NUMBER 13-15-00268-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GERARDO ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of De Witt County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides and Perkes Memorandum Opinion by Justice Benavides The State indicted appellant Gerardo Alvarez for one count of aggravated sexual
assault, a first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West,
Westlaw through 2015 R.S.); and one count of indecency with a child, a second-degree
felony, see id. § 21.11 (West, Westlaw through 2015 R.S.) in trial court cause number 14- 11-12-124.1 After a bench trial, Alvarez was found guilty of aggravated sexual assault
and sentenced to seventy-five years’ imprisonment in the Texas Department of Criminal
Justice’s Institutional Division. By one issue, Alvarez asserts that the trial court erred by
admitting photographs without proper authentication. We affirm.
I. BACKGROUND
Adriana Franco testified that one morning in July of 2014, she grabbed her then-
boyfriend Alvarez’s cell phone to look at a photo that he had taken of her, when he “ripped
it out of [her] hand” and asked her “what are you doing?” Franco testified that this incident
made her suspicious that Alvarez was cheating on her, so she waited until later that day
to examine his phone when he left it unattended. While reviewing the pictures located on
Alvarez’s phone, Franco uncovered photos of A.B.,2 the next-door neighbor’s minor
daughter, fully clothed, but posing in sexually-suggestive positions on Alvarez’s bed.
Franco later confronted Alvarez, who told her that the photos were taken by accident and
that he would delete them.
A week after discovering the photos on Alvarez’s cell phone, Franco discovered
more photos of other women and girls, including A.B., but this time on Alvarez’s electronic
tablet. Franco testified that she discovered videos as well, including one video of Alvarez
filming a still photo and “moaning” in the background. Eventually, Franco reported Alvarez
1 Under a separate trial court cause number (14-11-12-125), the State charged Alvarez with one count of sexual performance by a child, a second-degree felony, see TEX. PENAL CODE ANN. § 43.25 (West, Westlaw through 2015 R.S.), and one count of improper photography, see Acts 2001, 77th Leg., ch. 458, § 1 (amended 2003, 2007, and 2015) (current version at TEX. PENAL CODE ANN. 21.15 (West, Westlaw through 2015 R.S.)). These charges were tried in conjunction with trial court cause number 14-11-12-124. However, at the close of evidence, the State dismissed both counts under cause number 14-11-12-125 and proceeded on the remaining charges.
2 We will use initials to conceal the identities of the minor complainant and her mother. 2 to a local justice of the peace, for whom she worked for. Acting on the justice of the
peace’s advice, Franco called law enforcement and filed a report.
Sergeant Carl Bowen of the DeWitt County Sheriff’s Office executed a search
warrant following Franco’s report, on Alvarez’s home and recovered a Toshiba tablet and
two cell phones that belonged to Alvarez. Sergeant Bowen testified that “there were
several images [on the recovered devices] depicting persons . . . being photographed in
suggestive sexual positions.” Sergeant Bowen stated that he spoke with Alvarez at the
time that he executed the search, and Alvarez did not deny taking the photographs, but
simply stated that he did not know how to delete them. The DeWitt County Sheriff’s Office
enlisted the assistance of Kenneth Patterson, a computer forensic specialist with the
Corpus Christi Police Department, to aid their department with extracting images and
videos from Alvarez’s electronic devices. Patterson testified about how he extracted the
files, and after admitting into evidence, the files were shown to the jury.
A.B. testified that her next-door neighbor Alvarez periodically gave her presents
like a bicycle and Barbie dolls. However, A.B. also testified that Alvarez touched her
“underneath” her panties on her vagina. A.B. also stated that Alvarez tried to put his
fingers inside of her vagina. According to A.B., after Alvarez touched her, he pointed a
gun to her head and a knife to her throat, threatening to “kill [her]” if she told anyone about
what had happened. A.B.’s mother, J.B., also testified and told the trial court that A.B.
had told her that Alvarez touched her “under her panties” at his house. Finally, Alvarez
testified in his defense and denied all of the allegations, including taking any of the
photographs and videos.
3 The trial court found Alvarez guilty of aggravated sexual assault and sentenced
him to seventy-five years’ confinement in the Texas Department of Criminal Justice’s
Institutional Division. This appeal followed.
II. ADMISSIBILITY OF EVIDENCE
By his only issue, Alvarez contends that the trial court erred by admitting State’s
Exhibit 2, which contained more than one hundred thumbnail images found on Alvarez’s
electronic devices, because the exhibit was not properly authenticated.
A. Standard of Review
A trial court's decision on whether to admit evidence is reviewed under an abuse
of discretion standard and will not be reversed if it is within the zone of reasonable
disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). An abuse
of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference
to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990) (en banc). The inquiry on appeal is whether the result was reached in an
arbitrary or capricious manner. Id. We afford trial courts “great discretion” in its
evidentiary decisions because “the trial court judge is in a superior position to evaluate
the impact of the evidence.” Id. at 378–79.
B. Law of Authentication
The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim.
App. 2015) (citing TEX. R. EVID. 901(a)). The trial court need only make the preliminary
determination that the proponent of the item has supplied facts sufficient to support a
reasonable fact-finder’s determination that the proffered evidence is authentic. Id. 4 Articles that are easily identifiable and substantially unchanged normally do not require
chain of custody evidence. Dominguez v. State, 441 S.W.3d 652, 659 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (internal citations omitted). If the item has distinct or
unique characteristics, a witness may authenticate it by testifying that he or she has
previously seen the item at the relevant time and place and that the witness recognizes it
by its distinctive characteristics. Id. at 659–60. Proof of chain of custody goes to the
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NUMBER 13-15-00268-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GERARDO ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of De Witt County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Benavides and Perkes Memorandum Opinion by Justice Benavides The State indicted appellant Gerardo Alvarez for one count of aggravated sexual
assault, a first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West,
Westlaw through 2015 R.S.); and one count of indecency with a child, a second-degree
felony, see id. § 21.11 (West, Westlaw through 2015 R.S.) in trial court cause number 14- 11-12-124.1 After a bench trial, Alvarez was found guilty of aggravated sexual assault
and sentenced to seventy-five years’ imprisonment in the Texas Department of Criminal
Justice’s Institutional Division. By one issue, Alvarez asserts that the trial court erred by
admitting photographs without proper authentication. We affirm.
I. BACKGROUND
Adriana Franco testified that one morning in July of 2014, she grabbed her then-
boyfriend Alvarez’s cell phone to look at a photo that he had taken of her, when he “ripped
it out of [her] hand” and asked her “what are you doing?” Franco testified that this incident
made her suspicious that Alvarez was cheating on her, so she waited until later that day
to examine his phone when he left it unattended. While reviewing the pictures located on
Alvarez’s phone, Franco uncovered photos of A.B.,2 the next-door neighbor’s minor
daughter, fully clothed, but posing in sexually-suggestive positions on Alvarez’s bed.
Franco later confronted Alvarez, who told her that the photos were taken by accident and
that he would delete them.
A week after discovering the photos on Alvarez’s cell phone, Franco discovered
more photos of other women and girls, including A.B., but this time on Alvarez’s electronic
tablet. Franco testified that she discovered videos as well, including one video of Alvarez
filming a still photo and “moaning” in the background. Eventually, Franco reported Alvarez
1 Under a separate trial court cause number (14-11-12-125), the State charged Alvarez with one count of sexual performance by a child, a second-degree felony, see TEX. PENAL CODE ANN. § 43.25 (West, Westlaw through 2015 R.S.), and one count of improper photography, see Acts 2001, 77th Leg., ch. 458, § 1 (amended 2003, 2007, and 2015) (current version at TEX. PENAL CODE ANN. 21.15 (West, Westlaw through 2015 R.S.)). These charges were tried in conjunction with trial court cause number 14-11-12-124. However, at the close of evidence, the State dismissed both counts under cause number 14-11-12-125 and proceeded on the remaining charges.
2 We will use initials to conceal the identities of the minor complainant and her mother. 2 to a local justice of the peace, for whom she worked for. Acting on the justice of the
peace’s advice, Franco called law enforcement and filed a report.
Sergeant Carl Bowen of the DeWitt County Sheriff’s Office executed a search
warrant following Franco’s report, on Alvarez’s home and recovered a Toshiba tablet and
two cell phones that belonged to Alvarez. Sergeant Bowen testified that “there were
several images [on the recovered devices] depicting persons . . . being photographed in
suggestive sexual positions.” Sergeant Bowen stated that he spoke with Alvarez at the
time that he executed the search, and Alvarez did not deny taking the photographs, but
simply stated that he did not know how to delete them. The DeWitt County Sheriff’s Office
enlisted the assistance of Kenneth Patterson, a computer forensic specialist with the
Corpus Christi Police Department, to aid their department with extracting images and
videos from Alvarez’s electronic devices. Patterson testified about how he extracted the
files, and after admitting into evidence, the files were shown to the jury.
A.B. testified that her next-door neighbor Alvarez periodically gave her presents
like a bicycle and Barbie dolls. However, A.B. also testified that Alvarez touched her
“underneath” her panties on her vagina. A.B. also stated that Alvarez tried to put his
fingers inside of her vagina. According to A.B., after Alvarez touched her, he pointed a
gun to her head and a knife to her throat, threatening to “kill [her]” if she told anyone about
what had happened. A.B.’s mother, J.B., also testified and told the trial court that A.B.
had told her that Alvarez touched her “under her panties” at his house. Finally, Alvarez
testified in his defense and denied all of the allegations, including taking any of the
photographs and videos.
3 The trial court found Alvarez guilty of aggravated sexual assault and sentenced
him to seventy-five years’ confinement in the Texas Department of Criminal Justice’s
Institutional Division. This appeal followed.
II. ADMISSIBILITY OF EVIDENCE
By his only issue, Alvarez contends that the trial court erred by admitting State’s
Exhibit 2, which contained more than one hundred thumbnail images found on Alvarez’s
electronic devices, because the exhibit was not properly authenticated.
A. Standard of Review
A trial court's decision on whether to admit evidence is reviewed under an abuse
of discretion standard and will not be reversed if it is within the zone of reasonable
disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). An abuse
of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference
to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990) (en banc). The inquiry on appeal is whether the result was reached in an
arbitrary or capricious manner. Id. We afford trial courts “great discretion” in its
evidentiary decisions because “the trial court judge is in a superior position to evaluate
the impact of the evidence.” Id. at 378–79.
B. Law of Authentication
The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim.
App. 2015) (citing TEX. R. EVID. 901(a)). The trial court need only make the preliminary
determination that the proponent of the item has supplied facts sufficient to support a
reasonable fact-finder’s determination that the proffered evidence is authentic. Id. 4 Articles that are easily identifiable and substantially unchanged normally do not require
chain of custody evidence. Dominguez v. State, 441 S.W.3d 652, 659 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (internal citations omitted). If the item has distinct or
unique characteristics, a witness may authenticate it by testifying that he or she has
previously seen the item at the relevant time and place and that the witness recognizes it
by its distinctive characteristics. Id. at 659–60. Proof of chain of custody goes to the
weight rather than the admissibility of the evidence. See Ennis v. State, 71 S.W.3d 804,
808 (Tex. App.—Texarkana 2002, no pet.).
C. Discussion
Alvarez argues generally that Sergeant Bowen, acting as the exhibit’s sponsoring
witness, failed to properly authenticate these photographs. We disagree. The record
shows that Sergeant Bowen testified that he had personally seen the photos in State’s
Exhibit 2 recovered from Alvarez’s electronic devices when he executed the search
warrant on Alvarez’s home. Additionally, Sergeant Bowen testified that these thumbnails
were “true and accurate” depictions of the subjects that he saw in the photos recovered
from Alvarez’s electronic devices, despite his inability to specifically identify which photos
were recovered from Alvarez’s cell.
Next, Alvarez argues that the evidence was not properly authenticated because a
chain of custody was not established for this exhibit. Again, we disagree. The trial court
could have found within the zone of reasonable disagreement that these thumbnails did
not need proof of chain of custody because the photographs were easily identifiable and
substantially unchanged from when they were initially recovered by police. Further, as
stated previously, proof of chain of custody goes to the weight rather than the admissibility
of the evidence. See id. 5 Next, Alvarez argues generally that Sergeant Bowen, acting as the exhibit’s
sponsoring witness, failed to properly authenticate these photographs. Again, we
disagree. The record shows that Sergeant Bowen testified that he had personally seen
the photos in State’s Exhibit 2 recovered from Alvarez’s electronic devices when he
executed the search warrant on Alvarez’s home. Additionally, Sergeant Bowen testified
that these thumbnails were “true and accurate” depictions of the subjects that he saw in
the photos recovered from Alvarez’s electronic devices, despite his inability to specifically
identify which photos were recovered from Alvarez’s cell phones, electronic tablet, or both
because there were “a lot of duplicate photographs.” Accordingly, we conclude that the
trial court acted within its discretion when it ruled that Sergeant Bowen supplied facts
sufficient to support a reasonable fact-finder’s determination that the proffered evidence
is authentic. See Tillman, 354 S.W.3d at 435.
We overrule Alvarez’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES, Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 21st day of July, 2016.