No. 05-08-01590-CR
Opinion Filed December 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-81337-08.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted David Wayne Bailey of two offenses of online solicitation of a minor and assessed punishment at ten years' confinement, probated for ten years, on each offense with a $10,000 fine on the first offense and a $5,000 fine on the second offense. Bailey challenges the convictions, contending in eight issues that (1) the recording of Bailey's interview by the police was inadmissible under article 38.22 of the code of criminal procedure; (2) the chat logs from the online chats were inadmissible hearsay and were not authenticated; and (3) section 33.021 of the Texas Penal Code is facially unconstitutional. We affirm the trial court's judgment.
Background
Sergeant Chris Meehan, a member of the Crimes Against Children Task Force at the Collin County Sheriff's Office, created an online profile for Ashleygyrl13, a fourteen-year-old female, in an online chat room hosted by America Online (AOL). An individual with the screen name DWB1148 engaged Ashleygyrl13 in sexually explicit conversation on a number of occasions. Meehan submitted a subpoena to AOL for information on the internet protocol (IP) address used by DWB1148. An IP address is unique to the physical location where the internet log-in occurs. The physical address for the IP address used by DWB1148 was Bailey's apartment. Meehan obtained an arrest warrant for Bailey and a search warrant for Bailey's apartment. Meehan and two other officers went to Bailey's apartment at approximately 11:30 p.m. to interview Bailey. Meehan asked Bailey if the officers could come into the apartment, and Bailey allowed them to do so. Meehan did not advise Bailey of his rights under article 38.22 of the code of criminal procedure and did not tell Bailey about the arrest warrant. Meehan secretly recorded his conversation with Bailey. After entering the apartment, Meehan told Bailey to sit down. During the interview, Meehan stayed by the couch where Bailey was sitting. One of the other officers stood by the front door of the apartment. Bailey's wife was present during the interview. Meehan did not handcuff Bailey, did not threaten Bailey, and did not promise anything to Bailey in order to obtain a statement. Meehan asked Bailey if he had the screen name DWB1148. Bailey responded that he used to have that screen name, but no longer had it. Bailey also stated he had not been on AOL for a long time. Meehan told Bailey the police had received a complaint from a mother about inappropriate chats involving her daughter. Meehan led Bailey to believe the concern was whether Bailey had met the daughter. Bailey stated his wife could verify that he came home every night. When Meehan asked Bailey about his job, Bailey said he used to be in construction, but now worked at Race Track. He also indicated he needed to be up in six hours for work. Meehan stated they had to follow up on these complaints all the time and usually worked in the evening when people were home. Because they had been "doing a few tonight," they were late in arriving at Bailey's apartment. Bailey said that, in the past, he had met a female his own age online, but he would never sleep with a sixteen-year-old girl. Meehan indicated he did not believe Bailey had met the girl, but that he had to explain the chat logs to the mother. Bailey stated he did not remember chatting with Ashley from Allen. Meehan told Bailey that during one chat, the IP address was traced to AT T. Bailey admitted he used AT T. Meehan then stated the IP address was traced to Bailey's apartment. Meehan said the police were there to ensure Bailey had not met the child. He stated "talking is one thing, meeting another." When Bailey again denied talking to the girl, Meehan said he knew Bailey had done so and offered to refresh Bailey's memory by reading parts of the conversations. Bailey said he had never met any girl and he "would never screw around on my bride." Meehan then asked why Bailey would talk to the girl in the manner he did. Bailey stated he could not tell him. Meehan read from one of the chat logs that DWB1148 had said he worked in construction in the administration building in Allen. Bailey confirmed he had worked in that building. Meehan then asked, "So we can safely assume this is you?" Bailey answered, "Yes, sir." Bailey then said again that he always comes home at night, and Meehan could check Bailey's phone records to confirm he was always at home. Bailey again denied meeting the girl and, contrary to his prior statement, denied meeting any female online. Meehan then began reading sexually explicit statements from the chat logs to Bailey. At the end of the interview, Meehan arrested Bailey. At trial, Bailey objected to the admission of the recording of the interview, arguing it was the product of custodial interrogation and he had not been read, and had not waived, his rights under article 38.22 of the code of criminal procedure. The trial court admitted the first six minutes and thirty-nine seconds of the interview, but found Bailey was in custody after Meehan began reading sexually explicit statements from the logs to Bailey. The trial court also admitted over Bailey's objection copies of the chat logs between DWB1148 and Ashleygyrl13. The jury convicted Bailey on both offenses. Admissibility of Recording
In his first issue, Bailey argues the trial court erred by admitting any portion of the recording because the interrogation was custodial and Bailey was not read, and did not waive, his rights under article 38.22 of the code of criminal procedure. Standard of Review
The trial court's determination of whether the defendant was in custody presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the trial court's custody determination when the questions of historical fact turn on credibility and demeanor. Id. at 526-27. However, when the questions of historical fact do not turn on credibility and demeanor, we review the trial court's decision de novo. Id. at 527. Further, when, as here, the trial court does not enter findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. at 527. Applicable Law
Article 38.22 of the code of criminal procedure sets out certain requirements for admitting a defendant's oral and written statements resulting from custodial interrogation and specifically exempts from its requirements any statement made outside of custody. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Herrera, 241 S.W.3d at 526. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); see Herrera, 241 S.W.3d at 526 (construction of custody for purposes of article 38.22 is consistent with meaning of custody for purposes of Miranda). "A person is in `custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowhitt, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318 (1994)); see Nguyen v. State, 292 S.W.3d 671, 677-78 (Tex. Crim. App. 2009) (custody satisfied when individual formally arrested or when freedom of movement restrained to degree associated with formal arrest). The "reasonable person" standard presupposes an innocent person. Dowthitt, 931 S.W.2d at 254. At least four general situations may constitute custody: (1) the suspect is physically deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Gardner v. State, No. AP-75582, 2009 WL 3365652, at *9 (Tex. Crim. App. Oct. 21, 2009); Dowthitt, 931 S.W.2d at 255. In all four situations, the restriction on freedom of movement must amount to the degree associated with an arrest. Dowthitt, 931 S.W.2d at 255. As to the fourth circumstance, the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of the interrogating officer or the person being questioned. Dowthitt, 931 S.W.2d at 255 (citing Stansbury, 511 U.S. at 325). A police officer's subjective intent to arrest is irrelevant unless it is somehow communicated or otherwise manifested to the suspect. Herrera, 241 S.W.3d at 525-26; Dowthitt, 931 S.W.2d at 254. The required manifestation can occur if information substantiating probable cause is related by the officer to the suspect or by the suspect to the officer. Dowthitt, 931 S.W.2d at 255. Although an interrogation may begin as a non-custodial interrogation, police conduct during the questioning can cause the initially consensual inquiry to escalate into custodial interrogation. Id. The determination of whether a person is in custody is made on an ad hoc basis considering all the objective circumstances. Herrera, 241 S.W.3d at 532; Dowthitt, 931 S.W.2d at 255. We first determine the circumstances surrounding the interrogation. Herrera, 241 S.W.3d at 532. We then consider whether, given those circumstances, a reasonable person would believe he could not terminate the questioning and leave. Id. The record as a whole must "clearly establish" the statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526 (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). The defendant bears the initial burden of proving a statement was the product of custodial interrogation. Gardner, 2009 WL 3365652, at *9; Herrera, 241 S.W.3d at 526. Analysis
Meehan obtained an arrest warrant prior to questioning Bailey and, accordingly, had probable cause to arrest Bailey. However, the interrogation was not custodial unless that probable cause was manifested to Bailey and that manifestation, along with other circumstances, would lead a reasonable person to believe he was under restraint to the degree associated with an arrest. The trial court determined probable cause was manifested to Bailey when Meehan began reading sexually explicit statements from the chat logs to Bailey. Bailey argues he was in custody during the entire interrogation. The interview took place in Bailey's apartment late at night. Bailey consented to Meehan and the other officers entering the apartment and agreed to talk to Meehan. Bailey's wife was present during the questioning. Meehan did not handcuff or threaten Bailey and did not promise Bailey anything in exchange for making a statement. Meehan did not tell Bailey there was a warrant for his arrest and made no representation about whether Bailey was free to leave. During the portion of the interview admitted by the trial court, Meehan's questions focused on whether Bailey had met Ashleygyrl13 and not on whether the chats standing alone violated the law. Bailey responded to Meehan's questions by denying he met Ashley or any underage girl and by stating his wife and his phone records would confirm that he was at home every night. The record contains no evidence showing Bailey was subject to any restriction of movement during the first six minutes and thirty-nine seconds of the questioning, nor that any situation was created that could have led Bailey to reasonably believe his freedom of movement was significantly restricted during that time period. Carefully considering all of the objective circumstances surrounding the first six minutes and thirty-nine seconds of the questioning in the light most favorable to the trial court's ruling, we conclude a reasonable person in Bailey's situation would not have felt that his freedom of movement was restrained to the degree associated with formal arrest. Because Bailey did not carry his burden of establishing he was in custody from the beginning of the questioning, article 38.22 did not apply to any statement before the questioning escalated into a custodial interrogation. Based on the record before us, we conclude the trial court did not err by admitting the recording of the first six minutes and thirty-nine seconds of the interview. We overrule Bailey's first issue. Admissibility of Chat Logs
In issues two through six, Bailey asserts the trial court erred by admitting the chat logs between Ashleygryl13 and DWB1148 because (1) the chat logs were introduced based on information contained in the recording of Meehan's interview of Bailey; (2) the chat logs contained inadmissible hearsay under rule of evidence 802; (3) the chat logs were not properly authenticated because the State did not establish Bailey was using the screen name DWB1148 at all relevant times; (4) the chat logs were unfairly prejudicial under rule of evidence 403; and (5) the chat logs were not authenticated by an expert witness with knowledge of the IP address related to the chats or by a witness with direct and personal knowledge of the IP address related to the chats. We review the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). Authentication
In issues two and four, Bailey argues the chat logs were not properly authenticated because the recording of the interview was improperly admitted and, without the recording, the chat logs were not authenticated; even considering the recording, he never admitted he engaged in the chats; there is no chain of custody for the chat logs; and the State did not establish that he was the individual using the screen name at all relevant times. We have already concluded the trial court did not err by admitting the recording of the first six minutes and thirty-nine seconds of the interview. Further, Bailey did not object at trial to the admission of the chat logs based on the lack of a chain of custody and, therefore, has waived this argument on appeal. Tex. R. App. P. 33.1(a)(1). We next turn to Bailey's argument the chat logs were not authenticated because the State did not establish Bailey was the person using the screen name DWB1148. Evidence must be authenticated "to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). Testimony by a witness with knowledge that the "matter is what it is claimed to be" is enough to prove the thing's authenticity. Tex. R. Evid. 901(b)(1). Authentication may also be established by "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tex. R. Evid. 901(b)(4). The State was required only to show the chat logs were what they purported to be — a record of the conversations between DWB1148 and Ashleygyrl13. Garner v. State, 939 S.W.2d 802, 805 (Tex. App.-Fort Worth 1997, pet. ref'd) ("Rule 901 does not require the State to prove anything. It requires only a showing that satisfies the trial court that the matter in question is what the State claims; once that showing is made, the exhibit is admissible." (emphasis in original)). Meehan testified the chats he conducted while posing as Ashleygyrl13 appeared on his computer terminal during the chat and the chat logs contained the content of those chats. Meehan's investigation traced the IP address used by DWB1148 to Bailey's apartment. In the chat logs, DWB1148 said his first name was "David" and he worked in construction at the new administration building in Allen. Bailey admitted during the interview with Meehan that he "used to" have the screen name DWB1148 and that he worked in construction in the new administration building in Allen. Further, in response to Meehan's question that he could "safely assume" that Bailey participated in the chats, Bailey answered, "Yes, sir." The evidence was sufficient to establish the chat logs were copies of the chats between Bailey and Ashleygyrl13. See Cook v. State, 256 S.W.3d 846, 849 (Tex. App.-Texarkana 2008, no pet.) (chat logs "were authenticated and confirmed by witness testimony"); Shea v. State, 167 S.W.3d 98, 105 (Tex. App.-Waco 2005, pet. ref'd) (e-mails authenticated by witness's testimony she was familiar with defendant's e-mail address and had received e-mails from defendant); see also United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009) (applying identical federal rule of evidence 901(a) and concluding testimony of officer that transcripts fully and fairly reproduced chats between her and defendant sufficiently authenticated chat log presented at trial). We conclude the chat logs were properly authenticated under rule of evidence 901. Hearsay
In issue three, Bailey asserts the chat logs are hearsay and inadmissible under rule of evidence 802. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Tex. R. Evid. 801(d). Generally, hearsay is not admissible. Tex. R. Evid. 802. However, a statement is not hearsay if it is offered against a party and is the party's own statement. Tex. R. Evid. 801(e)(2); Bingham v. State, 987 S.W.2d 54, 56 n. 2 (Tex. Crim. App. 1999); Johnson v. State, 208 S.W.3d 478, 507 (Tex. App.-Austin 2006, pet. ref'd). Meehan's investigation tracked the IP address used by DWB1148 during the chats with Ashleygyrl13 to Bailey's apartment. Bailey admitted he used to have the screen name DWB1148. Meehan asked Bailey if they could "safely assume" it was Bailey on the chats with Ashleygyrl13. Bailey answered, "Yes, sir." The trial court did not abuse its discretion by concluding Bailey made the statements using the screen name DWB1148 and, therefore, DWB1148's statements were Bailey's admissions. As to Ashleygyrl13's statements in the chats, they were not offered for the truth of the statements, but to show the context of Bailey's statements. Ashleygyrl13's statements, therefore, were also admissible. Parker v. State, 192 S.W.3d 801, 807 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (officer's testimony that informed jury how defendant became suspect and what factors lead to identifying defendant admissible over hearsay objection); Kimbell v. State, 24 S.W.3d 555, 564 (Tex. App.-Waco 2000, no pet.) (testimony about how officer began to suspect defendant was intoxicated was not offered for truth of matter asserted but "to show how and why [defendant] was initially identified and followed"). Texas Rule of Evidence 403 In issue five, Bailey argues any probative value to the chat logs was outweighed by the danger of unfair prejudice and, therefore, the trial court abused its discretion by not excluding the chat logs under rule of evidence 403. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against the danger of unfair prejudice, "a presumption exists that favors the evidence's probative value." Feldman v. State, 71 S.W.3d 738, 754-55 (Tex. Crim. App. 2002). In considering a challenge to evidence under rule 403, the trial court must balance (1) the inherent probative force of the evidence along with (2) the proponent's need for the evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Here, the trial court could have reasonably concluded the inherent probative force of the chat logs was considerable because the logs established the sexually explicit content of the chats. This evidence tended to make it more probable than not that Bailey had engaged in the online solicitation of a minor. The trial court could also have concluded that the State's need for the logs was considerable as they established the time and content of each statement. The trial court could also have reasonably concluded the chat logs did not have a tendency to suggest decision on an improper basis. Rather, the logs were directly related to the offenses charged. Further, because the logs were directly related to the charged offenses, the trial court could have reasonably concluded they would not confuse, distract, or mislead the jury from the main issue in the case. Finally, the trial court could have reasonably concluded it was unlikely the presentation of the logs would consume an inordinate amount of time or merely repeat already admitted evidence. Because the probative value of the chat logs was not substantially outweighed by the danger of unfair prejudice, rule 403 did not preclude the admission of the logs. Expert Testimony
Bailey argues in issue six that the trial court abused its discretion by admitting the chat logs because there was no expert testimony, or testimony by a witness with personal knowledge, as to the relationship between Bailey's IP address and the exhibits. Bailey objected to Meehan's testimony about tracing the IP address used by DBW1148 to Bailey's apartment and to a portion of the recording of the interview because Meehan was not an expert in IP addresses. However, Bailey did not object to the admission of the chat logs based on the lack of an expert witness or a witness with direct knowledge to link the IP address to the chat logs. Therefore, he failed to preserve this issue for our review. Tex. R. App. P. 33.1(a)(1). Conclusion
The trial court did not abuse its discretion by admitting the chat logs. Therefore, we overrule issues two through six. Constitutionality
In issues seven and eight, Bailey argues section 33.021 of the penal code is vague and overbroad and, therefore, violates the United States and Texas constitutions. A facial challenge to the constitutionality of a statute may not be made for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Because Bailey failed to challenge the constitutionality of section 33.021 of the penal code in the trial court, he has waived this issue on appeal. Tex. R. App. P. 33.1(a)(1). We overrule issues seven and eight. We affirm the trial court's judgment