Brandon Chadwick Coe v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 09-13-00409-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-13-00409-CR NO. 09-13-00410-CR _________________

BRANDON CHADWICK COE, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 11-11-12628 CR (Count 1 and Count 2) ________________________________________________________________________

MEMORANDUM OPINION

Brandon Chadwick Coe appeals his convictions for online solicitation of a

minor and attempted sexual assault of a child. See Tex. Penal Code Ann. §§ 15.01,

33.021(c) (West 2011). He raises three issues on appeal.1 We affirm the trial

court’s judgment.

1 We note that Coe’s issues are multifarious. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (explaining that a multifarious issue is one that embraces more than one legal theory). By combining more than one contention in 1 I. Background

A grand jury returned a two-count indictment against Coe charging him with

online solicitation of a minor (Count I) and criminal attempt (Count II). See id. §§

15.01, 33.021. Coe pled not guilty to both offenses. A jury found Coe guilty as

charged in both counts, and assessed punishment in Count I at imprisonment for

twelve years and a $10,000 fine, and assessed punishment in Count II at

imprisonment for ten years and a $10,000 fine. The trial court entered judgment in

accordance with the jury’s verdicts. Coe timely appealed the trial court’s

judgments. 2

II. Constitutionality of Section 33.021

In his first issue, Coe complains that Count I of the indictment is

unconstitutional. Coe contends that in Count I, he was indicted for third-degree

a single point of error, Coe risks denial on the ground that the issue is multifarious and presents nothing for review. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010); Sparkman v. State, 55 S.W.3d 625, 630-31 (Tex. App.—Tyler 2000, no pet.). In the interest of justice, we will consider multifarious issues to the extent we are able to identify Coe’s complaints with reasonable certainty and those complaints are adequately briefed. See Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d); Stults v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

2 Both Coe and the State consolidated Cause No. 09-13-00409-CR and Cause No. 09-13-00410-CR for briefing purposes. Because the briefs and arguments raised in both causes are identical, they may be considered in one opinion.

2 felony online solicitation of a minor. According to Coe, because section 33.021(c)

is not punishable as a third-degree felony offense, we must infer that the State’s

intent was to indict Coe under section 33.021(b), which the Texas Court of

Criminal Appeals deemed unconstitutional in Ex parte Lo, 424 S.W.3d 10, 14

(Tex. Crim. App. 2013). 3

Texas Penal Code section 33.021(c) provides that a person commits an

offense under this section:

if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

Tex. Penal Code Ann. § 33.021(c). An offense under subsection (c) is a second-

degree felony. Id. § 33.021(f). The indictment alleged that Coe “did then and there,

with the intent that E.B., a minor, would engage in sexual contact and sexual

intercourse with the defendant knowingly solicit over the [I]nternet and through a

commercial online service (Facebook) the said E.B. to meet the defendant[.]” As

Coe notes, the caption of the indictment classified Coe’s offense as a third-degree

3 In Ex parte Lo, the Texas Court of Criminal Appeals held Section 33.021(b) of the Texas Penal Code was unconstitutionally “overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.” 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). 3 felony. However, the caption of an indictment is not part of the charging

instrument. Adams v. State, 222 S.W.3d 37, 52-53 (Tex. App.—Austin 2005, pet.

ref’d); Gonzalez v. State, 664 S.W.2d 797, 799 (Tex. App.—Corpus Christi 1984),

rev’d on other grounds, No. 263-84 (Tex. Crim. App. July 18, 1984) (not

designated for publication). Here, because the body of the indictment alleges an

offense under subsection (c) of section 33.021 and not an offense under subsection

(b), the fact that the caption references a third-degree felony is of no consequence.

We overrule Coe’s first issue to the extent he alleges Count I of the indictment was

unconstitutional because he was indicted under section 33.021(b), which has been

found to be unconstitutional.

Coe argues in the alternative that section 33.021(c) is also an

unconstitutional infringement of his First Amendment right to free speech,

specifically, his right to fantasy speech. According to Coe, his words were

protected by the First Amendment because his words were not directed to

producing imminent lawless action and were not solicitation. He contends that

when section 33.021(c) and (d) are combined, they explicitly criminalize fantasy

speech, which he argues is protected by the First Amendment. The State responds

that Coe did not challenge the constitutionality of section 33.021(c) on those

grounds at trial and, thus, has not preserved this issue for review.

4 Constitutional challenges to a statute are generally forfeited by failure to

object at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995);

see also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). A party

must challenge the constitutionality of a statute as applied in the trial court to

preserve error. Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008);

Curry, 910 S.W.2d at 496. Likewise, a party may not raise for the first time on

appeal a facial challenge to the constitutionality of a statute. Karenev v. State, 281

S.W.3d 428, 434 (Tex. Crim. App. 2009). The objection made in the trial court

must comport with the argument presented on appeal. Clark v. State, 365 S.W.3d

333, 339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.

Crim. App. 2009). In determining whether a complaint on appeal comports with

that made at trial, we consider the context in which the complaint was made and

the parties’ shared understanding at that time. Clark, 365 S.W.3d at 339.

Coe relies on Ex parte Chance, 439 S.W.3d 918 (Tex. Crim. App. 2014) (per

curiam), for the proposition that he may raise a facial challenge to the

constitutionality of a statute for the first time on appeal. However, as Justice

Cochran’s concurrence explained in Ex Parte Chance, the party in Chance had

requested relief for a conviction under a statute the court had previously declared

unconstitutional. Id. at 918, 922 (Cochran, J., concurring). Justice Cochran

5 distinguished that scenario from a situation in which a party is challenging a valid

statute, or a statute that had not been declared void. Id. at 922 (Cochran, J.,

concurring). Neither subsection (c) or (d) of section 33.021 has been declared

unconstitutional. Because Coe has challenged only valid sections of the statute, his

reliance on Ex parte Chance for the proposition he need not raise his challenge in

the trial court is misplaced.

Having determined that Coe was required to first raise his challenge in the

trial court to preserve it for appellate review, we next determine whether he made

an objection at trial that comports with the issue being asserted on appeal. During

Coe’s motion for directed verdict, Coe objected that section 33.021 is

unconstitutional because it fails to give fair notice and it is impermissibly vague.

The trial court overruled Coe’s motion for directed verdict and overruled Coe’s

objections to the constitutionality of the statute. Coe filed a motion for new trial

and motion in arrest of judgment, arguing only that the verdict is contrary to the

law and evidence under Texas Rule of Appellate Procedure 21.3. Coe’s motion for

new trial did not argue the constitutionality of section 33.021. Coe’s motion for

new trial and motion in arrest of judgment were overruled by operation of law.

Coe’s objection at trial that the statute does not provide fair notice and is

impermissibly vague does not comport with his argument on appeal that the statute

6 violates his First Amendment right to free speech. We conclude Coe has not

properly preserved his challenge to the constitutionality of section 33.021(c) for

review in this appeal. Even if such argument had been preserved, this Court and

others have analyzed and rejected the constitutional challenge Coe attempts to

raise, and we see nothing in this record or Coe’s argument that would compel us

not to follow that precedent in this case. See Ex parte Zavala, 421 S.W.3d 227,

231-32 (Tex. App.—San Antonio 2013, pet. ref’d); Maloney v. State, 294 S.W.3d

613, 625-29 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Ex parte Victorick,

No. 09-13-00551-CR, 2014 WL 2152129, at *1-6 (Tex. App.—Beaumont May 21,

2014, pet. ref’d) (mem. op., not designated for publication). We overrule Coe’s

first issue.

III. Sufficiency of the Evidence

In his second issue, Coe contends the evidence is factually insufficient to

support his conviction for online solicitation of a minor and attempted sexual

assault of a child.

A. Standard of Review

The “Jackson v. Virginia 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

7 beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In assessing the

legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson,

443 U.S. at 319; Brooks, 323 S.W.3d at 899.

The jury is the sole judge of the credibility and weight to be attached to the

testimony of witnesses. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014)

(citing Jackson, 443 U.S. at 319). We give full deference to the jury’s

responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains conflicting inferences,

we presume the jury resolved such conflicts in favor of the verdict and defer to that

resolution. Thomas, 444 S.W.3d at 8. “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,

214 S.W.3d at 13.

8 B. Online Solicitation of a Minor

Coe asserts that there is no evidence that he engaged in sexually explicit

communications with E.B.’s sister while E.B.’s sister was posing as E.B., a minor,

on Facebook. He maintains that because the indictment did not charge him with

communicating with E.B. through text messages or over G-chat, 4 to affirm his

conviction we must find that his Facebook communications alone were sexually

explicit. Alternatively, he argues that if we conclude the indictment extended to the

G-chat communications, the State also had the burden to show those

communications were sexually explicit.

At the outset, we note the majority of Coe’s sufficiency argument is based

on his contention that he was indicted under subpart (b) of Section 33.021.

However, as we discussed above, the indictment clearly charges Coe with a

violation of subpart (c) of the statute. In reviewing the plain language of subpart

(c), we note that it does not require “sexually explicit communications.” See Tex.

Penal Code Ann. § 33.021(c). Rather, it requires a person to solicit a minor “over

the Internet, by electronic mail or text message or other electronic message service

or system, or through a commercial online service[.]” Id. As we explained in Ex

4 To the extent Coe attempts to argue in his brief to this Court that the trial court erred in admitting records of the conversations that took place over G-chat, we do not address such argument as Coe has not adequately supported the issue with record references or case citations. See Tex. R. App. P. 38.1(i). 9 parte Victorick, “‘[s]olicit’ is not defined in section 33.021 of the Texas Penal

Code, and can be understood by the jury by its commonly defined terms, which

include, ‘to approach with a request or plea’ and ‘to endeavor to obtain by asking

or pleading[.]’” 453 S.W.3d 5, 15 (Tex. App.—Beaumont 2014, pet. ref’d)

(quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 2169 (2002)).

The indictment alleged that Coe knowingly solicited E.B. “over the

[I]nternet and through a commercial online service (Facebook)[.]” Despite Coe’s

argument to the contrary, alleging in the conjunctive that Coe solicited E.B. “over

the [I]nternet” and “through a commercial online service (Facebook)” does not

require the State to prove that Coe did both. See Kitchens v. State, 823 S.W.2d 256,

258 (Tex. Crim. App. 1991) (holding that “although the indictment may allege the

differing methods of committing the offense in the conjunctive, it is proper for the

jury to be charged in the disjunctive”). Therefore, the evidence is sufficient to

support the jury’s verdict that Coe was guilty of online solicitation of a minor if the

jury could have found beyond a reasonable doubt that Coe knowingly solicited

E.B., a minor, over the Internet to meet with him or another person with the intent

that E.B. would engage in sexual contact, sexual intercourse, or deviate sexual

intercourse with him or another person. See id.; see also Tex. Penal Code Ann. §

33.021(c).

10 E.B. was sixteen years of age on the date of the alleged offenses. She

testified that she knew Coe and his family. She grew up around the Coe family and

on occasion had lunch with them. In 2011, Coe and his father helped E.B. and her

mom move into a new apartment. She testified that Coe made her feel

uncomfortable and awkward during the move because of how Coe would look at

her.

E.B. testified that she had been “friends” with Coe on Facebook for some

time and had become “friends” well before August 2011. Coe made her feel

awkward when he placed a comment that she “looked cute” on one of the pictures

she posted of herself on Facebook. She told her sister about the comment, so E.B.’s

sister started checking E.B.’s Facebook page.

The testimony offered by E.B.’s sister corroborated E.B.’s testimony. E.B.’s

sister testified she became concerned for her younger sister, E.B., then sixteen

years of age, when she noticed that Coe, a thirty-five-year-old man, was showing

an “abnormal” or “excessive” level of interest in E.B.’s pictures on Facebook. The

State admitted into evidence a Facebook chat log that E.B.’s sister identified as a

conversation that she, under the persona of E.B., conducted with Coe. E.B.’s sister

testified that she sent out a group message from E.B.’s Facebook account to Coe

and eight other people. The message stated, “‘So I am sending a message to all my

11 friends. What is it you-all like and don’t like about me? How do we know each

other? Do we have any secrets?’” Coe responded to the message within minutes.

E.B.’s sister described the initial conversation between Coe and herself and then

testified that Coe sent a message to E.B. asking, “‘What are you up to, cutie?’”

The following day, E.B.’s sister sent a text message to the cell phone

number Coe had provided to her during the Facebook chat. Photographs of the text

conversation were admitted into evidence. Coe asked E.B. to send him a picture of

herself, so E.B.’s sister sent him a picture of E.B. E.B.’s sister testified in detail

regarding the content of the text messages exchanged between herself, posing as

E.B., and Coe. She exchanged various photographs with Coe throughout the

conversation. After she sent one certain photograph that she represented was E.B.

lying next to a swimming pool, Coe responded that he would “like to see

everything[.]” Coe also sent E.B. a text message that he would “love to be [her]

first[.]”

The photographs of the text messages reflect that Coe offered to send E.B. a

picture of his sexual organs, but that E.B. would have to send him pictures of her

first because he had “a lot more at stake[.]” The evidence also reflects that Coe

warned E.B. that she would need to delete any photographs he sent her because he

could get in “big trouble[.]” E.B.’s sister testified that she sent Coe two

12 photographs of random nude females she found on the Internet and told Coe they

were pictures of E.B. E.B.’s sister testified that Coe responded that he liked what

he saw in the photographs. Coe responded by sending a photograph of his sexual

organ. According to E.B.’s sister, Coe then described in graphic detail what he

wanted to do sexually.

Coe later sent a text message indicating that he discovered the legal age of

consent in Texas was seventeen years and told her that it was not illegal for them

to be together after all. E.B.’s sister testified that up until that point in time, they

had not discussed E.B.’s actual age. Coe sent a text message that he was ready to

get together with E.B. whenever she was ready and that he looked forward to

seeing her soon.

E.B.’s sister testified that Coe sent another text to E.B. wanting E.B. to come

over to his house. During the conversation, she informed Coe that E.B. was just

sixteen years old. Coe responded that he could get in “real big trouble and go to

jail” if they did anything before E.B. turned seventeen years old.

Posing as E.B. again, her sister exchanged chats with Coe on Facebook . Coe

sent E.B. a message through Facebook to tell her that she could call or text him if

she wanted. Coe ended the conversation by stating that he could not wait to hear

E.B.’s voice and see her in person. Copies of these exchanges were admitted

13 before the jury. E.B.’s sister testified that she also had conversations with Coe

through Google email and chat. Copies of such exchanges were admitted before

the jury. From all of her exchanges with Coe, E.B.’s sister became concerned for

E.B’s safety and decided to contact law enforcement.

E.B.’s sister testified that she had known Coe and his family for over fifteen

years and their families had been friends and attended church together. She had

also known Coe’s ex-wife for many years and used her as a babysitter. E.B.’s sister

testified that when the conversations with Coe began, she spoke with Coe’s ex-

wife concerning the conversations. She denied that she and Coe’s ex-wife made

any plan to set up Coe. On cross-examination, E.B.’s sister stated that Coe’s ex-

wife did make a comment to her about Coe which caused her to be concerned

about Coe’s apparent interest in E.B.

E.B.’s sister agreed on cross-examination that she is adept at photography

but denied tampering with any of the photographs of the chat conversations entered

into evidence. Defense counsel also questioned E.B.’s sister about thirty-nine

missing images mentioned in the forensic report of the text messages between her

and Coe captured on E.B.’s sister’s phone. It was explained that those images were

personal pictures of her and her son and were not images of her conversations with

Coe.

14 Chris Smith, chief investigator with the Montgomery County District

Attorney’s Office, testified he received a report from the F.B.I. regarding an

adult’s on-line communication with a minor. He testified that E.B.’s sister made a

complaint to the F.B.I. about online communications involving E.B. After meeting

with E.B.’s sister, he made a plan to take over the identity of the minor child, E.B.,

and continue the online communications. E.B.’s mother provided Smith with

permission to access E.B.’s Facebook and Gmail accounts.

Smith testified that he began accessing E.B.’s Gmail account on October 14.

He identified a series of emails between him, posing as E.B., and Coe. Smith

testified and the evidence reflects that Smith sent Coe an email from E.B.’s Gmail

account and Coe responded and provided his cell phone number and requested her

to contact him by texting. Smith confirmed that the number Coe provided in the

email was actually Coe’s cell phone number. Smith captured parts of the on-line

chat conversations and emails exchanged with Coe, and the printouts of those

exchanges were admitted into evidence for the jury to consider. Based on Smith’s

investigation and having reviewed the prior messages between Coe and E.B., it

was Smith’s opinion that Coe continued to solicit the minor for sexual relations.

Coe asked where E.B.’s sister lived so that he could obtain a map to her

house. Coe confirmed again that E.B. would be alone at her sister’s house that

15 night. Coe then asked E.B. when she would have her next birthday. Coe confirmed

that E.B. was still sixteen and would turn seventeen years old the following

Wednesday. Coe continued his on-line sexual banter. The conversation continued:

Brandon: … so when would you want me to come oveR? …. Brandon: …That wouldn’t be what it is to me I think you would be really cool to be your first me: does this mean I have a date for tonight? really feeling sick right this second (lol)… Brandon: Lol If you want one me: u r kind of making me feel like u dont want to have sex with me. if u don’t, just tell me…I feel like u r playing games with me. …. Brandon: I wanna be with you if you want …. me: if u don’t want to, I understand. Brandon: I do me: so r u coming tonight? Brandon: If you still want me to.

Smith testified that the conversation ended about 3:37 p.m. At this point, Smith

started setting up a location to meet Coe. Smith testified that, posing as E.B., he

initiated further communication with Coe later that night at 7:13 p.m. Smith

testified that he sent Coe the address of the location they had prepared for Coe.

Coe confirmed that E.B. was alone at the address. Smith testified that he

exchanged various messages with Coe throughout the night. Smith also testified

that Coe attempted to call the house at the address Smith had given him. When no

one answered, Coe became suspicious that his ex-wife was attempting to set him 16 up and pose as E.B. to cause him trouble. Smith was able to convince Coe to keep

the rendezvous that night. Again, the jury was able to view the transcript of the

verbal exchanges with Coe.

Coe continued to try to arrange to speak to E.B. on the telephone before

arriving at the address. Coe confirmed whether E.B. still wanted to see him and

confirmed directions to E.B.’s sister’s house. Posing as E.B., Smith expressed

concern that Coe would be disappointed because she did not know what she was

doing. Coe responded, “Sweet that’s part of it’s being your first. You really don’t

have to worry about anything[.]” Coe confirmed that he was on his way and asked

E.B. what she was wearing and if she would come outside to greet him.

At 12:04 a.m., Coe sent a message indicating he had arrived at the house.

Smith testified that a vehicle pulled up to the location and Coe exited the vehicle

and began walking towards the house. Smith testified that he exited the house and

made contact with Coe and placed Coe under arrest. Smith testified that when they

arrested Coe, he was in possession of a cell phone, wallet, car keys, and five

condoms. Smith testified that when they made an inventory of Coe’s vehicle, they

located an additional condom and a prescription bottle of Cialis. Smith testified

that the bottle of Cialis was prescribed to Coe.

17 Defense counsel questioned Smith at length regarding the practices he used

in his investigation and criticized him for not subpoenaing the entirety of the

conversations from the on-line providers. Smith admitted that if someone has the

motive, knowledge, and intent, it was possible for that person to make an innocent

person appear guilty of an offense. He also agreed that photographs of Facebook

and online chats could be altered. He conceded that while he is able to subpoena

records from Internet service providers and phone companies, he did not subpoena

chat or email records from Google concerning Coe’s activities. Smith testified

there were other complaints against Coe specifically regarding the misuse of his

position at the church to spy on teenage female members of the church.

Coe’s ex-wife testified that in June 2011, she turned over several computer

hard drives to the Montgomery County police department that she had obtained

from her and Coe’s home. She told law enforcement that she suspected they

contained pornographic images. However, it was her understanding that the hard

drives revealed “nothing of any kind of evidentiary nature[.]”

Chris Juneau, an elder in the church Coe attended, was called to testify on

behalf of Coe. Juneau is also E.B.’s uncle. He testified that no one from the church

had complained to him about Coe’s behavior. When E.B.’s sister spoke to him

about Coe’s actions, he took the matter before the elder board of the church, and

18 they watched Coe more closely. He testified that he never observed any

inappropriate behavior between Coe and E.B. at church and E.B. had never

complained directly to him about Coe. He was certain that if Coe had behaved

inappropriately at church, he would have been aware of it.

The jury was allowed to view the explicit details of the content of the on-line

conversations between Coe and the person he believed to be an under-aged teen, as

was this Court in our review. There was ample evidence from which a jury could

reasonably infer that Coe solicited E.B. and arrived at the designated meeting place

with the intent that she would engage in sexual contact. When viewing the

evidence in a light most favorable to the verdict, we conclude a rational trier of fact

could have found beyond a reasonable doubt that Coe, through the Internet,

knowingly solicited E.B., a sixteen-year-old child, to meet him with the intent that

she would engage in sexual contact, sexual intercourse, or deviate sexual

intercourse with him. See Tex. Penal Code Ann. § 33.021(c).

C. Attempted Sexual Assault of a Child

Coe also challenges the sufficiency of the evidence supporting his

conviction for attempted sexual assault of a minor. Specifically, Coe contends the

State did not prove he traveled to the residence with the intent to commit a crime.

19 A person commits the offense of attempted sexual assault of a child if, with

the specific intent to sexually assault a child, he does an act amounting to more

than mere preparation that tends but fails to effect the commission of the intended

offense. See Tex. Penal Code Ann. §§ 15.01(a), 22.011(a)(2). The indictment

alleged that Coe “travel[ed] to a predetermined location with the intent to engage

in sexual intercourse with E.B., amounting to more than mere preparation that

tended to but failed to effect the commission of said offense[.]”

In this case, the State produced transcripts of numerous online conversations

that Coe had with E.B., a person whom Coe believed was a sixteen-year-old girl.

The conversations that Coe had over Gmail chat and through text messaging were

undisputedly of an explicit sexual nature. Also admitted into evidence was a

photograph that Coe sent to E.B. revealing his sexual organ. From the content of

the conversations and photographs, the jury could reasonably infer that Coe had the

specific intent to engage in sexual intercourse with the child whom he believed to

be E.B.

Coe arrived at the agreed-upon location. Officers found five condoms in

Coe’s front pocket and a bottle of Cialis in his vehicle. When considering these

items in the context of the other evidence in the case, the jury could reasonably

infer that this act was further evidence of Coe’s intent to engage in sexual

20 intercourse with someone whom he believed to be a sixteen-year-old child. See

Hall v. State, 124 S.W.3d 246, 252 (Tex. App.—San Antonio 2003, pet. ref’d).

When viewing the evidence in the light most favorable to the verdict, we conclude

that the State proved beyond a reasonable doubt that Coe had the specific intent to

commit the offense of sexual assault of a child, and that he committed an act

amounting to more than mere preparation that tended but failed to effect the

commission of the offense. We overrule Coe’s challenge to the sufficiency of the

evidence to support his conviction for attempted sexual assault of a child.

IV. Evidentiary Issues

Coe asserts that certain evidentiary rulings made by the trial court during the

trial resulted in the rendition of an improper verdict. We review a trial court’s

ruling on the admission of evidence for an abuse of discretion. Tillman v. State,

354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We will not reverse the trial court’s

decision if it is within the zone of reasonable disagreement. Id. We will not disturb

a trial court’s evidentiary ruling if it is correct on any theory of law applicable to

that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

A. Admissibility of the Testimony of Coe’s Ex-Wife

In his second issue, Coe contends the trial court erred in limiting defense

counsel’s cross-examination of Coe’s ex-wife regarding Coe’s allegation that his

21 ex-wife had set him up. 5 Coe was prohibited from questioning his ex-wife

regarding a previous attempt by her to lure Coe into an on-line conversation while

posing as an under-aged female. Assuming, without deciding, that the trial court

erred in restricting Coe’s examination of his ex-wife, we determine any error was

harmless.

The erroneous admission or exclusion of evidence is generally reviewed

under the standard for nonconstitutional error contained in Rule 44.2(b) of the

Texas Rules of Appellate Procedure if the trial court’s ruling merely offends the

rules of evidence. Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

App. 2001). The erroneous exclusion of evidence can rise to the level of

constitutional error when the excluded evidence “forms such a vital portion of the

case that exclusion effectively precludes the defendant from presenting a defense.”

Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). The exclusion of

testimony that could only “‘incrementally’” further the defendant’s theory is not

constitutional error; however, the exclusion of testimony that “‘goes to the heart of

5 In the point heading of Coe’s third issue, he argues the trial court erred when it “refused defense requests for affirmative defenses in the jury charge, over defense objection.” However, we note the body of Coe’s third issue does not coincide with the argument raised in his point heading. We only address the issues presented and adequately briefed in the body of Coe’s appellate brief. 22 the defense’” is constitutional error. Wilson v. State, 451 S.W.3d 880, 886-87 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (quoting Ray v. State, 178 S.W.3d 833,

836 (Tex. Crim. App. 2005) and Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim.

App. 2002)).

Through the cross-examination of E.B.’s sister, Coe was able to present his

argument that E.B.’s sister and Coe’s ex-wife had a close relationship and that

E.B.’s sister had spoken to Coe’s ex-wife about the conversations she had with

Coe. Through the testimony of E.B.’s sister and Smith, Coe was able to present his

argument that E.B.’s sister could have altered the text messages and Facebook

printouts that she turned over to law enforcement. Through Smith’s testimony and

the Gmail printouts, Coe was able to make his argument that at some point he

considered that he was being set up by his ex-wife and E.B.’s sister. While the

excluded testimony may have been relevant to Coe’s defense that he lacked the

requisite intent, that he was aware that he was being set-up by his ex-wife and

E.B.’s sister, the exclusion of the testimony of Coe’s ex-wife did not preclude Coe

from presenting his theory before the jury. The excluded testimony could have

only incrementally furthered such theory. For this reason, the error, if any, was not

of constitutional dimension. See Potier, 68 S.W.3d at 666.

23 Under Rule 44.2(b), we may not overturn a criminal conviction for non-

constitutional error if, after examining the record as a whole, we have fair

assurance that the error did not have a substantial and injurious effect or influence

in determining the jury’s verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim.

App. 2007). Defense counsel conducted a voir dire examination of Coe’s ex-wife.

During the examination, Coe’s ex-wife testified that she and Coe separated on May

23, 2011. She admitted that after her separation she assumed the online persona of

“Nikki69Marie,” a sixteen or seventeen year old. She testified she later spoke to

Smith about her online chats with Coe as “Nikki69Marie.” Coe’s ex-wife denied

that she attempted to set Coe up on the current charges.

After examining the record, we have fair assurance that the exclusion of the

testimony of Coe’s ex-wife, as reflected in Coe’s bill of exception, did not have a

substantial or injurious effect or influence in determining the jury’s verdict. To the

extent the excluded evidence lends some support to Coe’s defensive theory, there

was ample evidence to support the jury’s verdict. We conclude that error, if any, in

the exclusion of the complained-of evidence was harmless. We overrule Coe’s

issue regarding the exclusion of the testimony of Coe’s ex-wife.

24 B. Photographs Depicting Text Message Conversation on the Cell Phone of

E.B.’s Sister

Coe contends the trial court erred in admitting photographs taken of E.B.’s

sister’s cell phone depicting a text message conversation between Coe and E.B.’s

sister, who was posing as E.B. Coe argues the photographs were not properly

authenticated.

The issue of authentication arises when “‘the relevancy of any evidence

depends upon its identity, source, or connection with a particular person, place,

thing, or event.’” Campbell v. State, 382 S.W.3d 545, 548-49 (Tex. App.—Austin

2012, no pet.) (quoting Shea v. State, 167 S.W.3d 98, 104 (Tex. App.—Waco

2005, pet. ref’d)). “Evidence has no relevance if it is not authentically what its

proponent claims it to be.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.

2012). Rule 901(a) of the Texas Rules of Evidence provides that for a party to

satisfy the requirement of authenticating or identifying an item of evidence, “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). Rule 901(b) includes a list

of evidence that satisfies this requirement, including testimony that an item is what

it is claimed to be and evidence of the “appearance, contents, substance, internal

25 patterns, or other distinctive characteristics of the item, taken together with all the

circumstances.” Id. 901(b).

The ultimate question of whether an item of evidence is what its proponent

claims it to be is a question for the factfinder. Tienda, 358 S.W.3d at 638. In

performing its gate-keeping function, the trial court need only decide “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.

Courts have admitted printouts of emails, Internet chat room dialogues, and text

messages into evidence when the courts have found the printouts to be sufficiently

linked to the purported author so as to justify the submission to the jury for its

ultimate determination of authenticity. Id. at 639; see also Campbell, 382 S.W.3d

at 549.

E.B.’s sister identified the photographs of text messages made and received

between her personal cell phone and Coe’s cell phone on August 11 and August

12. She testified that she took the photographs of the conversation and placed them

on a flash drive. She testified that she knew the conversation was with Coe because

she sent the message to the number he provided her through Facebook. Smith

testified that the number Coe provided through Facebook was actually Coe’s cell

phone number. The events surrounding the messages sent to E.B.’s sister indicate

26 circumstantially that Coe was the author of the text messages. See Tienda, 358

S.W.3d at 641. When considered in combination with other circumstantial

evidence in the record and the fact that Coe arrived in person at the designated

place and time and announced his arrival by the same cellphone number, we hold a

reasonable factfinder could have believed the text messages were created and sent

by Coe. See Tex. R. Evid. 901(b)(1), (4). The factfinder was entitled to assess the

weight to give Coe’s defensive conspiracy and alteration theories once the State

had produced a prima facie showing that the text and chat messages were created

and sent by Coe.

Coe also argues the photographs do not satisfy the best evidence rule. Coe

essentially argues that the best evidence would have been the actual cell phone of

E.B.’s sister and not photographs of the conversation. Coe contends that he made a

number of objections to the admission of the text messages “in the spirit of the best

evidence rule[.]” Coe has not directed us to any part of the appellate record

wherein he claims to have made these objections. Our review of the record

indicates that Coe made a number of objections to the admission of the

photographs: (1) he argued the photographs were not properly authenticated, (2) he

argued the photographs did not reflect the entirety of the text conversation Coe had

27 with E.B.’s sister, (3) he argued the photographs had been altered, and (4) he

argued the photographs were not relevant or material to the issues in the case.

Generally, to prove the contents of a writing, recording, or photograph, the

original writing, recording, or photograph is required, except as otherwise provided

by the Rules of Evidence or by other law. Tex. R. Evid. 1002. “A duplicate is

admissible to the same extent as the original unless a question is raised about the

original’s authenticity or the circumstances make it unfair to admit the duplicate.”

Tex. R. Evid. 1003. An original is not required, and other evidence of the content

of a writing, recording, or photograph is admissible, if the original is: (1) lost or

destroyed; (2) not obtainable by judicial process; (3) located outside the state; (4)

in possession or control of the opponent; or (5) not closely related to a controlling

issue. See Tex. R. Evid. 1004.

We find no support for Coe’s contention that he made a best evidence or

Rule 1002 objection to the photographs of the text messages contained on E.B.’s

sister’s cell phone. The record reflects that the trial court ordered the State to

provide Coe’s counsel access to the cell phones in the State’s possession. The

record further supports that the State complied with the trial court’s order and gave

Coe’s counsel access to the cell phones and an opportunity to review the contents

therein. Coe never raised an objection or concern to the trial court regarding the

28 authenticity of the data contained on the cell phones. Coe’s counsel never asked

the trial court to admit any cell phone into evidence. Coe did not argue, as he now

attempts on appeal, that the cell phone is the best evidence of the text messages

exchanged between Coe and E.B.’s sister. We find Coe has not preserved this issue

for review. See Tex. R. App. P. 33.1(a); see also Clark, 365 S.W.3d at 339; Lovill,

319 S.W.3d at 691-92.

C. Photographs Depicting Facebook Conversation

In his second issue, Coe contends the trial court erred in admitting

photographs taken of E.B.’s sister’s computer screen depicting the Facebook

conversation between Coe and E.B.’s sister, who was posing as E.B, because the

photographs appear altered and were not properly authenticated.

At trial, the State argued that authentication was complete because there are

identifying factors that suggest the Facebook account belonged to Coe, including

that it contained his picture, his name, that E.B. had been friends with him on

Facebook, and that E.B. knows Coe and his family. The court found the Facebook

photographs admissible.

Regarding the Facebook photographs, E.B.’s sister testified that she was

familiar with them. She testified that she took the photographs of the conversation

as it occurred and then saved the photos onto the computer. She testified that she

29 had sent out the initial group message from E.B.’s account and that Coe responded

to that message. E.B.’s sister testified that she believed Coe was the person that

responded because the responses had his picture and name on them. E.B.’s sister

denied altering any of the photographs.

We note that the content of the messages at issue purport to be messages

sent from a Facebook account bearing Coe’s name. In this case, the internal

content of the Facebook postings—photographs, comments and friends list—was

sufficient circumstantial evidence such that a reasonable juror could have found

that the messages were authored and sent by Coe. See Tienda, 358 S.W.3d at 642.

The messages contain internal characteristics that further tend to connect Coe as

the author. First, the messages contain Coe’s image. Second, the messages contain

a reference to attending church with E.B. Finally, and most persuasive, the author

of the messages sent E.B. a cell phone number which proved to be Coe’s number.

We conclude that the combination of facts in this case is sufficient to support a

finding that the Facebook messages were created by and sent from Coe. We

conclude the trial court did not err in admitting these messages.

D. Screenshots Depicting Gmail Chat

In his second issue, Coe also contends the trial court erred in admitting the

screenshots depicting the Gmail chat between Coe and Smith because the

30 screenshots do not capture the full conversation. Coe also contends the trial court

erred in admitting evidence that was not timely produced. We will address this

argument regarding the screenshots under the standards of Brady v. Maryland. See

Brady v. Maryland, 373 U.S. 83 (1963).

To establish reversible error under Brady, a defendant must satisfy a three-

pronged test. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). The

defendant must show (1) the State failed to disclose evidence (regardless of the

prosecutor’s good or bad faith); (2) the withheld evidence is favorable to the

defendant; and (3) the evidence is material, i.e., there is a reasonable probability

that had the evidence been disclosed, the outcome of the trial would have been

different. Id.

During the hearing regarding Coe’s Brady challenge, Smith testified that he

captured the Gmail chat he had with Coe using the screen capture function on his

computer. He testified that during his Gmail chat session with Coe, he had a

computer problem that prevented him from either obtaining or saving particular

screenshots of the conversation. As a result of this problem, some of the chat logs

were lost. He explained that when he realized there was a problem, he attempted to

preserve the conversation by using an iPad device, but that he never received the

pictures he took with that device and the iPad was ultimately lost. He recalled that

31 part of the messages that were lost included a message where Coe indicated he

would bring protection with him so that E.B. would not get pregnant. Smith

testified that he did not intentionally fail to obtain the complete chat session, nor

did he take the screenshots and then get rid of them. Smith explained that he was

multitasking while he was capturing the images of the chat—he was in the middle

of a chat session, trying to take screenshots as the chat was scrolling in real time

down the screen, and trying to save each screenshot with a different file name and

number. He explained that because of the nature of what he was doing, it was

possible that the text on the screen rolled too fast for him to capture it and, as a

result, he missed capturing a sentence or something in between the statements.

The trial court denied Coe’s objection and, in so doing, explained that the

argument that the Gmail chat session was incomplete went to the weight of the

evidence and not to the admissibility. The trial court found that Brady was

inapplicable because the State did not have possession of the missing portions of

the Gmail chat session.

To the extent that Coe makes an argument on appeal that the State violated

Brady in failing to produce the complete Gmail chat session, we conclude the

record supports a finding that the State did not possess the missing portions of the

Gmail chat session and thus, the trial court did not err in overruling Coe’s Brady

32 objection. See Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006)

(“‘Brady and its progeny do not require prosecuting authorities to disclose

exculpatory information to defendants that the State does not have in its possession

and that is not known to exist.’”). There can be no Brady violation without

suppression of favorable evidence that actually exists. Id. at 406-07. Here, there is

no evidence that the missing parts of the Gmail chat actually exist. We also

overrule Coe’s challenge to the completeness of the Gmail chat sessions, as

incompleteness goes only to the weight, not the admissibility of the evidence. See

Robinson v. State, 739 S.W.2d 795, 802 (Tex. Crim. App. 1987) (complaint that

evidence is not accurate goes to weight and not admissibility). Accordingly, the

trial court did not err in admitting the screenshots of the Gmail chat session.

E. Admissibility of Evidence of Extraneous Acts

Coe contends the trial court erred in admitting testimony of other extraneous

acts of Coe during the guilt-innocence phase of trial. 6 A trial court’s decision to

admit evidence of extraneous offenses will not be reversed absent a clear abuse of

discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Rule

6 Within this argument, Coe also indicates that the testimony should have been excluded because it was not properly authenticated and was inadmissible hearsay. Coe failed to adequately brief these arguments on appeal. See Tex. R. App. P. 38.1(i).

33 of Evidence 404(b) allows evidence of other crimes, wrongs, or acts if the evidence

has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622,

626 (Tex. Crim. App. 2003). A defendant can “open the door” to the admission of

otherwise inadmissible extraneous-offense evidence to rebut a defensive theory.

See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (holding that

defense counsel’s opening statement can open the door to admission of extraneous-

offense evidence to rebut a defensive theory raised in opening statement). “[A]

party who ‘opens the door’ to otherwise inadmissible evidence risks the adverse

effect of having that evidence admitted.” Bowley v. State, 310 S.W.3d 431, 435

(Tex. Crim. App. 2010).

During Coe’s case in chief, he called Smith as a witness. Coe’s counsel

asked Smith whether Coe had a pattern or history of inappropriate sexual behavior.

Smith testified that he did not know Coe’s total prior history. In response to direct

questions posed by Coe’s counsel, Smith testified that he had no knowledge that

Coe had any prior convictions for solicitation of prostitution, child pornography,

voyeurism, or any sort of sexually-based crime.

Coe objected when the State sought to cross-examine Smith regarding other

communications Coe had had with underage females. The trial court overruled

Coe’s objection, finding that Coe’s counsel opened the door to this testimony

34 during counsel’s direct examination of Smith. The trial court ruled that the State

could question Smith in a very limited manner to directly controvert testimony

elicited by Coe’s counsel.

Smith testified that he was aware of specific instances that he would

consider inappropriate sexual behavior with a minor. Smith testified that he was

aware of messages Coe sent to someone that Coe met on a “hook-up site” in

October 2011, where Coe acknowledged in the message that the recipient of his

message was fifteen years old. Smith testified that the messages included a

conversation wherein Coe asked the minor if she “want[ed] to try things[.]” We

hold that the trial court could have reasonably concluded that, through his

questioning of Smith, Coe opened the door to testimony concerning his extraneous

inappropriate sexual behavior. See Bowley, 310 S.W.3d at 435; Bass, 270 S.W.3d

at 563.

Coe argues that any probative value of the testimony was substantially

outweighed by its prejudicial effect. While the evidence was prejudicial to Coe,

that alone is insufficient to exclude otherwise relevant evidence. See Pawlak v.

State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). Rule 403 provides that “[t]he

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

35 confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” Tex. R. Evid. 403. The Court of Criminal Appeals

summarized a Rule 403 analysis as requiring the trial court to balance

(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

Here, the trial judge stated that Coe’s counsel left a false impression with the

jury through the examination of Smith. The trial court acknowledged the State’s

need to elicit additional testimony to correct the false impression but cautioned the

State that it could only ask a very narrowly tailored set of questions. Our review of

the record indicates that the State did not devote an inordinate amount of time

presenting the testimony regarding Coe’s extraneous inappropriate conduct. We do

not believe the testimony had a strong tendency to confuse or distract the jury,

particularly in light of the fact that the testimony was relatively brief. Further, the

trial court properly instructed the jury in the charge on the use of evidence of other

bad acts or offenses. The trial court’s decision to admit the testimony concerning

36 Coe’s extraneous inappropriate sexual behavior fell within the zone of reasonable

disagreement and thus, was not an abuse of discretion. See Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Accordingly, the evidence was

properly admitted before the jury.

V. Reference to E.B. as “Victim”

Coe filed a motion in limine prior to trial in which he asked the trial court to

instruct the prosecutor to refrain from referring to E.B. as “the victim” before the

jury. The trial court denied Coe’s motion as to that item. As a subpart to his third

issue, Coe contends the trial court erred when it allowed the State to refer to E.B.

as a victim. He contends that by allowing the prosecutor to refer to E.B. in front of

the jury as “a victim” and not as the “alleged victim,” the trial court’s actions

amounted to a judicial determination that a crime had in fact occurred.

Coe fails to cite to any point in the record at which the prosecution referred

to E.B. as a “victim” in front of the jury. Coe cites to one case in support of his

argument, Aldridge v. State, 342 S.W.2d 104 (Tex. Crim. App. 1960). However,

the Aldridge case concerns the disqualification of a trial judge and offers nothing in

support of Coe’s argument presented in this issue. See id. at 106-08. We conclude

Coe has failed to adequately brief this issue on appeal. See Tex. R. App. P. 38.1(i)

(adequate briefing contains appropriate citations to authorities and to the record).

37 Had Coe properly briefed this issue, we conclude any error would be

harmless. Our own review of the appellate record indicates that the State referred

to E.B. as a victim twice. During the State’s direct examination of E.B.’s sister, the

prosecutor asked E.B.’s sister if E.B. was the victim in this case, to which E.B.’s

sister responded, “Yes.” Coe’s defense counsel objected to the State’s referring to

E.B. as a victim and argued that this reference assumes a crime has been

committed. He further argued that this was an improper reference because Coe

never spoke to E.B., never approached E.B., never had any sexual contact with

E.B., never attacked E.B., never contacted E.B. online or otherwise, and only had

social contact with E.B. at church. The trial court overruled Coe’s objection,

stating that E.B. was the named complainant. Later, during the State’s closing

argument, the prosecutor made the following statement: “This defendant is a wolf

in sheep’s clothing, and [E.B.] was his prey. She was the perfect victim.” Defense

counsel failed to object to the State’s argument.

There is no indication in the record that the trial judge used the word

“victim” to refer to E.B. in the presence of the jury. As indicated above, the record

reflects that the prosecutor made this reference twice. Regarding a prosecutor’s use

of the word “victim” in reference to a complainant, we have previously observed:

While use of the word “victim” assumes a crime has been committed, the fact that a prosecutor is of that view would not 38 surprise a reasonable juror, nor would the prosecutor’s use of the word in argument or voir dire generally be understood as anything other than the contention of the prosecution.

Weatherly v. State, 283 S.W.3d 481, 486 (Tex. App.—Beaumont 2009, pet. ref’d).

When used occasionally in a lengthy trial by the attorneys or witnesses, the word

“victim” is not so inflammatory or prejudicial as to necessarily cause harm to the

defendant. Id. We conclude that any error in the trial court’s allowance of this

reference in this instance was harmless. See id.; see also Tex. R. App. P. 44.2. We

overrule Coe’s third issue to the extent he claims error based on the prosecutor’s

two references to E.B. as the victim.

Having overruled each of Coe’s issues presented on appeal, we affirm the

trial court’s judgment.

AFFIRMED.

______________________________ CHARLES KREGER Justice Submitted on October 15, 2014 Opinion Delivered June 24, 2015 Do not publish

Before McKeithen, C.J., Kreger, and Horton, JJ.