Opinion
No. 05-09-01484-CR
Opinion filed July 21, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F05-36634-HK.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
A jury found appellant Sangam Pudasaini guilty of criminal solicitation of a minor for sexual assault and assessed punishment at two years' imprisonment. See Tex. Penal Code Ann. §§ 15.031(b), 22.011(a) (West 2011). In two issues appellant challenges the trial court's rulings as to the admissibility of certain evidence. In a third issue, appellant argues the trial court erred by overruling his objections to the State's argument at the punishment phase on grounds of matters outside the record. For the reasons set forth below, we resolve these issues against appellant and affirm the trial court's judgment.
I. BACKGROUND
Irving police detective Jose Delfierro testified that, in 2005, he investigated internet child predator cases. He testified there were predators looking online for children to exploit, and he posed as a "troubled" or "vulnerable" fourteen-year-old girl in chat rooms-creating a screen profile of a fourteen-year-old girl and with the screen name "krystal-cheerz09"-so a predator "can make contact with me instead of a real kid." State's Exhibit 2 was "Krystal-cheerz09"'s Yahoo Profile in which "Krystal" was identified as a fourteen-year-old girl. Delfierro testified that he had received training in such investigations and always used a certain protocol, which included responding to a party who made the first contact. Delfierro also used language in the profile and chats that, according to his research, a fourteen-year-old girl would use. Between November 23, 2005, and December 19, 2005, Delfierro as "Krystal" had five online chats through instant messaging-a series of "private messages" with a "friend" where only those two could see the messages-with appellant, who was then twenty-two years old and used the screen name "romanticguy654." Delfierro testified he saved each of the five chats "as [he] was chatting" as a text file that "saves it word-for-word as everything [that] was in that chat log with this other person." The chat logs show "romanticguy654" initiating the conversations. "Krystal" identified herself as a fourteen-year-old girl. Appellant identified himself as a nineteen-year-old named "Josh." The first chat log shows where "Krystal" offered a photograph of herself; in reality, the picture was of another police officer at the age of fifteen. Appellant brought up a sexual reference eight minutes into the first chat. Eventually, appellant solicited "Krystal" for sex and arranged to meet "her." Each line of each chat log shows the screen name of the party; the time; and the message. Delfierro demonstrated a live online chat messenger program, showing his profile as "Krystal Love," and explained how to archive a chat on the hard drive, in which Yahoo "automatically save[d] my messages for me only on that computer that I'm on." He also demonstrated how to show the date and time of each line of the message by selecting "time stamp." After the last online chat on December 19, 2005, appellant drove to "Krystal"'s apartment, where he was arrested and interviewed by Delfierro. Delfierro printed the five chat log files on December 20, 2005, and they were admitted as State's Exhibit 5. The following was elicited on cross-examination. Delfierro was asked, "So these chats that are saved on your computer in a text file can be manipulated or edited; is that correct?" Delfierro answered, "Yes." Delfierro testified that he could not "save an archive file" in Yahoo in 2005. When asked why the chat logs in evidence had the time only and not also the date on each line, in contrast with the current online demonstration, Delfierro replied that "Yahoo wasn't like this back in 2005." After Delfierro testified and outside the presence of the jury, appellant proffered Aleogho L. Audu as an expert. Audu was a Microsoft computer systems engineer familiar with Yahoo chat rooms and the structure of saved data. Audu testified he looked at the chat logs comprising State's Exhibit 5 and would testify concerning "the proper manner in which they are to be saved" and "to point out to the Judge and the jury how this particular document was manipulated." His testimony was based on "looking at the [printed] document" and comparing it with two other items: (1) a document, marked as Defense Exhibit 5, consisting of appellant's copy of the chat logs from November 23 and December 19, 2005, respectively, between "krystal-cheerz09" and "romanticguy654," that appellant subsequently testified he printed from the archives of a computer he used to chat with "Krystal" and that differed in appearance and content from the State's chat logs; and (2) a document from a "live chat session" from December 2009. In response to the State's questioning, Audu admitted that he did not retrieve Defense Exhibit 5 from a hard drive and had no personal knowledge "where this document came from." He also agreed that it was possible that appellant "sat down at a computer and typed this." He agreed with the State, "And so at this point you do not know if this is a piece, a frankly made up junk [sic]?" But, in comparison with State's Exhibit 5, he testified appellant's exhibit "look[ed] more correct" because of the inclusion, in part, of the date and time of each line in each chat log. Audu testified that "if we want the truth then we need the archived dated [sic] which is persisted as a dot file, which is on the computer. . . . It is a binary data format. . . . If we need something that is not — that is tamper proof — let me say that 90 percent, then that is what should be tendered. . . ." Referring to "the original text document," he said that "[t]he only way that you can say what was there is the archive." He agreed that "you will only find that archived chat [on] the hard drive of the original computer[.]" The trial court ruled that Audu could not testify which of the two exhibits was "reliable," that is, in the context of the hearing, which of the two exhibits was "accurate" or "genuine." The trial court limited Audu's testimony to "how a chat room works" and "other questions surrounding Yahoo." Appellant testified that he received the chat logs comprising State's Exhibit 5 from the State, but he did not recognize the conversations. He retrieved two chats he had archived on a friend's computer he used to chat with "Krystal." Appellant's printed copies differ from the printed copies of the chat logs admitted in State's Exhibit 5: among other differences, only the time appears in each line of text in the State's exhibit, whereas both the date and time appear in each line of text in appellant's exhibit; appellant initiated the conversations in the State's exhibit, but "Krystal" did so in appellant's exhibit; and the text of the conversations is different, specifically, in the State's exhibit, "Krystal" says consistently that she is fourteen years old, whereas in appellant's exhibit, "Krystal" says she is twenty years old in the first conversation, then says she is fourteen years old in the second conversation. When the State asked appellant if the State's version of the December 19 conversation was "wholly made up or in most part," appellant replied, "That is what I'm saying, yes." He denied that he "made up" his own chat. Appellant was unable to obtain any other chats from his friend's computer. Appellant admitted lying in the chats with "Krystal." He said he thought she was twenty years old because she was in an adult chat room and he thought she was joking when she said she was fourteen years old. During the punishment phase, the State presented a chat log between "romanticguy654" and "jennyberry13" who said "she" was fourteen years old but who was in actuality an Irving policewoman (Kimberly Williams) also engaged in internet child-predator investigations. "Romanticguy654" brought up "sex?" in the ninth minute of the chat. Appellant denied chatting with "jennyberry13."II. ADMISSIBILITY OF EVIDENCE
In his first and second issues, appellant challenges the trial court's rulings as to the admissibility of Audu's testimony and certain testimony by Delfierro.A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We do not disturb the trial court's decision if it was within the bounds of reasonable disagreement. Id. We uphold the trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).B. Exclusion of Audu's Expert Testimony
In his first issue, appellant contends the trial court erred by "preventing Audu from testifying as to his conclusions," that is, from offering his expert opinion as to which of the two exhibits was the "accurate" one.1. Applicable Law
Before admitting expert testimony, the Texas Rules of Evidence require a trial judge to make three separate inquiries: qualification, reliability, and relevance. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see also Tex. Rs. Evid. 104(a), 401, 402, 702. Pursuant to relevance, the inquiry is whether admitting the expert testimony will actually assist the fact finder in deciding the case. See Vela, 209 S.W.3d at 131. Rules 401 and 402 render testimony admissible only if it "tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401; see Vela, 209 S.W.3d at 131.2. Discussion
The fact at issue was the veracity of the two versions of the web chats, one from the State and the other from appellant. Audu was proffered as an expert to explain how to save chats and to opine on whether State's Exhibit 5 had been "manipulated," that is, altered. However, it was undisputed that the chat logs comprising State's Exhibit 5 had not been archived; rather, they had been saved as a text file, and were therefore not "tamper proof." Consequently, Audu's opinion as to the genuineness of either the State's or appellant's versions based on how it had been saved was irrelevant. In addition, Delfierro admitted that chats that are saved in a text file-such as the State's exhibit-can be "manipulated or edited." Audu testified that he did not know where Defendant's Exhibit 5 had come from and, therefore, based on his own testimony, he could not say if it had been altered. He admitted that appellant could have typed his version. Audu's testimony that Defendant's Exhibit 5 "look[ed] more correct" based on his comparing the two versions was irrelevant to the issue of the veracity of either of the two exhibits in light of Audu's testimony that only a copy derived from a tamper-proof archived version was "reliable" or "genuine" and either version could have been altered. In sum, Audu's testimony was irrelevant because he could not say whether either version of the chat logs was an accurate version of the actual chat sessions, which was a fact in issue. See Vela, 209 S.W.3d at 131; Tex. Rs. Evid. 401, 402. Discerning no abuse of discretion as to the decision to exclude certain of Audu's testimony, we resolve appellant's first issue against him. See Shuffield, 189 S.W.3d at 793; Willover, 70 S.W.3d at 845.C. Admission of Delfierro's Opinion Testimony
After Audu testified, Delfierro testified that he examined Defense Exhibit 5. He was asked if it appeared to him "to be a made up chat" between "Krystal" and appellant. Appellant objected that "I don't know what this witness is basing his opinion on. He can't testify as to whether the document is genuine or not. He didn't make it." The trial court overruled the objection, and Delfierro answered in the affirmative. In his second issue, appellant challenges the trial court's overruling of his objection to Delfierro's testimony in which he agreed with the State that Defense Exhibit 5 "appeared to be a made up chat." First, appellant argues that although Audu was prohibited from testifying about the "accuracy" of the exhibits, Delfierro was permitted to give his opinion without being required to state any foundation for his opinion as an expert. However, an opinion is admissible under rule of evidence 701 if the witness perceived events and formed an opinion that a reasonable person could draw from the facts, and if the opinion is also helpful for the trier of fact to understand the witness's testimony or aids in the determination of a fact in issue. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (citing Tex. R. Evid. 701). Cf. Tex. R. Evid. 702. Here, Delfierro's testimony indicated he perceived the events at issue-he participated in the conversations and created the chat logs comprising State's Exhibit 5. His opinion could aid the jury in determining the veracity of the two exhibits, which was a fact in issue. See Osbourn, 92 S.W.3d at 538. Therefore, we reject appellant's argument that Delfierro testified as an expert without meeting the foundation requirements. We need not address appellant's arguments that the trial court erred by admitting Delfierro's testimony on grounds that he improperly commented on appellant's and Defense Exhibit 5's truthfulness and on grounds of improper bolstering because he raises those issues for the first time on appeal. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (appellant failed to preserve error because objection at trial did not comport with complaint raised on appeal). Discerning no abuse of discretion as to the decision to admit Delfierro's testimony that appellant's chats appeared to be "made up," we resolve appellant's second issue against him. See Shuffield, 189 S.W.3d at 793; Willover, 70 S.W.3d at 845.III. JURY ARGUMENT
In his third point of error, appellant argues the trial court abused its discretion by overruling his objection to the State's improper argument at punishment. Specifically, appellant complains of the italicized statements below: Probation, community supervision, works for those who come in and admit their mistakes and ask for help. That's why we do it. We say in lieu of your good behavior, in lieu of your wanting help for yourself, we are going to suspend this prison sentence and trust you in our community.This defendant has not earned that trust. He claims that he has committed no new offenses. He claims he committed no new offenses, period; yet you saw him commit offenses here in this courtroom. He committed the very serious offense of tampering with evidence and perjury.(Emphasis added.) The trial court overruled appellant's objection "[t]hat's not in evidence."