Fabian Andres Ortega v. the State of Texas ( 2024 )

Opinion filed February 8, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00149-CR
__________
FABIAN ANDRES ORTEGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-20-1430-CR
MEMORANDUM OPINION
Appellant was convicted of aggravated sexual assault of a child, a first-degree
felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v), (e), (f)(1) (West 2019).
A jury found him guilty and assessed his punishment at fifty years’ imprisonment in
the Correctional Institutions Division of the Texas Department of Criminal Justice,
and the trial court sentenced him accordingly. On appeal, Appellant challenges his
conviction in three issues. First, he contends that the evidence is legally insufficient
to sustain his conviction. He then contests the admissibility of incriminating
Snapchat messages. And finally, he claims that he received ineffective assistance of
counsel. We affirm.
Factual Background
When Appellant was nineteen years old, he found out that he had a four-
month-old daughter, B.S.M. Appellant lived with his parents in Odessa and co-
parented amicably with the child’s mother, B.G., until August 26, 2020. Pursuant
to a custody agreement, B.S.M. visited Appellant and his parents every Tuesday and
Thursday from 6:00 p.m. to 8:00 p.m. and every first, third, and fifth weekend of the
month. Appellant took B.S.M. on fishing trips and other weekend vacations.
Appellant even used a photograph of himself and B.S.M. as one of his profile
pictures on Tinder, a dating app.
From March 12 to March 15, 2020, Appellant traveled alone to Del Rio for a
fishing trip. While in his room at a Motel 6, he logged into Tinder and matched with
a transgender woman named Fernando “Fern” Garcia. Garcia and Appellant
sexually “messed around,” and continued to communicate for months thereafter via
text message, video calls, Snapchat, and Tinder. Their conversations were primarily
“sexual, like masturbation, things like that,” including sending nude photographs
and videos. But Appellant shared personal information with Garcia as well, such as
B.S.M.’s existence and age.
In August of 2020, Appellant advised Garcia that he may be returning to Del
Rio with B.S.M. Appellant then told Garcia his “rule” was that when he and B.S.M.
are together, they “don’t wear clothes.” This gave Garcia “a bad gut feeling,” so she
asked for clarification. Appellant continued, “I want my daughter to see me so she
can learn how to take care of daddy.” Appellant’s Snapchat messaging was sexually
explicit—that he put “honey or cereal over his penis and would let [B.S.M.] lick it
off of him,” how he would “guide the cum to her mouth with [his] dick,” and that he
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planned to allow other men to “use” B.S.M. sexually. 1 He recounted making B.S.M.
rub his penis “up and down,” and said it “[f]eels so good.” As proof, Appellant sent
Garcia a closeup photograph of a child that he represented to be B.S.M. with
Appellant’s semen in her mouth, and with the caption, “[c]an barely see it.”
Garcia reported the sexual assault to police and spoke to FBI agents stationed
in Del Rio. On August 24, 2020, FBI agents from the Midland office met with
Appellant at his parents’ home, and he acknowledged that his Snapchat usernames
were “Run_forest”2 and “Caramel Twisty.” He claimed that he had deleted his
Snapchat account “30 days prior” but later admitted to accessing it within the
preceding thirty days. Appellant then declared that he had given his username and
password to “[a] contact . . . he made online,” and “didn’t really know what they did
on it.”
On August 26, B.G. and her mother, J.M., received a visit from the
Department of Family and Protective Services (the Department), advising them of
the allegations. B.S.M., who only spoke “[o]ne to two words” at the time, underwent
a forensic interview but was “too young” to articulate any abuse. The results of her
sexual assault exam were likewise inconclusive.
Investigator Heidi Zavala with the Ector County Sheriff’s Office traveled to
Del Rio to meet with Garcia and subpoenaed Motel 6 records that confirmed
Appellant’s stay from March 12 to March 15. Appellant was charged with and
ultimately convicted of aggravated sexual assault of B.S.M., a child younger than
six years of age, by intentionally or knowingly causing B.S.M.’s mouth to contact
Appellant’s sexual organ. See PENAL § 22.021(a)(1)(B)(v), (e), (f)(1).
Because Appellant’s conviction hinges upon the content of the Snapchat messages, we include the
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full text of them in this opinion despite their explicit nature.
Appellant gave Garcia the Snapchat name “Run_forest1,” but FBI Agent Scott Livingstone
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referred to it simply as “Run_forest.”
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The Admission of Snapchat Messages
Appellant’s first two issues hinge on whether the evidence was sufficient to
show that he authored the explicit Snapchat messages discussing the sexual acts he
committed against B.S.M. Accordingly, we first address Appellant’s second issue
in which he asserts that the trial court abused its discretion by admitting the messages
because they were not properly authenticated and because they contained
inadmissible hearsay.
We note that the propriety of the trial court’s ruling on the admissibility of the
Snapchat messages is irrelevant to our analysis of the sufficiency of the evidence to
support Appellant’s conviction. In this regard, when conducting a sufficiency
review, we consider all the evidence admitted at trial, including pieces of evidence
that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Here, because our discussion of the admissibility of the Snapchat messages
also concerns their evidentiary strength, we address Appellant’s admissibility issue
first.
Whether to admit evidence at trial is a preliminary question to be decided by
the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex.
Crim. App. 2012). We review a trial court’s admission or exclusion of evidence for
an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019). The trial court’s decision will be upheld as long as it was within the “zone
of reasonable disagreement.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018). We will not reverse a trial court’s evidentiary ruling, even if the trial
court’s reasoning is flawed, if it is correct on any theory of law that finds support in
the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 82–83, 93
(Tex. Crim. App. 2016).
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As a condition precedent to admissibility, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
is.” TEX. R. EVID. 901(a); Tienda, 358 S.W.3d at 638. But authenticity is ultimately
a question for the jury; the trial court is merely the gatekeeper, and itself need not be
persuaded that the proffered evidence is authentic. Butler v. State, 459 S.W.3d 595,
600 (Tex. Crim. App. 2015); Tienda, 358 S.W.3d at 638; see also Cain v. State, 621
S.W.3d 75, 79 (Tex. App.—Fort Worth 2021, pet. ref’d). Under this “liberal
standard of admissibility,” the trial court must simply decide whether the proponent
has supplied facts sufficient to support a reasonable jury determination that the
proffered evidence is authentic. Butler, 459 S.W.3d at 600 (quoting Cathy Cochran,
Texas Rules of Evidence Handbook 922 (7th ed. 2007–08)).
“Evidence may be authenticated in a number of ways, including by direct
testimony from a witness with personal knowledge, by comparison with other
authenticated evidence, or by circumstantial evidence.” Tienda, 358 S.W.3d at 638
(citing TEX. R. EVID. 901(b)). For example, when authenticating text messages, a
witness might have knowledge of the authorship thereof because they “contained
information that only the purported sender could be expected to know,” or “the
purported sender has responded to an exchange of electronic communications in
such a way as to indicate circumstantially that he was in fact the author of the
particular communication.” Tienda, 358 S.W.3d at 640–41.
Here, Garcia and Appellant developed a familiarity with each other and spoke
to each other over video calls, phone calls, text messages, and Snapchat in the
months following their rendezvous in Del Rio. Appellant had two Snapchat
usernames—Run_forest1 and Caramel Twisty—and admitted to FBI agents that
these were his usernames. On video calls with Appellant, Garcia could see his face,
and Appellant sent her sexually explicit photographs and videos of his penis.
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Moreover, the content of the Snapchat messages was consistent with
Appellant’s knowledge and awareness that the recipient, Garcia, had a sexual
relationship with him, lived in Del Rio, and knew he had a daughter. When
Appellant brought up bringing B.S.M. along on his next trip to Del Rio, he gave no
background or introductory information; presumably he had already discussed her
age and existence with Garcia. Such details known only to someone close to the
situation at the time constitute “distinctive characteristics and the like” to support a
rational inference by the factfinder that Appellant authored the messages. See
TEX. R. EVID. 901(b)(4); Butler, 459 S.W.3d at 603–04 (“Conversations and events
that precede or follow the communications at issue, when identified or referred to
within the written communication, can provide contextual evidence demonstrating
the authenticity of such communications.”).
“It is, of course, within the realm of possibility that [Appellant] was the victim
of some elaborate and ongoing conspiracy” initiated by his unknown online contact
to whom he purportedly gave his Snapchat login information. See Tienda, 358
S.W.3d at 645. Conceivably, some unknown malefactor used Appellant’s Snapchat
account to concoct boastful messages about sexually assaulting B.S.M., was aware
that Appellant and Garcia had previously engaged in phone and video sex, and had
engaged in sex in Del Rio months prior. See id. at 646. “But that [was] an alternate
scenario whose likelihood and weight the jury was entitled to assess once the State
had produced a prima facie showing” that it was Appellant, not some unidentified
deviant, who created these incriminating messages and the photograph. See id.We thus conclude that the State presented enough evidence to “bridge the
logical gap and permit a proper inference that the purported author sent the
message[s].” Butler, 459 S.W.3d at 602. The trial court had sufficient evidence to
determine that the Snapchat messages were authentic and were sent and authored by
Appellant.
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Appellant also asserts that the messages contained hearsay, which rests on the
premise that they were not properly authenticated. Because the trial court had
sufficient evidence to determine that the messages were sent and authored by
Appellant, and the trial court did not abuse its discretion in admitting the messages
as authored by him, Appellant’s statements therein were admissions and were
therefore not hearsay. See TEX. R. EVID. 801(e)(2)(A). We overrule Appellant’s
second issue.
Sufficiency of the Evidence
In his first issue, Appellant argues that the evidence was legally insufficient
to establish that the child depicted in the closeup explicit photograph was in fact
B.S.M. Appellant further contends that State’s evidence is “inherently unreliable”
because “nothing definitively connects [Appellant] to having sent the messages.”
To support this contention, he directs our attention to “law enforcement negligence,”
the inconclusive results from B.S.M.’s sexual assault examination, and the lack of
an outcry.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review
all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Garcia v. State, 667 S.W.3d 756, 761
(Tex. Crim. App. 2023).
When conducting a sufficiency review, we defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007); Dority v. State,
631 S.W.3d 779, 784–85 (Tex. App.—Eastland 2021, no pet.) (We may not
reevaluate the weight and credibility of the evidence to substitute our judgment for
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that of the factfinder.). “This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Garcia, 667
S.W.3d at 761 (quoting Jackson, 443 U.S. at 319). When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Id. at 762.
“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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). We do not use a “divide and conquer” strategy, consider what evidence
could have or should have been presented, nor do we speculate about evidence that
the State did not present. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015); see Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012); see also
Espinoza v. State, No. 11-19-00232-CR, 2022 WL 3903774, at *5 (Tex. App.—
Eastland Aug. 31, 2022, pet. ref’d) (mem. op., not designated for publication).
Finally, we do not review the sufficiency of the police investigation; we review the
evidence presented at trial. Espinoza, 2022 WL 3903774, at *5.
As relevant to this case, a person commits the offense of aggravated sexual
assault by intentionally or knowingly causing the mouth of a child under six years
of age to contact his sexual organ. PENAL § 22.021(a)(1)(B)(v), (e), (f)(1). Without
repeating Appellant’s acts as explicitly set out in the factual background above, the
jury, in its discretion as the factfinder, was entitled to believe the evidence supporting
its conclusion that Appellant caused the mouth of B.S.M. to contact his sexual organ.
As to those acts, Appellant promised Garcia that he would “show [her] when
[B.S.M.] comes back” for her scheduled visitation.
Attacking the sufficiency of that evidence, Appellant suggests that securing
business records from Snapchat was “the only way” to confirm that Appellant
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authored the messages. However, as established, Appellant “definitively
connect[ed]” himself to having sent the messages when he verified his Snapchat
usernames to FBI agents and admitted that he had accessed his account in August of
2020. Moreover, the fact that he communicated with the same style and knowledge
that only he would possess is further indicative of his authorship of the trial exhibits
at issue. See Tienda, 358 S.W.3d at 645–47; Butler, 459 S.W.3d at 602–04. As we
have said, the State supplied the trial court with enough evidence to connect
Appellant to the Snapchat messages, and the jury, by its verdict, concluded that
Appellant was the sender. We defer to the determination of the factfinder, and we
find the evidence legally sufficient to support its determination. See Brooks, 323
S.W.3d at 899.
With respect to the photograph, Appellant’s father and sister testified that
Appellant was “[n]ever alone” with B.S.M., and that the child in the photograph was
not her. But the jury heard B.G. testify that she was sure that the photograph depicted
her daughter. J.M., B.S.M.’s grandmother, was “about 80 percent” sure that it was
a closeup of B.S.M. Additionally, Investigator Zavala conducted a comparative
“image search” using the photograph and could not find that image on the internet.
Investigator Zavala likewise revealed that while they were executing the search
warrant, which occurred after Appellant was contacted by the FBI and the
Department, Appellant’s father confessed to deleting sexually explicit photographs
of a girl from Appellant’s phone. Appellant sent the photo contemporaneous with
his detailed account of sexually assaulting his two-year-old daughter. Based on the
evidence, we find that the jury as the sole judge of witness credibility could have
rationally found that the child in the photograph was B.S.M. See Garcia, 667
S.W.3d at 761–62.
The jury’s decisions in weighing the evidence and weighing the testimony of
the trial witnesses constitute credibility determinations to which we must defer. See
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Brooks, 323 S.W.3d at 899. And we cannot speculate about what the evidence could
have or should have shown. See Merritt, 368 S.W.3d at 526. Viewing the evidence
presented at trial in the light most favorable to the verdict, we conclude that a rational
trier of fact could have found the essential elements of the offense for which
Appellant was convicted. See Jackson, 443 U.S. at 319. We overrule Appellant’s
first issue.
Ineffective Assistance of Counsel
In his third issue, Appellant contends that his trial counsel was ineffective
when counsel failed to object to evidence of Appellant’s sexual preference and
orientation and to the admission of the photographs showing his genitals. He argues
that his sexual orientation was “[i]rrelevant and highly prejudicial,” and that the
admission of the photographs was “truly incomprehensible . . . and even more
outrageous that trial counsel made no efforts to prevent it.”
Under the two-pronged test in Strickland v. Washington, a defendant
challenging counsel’s representation must establish that his counsel’s performance
(1) was deficient, and (2) prejudiced his defense. 466 U.S. 668, 687 (1984); Hart v.
State, 667 S.W.3d 774, 781 (Tex. Crim. App. 2023). To establish that counsel’s
actions were deficient, the defendant must show by a preponderance of the evidence
that counsel’s actions fell below an objective standard of reasonableness. Hart, 667
S.W.3d at 781. Our review of counsel’s representation is highly deferential, and we
indulge a strong presumption that counsel’s conduct was not deficient. Nava v.
State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Courts should consider the
reasonableness of counsel’s actions at the time and in light of all the circumstances,
rather than viewing such actions through the benefit of hindsight. Hart, 667 S.W.3d
at 782. “Counsel’s actions are considered deficient only if the court finds, as a matter
of law, that ‘no reasonable trial strategy could justify trial counsel’s acts or
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omissions, regardless of his or her subjective reasoning.’” Id. (quoting Lopez v.
State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)).
Moreover, the record must affirmatively demonstrate trial counsel’s alleged
ineffectiveness. Johnson v. State, 624 S.W.3d 579, 585 (Tex. Crim. App. 2021).
Trial counsel should generally be given an opportunity to explain his actions before
being found ineffective. Id. at 586. “In the face of an undeveloped record, counsel
should be found ineffective only if his conduct was ‘so outrageous that no competent
attorney would have engaged in it.’” Id. (quoting Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005)). A silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable assistance.
Id.Evidence of one’s sexual orientation may be admissible if it is relevant to the
issues in the case. See, e.g., Whitmire v. State, 183 S.W.3d 522, 528–30 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d); Woods v. State, No. 07-22-00208-CR,
2023 WL 4924076, at *1–2 (Tex. App.—Amarillo Aug. 1, 2023, no pet.) (mem. op.,
not designated for publication). The failure to object to proper questions and
admissible testimony is not ineffective assistance. Ex parte Jimenez, 364 S.W.3d
866, 887 (Tex. Crim. App. 2012).
Here, Appellant has failed to show that evidence of his bisexuality, and the
explicit content he sent to Garcia, were inadmissible. As set forth above, Garcia
explained that her legal name is Fernando J. Garcia, but she goes by “Fern,” and uses
the pronouns “[s]he, her.” As the person who reported the instant offense to police,
she gave the background information of sexual relations and intimate familiarity
leading up to Appellant’s social media confession that he coerces his two-year-old
daughter into performing oral sex on him. She told the jury how she met Appellant,
had a sexual relationship with him, and they continued talking until August 20, 2020.
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The State provided the jury with various messages sent to Garcia by Appellant in
support of Garcia’s testimony, including the photographs of Appellant’s genitals.
Had Appellant’s counsel objected to Garcia’s testimony and the photographs,
the trial court would have had a basis on which it could properly rule upon such
objections. The testimony and photographs were admissible contextual background
evidence, “once called ‘res gestae’ of the offense.” Mayes v. State, 816 S.W.2d 79,
86 (Tex. Crim. App. 1991). The trial court likewise could have admitted the
photographs of Appellant’s erect penis because they were so “inextricably
intertwined” in the sexual conversations preceding Appellant’s incriminating
statements, such that they were “necessary to complete the story of the alleged
offense.” See Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010) (internal
quotation marks omitted). Appellant’s sexuality was indeed related to the
circumstances surrounding the charged offense, in that the ongoing sexual
partnership with Garcia might invite trust and explain Appellant’s reason for
confiding in detail his other sexual conduct. It may lend credence to the likelihood
of Appellant expressing his intent to let other men perform sexual acts on both him
and B.S.M. and “show [Garcia] when [B.S.M.] comes back” for her scheduled
visitation. In this light, sending the graphic photograph of B.S.M. would be
consistent with Appellant sending other sexually explicit photos—like that of his
penis—to Garcia.
We further note that we have found nothing in the record to substantiate
Appellant’s claim that the State negatively portrayed his sexual preferences in an
attempt to cultivate unfair prejudice. Rather, while discussing Garcia’s “life
choices,” the State encouraged the jurors to set aside any potential biases and focus
on her credibility.
On this record, trial counsel’s failure to object does not support an ineffective
assistance claim. See Prine v. State, 537 S.W.3d 113, 117–18 (Tex. Crim. App.
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2017). Appellant’s trial counsel could have logically concluded that the contested
evidence was admissible, rendering any objections thereto futile. See Jimenez, 364
S.W.3d at 887. Moreover, we cannot say that trial counsel’s conduct was not “so
outrageous that no competent attorney would have engaged in it.” Prine, 537
S.W.3d at 116–17 (quoting Goodspeed, 187 S.W.3d at 392). Because nothing in the
record affirmatively demonstrates that trial counsel’s failure to object constituted
deficient performance, we overrule Appellant’s third issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
February 8, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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