Text messages are becoming a more frequent piece of evidence in Texas divorce cases. Dallas family lawyers and those around the state must offer a predicate to authenticate a text message before it will be accepted into evidence. This means the document must be shown to be the actual (or copy) document and not be altered. It must also be shown to be an exception to the hearsay rule which prohibits out of court statements being offered in court as the truth.

The Texas Court of Criminal Appeals today announced a ruling regarding the proper predicate for admission of text messages. Butler v. State opinion is here.

In that case, certain text messages from the defendant to the victim were offered by the State to show threats of retaliation for reporting the crime. The State laid the following predicate:

Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the

same exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had

even called in between the conversations talking mess.

The Texas Court of Criminal Appeals, the highest criminal court in Texas, points to a liberal standard for showing a document is authentic. Specifically, to be authentic, the proponent must show that the document is what the proponent claims it to be. The Court says it isn’t enough to show as a predicate for admission of a text message that it is sent from the cell phone of a particular person — because “cell phones may be purloined” by another. However, the proponent of the evidence may use direct or circumstantial evidence to say that the person was the sender, even based on the content or inference of the message.

So how did the victim in Butler know the texts were from him? Because he texted her from that number, the content of the conversation inferred it was him, and he called in the middle of the texts, talking “mess”. So, the distinctive characteristics of the conversation showed it was Butler. The Court of Criminal Appeals held that the predicate laid was sufficient to allow the jury to find the document authentic, so admission of the evidence was proper.