Stalking, Texts and Excited Utterances

After a jury found David Anthony McGee guilty of stalking in violation of Texas Penal Code § 42.072(a) and the trial judge sentenced him to “20 years in prison”, he appealed.  McGee v. State, 2014 WL 261060 (Texas Court of Appeals 2014).

According the Court of Appeals’ opinion, this is how the prosecution arose:

The complainant testified that she met [McGee] in March 2009 and they had an intimate dating relationship until about July 2009. She described their relationship as `[r]ocky, up and down, kind of controlling, back and forth.’   

The complainant, who was in a sorority and had friends in an associated fraternity, at times received calls from these fraternity brothers. She said it was common for the sorority to have a friendship between the brothers and sisters. [McGee] had a `problem’ with [her] fraternity brothers calling her and questioned her about why they called, what she was doing with them, and why she had to continue to be their friends.

Several times [he] accused her of cheating on him. At some point during their relationship, [McGee] went through the complainant's cell phone and got the numbers of several of the fraternity brothers and called them questioning them about their relationship with the complainant.

Around July or August 2009, [she] told [McGee] she did not want to be in a dating relationship with him anymore but said they could remain friends. [He] began to call and send text messages to [her] excessively during this time. He also sent emails to her at work. One day while [she] was at the sorority house, she heard her car alarm sound. She looked out and saw [McGee] standing by her car. She reset the alarm and it went off again.

She looked out and saw appellant driving off so she went outside and looked at her car; she saw a dent in it. She also saw a shoe print in the dust on the car in the area of the dent. She took pictures of the shoe print and, the next day, asked [McGee] over. 

She managed to take a picture of the bottom of his shoe that he had been wearing the day before. She compared the pictures and concluded [McGee] had damaged her car. When she confronted him about it, he denied it. She asked him to leave but he refused.

They argued and [McGee] pushed her. She tried to call 9–1–1 on her cordless telephone and [he] grabbed the phone and threw it against the wall. He yanked the base of the telephone out of the wall and also threw her cell phone against the wall. 

Then [she] went into the garage and started closing the garage door. [McGee] drove his car under the garage door as it was closing, damaging the garage door, and then left. [She] testified that the 9–1–1 call apparently had gone through because the 9–1–1 operator called her back; [McGee] was already gone. The operator dispatched police to [her] home. 

McGee v. State, supra.

Police arrested McGee on August 10 for assault and interfering with a 9–1–1 call; the “calls from his cell phone stopped while he was in jail.” McGee v. State, supra. She thought about not pressing charges, but when McGee was released from jail on August 18,

he showed up at her house despite an emergency protective order prohibiting him from doing so, and the excessive calls began again. He also sent humiliating texts about her and pictures of her to her fraternity brothers. [She] . . . . told him to stop all contact with her. But [he] did not stop, and the evidence showed he called or sent text messages excessively to her work, home, and cell phone.

One day while [she]was away from home, someone kicked open the front door of her house. . . .  Also during this time, two windows in the complainant's home were broken and her garage door was damaged again. [She] testified she was afraid to stay home by herself and either her mother or father stayed with her or she stayed at their house.

[She] told [McGee] she was afraid of him, and he sent a text message stating, `Wht u got 2 b n fear of Right On!’ She testified about statements [he] made that she construed as threats against herself or members of her family. 

One of those text messages stated, `If u value 1 delta place u will not want 2 threatn my masonic ties, kp n mind u hav famlw wit nice homez dont b foolish az u issue threatz 2 me Right On!’ Another stated, `U'd be surprise the info I gathrd n time n ur hous & world, u dont want ak 2 (accidntly) catch a drug pos & pistol case do u? Right On!’ 

The complainant said `1 delta place’ referred to her sorority house and `ak’ referred to her brother. [McGee] also told [her] `he couldn't say he wouldn't hurt [her] or somebody else if [they] couldn't be together. . . .’

McGee v. State, supra.  The evidence presented at trial also showed that McGee

drove by her mother's house when [she] was there, he drove to the sorority house when [she] was there, he followed her to church, he went to a party without an invitation because [she]was there, and he followed her to a restaurant and other places. He sent her text messages that indicated he was following her and watching what she was doing. On two occasions, he drove in front of [her] and braked hard causing her to nearly hit [his] car.

McGee v. State, supra. 

After the jury found him guilty, the court proceeded to sentencing.  McGee v. State, supra.  The prosecution presented evidence to the jury that McGee had been

convicted of indecency with a child and previously stalked a woman with whom he had been engaged. The jury found the enhancement paragraph true and assessed the maximum amount of time for the offense.

McGee v. State, supra.  This site explains what the enhancement for stalking is and how it is applied. And this blog post notes that juries can sentence offenders in Texas.

McGee raised several arguments on appeal, only two of which are examined here.  The first went to the admission into evidence of text messages.  The trial judge “admitted 72 text messages sent to the complainant” and on appeal McGee “complain[d] generally about the admission of `text messages.’” McGee v. State, supra.  He claimed the prosecution “did not authenticate the text messages because it `never proved the texts originated from [him].’” McGee v. State, supra. 

The Court of Appeals began its analysis of his argument by noting that authentication

is a condition precedent to admissibility. Texas Rules of Evidence 901(a). A proponent of evidence satisfies its burden to establish the authenticity of the evidence if the proponent produces `evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a).

Rule 901(b) provides a list of non-exclusive methods for authenticating evidence, one of which is testimony from a witness with knowledge that the item in question is what it is claimed to be. Rule 901(b). Under Rule 901, the proponent does not need to establish beyond all doubt that the item is what the proponent claims it is. Instead, the trial judge must decide simply whether the proponent has offered sufficient information for the jury to reasonably conclude that the item is what the proponent claims it is. Tienda v. State, 358 S.W.3d 633 (Texas Court of Criminal Appeals 2012).

As one court noted, Rule 901 `does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence.’ Manual v. State, 357 S.W.3d 66 (Texas Court of Appeals 2011) (quoting Peter T. Hoffman, Texas Rules of Evidence Handbook, art. IX (8th ed.2008–09)).

McGee v. State, supra. 

The Court of Appeals explained that McGee did not specify which of

the 72 text messages his complaint specifically addresses, and the record shows that he objected to only 16 of the text messages on authentication grounds. Of those 16 text messages, 10 contained within the message the name `Anthony McGee’ and a cell phone number. The complainant testified that `Anthony McGee’ was [McGee] and that the phone number on the message was the same number [he] used to contact her.

McGee v. State, supra. 

It also noted that McGee argued that the

records introduced into evidence showed the number did not belong to him. Indeed, the phone company records showed the cell phone was listed in another person's name, but the complainant testified that it was the same number [McGee] used to contact her and it was the number she programmed into her phone as appellant's contact number. Because of their relationship, the complainant was in a position to know appellant's cell phone number. See Tienda v. State, supra; Manual v. State, supra. 

And the circumstances of this case are such that it was reasonable to believe that the number was [McGee’s] number and the calls and text messages were from him.  See Tienda v. State, supra; Manual v. State, supra. We conclude that the State satisfied its burden to authenticate the calls and text messages.

McGee v. State, supra. 

The court also explained that with regard to the remaining six text messages, the record

showed they were sent from `Y!:astigg76.’ The messages did not contain the sender's name or cell phone number. The complainant testified that she received these text messages the day after [McGee] was released from jail and, although she believed they were from [him] because they were `consistent with the other text messages [he] would send [her],” she did not know who they were from. In overruling [McGee’s] authentication objection to these six text messages, the trial court said, `Goes to the weight, not the admissibility.’

McGee v. State, supra. 

The Court of Appeals found that

[e]ven if the trial court abused its discretion by admitting the six text messages from `Y!:astigg76,’ we conclude that the error did not affect appellant's substantial rights. See Texas Rules of Appellate Procedure Rule 44.2(b).

A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Rich v. State, 160 S.W.3d 575 (Texas Court of Criminal Appeals 2005). [McGee] does not argue how the admission of these six text messages affected his substantial rights, and the likelihood that those text messages affected the jury's verdict is at best slight in light of the 66 other text messages that had already been admitted into evidence, most without objection, and the other substantial evidence of [his] guilt.

McGee v. State, supra.  So, essentially, the court finds the error, if any, was harmless.

McGee also argued that the trial judge          

abused [his] discretion by admitting a recording of the 9–1–1 call made by the complainant. When the State offered the recording, [he] lodged a hearsay objection. On appeal he argues that `the objection was directed at the lack of foundation’ and the trial court's ruling `revealed the court's true understanding that the objection concerned a lack of foundation.’ . . .  

McGee v. State, supra. 

The Court of Appeals did not agree.  It explained that McGee objected to the recording

as hearsay. The trial court stated, `Foundation was established under Rule 803, parenthesis, 2, close parenthesis, and the objection is overruled.’ Even though the trial court used the word `foundation’ in its ruling, Rule 803(2), which the court relied on as a basis for its ruling, is the excited utterance exception to the hearsay rule. See Texas Rule of Evidence 803(2). 

Consequently, we conclude that [McGee’s] hearsay objection did not preserve an objection based on a lack of foundation, and the record does not show that the trial court understood the hearsay objection to be based on a lack of foundation.

McGee v. State, supra. 

As Wikipedia explains, an excited utterance is a statement made by someone in

response to a startling or shocking event or condition. It is an unplanned reaction to a `startling event’. It is an exception to the hearsay rule. The statement must be spontaneously made by the person . . . while still under the stress of excitement from the event or condition. The subject matter and content of the statement must `relate to’ event or condition.

The Court of Appeals then noted that McGee argued that the prosecution (the State)

did not present any evidence satisfying the requirements of an excited utterance. He contends the State did not present evidence that the complainant made the 9–1–1 call `without time to fabricate,’ that the `call was related to the event described in the call,’ or that the call `demonstrated a spontaneous reaction.’

McGee v. State, supra. 

It did not agree:

A statement may be admissible as an exception to hearsay if it relates `to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’ Texas Rule of Evidence 803(2). 

The complainant tried to call 9–1–1 while [McGee] was in her home arguing with her and refusing to leave. When she tried to call 9–1–1 on her cordless phone, [he] grabbed the phone and threw it against the wall. When she tried to call 9–1–1 from the cordless base unit, [he] `snatched that out of the wall[.]’ [McGee] also `grabbed [her] cell phone and threw it up against the wall.’

She said the 9–1–1 call apparently went through on the cordless base unit before [McGee] `yank[ed] the phone out [of] the wall’ because the operator called back, she spoke with the operator, and the police were dispatched. Additionally, the complainant testified that she made the call `under the excitement of the event that had just happened.’ 

We conclude that the State satisfied the requirements of the excited utterance exception to the hearsay rule and the trial court did not abuse its discretion by admitting the recording.

McGee v. State, supra. 

For these and other reasons, the Court of Appeals affirmed McGee’s conviction and sentence.  McGee v. State, supra.