Tienda v. State

• Decision Date: 08 February 2012
• Docket Number: No. PD–0312–11.,PD–0312–11.
• Citation: 358 S.W.3d 633
• Parties: Ronnie TIENDA, Jr., Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

358 S.W.3d 633

Ronnie TIENDA, Jr., Appellant,

v.The STATE of Texas.

No. PD–0312–11.

Court of Criminal Appeals of Texas.

Feb. 8, 2012.

Leslie McFarlane, Dallas, for Ronnie Tienda, Jr.

Martin L. Peterson, Asst. D.A., Dallas, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

PRICE, J., delivered the opinion for a unanimous Court.

The appellant was convicted of murder.¹ He pled true to one enhancement count, and the jury assessed punishment at thirty-five years' imprisonment. In an unpublished opinion, the Fifth Court of Appeals affirmed the appellant's conviction, holding that the trial court did not abuse its discretion in admitting evidence from MySpace pages that the State believed were created by the appellant.² We will affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

David Valadez and his two passengers were the targets of a multiple car shootout while driving southbound in Dallas on I–35E towards I–30. The shooting was apparently the product of some tension displayed between two rival groups at a nightclub earlier that evening, where members of the appellant's group were “throwing” gang signs and “talking noise” to Valadez and his friends. Shortly after Valadez and his passengers left one nightclub to head to another “after hours” club, Valadez's car unexpectedly came under gunfire from a caravan of three or four cars also traveling southbound on I–35E towards I–30. The appellant was a passenger in one of the cars in the caravan.

Testimony at trial as to the appellant's specific involvement in the shooting varied widely. The witnesses agreed that the appellant was at least present during the shooting; however, there was inconsistent testimony as to who fired the first gunshots, whether the appellant was seen merely holding a gun or actually firing a weapon, which car the appellant was riding in, and from which car the fatal shots were fired. During the exchange of fire, Valadez was shot twice, causing him to lose control and crash his vehicle into the highway's center concrete divider. Valadez died as a result of the gunshot wounds shortly after being taken to a nearby hospital. Although cartridge casings consistent with at least two weapons were found at the scene of the shooting, the bullet recovered from the deceased's body could not be matched to a particular weapon, as no firearms were ever recovered.

During preparation of the State's case against the appellant, the deceased's sister, Priscilla Palomo, provided the State with information regarding three MySpace profile pages that she believed the appellant was responsible for registering and maintaining.³ After subpoenaing MySpace.com for the general “Subscriber Report” associated with each profile account, the State printed out images of each profile page directly from the MySpace.com website, and then marked the profile pages and related content as State's exhibits for trial. The State used Palomo as the sponsoring witness for these MySpace accounts at guilt/innocence, and, over the appellant's running objection as to the authenticity of the profile pages, the State was permitted to admit into evidence the names and account information associated with the profiles, photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages.

The State had Palomo explain how she came across the profiles and brought them to the attention of the prosecutor. The trial judge sustained the appellant's first authentication objection when the prosecutor began asking Palomo questions about the specific content of the MySpace profiles prior to introducing any exhibits into evidence. After a brief sidebar conference at the bench with defense counsel off the record, the prosecutor marked the relevant MySpace profile printouts as numbered State's exhibits and had Palomo identify the printouts as the profiles she had found on MySpace. The prosecutor also offered into evidence the subscriber reports and accompanying affidavits subpoenaed from MySpace.⁴ The judge then admitted the printouts of the profiles, over the appellant's objection that the State still had not laid the proper predicate to prove that the profiles were in fact what the State purported them to be, namely, declarations that the appellant himself had posted on his personal MySpace pages.

According to the subscriber reports, two of the MySpace accounts were created by a “Ron Mr. T,” and the third by “Smiley Face,” which is the appellant's widely-known nickname. The account holder purported to live in “D TOWN,” or “dallas,” and registered the accounts with a “ronnietiendajr@” or “smileys_ shit @” email address. The State introduced multiple photos “tagged” to these accounts because the person who appeared in the pictures at least resembled the appellant. The person is shown displaying gang-affiliated tattoos and making gang-related gestures with his hands.

The main profile pages of the MySpace accounts contained quotes boasting “You aint BLASTIN You aint Lastin” and “I live to stay fresh!! I kill to stay rich!!” Under the heading “RIP David Valadez” was a link to a song that was played by Valadez's cousin at Valadez's funeral. Another music link posted to one of the profiles was a song titled “I Still Kill.” The instant messages exchanged between the account holder and other unidentified MySpace users included specific references to other passengers present during the shooting, circumstances surrounding the shooting, and details about the State's investigation following the shooting. The author of the messages made specific threats to those who had been “snitchin” and “dont run shit but they mouth,” assigning blame to others for being the “only reason im on lock down and have this shit on my back.” The author also generally boasted to another user that “WUT GOES AROUND COMES AROUND” and “U KNO HOW WE DO, WE DON'T CHASE EM WE REPALCE EM.” The author accused: “EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME.” Several of the instant messages also complained about the author's electronic monitor, which was a condition of the appellant's house arrest while awaiting trial.⁵

The State elicited additional testimony concerning the MySpace pages through a Dallas Police Department gang unit officer, Detective Daniel Torres, during guilt/innocence and through Valadez's mother during punishment. The officer testified regarding the common use of social networking media, such as MySpace, by gangs to stay in touch with members and to “promote” their gangs by bragging about participation in gang-related activities. At punishment, Valadez's mother was permitted to testify about how “devastated” she and her family were when they found the appellant's music link on his profile page with the title “RIP David Valadez,” which in her eyes was the appellant's way of bragging about killing her son through the song that was played at his memorial. The appellant repeatedly objected, during both stages of trial, on the basis of improper authentication, hearsay, and relevance.

Through cross examination of Palomo, defense counsel elicited testimony regarding the ease with which a person could create a MySpace page in someone else's name and then send messages, purportedly written by the person reflected in the profile picture, without their approval. Defense counsel emphasized that any case-specific facts that were referenced in the MySpace messages associated with these accounts were not facts solely within the defendant's knowledge, but were known to the deceased's family, friends, and practically any other third party interested in the case. Although the gang officer, Torres, testified to having prior experience using MySpace to investigate gang-related activity, when asked on cross examination whether he had any particular knowledge regarding how a MySpace account is created, he stated: “None, whatsoever.” The officer acknowledged that anyone could create a MySpace page, but he had never created one himself.

During the appellant's guilt/innocence closing argument, counsel again emphasized the ease with which a MySpace account could be created or accessed without someone's approval and highlighted the State's failure to prove that the accounts were created by the appellant through any technological or expert evidence, for example, by tracing the IP address listed in the subscriber report to the appellant's personal computer. In sum, defense counsel argued that the MySpace evidence was never authenticated and was not credible evidence that the jury should consider in supporting a guilty verdict. The State's closing arguments during both phases of trial included multiple MySpace references and specific quotes from the profile pages. The jury found the appellant guilty and assessed punishment at thirty-five years in prison.

On appeal, the appellant argued that the trial court erred in overruling his objections to the MySpace evidence. The court of appeals found sufficient “individualization” in the comments and photos on the MySpace pages to satisfy the factors laid out in Texas Rule of Evidence 901(b)(4) and admit the evidence as a “conditional fact of authentication” to support a “finding that the person depicted supplied the information.” ⁶ In so ruling, the court of appeals relied for authority solely upon the opinion of an intermediate appellate court in Maryland that has since been reversed, as the appellant emphasizes now in his brief on the merits before this Court, by that state's highest appellate court.⁷ We granted the appellant's petition for discretionary review to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in finding that the MySpace profiles were properly authenticated. We now affirm.

THE ARGUMENTS AND THE LAW OF AUTHENTICATION

The Arguments of the Parties

In his only issue for discretionary review, the appellant contends that the trial court...