Divorce text message

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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.