Scott Logan Biggs v. State

• Court: Court of Appeals of Texas
• Decided: May 8, 2019
• Docket: 06-18-00177-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00177-CR

SCOTT LOGAN BIGGS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2018F00049

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION After a jury found Scott Logan Biggs guilty of bail jumping and failure to appear, it

assessed his punishment as ten years’ confinement in prison and a $10,000.00 fine. On appeal,

Biggs argues (1) that the trial court erred when it admitted copies of screenshots of cellular

telephone messages into evidence without sufficient authentication and (2) that the evidence was

insufficient to support a finding that Biggs had been previously charged with a felony. For the

reasons below, we affirm the trial court’s judgment.

I. Background

On December 23, 2015, Biggs was indicted for the offense of family violence assault by

occlusion, which is a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(2) (West 2019).

The State’s indictment alleged that, on or about October 5, 2015,

SCOTT LOGAN BIGGS did then and there intentionally, knowingly or recklessly cause bodily injury to Geneva Massingale, a member of the defendant’s family, as described by 71.003 of the Texas Family Code, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the said Geneva Massingale by applying pressure to the throat or neck of the said Geneva Massingale.

Following his arrest, Biggs procured a surety bond from 2 Blondes Bail Bonds and agreed to

appear in court “as [he] may be directed.” The bail bond agreement was signed by Biggs, as well

as Debbie Hale, one of the co-owners of the bond company. The document showed that the bond

was in the amount of $2,500.00 and that the charge against Biggs was a misdemeanor, not a third-

degree felony.

On December 31, 2015, the trial court issued a notice of hearing, requiring Biggs to appear

in court on January 19, 2016. On January 7, 2016, 2 Blondes Bail Bonds sent a text message to

2 Biggs stating, “Scott you have your first court hearing on Jan 19th in the County Court at Law

courtroom in Linden. The court house is the metal bldg there by the jail. Please confirm you

received this.” Biggs responded, “Confirmed already got notice in mail thanx.” 2 Blondes Bail

Bonds warned Biggs, “Ok good. Just wanting to make sure because these Judges have no mercy

if someone fails to show now regardless of the reason[.] The[y] issue bail jump charges and double

the bond or no bond at all.”

On January 18, 2016, 2 Blondes Bail Bonds sent a reminder to Biggs that he was required

to appear in court the next day, January 19. The text message read, “Don’t forget your court

hearing is tmr at 9:00 County Court @ Law Hwy 8 Linden right next to the jail. First bldg past

the correction facility.” Biggs responded, “Ok.” 2 Blondes Bail Bonds asked, “Will you be there?”

Biggs replied, “Of course[.]” Despite the reminders and warnings, Biggs did not appear in court

on January 19. Almost two years later, the State indicted Biggs for the offense of felony bail

jumping and failure to appear. See TEX. PENAL CODE ANN. § 38.10 (West 2016).

II. Discussion

A. Sufficient Authentication

Biggs contends the trial court erred when it admitted into evidence the alleged text

messages between Biggs and 2 Blondes Bail Bonds because they were not sufficiently

authenticated. We review for an abuse of discretion a trial court’s decision to admit or exclude

evidence. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion

occurs only if the decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not 3 substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.

Crim. App. 2003). We will uphold an evidentiary ruling if it was correct on any theory of law

applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

“The requirement of authentication or identification is a condition precedent to

admissibility . . . .” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (quoting TEX.

R. EVID. 901(a)). “[T]ext messages may be authenticated by ‘evidence sufficient to support a

finding that the matter [in question] is what its proponent claims.’” Id. at 600–01 (quoting 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.” Id. at 600. Thus, “the trial court need only make

the preliminary determination that the proponent of the item has supplied the facts sufficient to

support a reasonable jury determination that the proffered evidence is authentic.” Id. “In

performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the

proffered evidence is authentic.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)

(referencing Rule 104 of the Texas Rules of Evidence). “The preliminary question for the trial

court to decide is simply 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.

Authentication of a text message “can be accomplished in myriad ways, depending on the

unique facts and circumstances of each case, including through the testimony of a witness with

knowledge[,] . . . through evidence showing distinctive characteristics,” Butler, 459 S.W.3d at 601,

or “by comparison with other authenticated evidence,” Tienda, 358 S.W.3d at 638. A witness may

have knowledge of the authorship of a text message if the witness was “the actual author of the 4 text message.” Butler, 459 S.W.3d at 601. While association of a cell phone number or a Facebook

account with a particular individual alone “might be too tenuous,” other evidence, such as the text

“message’s ‘appearance, contents, substance, internal patterns, or other distinctive

characteristics,’” can support a conclusion that the message was sent by a particular author. Id. at

601–02 (quoting TEX. R. EVID. 901(b)(1)).

During the preliminary hearing, Joni Jones, the other co-owner of 2 Blondes Bail Bonds,

testified that she was a custodian of the business records for the company. Jones stated that the

screenshots of the text message exchange with Biggs had been retained in his file as was the usual

procedure for the business. Jones verified that the telephone number shown at the top of the

screenshot was the number Biggs had provided to the company. According to Jones, the copies

of the screenshots were true and accurate representations of the text messages. 1 The text messages

were comprised of two conversations 2 and referred to “Scott[’s] “first court hearing,” the date the

hearing was to take place, the time of the hearing, the place of the hearing, a description of the

building, and the fact that, if Biggs did not appear in court, he would face serious consequences.

1 Biggs complains that Jones was not the individual who messaged him, but that the creator and sender of the text messages from 2 Blondes Bail Bonds had been Hale. The Texas Rules of Evidence allow the admission of records kept in the course of regularly conducted business activities. TEX. R. EVID. 803(6). To be properly admitted under this Rule, the proponent must prove that the document was made at or near the time of the events recorded, from information transmitted by a person with knowledge of the events, and made or kept in the course of a regularly conducted business activity, unless “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. The business record witness does not have to be the record’s creator or have personal knowledge of the contents of the record. Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d). The witness is only required to have personal knowledge of the manner in which the records were prepared. Id. Although Jones was not the creator of the records, her testimony met the requirements of Rule 803, and there was no evidence to show “the source of information or the method or circumstances of preparation” relating to the messages lacked trustworthiness. 2 The first text message was dated January 7, 2016. The second text message was sent on January 18, 2016, which was the day before the scheduled hearing. 5 Biggs responded to the text messages by confirming that he had received notice to appear in court

and with his assurance that he would be there on the designated day and time.

Biggs maintains, however, that alterations had been made to the original evidence and,

thus, the text messages should not have been admitted. He points to Jones’ testimony that just

days prior to the commencement of trial, she deleted Biggs’ name that appeared at the top of the

phone’s screen so “the phone number would show up instead of the name.” Yet, Jones also

testified that the telephone number on the screen was the number Biggs had provided the company

and that the content of the text messages had not been altered. There was no evidence presented

to the contrary.

Biggs also maintains that, because the physical cell phone used by 2 Blondes Bail Bonds

was not provided at trial, the trial court erred when it admitted copies of the screenshots of the text

messages because the best evidence had not been produced. “An original writing, recording, or

photograph is required in order to prove its content.” TEX. R. EVID. 1002. Regarding

“electronically stored information, ‘original’ means any printout—or other output readable by

sight—if it accurately reflects the information.” TEX. R. EVID 1001(d). In this case, copies of the

cell phone screenshots of the conversation between the parties were admitted. Jones testified that

the printouts of the text messages accurately reflected the information contained on the cell phone.

Again, there was no evidence presented to the contrary.

Based on the evidence presented in the preliminary hearing, the trial court determined that

the State “ha[d] supplied facts that [were] sufficient to support a reasonable jury determination that

the evidence [it] ha[d] proffered [wa]s authentic.” See Tienda, 358 S.W.3d at 638. We agree.

6 Accordingly, we find that the trial court did not err when it admitted the screenshots of the text

messages into evidence.

We overrule Biggs’ first point of error.

B. Sufficiency of the Evidence

A person commits the offense of bail jumping if he has been “lawfully released from

custody, with or without bail, on condition that he subsequently appear” and then “intentionally or

knowingly fails to appear in accordance with the terms of his release.” TEX. PENAL CODE ANN.

§ 38.10(a). 3 “It is a defense to prosecution” for bail jumping “that the actor had a reasonable

excuse for his failure to appear in accordance with the terms of his release.” TEX. PENAL CODE

ANN. § 38.10(c). If the underlying offense for which the accused failed to appear is classified as

any degree of felony offense, then the new charge is a third-degree felony. TEX. PENAL CODE

ANN. § 38.10(f). Otherwise, the new charge is a misdemeanor punishable by a fine only. TEX.

PENAL CODE ANN. § 38.10(e).

Here, Biggs contends that the State failed to present sufficient evidence to show that the

underlying charge against him was a felony offense. In evaluating legal sufficiency in this case,

we must review all the evidence in the light most favorable to the verdict to determine whether

any rational fact-finder could have found the essential elements of the offense beyond a reasonable

doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.

3 The indictment against Biggs stated that, on or about January 19, 2016, he “did then and there after being lawfully released from custody on a pending felony charge on condition that he subsequently appear in court, intentionally and knowingly fail to appear in accordance with the terms of his release.” (Emphasis added). 7 App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented.

Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the

direction of the Brooks opinion, while giving deference to the responsibility of the fact-finder “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) (citing

Jackson, 443 U.S. at 318–19).

In drawing inferences, the jury “may use common sense and apply common knowledge,

observation, and experience gained in the ordinary affairs of life.” Duren v. State, 87 S.W.3d 719,

724 (Tex. App.—Texarkana 2002, pet. denied) (citing Manrique v. State, 994 S.W.2d 640, 649

(Tex. Crim. App. 1999) (Meyers, J., concurring)). The jury is also the sole judge of the credibility

of the witnesses and the weight to be given their testimony, and may “believe all of a witness[]’

testimony, portions of it, or none of it.” Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App.

2014). We give “almost complete deference to a jury’s decision when that decision is based upon

an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

In support of his position that the State failed to prove the underlying offense was a felony,

Biggs directs us to the contents of the bond agreement. First, the bond agreement identifies the

offense charged as either a “felony” or “misdemeanor.” On the bond agreement in this case, the

word “misdemeanor” was circled. However, at trial, Jones pointed out that the bond stated Biggs

had been charged with “assault family violence, impeding breath,” which Jones explained was a

felony offense.

8 Next, Biggs points out that the bond amount was $2,500.00, which is an amount consistent

with a misdemeanor rather than a felony offense. At trial, however, Jones explained that Biggs’

bond had been in the amount of $25,000.00, not $2,500.00. She pointed to the “Oath of Sureties”

in the bond agreement, which stated,

Each of the undersigned swears that he is worth, in his own right, the sum set opposite his signature, after deducting from his property all that which is exempted by law and the Constitution of said State from forced sale, and after the payment of all debts of every description, whether individual or secured debts, and after satisfying debts, and after satisfying all encumbrances upon his property which are known to him; that he resides in the county of CASS and has property in this State liable to execution, worth the said sum or more the said 2 Blondes Bail Bonds, the sum of Fifty – Thousand dollars. 4

Jones then explained, “If a bond is [$]25,000, then we have to sign the bond saying that

we’re responsible for $50,000. We always have to double the amount of the bond.” Thus,

according to Jones, because the bondsman’s total responsibility was $50,000.00, then the amount

of the bond was half that amount, or $25,000.00. She testified that the language in the bond

agreement stating otherwise was simply a typographical error.

The State also admitted into evidence the December 23, 2015, indictment against Biggs for

the underlying charge. The indictment showed that Biggs had been charged with family violence

assault by occlusion causing bodily injury. The indictment also referenced the statute upon which

the charge was based. Most notably, the indictment clearly showed that the specific charge was a

third-degree felony.

In addition, a copy of the court’s January 19, 2016, docket was admitted into evidence.

The docket showed that Biggs had been scheduled to appear for arraignment on the charge of

4 The oath was signed by Jones’ mother, Debbie Hale. 9 “ASSAULT FAM/HOUSE MEM IMPEDE BREATH/CIRULAT – F3.” The docket also showed

that the date of that particular offense was October 5, 2015, and that, when the court called Biggs’

case, he did not respond. It was reasonable for the jury to infer that “F3” referred to a third-degree

felony and that Biggs did not make an appearance on the date on which he was scheduled to do

so.

The Texas Court of Criminal Appeals has explained that our review of “all of the evidence”

includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192,

197 (Tex. Crim. App. 2001). Moreover, if the record contains conflicting evidence, we must

presume that the fact-finder resolved the conflicts in favor of the prosecution and defer to that

determination. Jackson, 443 U.S. at 326. The evidence in this case was sufficient to find, beyond

a reasonable doubt, that the underlying charge against Biggs amounted to a felony offense.

Accordingly, we overrule Biggs’ second point of error.

III. Conclusion

We affirm the trial court’s judgment.

Ralph K. Burgess Justice

Date Submitted: April 12, 2019 Date Decided: May 8, 2019

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