Charlie Frelix III v. State

• Court: Court of Appeals of Texas
• Decided: September 13, 2019
• Docket: 07-18-00290-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00290-CR

CHARLIE FRELIX III, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1491849D, Honorable David C. Hagerman, Presiding

September 13, 2019

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

Following a jury trial, appellant Charlie Frelix III was convicted of the second-

degree felony offense of sexual assault of a child under seventeen years of age1 and

sentenced to a term of imprisonment of fifteen years.2 Appellant challenges his conviction

through two issues. We will affirm.

1 TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011). 2 TEX. PENAL CODE ANN. § 12.33 (West 2011). This is a second-degree felony punishable by imprisonment for any term of not less than two years or more than twenty years and a fine not to exceed $10,000. Background

Appellant was charged via a four-count indictment with one count of continuous

sexual assault of a child under the age of fourteen and three counts of aggravated sexual

assault of a child under the age of fourteen. After hearing the evidence, the jury found

appellant not guilty of the four charged offenses, but guilty of a lesser-included offense to

one count, sexual assault of a child under the age of seventeen.

The complainant, D.W., lived with her father in an apartment complex in Fort

Worth. The father testified they lived in those apartments for “about a year and a half”

when D.W. was “13, 14 years old . . . .” When she was thirteen, appellant, a man in his

twenties, began visiting the family’s apartment. At some point, the father testified, he

noticed D.W. was frequently away from the apartment. He would see her enter a friend’s

nearby apartment and would observe appellant going in and out of the apartment “all the

time.”

D.W. testified that at a point during the events, her relationship with appellant

became sexual. During her testimony, she acknowledged that appellant put his penis in

her vagina, that appellant’s mouth went on her vagina, and appellant’s penis went into

her mouth. She told the jury these acts took place in her friend’s apartment, at appellant’s

home, and “probably” in appellant’s car. Later in her testimony, D.W. admitted that she

has “a history of making up things and lying.”

D.W. also testified that around the time she had a relationship with appellant, she

and a female friend decided to become prostitutes to make money. She said she was

“picked up” by police a couple of times for prostitution and was later arrested for the

offense. During a discussion with an officer about her involvement in prostitution, D.W. 2 told about her relationship with appellant. As a result of that conversation, D.W. went to

Cook Children’s Hospital for a sexual assault examination.

D.W. also was interviewed by a Homeland Security agent working with Fort Worth

police on human trafficking cases. Based on information he received from D.W., the

agent identified Facebook accounts he believed belonged to D.W. and to appellant. He

obtained a search warrant for records from Facebook and received from the company a

volume of pages for each account. The State offered into evidence pages containing

iMessages identified as exchanged between appellant and D.W. During cross-

examination, the agent acknowledged his lack of personal knowledge regarding the

records and acknowledged he relied on Facebook to deliver the proper records. D.W.

testified outside the presence of the jury to conversations she had with appellant through

Facebook and agreed the proffered records contained messages they exchanged.

Appellant objected the documents were not properly authenticated. The court overruled

the objection, the documents were admitted into evidence, and the State read parts of the

exhibit to the jury.

Appellant now appeals his conviction, arguing the evidence at trial was insufficient

to support his conviction for sexual assault of a child under the age of seventeen and

arguing the trial court erred by admitting the Facebook records into evidence.

Analysis

Issue One - Sufficiency of the Evidence

In considering whether the evidence is sufficient to support a conviction, we review

all the evidence in the light most favorable to the verdict and assume that the trier of fact

3 resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. Ryder v. State, 514 S.W.3d 391, 396

(Tex. App.—Amarillo 2017, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 318

(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). For this purpose, we consider evidence that

was improperly admitted before the jury, as well as that properly admitted. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Ryder, 514 S.W.3d at 396. The jury

is the sole judge of a witness’s credibility, and the weight to be given the testimony.

Ryder, 514 S.W.3d at 396 (citing Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010)). We consider only whether the jury reached a rational decision. Id. (citing Curry

v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). The testimony of a child sexual

abuse victim alone is sufficient to support a conviction for sexual assault of a child under

the age of seventeen. TEX. CODE CRIM. PROC. ANN. art. 38.07(a).

To support the jury’s finding appellant was guilty of the lesser-included offense of

sexual assault of a child under the age of seventeen, under the indictment in this case,

the State had to prove appellant intentionally or knowingly caused his sexual organ to

contact the sexual organ of D.W., a child younger than seventeen years of age. TEX.

PENAL CODE ANN. § 22.011(a)(2)(C), (c)(1). Knowledge of the victim’s age is not an

element of the offense. See id. (setting forth elements of offense).

D.W., sixteen at the time of trial, testified she and appellant were in a relationship

and engaged in sexual behavior, including penetrating sex, when she was thirteen years

old and appellant was in his twenties. D.W. also testified she engaged in other sexual

acts with appellant, including penile-oral contact and vaginal-oral contact. She told the

4 jury these acts occurred frequently and in several locations. The jury could have seen

some uncertainty in the testimony regarding D.W.’s age at the time their sexual

relationship began. D.W.’s testimony alone is sufficient to support appellant’s conviction

for the lesser-included offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a). See also

Taylor v. State, 555 S.W.3d 765, 774-75 (Tex. App.—Amarillo 2018, pet. ref’d) (finding

the child victim’s testimony was sufficient evidence of each of the essential elements of

the offenses for which the defendant was convicted).

Appellant argues the only evidence supporting his conviction came from D.W., an

admitted liar. He contends that because D.W. herself and other witnesses testified that

she often lied and made up stories, her testimony should not have been believed and

thus was not sufficient to support his conviction. Appellant’s entire argument here is that

D.W. was not credible. But it is for the jury to determine the credibility of witnesses.

Ryder, 514 S.W.3d at 396 (citing Isassi, 330 S.W.3d at 638). See also Taylor, 555 S.W.3d

at 774. As the reviewing court, we “should not substantially intrude upon the jury’s role

as the sole judge of the weight and credibility of witness testimony.” Vasquez v. State,

67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (citation omitted). As noted, D.W.’s testimony

supported each element of the offense of sexual assault of a child under the age of

seventeen. The jury, as evidenced by its verdict finding guilt, believed D.W.’s testimony.

Further, as set forth above, in a sufficiency review, the reviewing court considers

all admitted evidence, regardless whether it was properly or improperly admitted. Winfrey

v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (citations omitted). Therefore, in

addition to D.W.’s testimony, we also consider the Facebook iMessages that D.W.

testified were messages she and appellant exchanged. Those messages included

5 discussion of the sexual relationship between D.W. and appellant when D.W. was under

the age of seventeen. This evidence also supports appellant’s conviction.

We find the evidence was sufficient to support appellant’s conviction and resolve

appellant’s first issue against him.

Admission of Facebook Records

In his second issue, appellant contends the trial court abused its discretion in

admitting into evidence the Facebook records from D.W.’s and appellant’s accounts that

contained conversations between the two. Appellant asserts the records were not

properly authenticated.

A trial judge has wide discretion in the admission of evidence at trial. Ryder, 514

S.W.3d at 398 (citing Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007);

Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on reh’g)).

We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Id. (citing Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App.

2010)). Under an abuse of discretion standard, we do not disturb the trial court’s decision

if the ruling was within the zone of reasonable disagreement. Id. (citation omitted). We

will affirm the trial court’s ruling if it was correct under any theory of law applicable to the

case. Id. (citing State v. Esparza, 413 S.W.3d 81, 82 (Tex. Crim. App. 2013)).

Under Rule of Evidence 901(a), the proponent of proffered evidence “must

produce evidence sufficient to support a finding that the item is what the proponent claims

it is.” 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

6 make the preliminary determination that the proponent of the item has supplied facts

sufficient to support a reasonable jury determination that the proffered evidence is

authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (citing Tienda v.

State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). The trial court’s determination

whether the proponent has met this threshold requirement may be reviewed on appeal

for an abuse of discretion and “should not be countermanded so long as it is within the

zone of reasonable disagreement.” Id.

Evidence may be authenticated in several ways, including through the testimony

of a witness with knowledge, by distinctive characteristics and the like, by comparison

with other authenticated evidence, or by circumstantial evidence. Tienda, 358 S.W.3d at

638; TEX. R. EVID. 901(b). Electronically stored evidence such as social media content

presents some unique authentication issues because such evidence is susceptible to

fabrication, hacking, and manipulation. Id. But, courts in many jurisdictions have

admitted “[p]rintouts of emails, internet chat room dialogues, and cellular phone text

messages . . . when found to be sufficiently linked to the purported author so as to justify

submission for the jury for its ultimate determination of authenticity.” Tienda, 358 S.W.3d

at 639 (collecting cases).

Addressing the authentication of Facebook messages, the Third Court of Appeals

cited two authentication concerns with respect to the identity of a message’s purported

author. Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.) (citing

Griffin v. State, 419 Md. 343, 19 A.3d 415, 420-21 n.6 (Md. 2011)). The first concern

recognizes that a person viewing a Facebook profile cannot know whether the profile is

legitimate because “anyone can establish a fictitious profile under any name.” Id. The

7 second concern is based on the risk that a person may obtain a user’s name and

password, gain access to the user’s Facebook account and generate a message

purporting to be authored by the user. Because of that risk, a “person viewing

communications on or from an account profile cannot be certain that the author is in fact

the profile owner.” Id. For those reasons, the court noted, that such a communication on

its face purports to originate from a particular person’s account is generally insufficient

standing alone to authenticate that person as the communication’s author. Id. (citing

Tienda, 358 S.W.3d at 642).

The search warrant issued in this case, addressed to Facebook, Inc., is in

evidence. It identified the five accounts for which records were sought by name and

account ID. Both of the accounts listed for appellant on the warrant show his name as

“Charlie Frelix” and list a numeric account ID.

The list of messages printed on State’s Exhibit 1 identifies each message by

author, recipient, date and time sent, and the body of the message. On each message

listed, appellant’s name, whether shown as author or recipient, is accompanied by a

numeric entry corresponding to the account ID for one of his accounts as listed in the

search warrant.

From this information, it can fairly be said that State’s Exhibit 1 contains

communications that on their face purport to originate from appellant’s Facebook account.

The State’s witnesses did not disclose how they identified the Facebook accounts the

8 Homeland Security agent believed belonged to D.W. and appellant.3 The evidence in the

record thus leaves open the possibility that Facebook, Inc. produced records from an

account not created by appellant, though standing in his name. Campbell, 382 S.W.3d

at 549. And the possibility exists that State’s Exhibit 1 accurately reproduces messages

sent between D.W.’s and appellant’s accounts, but by an author other than appellant. Id.

Though the exhibit on its face may not for those reasons provide enough information to

authenticate the messages as those sent to D.W. by appellant, review of the messages

themselves in light of testimony the court heard sufficiently fills the gap.

We note first that D.W.’s participation in the messaging is corroborated by a

photograph attached to a message she is shown to have sent to appellant. The

photograph is of D.W.,4 and shows most of her face. State’s Exhibit 1 contains a message

from D.W. to appellant, sent some twenty seconds after the photograph, reading, “lg that’s

cute.” Appellant is shown to have responded less than a minute later with a message

reading, “yea it is but you shor you wont to be with me??????”

The court also could have considered the testimony of D.W.’s father, who testified

to his observations of the relationship between appellant and his daughter. As noted, he

said during the time they lived in the apartments, he became concerned that D.W. and

appellant frequently appeared to be in a nearby apartment at the same time. He testified

he and his wife later found the two together in appellant’s car at the apartment complex

3 Asked whether he could testify “about the authenticity of the records,” the agent replied that “Facebook does give us certificate of authenticity.” No such certificate is in evidence and its contents were not further described. 4During cross examination after admission of the exhibit, D.W. confirmed she is the person shown in the photograph. Even without her testimony, the trial court could have reached that conclusion from her appearance before the court. 9 where the family had moved and told appellant to stay away from D.W. D.W. flew into a

rage and threatened to slash his tires. The father’s wife called police. The evidence thus

showed a relationship existing at that time between D.W., then about thirteen, and

appellant, in his twenties, that her father considered inappropriately close.

State’s Exhibit 1 contains messages reflecting a personal relationship between the

messengers consistent with that D.W.’s father said he and his wife observed. The

contents reflect also discussion of the messengers’ sexual relationship.

D.W. testified she and appellant each had Facebook profiles, under their own

names. She said the two communicated through Facebook Messenger. She described

for the court the procedure used for Messenger communications on Facebook. She

agreed they communicated frequently about their relationship, including conversations

about sex. And in later testimony before the admission of State’s Exhibit 1, D.W. agreed

she knew her conversations on Facebook were with appellant, and that those

conversations with him were contained in the exhibit. See Norris v. State, No. 06-16-

00150-CR, 2017 Tex. App. LEXIS 3724, at *3-4 (Tex. App.—Texarkana Apr. 27, 2017,

pet. ref’d) (mem. op., not designated for publication) (finding Facebook Messenger texts

sufficiently authenticated).

Despite the evidence of D.W.’s later prostitution, the court heard no evidence she

had a sexual relationship with any other person during the time period reflected in the

messages. See Butler, 459 S.W.3d at 604 (noting record in that case failed to suggest

any other likely author of disputed text messages). And, unlike some other Texas cases,

this record contains no evidence reflecting appellant’s denial he was the author of the

messages attributed to him in State’s Exhibit 1. See Campbell, 382 S.W.3d at 550

10 (purported author of Facebook message denied sending it); Massimo v. State, 144

S.W.3d 210, 216-17 (Tex. App.—Fort Worth 2004, no pet.) (defendant asserted emails

sent on her behalf by an impersonator).

For those reasons, we find the trial court did not err in admitting the Facebook

documents and overrule appellant’s second issue.

Conclusion

Having resolved each of appellant’s issues against him, we affirm the judgment of

the trial court.

James T. Campbell Justice

Do not publish.