction is warranted. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).
The defendant must demonstrate that (1) the evidence heard by the jury raises an issue of fact,
(2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is
material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. If
there is no disputed issue of material fact, the legality of the challenged conduct is a question of
law for the trial court. Id. And if other undisputed facts are sufficient to establish the lawfulness
of the conduct, the contested factual issue is not material, and the defendant is not entitled to a
jury instruction on the fact issue. See id. at 510–11.
To raise a disputed fact issue, there must be some affirmative evidence that contradicts
the existence of that fact. Id. at 513. This evidence can come “from any source,” regardless of
whether it is “strong, weak, contradicted, unimpeached, or unbelievable.” Garza v. State, 126
S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref’d)). A defendant’s questions on cross-examination
cannot, by themselves, raise a disputed fact issue. Madden, 242 S.W.3d at 515. However, the
witnesses’ answers to those questions might raise a fact issue. Id. at 513.
Analysis
Appellant argues the trial court erred in denying his Article 38.23 instruction because a
factual issue existed regarding the legality of Appellant’s initial detention for a traffic violation
and his continued detention for the officer’s investigation. Specifically, he contends the jury
could have disbelieved Johnson’s testimony regarding dispatch’s statement that the temporary
license plate was invalid.
At trial, Appellant requested the Article 38.23 instruction for the jury to determine
whether his detention during the stop lasted for an “unreasonable length of time.” Fourth
Amendment objective reasonableness is a question of law, not a question of fact. See Siddiq v.
State, 502 S.W.3d 387, 405 (Tex. App.—Fort Worth 2016, no pet.). The jury, which is not an
“expert on legal terms of art or the vagaries of the Fourth Amendment … cannot be expected to
decide whether the totality of certain facts do or do not constitute ‘reasonable suspicion’ under
the law.” Madden, 242 S.W.3d at 511. “It is the trial judge who decides what quality and
10
quantum of facts are necessary to establish ‘reasonable suspicion.’” Id. “Only if one or more of
those necessary facts are disputed does the judge ask the jury to decide whether the officer’s
belief in those facts was reasonable.” Id. Because an Article 38.23 instruction is only warranted
when there is a disputed fact issue, which does not exist in this case, the trial court did not err in
refusing to include it in the jury charge. Siddiq, 502 S.W.3d at 405; see Madden, 242 S.W.3d at
511. We overrule Appellant’s third issue.
HEARSAY
In his fourth issue, Appellant contends he suffered harm when the trial court overruled
his hearsay and Confrontation Clause objections to the WhatsApp messages.
Standard of Review and Applicable Law
A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of
discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Manuel v.
State, 357 S.W.3d 66, 74 (Tex. App.–Tyler 2011, pet. ref’d). If the ruling is within the zone of
reasonable disagreement, an appellate court will not disturb it. Manuel, 357 S.W.3d at 74.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d).
This includes both oral and written expressions. TEX. R. EVID. 801(a)(1). “An out-of-court
statement which is not offered to prove the truth of the matter asserted therein, but is offered for
some other reason, is not hearsay.” Jones v. State, 466 S.W.3d 252, 263 (Tex. App.–Houston
[1st Dist.] 2015, pet. ref’d); Stafford v. State, 248 S.W.3d 400, 407 (Tex. App.–Beaumont 2008,
pet. ref’d) (citing Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App.1999)). A statement is
not hearsay if its relevancy does not hinge on its truthfulness. Johnson v. State, 425 S.W.3d
344, 346 (Tex. App.–Houston [1st Dist.] 2011, pet. ref’d). Statements that constitute admissions
by a party opponent are not hearsay. See TEX. R. EVID. 801(e)(2). These include a party’s own
statement, a statement that he has adopted or in which he has manifested a belief in its truth, and
a statement made by a coconspirator during the course and in furtherance of the conspiracy. See
TEX. R. EVID. 801(e)(2)(A), (B), (E); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App.
1999).
The Sixth Amendment to the United States Constitution provides, in relevant part, that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
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witnesses against him.” U.S. CONST. amend. VI. The Confrontation Clause bars the admission
of out-of-court testimonial hearsay statements of a witness unless (1) the witness is unavailable
to testify and (2) the defendant had a prior opportunity to cross-examine the witness. Crawford
v. Washington, 541 U.S. 36, 53–54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177 (2004); Render
v. State, 347 S.W.3d 905, 917 (Tex. App.—Eastland 2011, pet. ref’d). “Post-Crawford, the
threshold question in any Confrontation Clause analysis is whether the statements at issue are
testimonial or nontestimonial in nature.” Render, 347 S.W.3d at 917.
Generally speaking, a hearsay statement is testimonial when the surrounding
circumstances objectively indicate that the primary reason the statement was made was to
establish or prove past events potentially relevant to later criminal prosecution. De La Paz v.
State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (citing Davis v. Washington, 547 U.S. 813,
822–23, 126 S. Ct. 2266, 2273-74 165 L. Ed. 2d 224 (2006)). The Supreme Court has not
provided a comprehensive definition to be used when determining whether statements are
testimonial. Id.; Wells v. State, 241 S.W.3d 172, 175 (Tex. App.—Eastland 2007, pet. ref’d).
However, it has identified three kinds of statements that could be regarded as testimonial: (1) ex
parte in-court testimony or its functional equivalent that declarants would reasonably expect to
be used prosecutorially; (2) statements contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under
circumstances that would lead an objective witness to reasonably believe that the statements
would be available for use at a later trial. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim.
App. 2010). We review a Confrontation Clause ruling de novo. See De La Paz, 273 S.W.3d at
680.
Analysis
At trial, the State offered excerpts of four WhatsApp conversations that had been found
on Appellant’s phone. They consisted of an exchange between Appellant and his handler during
the transactions in several stores, a conversation describing his role in the combination prior to
the Tyler offenses, and progress updates and payment arrangements between Appellant and a
coconspirator. When the messages were offered, Appellant objected that they were inadmissible
hearsay and violated his right to confrontation. The trial court overruled the objections.
However, Appellant failed to object when the witness testified to the contents of the messages
and his interpretation of them. Absent a running objection or objection made outside the
12
presence of the jury, “the law in Texas requires a party to continue to object each time
inadmissible evidence is offered.” Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App.
1991); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We also note that
Appellant made global hearsay objections without distinguishing between the allegedly
inadmissible statements and the admissible portions. See Wilkinson v. State, 523 S.W.3d 818,
826-27 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). Therefore, Appellant has failed to
preserve this issue for review.
Even had Appellant preserved this issue, the trial court did not err in overruling his
objections. At the time the exhibits were admitted, the evidence established that the messages
originated from a phone number associated with a phone belonging to Appellant. Detective
Roberts also testified that the statements made were corroborated by dates and times of
surveillance showing Appellant. The phone at issue was found in Appellant’s front seat. See
Black v. State, 358 S.W.3d 823, 832 (Tex. App.—Fort Worth 2012, pet. ref’d) (requiring
showing that the appellant wrote or ratified text messages or that messages were written while
phone in his possession to establish the appellant as declarant under the hearsay rule). As such,
the statements contained in the messages were statements by a party opponent. See TEX. R.
EVID. 801(e)(2)(A), (B), (E); Trevino, 991 S.W.2d at 853.
Regarding the Confrontation Clause argument, “testimonial” statements are typically
solemn declarations made for the purpose of establishing some fact. See Russeau v. State, 171
S.W.3d 871, 880 (Tex. Crim. App. 2005). The WhatsApp messages in this case are informal,
and their subject and method of communication weigh against a finding that they are testimonial
statements. See Crawford, 541 U.S. at 51, 124 S. Ct. 1354 (noting that testimonial statements
are typically “formalized” materials that “were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a later
trial” as opposed to informal text messages); Bryant v. State, No. 01-14-00963-CR, 2015 WL
9478194, at *5–6 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, pet. ref’d.) (mem. op., not
designated for publication) (same). Furthermore, many of the WhatsApp messages were
between Appellant and other individuals involved in the scheme. A coconspirator’s statements
in furtherance of the conspiracy are generally considered nontestimonial. See Crawford, 541
U.S. at 56, 124 S. Ct. 1354. Accordingly, the trial court did not err by overruling Appellant’s
Confrontation Clause objection to the admission of the messages.
13
For these reasons, we overrule Appellant’s fourth issue.
BILL OF COSTS
In his fifth and sixth issues, Appellant alleges items in the bill of costs were erroneously
included; specifically, that the fine assessed should not be included in the bill of costs (issue
five) and the Local Consolidated Fee on Conviction of Felony does not apply to his case (issue
six).
The Local Consolidated Fee on Conviction of Felony applies only to defendants who are
convicted of offenses committed on or after January 1, 2020. See Hayes v. State, No. 12-20-
00222-CR, 2021 WL 1418400, at *2 (Tex. App.—Tyler Apr. 14, 2021, no pet.) (mem. op., not
designated for publication) (citing TEX. LOC. GOV’T CODE ANN. § 134.101 (West 2021)).
Section 134.101 assesses an additional $105 fee for a person who is convicted of a felony. See
TEX. LOC. GOV’T CODE ANN. § 134.101(a). That fee is to be allocated to the following specific
accounts and funds: the clerk of the court account, the county records management and
preservation fund, the county jury fund, the courthouse security fund, the county and district
court technology fund, and the county specialty court account. See id. § 134.101(b).
In the instant case, the commission dates for the offense are December 19 and 20, 2019.
The judgment of conviction reflects that the trial court assessed $251.50 in court costs. The
judgment includes a document identified as “Attachment A Order to Withdraw Funds,” which
states that Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the
amount of $251.50. The certified bill of costs itemizes the court costs imposed, which total
$10,251.50 with a $10,251.50 balance remaining. The certified bill of costs includes the
following costs assessed pursuant to Section 134.101: $40.00 Clerk of the Court; $4.00 County
and District Court Technology Fund; $1.00 County Jury Fund; $25.00 County Records
Management and Preservation; $25.00 County Specialty Court Account; and $10.00 Courthouse
Security Fund. See id. The sum of these costs is $105.00. Because the offense in this case was
committed before January 1, 2020, Appellant is not obligated to pay the “Local Consolidated Fee
on Conviction of Felony.” See Hayes, 2021 WL 1418400, at *2. Accordingly, we will modify
the trial court’s judgment and Order to Withdraw to reflect the removal of these fees. See TEX.
R. APP. P. 43.2(b); Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.–Amarillo 2010, no pet.).
Appellant’s sixth issue is sustained.
14
The bill of costs also includes the $10,000 fine imposed by the trial court. A bill of costs
must be in writing and contain “the items of cost.” TEX. CODE CRIM. PROC. ANN. art. 103.001
(West 2018). Fines are punitive and intended to be part of the convicted defendant’s sentence.
See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Court costs, however,
are “compensatory in nature” and are “a non-punitive recoupment of the costs of judicial
resources expended in connection with the trial of the case.” Id.; Williams v. State, 495 S.W.3d
583, 590 (Tex. App.—Houston [1st Dist.] 2016), pet. dism’d, 2017 WL 1493488 (Tex. Apr. 26,
2017). Accordingly, fines are fundamentally different than court costs. Thus, we reform the bill
of costs to delete the fine. See Williams, 495 S.W.3d at 591. Appellant remains obligated to pay
the $10,000 fine reflected in the judgment of conviction. See TEX. R. APP. P. 43.2(b). We
sustain Appellant’s fifth issue.
DISPOSITION
Having sustained Appellant’s sixth issue, we modify the trial court’s judgment and
withdrawal order, along with the corresponding bill of costs, to reflect that the amount of court
costs is $146.50. And having sustained his fifth issue, we likewise modify the bill of costs to
delete the fine. Having overruled Appellant’s first, second, third, and fourth issues, we affirm
the judgment as modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 17, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
15
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 17, 2022
NO. 12-21-00197-CR
JAIRO FRANCISCO SOLANO,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1196-20)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
and withdrawal order, along with the corresponding bill of costs, of the court below be modified
to reflect that the amount of court costs is $146.50, and the bill of costs be modified to delete the
fine; in all other respects, including the $10,000.00 fine reflected in the judgment of conviction,
the judgment of the trial court is affirmed; and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.