Affirm and Opinion Filed June 30, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00714-CR
MIGUEL ANGEL VILLAREAL-GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82170-2022
OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Nowell A jury convicted appellant Miguel Villareal-Garcia of online solicitation of a
minor and sentenced him to five years in prison. In a single issue, he argues the trial
court abused its discretion by allowing an unqualified witness to provide unreliable
expert testimony regarding cellphone data extraction and admitting the extracted text
messages into evidence. We adopt the Fort Worth Court of Appeals’ reasoning in
Wright v. State, 618 S.W.3d 887 (Tex. App.—Fort Worth 2021, no pet.), wherein the court concluded the State was not required to establish a Kelly-style reliability1
predicate through expert testimony “for such a basic technique.” We affirm the trial
court’s judgment.
Background
Officer Lee McMillan worked in the child exploitation unit with the Collin
County Sheriff’s Office. As part of an undercover operation, he took a photograph
of an adult female coworker and used age regression software to create a photograph
of a fifteen-year-old girl. He placed the photograph on several websites using the
name “Peyton” and provided his contact number.
Around October 1, 2021, appellant first texted “Peyton,” and the two
continued exchanging text messages for the next several weeks. Appellant asked if
she wanted to make love, and she answered, “I’m up for making love if you’re okay
I’m 15.” She also told appellant she did not want to get “preggers” so he would need
to use a condom or get Plan B. Appellant acknowledged “Peyton” was fifteen and
wanted to “do the love with” her but did not want to go to jail because of her age.
On October 26, 2021, appellant and “Peyton” arranged to meet at a park near
her home that “ha[d] places we can hide.” Appellant asked for directions, confirmed
1 In Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the court explained that evidence derived from a scientific theory must satisfy three requirements to be considered reliable: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. at 573. –2– he had Plan B, and texted when he was two minutes from the park. “Peyton” said
she could not wait to see him and asked what kind of car he would be driving.
Appellant was arrested at the park. When he was apprehended, officers
recovered cellphones from his pocket. Officer McMillan extracted data from one of
appellant’s cellphones using Cellebrite and Magnet Axiom software. The State
indicted appellant for online solicitation of a minor based on the text messages.
The trial court conducted a rule 702 hearing to determine the admissibility of
the text messages. During the hearing, Officer McMillan explained, among other
things, his qualifications and Cellebrite software.
At the end of the hearing, defense counsel objected to Officer McMillan’s
expert testimony because (1) the science had not been sufficiently peer reviewed,
and (2) he did not believe “it’s reliable just because he says it is” or because of his
educational background “when this field is so relatively new and not been tested by
the Court for its reliability.” The State responded Officer McMillan had testified in
hundreds of cases regarding the technology and “obviously [has] the training and
experience in computer work. He is the leader in this county in the investigation,
and we would offer that he is absolutely an expert and has been proven by the peers
of this county at least.” The trial court overruled appellant’s objections and allowed
the text messages into evidence. The text messages were the only evidence linking
appellant to the crime.
–3– The jury convicted appellant and sentenced him to five years in prison. This
appeal followed.
Discussion
In a single issue, appellant argues the trial court abused its discretion by
admitting the text messages into evidence. The State responds copying text
messages from a cellphone to a computer is a simple task that does not require expert
testimony. It encourages the Court to adopt the Fort Worth Court of Appeals’
reasoning in Wright v. State, 618 S.W.3d 887, 893 (Tex. App.—Fort Worth 2021,
no pet.), in which the court concluded expert testimony is unnecessary to establish
the reliability of Cellebrite software, and data extracted from the software can be
authenticated instead under Texas Rule of Evidence 901.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Colone v. State, 573 S.W.3d 249, 264–65 (Tex. Crim. App. 2019). A
trial court does not abuse its discretion if the decision to admit evidence is within the
zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018). If the trial court’s ruling on admissibility is correct under any applicable
theory of law, the trial court’s decision should not be disturbed, even if the trial court
gives the wrong reason for its ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
Appellant argues Officer McMillan’s “generalist computer science degree”
failed to establish he understood the techniques to extract cellphone data; he did not
–4– have a clear understanding of the underlying technique for reliable data extraction;
and there was no evidence in the record that he used any peer-reviewed methodology
or that any such methodology had been accepted within a given field.
We agree the Fort Worth Court of Appeals’ decision in Wright is analytically
sound and adopt its reasoning. As the court explained, “One purpose served by the
[Kelly] reliability requirement is to ensure that complex or unfamiliar systems and
ideas—those that ‘require significant expertise to interpret’ or that are ‘based on
scientific theory’—do not lead the lay fact-finder astray.” Wright, 618 S.W.3d at
893 (quoting Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)). The
court reasoned that using Cellebrite technology to transfer data was “so simple” and
“so plainly verifiable and free of scientific variability, that a lay witness’s
corroboration of the results based on personal knowledge would sufficiently guard
against misleading the fact-finder, even without an expert or a reliability predicate.”
Id.2 Thus, so long as the data extracted from the cellphone was properly
authenticated by lay testimony, no reliability predicate or expert testimony was
required. Id.; see also TEX. R. EVID. 901(b)(9) (explaining evidence about a process
2 In reaching this conclusion, the court also found support in several analogous federal cases. See United States v. Montijo-Maysonet,
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Affirm and Opinion Filed June 30, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00714-CR
MIGUEL ANGEL VILLAREAL-GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-82170-2022
OPINION Before Justices Reichek, Nowell, and Garcia Opinion by Justice Nowell A jury convicted appellant Miguel Villareal-Garcia of online solicitation of a
minor and sentenced him to five years in prison. In a single issue, he argues the trial
court abused its discretion by allowing an unqualified witness to provide unreliable
expert testimony regarding cellphone data extraction and admitting the extracted text
messages into evidence. We adopt the Fort Worth Court of Appeals’ reasoning in
Wright v. State, 618 S.W.3d 887 (Tex. App.—Fort Worth 2021, no pet.), wherein the court concluded the State was not required to establish a Kelly-style reliability1
predicate through expert testimony “for such a basic technique.” We affirm the trial
court’s judgment.
Background
Officer Lee McMillan worked in the child exploitation unit with the Collin
County Sheriff’s Office. As part of an undercover operation, he took a photograph
of an adult female coworker and used age regression software to create a photograph
of a fifteen-year-old girl. He placed the photograph on several websites using the
name “Peyton” and provided his contact number.
Around October 1, 2021, appellant first texted “Peyton,” and the two
continued exchanging text messages for the next several weeks. Appellant asked if
she wanted to make love, and she answered, “I’m up for making love if you’re okay
I’m 15.” She also told appellant she did not want to get “preggers” so he would need
to use a condom or get Plan B. Appellant acknowledged “Peyton” was fifteen and
wanted to “do the love with” her but did not want to go to jail because of her age.
On October 26, 2021, appellant and “Peyton” arranged to meet at a park near
her home that “ha[d] places we can hide.” Appellant asked for directions, confirmed
1 In Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the court explained that evidence derived from a scientific theory must satisfy three requirements to be considered reliable: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. at 573. –2– he had Plan B, and texted when he was two minutes from the park. “Peyton” said
she could not wait to see him and asked what kind of car he would be driving.
Appellant was arrested at the park. When he was apprehended, officers
recovered cellphones from his pocket. Officer McMillan extracted data from one of
appellant’s cellphones using Cellebrite and Magnet Axiom software. The State
indicted appellant for online solicitation of a minor based on the text messages.
The trial court conducted a rule 702 hearing to determine the admissibility of
the text messages. During the hearing, Officer McMillan explained, among other
things, his qualifications and Cellebrite software.
At the end of the hearing, defense counsel objected to Officer McMillan’s
expert testimony because (1) the science had not been sufficiently peer reviewed,
and (2) he did not believe “it’s reliable just because he says it is” or because of his
educational background “when this field is so relatively new and not been tested by
the Court for its reliability.” The State responded Officer McMillan had testified in
hundreds of cases regarding the technology and “obviously [has] the training and
experience in computer work. He is the leader in this county in the investigation,
and we would offer that he is absolutely an expert and has been proven by the peers
of this county at least.” The trial court overruled appellant’s objections and allowed
the text messages into evidence. The text messages were the only evidence linking
appellant to the crime.
–3– The jury convicted appellant and sentenced him to five years in prison. This
appeal followed.
Discussion
In a single issue, appellant argues the trial court abused its discretion by
admitting the text messages into evidence. The State responds copying text
messages from a cellphone to a computer is a simple task that does not require expert
testimony. It encourages the Court to adopt the Fort Worth Court of Appeals’
reasoning in Wright v. State, 618 S.W.3d 887, 893 (Tex. App.—Fort Worth 2021,
no pet.), in which the court concluded expert testimony is unnecessary to establish
the reliability of Cellebrite software, and data extracted from the software can be
authenticated instead under Texas Rule of Evidence 901.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Colone v. State, 573 S.W.3d 249, 264–65 (Tex. Crim. App. 2019). A
trial court does not abuse its discretion if the decision to admit evidence is within the
zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018). If the trial court’s ruling on admissibility is correct under any applicable
theory of law, the trial court’s decision should not be disturbed, even if the trial court
gives the wrong reason for its ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
Appellant argues Officer McMillan’s “generalist computer science degree”
failed to establish he understood the techniques to extract cellphone data; he did not
–4– have a clear understanding of the underlying technique for reliable data extraction;
and there was no evidence in the record that he used any peer-reviewed methodology
or that any such methodology had been accepted within a given field.
We agree the Fort Worth Court of Appeals’ decision in Wright is analytically
sound and adopt its reasoning. As the court explained, “One purpose served by the
[Kelly] reliability requirement is to ensure that complex or unfamiliar systems and
ideas—those that ‘require significant expertise to interpret’ or that are ‘based on
scientific theory’—do not lead the lay fact-finder astray.” Wright, 618 S.W.3d at
893 (quoting Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)). The
court reasoned that using Cellebrite technology to transfer data was “so simple” and
“so plainly verifiable and free of scientific variability, that a lay witness’s
corroboration of the results based on personal knowledge would sufficiently guard
against misleading the fact-finder, even without an expert or a reliability predicate.”
Id.2 Thus, so long as the data extracted from the cellphone was properly
authenticated by lay testimony, no reliability predicate or expert testimony was
required. Id.; see also TEX. R. EVID. 901(b)(9) (explaining evidence about a process
2 In reaching this conclusion, the court also found support in several analogous federal cases. See United States v. Montijo-Maysonet, 974 F.3d 34, 47 (1st Cir. 2020) (“You don’t need to be a software engineer to pick up a cellphone, open a messaging application, and interpret the words in the bubbles as messages sent and received.”); United States v. Marsh, 568 F. App’x 15, 17 (2d Cir. 2014) (order) (federal agent’s testimony about Cellebrite data extraction did not cross the line into expert testimony for which a reliability predicate would be required because testimony did not turn on or require technical understanding of the programming); United States v. Seugasala, 702 F. App’x 572, 575 (9th Cir. 2017) (excusing a detective’s testimony regarding Cellebrite from rule 702’s expert-testimony requirements because testimony not based on technical or specialized knowledge). –5– or system may be authenticated by “describing a process or system and showing that
it produces an accurate result”). The court subsequently upheld the trial court’s
admission of the text messages and photos extracted from the cellphone because the
detective authenticated the evidence under rule 901(b)(9). Wright, 618 S.W.3d at
894.
Applying the Wright analysis, we conclude the trial court did not abuse its
discretion by admitting the text messages from appellant’s cellphone. Officer
McMillan testified he understood how to create and read mobile forensic
examination reports through his Cellebrite certification and explained he used
Cellebrite to create the mobile forensic report of appellant’s cellphone activity. He
explained the Cellebrite software used a transfer protocol to transfer the data from
the cellphone. Officer McMillan could not say with certainty Cellebrite extracted
all the data from appellant’s cellphone because every phone model is different and
no software can keep up with the constant availability of new apps. He did, however,
confirm the method of extracting the text messages using Cellebrite was
“straightforward,” and the software extracted all the text messages from appellant’s
phone. He compared the data through “hashing,” and his comparison “looked
complete so [he] didn’t do anything else beyond using Cellebrite.” He confirmed
all of the extracted text messages were true and accurate copies of the texts on
appellant’s cellphone. He explained that once he extracted the data, he compared it
to a known sent text message and confirmed the data’s accuracy. Officer
–6– McMillan’s testimony provided the corroboration that the information was correct.3
He then used another program called Magnet Axiom to convert the extracted data
into a more readable format for the average person. He gave this information to the
District Attorney in a PDF format and on a USB drive. This testimony sufficiently
authenticated the extracted data through lay testimony to satisfy rule 901(b)(9). See
TEX. R. EVID. 901(b)(9); see also Wright, 618 S.W.3d at 894.
Accordingly, the trial court did not abuse its discretion by overruling
appellant’s objections and admitting the text messages into evidence. We overrule
appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
/Erin A. Nowell// ERIN A. NOWELL 220714f.p05 JUSTICE
Publish TEX. R. APP. P. 47.2(b)
3 Appellant was free to, but did not, put on evidence that the transfer or the resulting data was in fact tainted, manipulated, or fabricated. –7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MIGUEL ANGEL VILLAREAL- On Appeal from the 416th Judicial GARCIA, Appellant District Court, Collin County, Texas Trial Court Cause No. 416-82170- No. 05-22-00714-CR V. 2022. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Justices Reichek and Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of June, 2023.
–8–