Adolphus Oneal Davis v. the State of Texas ( 2024 )

Affirmed and Opinion Filed February 21, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01347-CR
No. 05-22-01348-CR
ADOLPHUS O’NEAL DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F19-70684-Y, F22-00657-Y
MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Nowell
A jury convicted appellant Adolphus O’Neal Davis of two counts of theft of
property greater than $30,000 but less in $150,000. See TEX. PENAL CODE ANN.
§ 31.03(e)(5). He was sentenced to two years’ imprisonment in cause number F19-
70684-Y and six years’ imprisonment in cause number F22-00657-Y, probated for
five years. In four issues, appellant argues the trial court abused its discretion by
admitting into evidence four unauthenticated documents. We affirm the trial court’s
judgment.
Background
Because the facts are known to the parties and appellant does not challenge
the sufficiency of the evidence, only a brief recitation of the facts is necessary. TEX.
R. APP. P. 47.1. In January 2006, Noel Balderas purchased two adjoining lots located
at 4827 and 4835 Corrigan Avenue in Dallas, Texas. Appellant asked Balderas if he
could graze his horse on the property in exchange for taking care of the property.
Balderas and appellant entered into a “horse-grazing agreement.” Balderas
interacted with appellant through the years, and eventually, appellant asked Balderas
if he wanted to sell the property. They negotiated but never reached an agreement.
Jorge Loera and his wife, Ariana Espinoza, lived nearby and often saw
appellant on the property. In 2016, appellant asked Loera if he wanted to graze his
horses on the property. Loera declined the offer. Some time later, Loera heard
appellant was interested in selling the property. They reached an agreement to buy
“owner to owner.” Loera had no reason to believe appellant did not own the
property; however, a few weeks later, he received a letter from the City of Dallas
explaining the City could not transfer title to him because Balderas still owned the
property.
The State subsequently indicted appellant on two counts of unlawfully
appropriating property, “the aggregate value of which was more than $30,000 but
less than $150,000,” namely the money Loera and Espinoza paid appellant for
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property he did not own. See TEX. PENAL CODE ANN. § 31.03(e)(5). A jury
convicted him on both counts, and this appeal followed.
Discussion
In four issues, appellant argues the trial court abused its discretion by
admitting State’s Exhibits 3, 12, 23, and 24 because the State failed to properly
authenticate them. We review the trial court’s decision to admit evidence for an
abuse of discretion and may not reverse if its decision is within the zone of
reasonable disagreement. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App.
2015); Dickson v. State, No. 05-14-01061-CR, 2016 WL 772766, at *4 (Tex. App.—
Dallas Feb. 29, 2016, no pet.) (not designated for publication).
“To satisfy the requirement of authentication . . . the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims.”
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 make the preliminary determination that the State has supplied facts sufficient
to support a reasonable jury determination that the proffered evidence is authentic.
Butler, 459 S.W.3d at 600. This can be accomplished in a myriad of ways, including
through the testimony of a witness with knowledge or through evidence showing
distinctive characteristics. TEX. R. EVID. 901(b)(1) (testimony of a witness with
knowledge) & 901(b)(4) (distinctive characteristics). The proponent need not
eliminate all other possibilities inconsistent with authenticity, and circumstantial
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evidence, other than a signature, may establish authorship. See Jones v. State, 466
S.W.3d 252, 263 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Soria
v. State, 933 S.W.2d 46, 60 (Tex. Crim. App. 1996) (drawing found in appellant’s
cell was sufficiently connected to appellant to permit the State to argue it belonged
to appellant). This has been described as a “liberal standard of admissibility.”
Butler, 459 S.W.3d at 600.
Appellant first challenges State’s Exhibit 3, the residential lease-purchase
agreement. Loera’s testimony authenticated the agreement. He explained appellant
hand-delivered the agreement to him. Loera identified his signature on the contract.
He confirmed the agreement included the property description and the terms of sale
based upon previous in-person discussions. Under the liberal standard of
admissibility, the trial court did not abuse its discretion by overruling appellant’s
authentication objection because Loera testified to the accuracy of the information
in the residential lease-purchase agreement based on his personal knowledge of the
transaction. TEX. R. EVID. 901(b)(1). These facts provided sufficient information
for the trial court to make the preliminary determination the proffered evidence was
authentic. Butler, 459 S.W.3d at 600. Appellant’s first issue is overruled.
Appellant next challenges State’s Exhibit 12, the $8,500 down payment
receipt. The State introduced the document during Espinoza’s testimony. She
explained it was a signed receipt from appellant memorializing their $8,500 partial
cash down payment for the property. It was titled “RECEIPT,” dated December 15,
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2016, and “Paid to: Adolphus Davis,” “Received from: Jorge Loera and Ariana
Espinoza,” “For: down payment on 4835 Corrigan Ave, Dallas, TX 75214.” The
State introduced a similar receipt memorializing another cash payment “For: down
payment on 4835 Corrigan Ave, Dallas, Texas 75214” without objection. The only
difference in the two documents is the amount received. A party waives any alleged
error regarding the erroneous admission of evidence if the same or substantially
similar evidence has been previously admitted without objection. See Debnam v.
State, No. 04-22-00177-CR, 2023 WL 4223625, at *6 (Tex. App.—San Antonio
June 28, 2023, pet. ref’d) (mem. op., not designated for publication). Because
appellant failed to object to substantially similar evidence, he waived his issue for
review. Id. Even assuming appellant preserved this issue, Espinoza testified she
gave appellant $8,500, and he personally delivered the receipt to her, which noted
the amount she gave for “down payment” on the property. Her testimony, as a
witness with personal knowledge, provided enough information for the trial court to
make the preliminary determination based on sufficient facts that the proffered
evidence was authentic. Butler, 459 S.W.3d at 600; see also TEX. R. EVID. 901(b)(1).
We overrule appellant’s second issue.
Finally, appellant challenges the admission of two letters addressed to Loera
and Espinoza and signed by appellant: (1) State’s Exhibit 23, dated December 5,
2016, and (2) State’s Exhibit 24, dated January 7, 2017. Espinoza testified she
recognized both letters because appellant personally handed them to her. Upon
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review, both letters reference specific details about the parties’ negotiations to
purchase the property as well as references to other past discussions between them.
Given the distinctive characteristics of the content of both letters and Espinoza’s
testimony that appellant personally delivered the letters to her, the trial court did not
abuse its discretion by making a preliminary determination that the letters were
authentic. See TEX. R. EVID. 901(b)(1), (4); see also Butler, 459 S.W.3d at 600. We
overrule appellant’s third and fourth issues.
In overruling appellant’s issues, we reject his argument that the documents
were not authenticated because a handwriting expert did not testify and the State did
not introduce an exemplar to compare with his signature. Circumstantial evidence,
other than a signature, may establish authorship. See Soria, 933 S.W.2d at 60; see
also Pierce v. State, No. 2-03-517-CR, 2004 WL 1798088, at *2 (Tex. App.—Fort
Worth Aug. 12, 2004, pet. ref’d) (mem. op., not designated for publication) (holding
contents of letter were sufficient to authenticate it). As discussed above, the State
met the “liberal standard of admissibility” to satisfy rule 901(a). See TEX. R. EVID.
901(a); Butler, 459 S.W.3d at 600.
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Conclusion
We affirm the trial court’s judgment.
/Erin A. Nowell//
221347f.u05 ERIN A. NOWELL
221348f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADOLPHUS O’NEAL DAVIS, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F19-70684-Y.
No. 05-22-01347-CR V. Opinion delivered by Justice Nowell.
Justices Miskel and Kennedy
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of February, 2024.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADOLPHUS O’NEAL DAVIS, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F22-00657-Y.
No. 05-22-01348-CR V. Opinion delivered by Justice Nowell.
Justices Miskel and Kennedy
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 21st day of February, 2024.
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