Dana Francis Walcott, Jr. v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00124-CR

Dana Francis Walcott, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY

NO. 79769, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Dana Francis Walcott of the offense of capital murder.

See Tex. Penal Code § 19.03(a)(2). The district court rendered judgment on the verdict and

sentenced Walcott to life imprisonment. In two issues on appeal, Walcott asserts that the district

court abused its discretion by admitting evidence of Walcott’s gang membership and by

excluding a Facebook message, purportedly written by a witness for the State, in which the

witness accepted responsibility for the murder. We will affirm the judgment of conviction.

BACKGROUND

The State charged Walcott, individually and as a party, with intentionally causing

the death of Michael Vanlandingham by shooting Vanlandingham with a firearm in the course of

kidnapping him. At trial, the jury heard evidence that on September 17, 2018, Killeen police

officers arrested Geniva Madrid, a suspected drug dealer. One of the arresting officers testified

that during her arrest, Madrid “made comments that somebody had snitched on her.” The

suspected “snitch” was Vanlandingham (the victim).

Later that night, Walcott and another man, Tommy Free, kidnapped the victim at

a motel in Killeen and transported him first to a residence in Harker Heights, where they met

with Free’s girlfriend, Danielle Turbeville, and later to a twenty-acre piece of property that

witnesses called “the compound.” Turbeville, who testified at trial, did not accompany Free and

Walcott to the compound but drove there later that morning. On her way there, she noticed that

the car that Free and Walcott were driving had been abandoned near the property. Turbeville

called Free, who told her that they had “already walked down to the compound.” Turbeville then

drove onto the property and met a man who lived there, Mark McDaniel, who told her where to

find Free and Walcott. As she drove farther into the compound, Turbeville saw Free running

toward her. Free got into Turbeville’s truck, and she continued driving. Along the way,

Turbeville noticed “items of clothing” that were strewn along the ground. Free told her that the

clothing belonged to the victim.

Turbeville testified that when they arrived at the victim’s location, she noticed

that he was completely naked, on his knees and with his hands bound, and Walcott was standing

next to him. The victim kept screaming, “I’m sorry, I’m sorry, I’m sorry,” and “I’m not a

snitch,” while Walcott kept yelling at him to “shut up, shut up.” Free and Walcott began hitting

the victim with nearby objects, including fence panels, tree limbs, and a hatchet that they threw

at the victim “several times,” “[l]ike a baseball pitcher throws a baseball.”

Eventually, Free stopped hitting the victim to smoke methamphetamine with

Turbeville, who asked Free, “What’s the end result here?” Free responded, “He’s going to die.”

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The victim began to “scream louder,” which prompted Walcott to pull a gun from his pants and

tell him, “Michael, shut up. You’re going to make me shoot you.” At that point, Turbeville

turned around and began walking back to her truck. As she did so, she heard a gunshot and

“kept walking.” She then heard another gunshot, turned around, and saw Walcott walking

toward her with “with the gun in his hand, but he was cocking the gun at that moment.”

Meanwhile, the victim was still alive and attempting to run away, with Free chasing him with the

hatchet. Walcott remarked to Turbeville, “He’s a tough son of a bitch.” Turbeville resumed

walking back to her truck, heard the victim beg for his life, and then heard another gunshot.

As Turbeville reached her truck, she noticed smoke and flames and realized that

someone had started a fire. She turned around and saw Free, Walcott, and McDaniel, who had

just arrived, facing the flames. Free then ran to Turbeville’s truck, telling her that there was a

burn ban in effect and that they needed to find a fire extinguisher. They were unable to find one,

and the fire continued to burn. One of the men told Turbeville, “It’s too big. It’s too big. Turn

around. Let’s get the fuck out of here.” Turbeville, Free, Walcott, and McDaniel then fled the

compound in Turbeville’s truck and drove to a motel, where they met with other people who had

knowledge of the kidnapping. Approximately twenty to thirty minutes later, the others told

Turbeville and McDaniel that they were free to leave, and they departed the motel together.

Turbeville later left town, fearing that she would share the victim’s fate if she remained.

McDaniel also testified at trial. McDaniel testified that on the day of the murder,

Free had awakened him at the compound and told him that the victim had “snitched” on Madrid.

Free explained to McDaniel that he and Walcott were going to take the victim to the back of the

property and “talk” to him, which McDaniel understood meant that they were going to kill him.

McDaniel did not go with them because the matter was “none of [his] business.” When

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Turbeville arrived later at the compound to “check on the boys,” he directed her to the back of

the property. At some point thereafter, McDaniel heard a gunshot and went out to where the

others were. When he arrived, he saw Walcott “wiping off his gun” and Free lighting a fire.

McDaniel told them, “What the fuck? There’s a burn ban. I just got popped. I just got a ticket.”

The men then tried to extinguish the fire but were unable to do so. McDaniel explained that they

left the property in Turbeville’s truck and went to a motel where other people were waiting for

them. Free told the others that “it was done.”

Later that morning, after McDaniel returned to the compound, he talked to

another person who lived there and told her what had happened. That person arranged for

McDaniel to talk to a police detective, and he did so. The detective, who had earlier received a

report of a fire at the compound, went out to the property and followed the trail of the victim’s

discarded clothing to a burn pit, where he discovered a “burned human corpse” that was later

identified as the victim’s body. A medical examiner performed an autopsy on the body, and the

cause of death was determined to be gunshots to the head.

Approximately one week later, police apprehended Walcott inside a vehicle in

which he was the passenger. On the passenger-side floorboard of the vehicle, officers found a

backpack that contained a firearm. Ballistics testing performed on the firearm confirmed that it

was the same weapon that expelled a shell casing found at the crime scene and fired two bullet

fragments recovered from the victim’s body.

Walcott testified in his defense. He claimed that on the night of the kidnapping,

he had accompanied Free to the motel for the sole purpose of obtaining methamphetamine.

When they entered the motel room where Walcott intended to purchase the drugs, he observed

several individuals questioning and “roughing up” the victim to determine if he had “snitched”

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on Madrid. After the questioning, Free told the victim, “[Y]ou’re coming with us,” and the

victim “didn’t put up a whole lot of fight at that point.” When they got into their vehicle,

Walcott noticed for the first time that the victim’s hands were zip-tied and that Free had a

firearm. Free was driving the vehicle, Walcott was sitting in the front passenger seat, and the

victim was in the backseat with his hands bound. Walcott claimed that he “didn’t know what to

expect at that point.”

During the drive, they encountered problems with the vehicle, and as they neared

the compound, the car “stopped running completely.” Walcott testified that Free “brandished”

the firearm at them in a threatening manner and instructed them to walk to the compound.

Walcott also claimed that Free was responsible for everything that happened to the victim—Free

forced him to strip, hit him with the fence panels and tree limbs, struck him with the hatchet, shot

him, and burned his body. According to Walcott, he had tried to stop Free from hitting the

victim, but “once he pulled the gun and shot him, there wasn’t anything I could do.” Walcott

denied Turbeville’s and McDaniel’s claims that he held the firearm and wiped it clean after the

victim had been shot. When asked to explain the murder weapon’s being found in his possession

upon his arrest, Walcott claimed that he and Free had stayed at a friend’s house following the

murder and that Free had left the house for several days to smoke methamphetamine, leaving the

firearm at the house. Walcott had also left the house but later returned to pick up some of his

belongings. When Walcott returned, he found the firearm, “grabbed it,” and kept it in his

backpack. He claimed that before he was arrested, he intended to turn over the firearm to the

police.

After hearing the evidence, the jury found Walcott guilty of capital murder as

charged. This appeal followed.

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STANDARD OF REVIEW

“Trial court decisions to admit or exclude evidence will not be reversed absent an

abuse of discretion.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). “Under this

standard, the trial court’s decision to admit or exclude evidence will be upheld as long as it was

within the ‘zone of reasonable disagreement.’” Id. (quoting McGee v. State, 233 S.W.3d 315,

318 (Tex. Crim. App. 2007)). The trial court abuses its discretion in admitting or excluding

evidence only “when it acts without reference to any guiding rules and principles or acts

arbitrarily or unreasonably.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019)

(citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

DISCUSSION

Gang-related evidence

During trial, McDaniel testified that he and Free were members of the Aryan

Brotherhood and that Free had told him that Walcott was also a member of the Aryan

Brotherhood. McDaniel further testified that he knew that Free and Walcott were going to kill

the victim because that is what the Aryan Brotherhood does “to snitches” and that McDaniel was

afraid for his life because he had become a “snitch.” In his first issue, Walcott asserts that the

district court abused its discretion in admitting this evidence because it was irrelevant and more

prejudicial than probative. The State argues in response that Walcott failed to preserve error on

these grounds and that, even if he had preserved error, the evidence was admissible.

We first address error preservation. Prior to trial, Walcott filed a motion in limine

relating to evidence of Walcott’s gang membership, and the district court held a hearing on that

motion. The primary issue during the hearing was the admissibility of McDaniel’s phone call to

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the police reporting the crime. Walcott argued that statements made during the call, in which

McDaniel referenced the Aryan Brotherhood, were inadmissible hearsay. Walcott acknowledged

that “from the perspective of motive because they want to elicit that the victim snitched on

Geniva [Madrid],” evidence of gang membership “would probably be permissible,” but not

coming from McDaniel’s phone call to the police “because [the police detective] only has it from

hearsay.” Walcott explained:

If they want to put Mark McDaniel up there I think that would probably be

permissible and we could also—if they want to put Mark McDaniel up there, we

could discuss the Aryan Brotherhood stuff a little bit further. But our primary

objection [to] Detective Prestin testifying is that it’s hearsay.

After further discussion on the matter, the district court stated that based on its understanding of

the evidence at that time, which it noted was “pretty limited because we haven’t heard any,”

McDaniel’s testimony relating to gang membership “would be admissible” to prove motive.

However, Walcott asked the district court “to not yet make that ruling on whether or not in this

case gang membership was a motive” until it heard the recording of McDaniel’s phone call to the

police. The district court then listened to the recording of the call and “sustain[ed] the defense

objection to the recordings,” but it made no ruling at that time to the admissibility of McDaniel’s

testimony relating to the Aryan Brotherhood.

During trial, the State asked McDaniel whether he had in the past “become a

member of a gang.” McDaniel answered, “The Aryan Brotherhood.” Walcott did not object to

this but allowed the State to ask a follow-up question, “How long have you been a member?” At

that point, Walcott objected “to any mention of Aryan Brotherhood based on your order and the

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ruling,” without further explanation.1 The district court overruled the objection without

comment, and Walcott did not ask for a running objection at that time.

The State asked several more questions of McDaniel related to the Aryan

Brotherhood without any objection from Walcott, leading to testimony that as a member of the

Aryan Brotherhood, McDaniel knew that Free and Walcott intended to kill the victim; that Free

had referred to Walcott as “another Aryan brother”; that McDaniel was worried the Aryan

Brotherhood would kill him for reporting the crime to the police; and that the Aryan Brotherhood

considered him to be a “snitch.” The State also asked McDaniel if Free had told him that

Walcott was “AB.” After McDaniel answered, “Yes,” Walcott raised a hearsay objection, which

the district court sustained, but Walcott raised no other objection to that testimony.

Walcott did not object to the subject matter again until after McDaniel had

finished testifying. In a hearing outside the presence of the jury following a lunch break, Walcott

stated the following:

I think you covered it with Mr. McDaniel’s testimony but we have objected in

limine to any testimony regarding Aryan Brotherhood and we objected again

when Mr. McDaniel was testifying. I just want to make it clear that we did object

and we do object to that testimony. I don’t want to continue to object if it’s just

going to continue to be overruled but we object to the testimony about Aryan

Brotherhood on the basis that it’s not relevant, it’s mischaracterizing evidence and

that it is unfairly prejudicial under rule 403.

The district court noted that it had “overruled that objection” and inquired as to whether Walcott

was asking for a running objection moving forward. Walcott answered in the affirmative, and

1

Walcott was apparently referring to the district court’s statements during the hearing on

the motion in limine, but as we have explained, the district court’s ruling at that hearing was on

the inadmissibility of McDaniel’s phone call to the police on hearsay grounds; the district court

made no ruling at that time on the admissibility of McDaniel’s testimony relating to the Aryan

Brotherhood.

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the district court granted Walcott a running objection to any further testimony “about Mr.

Walcott possibly be[ing] Aryan Brotherhood.”

“Under Texas law, ‘if, on appeal, a defendant claims the trial judge erred in

admitting evidence offered by the State, this error must have been preserved by a proper

objection and a ruling on that objection.” Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.

App. 2003) (quoting Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). “A

proper objection is one that is specific and timely.” Id. (citing Wilson v. State, 71 S.W.3d 346,

349–50 (Tex. Crim. App. 2002)). To be timely, “the defense must have objected to the evidence,

if possible, before it was actually admitted.” Ethington, 819 S.W.2d at 858. “Therefore, if a

question clearly calls for an objectionable response, a defendant should make an objection before

the witness responds.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). “If he

fails to object until after an objectionable question has been asked and answered, and he can

show no legitimate reason to justify the delay, his objection is untimely and error is waived.”

Id.; see Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).

“Further, with two exceptions, the law in Texas requires a party to continue to

object each time inadmissible evidence is offered.” Ethington, 819 S.W.2d at 858. “The two

exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing

outside the presence of the jury.” Martinez, 98 S.W.3d at 193. “When the court hears a party’s

objections outside the presence of the jury and rules that evidence is admissible, a party need not

renew an objection to preserve a claim of error for appeal.” Tex. R. Evid. 103(b); see Ethington,

819 S.W.2d at 858. However, the party’s objections to the evidence must be specific rather than

general, see Martinez, 98 S.W.3d at 193, and the party must seek “a definitive final ruling on a

timely and specific motion to exclude evidence,” Geuder v. State, 115 S.W.3d 11, 15 (Tex. Crim.

9

App. 2003). “A trial judge’s grant or denial of a motion in limine is a preliminary ruling only

and normally preserves nothing for appellate review.” Id. at 14–15.

Here, the record reflects that at the hearing on Walcott’s motion in limine,

Walcott did not object to the admissibility of McDaniel’s testimony relating to the Aryan

Brotherhood on the specific relevance grounds that he raises on appeal (and, in fact, he

acknowledged that such evidence “would probably be permissible” to show motive). Walcott

did not seek nor could he obtain a definitive, final ruling from the district court on the

admissibility of McDaniel’s testimony at a hearing on a motion in limine. Instead, he indicated

that “if [the State] want[s] to put Mark McDaniel up there, we could discuss the Aryan

Brotherhood stuff a little bit further,” and he asked the district court “to not yet make that ruling

on whether or not in this case gang membership was a motive” until it heard the recording of

McDaniel’s phone call to the police. However, after the district court listened to the call and

sustained Walcott’s objection to the recording, Walcott failed to obtain any additional ruling on

the admissibility of other gang-related evidence at that time. Thus, Walcott failed to preserve

error at the hearing as to the admission of such evidence. See Martinez, 98 S.W.3d at 193

(concluding that defendant’s general objection to gang-related evidence in motion for limine did

not preserve error and that defendant’s objections to photographs during hearing outside

presence of jury preserved error as to those photos but “did not preserve error as to all other

evidence of gang affiliation”).

As for Walcott’s objections during trial, the record reflects that Walcott did not

object when the State asked McDaniel if he was “a member of a gang” and McDaniel answered,

“The Aryan Brotherhood.” Walcott waited to object until after the State asked a follow-up

question as to how long McDaniel had been a member of that gang. Moreover, when Walcott

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objected, he did so without indicating the specific grounds for his objection, referring only to the

district court’s “order and ruling,” which, as we have explained, was limited to the admissibility

of the phone call and did not address the specific grounds for exclusion that Walcott raises on

appeal. Also, when the district court overruled Walcott’s objection, Walcott failed to obtain a

running objection to further evidence relating to the Aryan Brotherhood. As a result, the State

elicited additional testimony from McDaniel on that subject matter without objection from

Walcott, including that McDaniel, Free, and Walcott were members of that gang, that the Aryan

Brotherhood killed “snitches,” and that McDaniel was afraid the Aryan Brotherhood would kill

him for being a “snitch.” It was not until after McDaniel had finished testifying that Walcott

specified the grounds for his objection and obtained a running objection to any further testimony

related to the Aryan Brotherhood. We conclude that Walcott failed to timely object to this

evidence and thus failed to preserve error, if any, in its admission. See id.; Ethington, 819

S.W.2d at 859; Rawlins v. State, 521 S.W.3d 863, 871 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d).

Moreover, even if Walcott had preserved error, we cannot conclude on this record

that the district court abused its discretion in admitting the evidence. A defendant’s gang

membership is generally inadmissible absent evidence placing the defendant’s gang membership

“in context” by connecting it to the charged offense. See Dawson v. Delaware, 503 U.S. 159,

165–68 (1992); Ex parte Martinez, 330 S.W.3d 891, 902 (Tex. Crim. App. 2011); Galvez v.

State, 962 S.W.2d 203, 206 (Tex. App.—Austin 1998, pet. ref’d). Thus, evidence of gang

membership is inadmissible standing alone, see Dawson, 503 U.S. at 166, but it may be

admissible to show motive, intent, bias, or to refute a defensive theory, see Vasquez v. State, 67

S.W.3d 229, 239–40 (Tex. Crim. App. 2002); Medina v. State, 7 S.W.3d 633, 644–45 (Tex.

11

Crim. App. 1999); Barrientos v. State, 539 S.W.3d 482, 492 (Tex. App.—Houston [1st Dist.]

2017, no pet.); see also Tex, R. Evid. 401 (“Evidence is relevant if it has any tendency to make a

fact more or less probable than it would be without the evidence and the fact is of consequence in

determining the action.”), 404(b) (“Evidence of a crime, wrong, or other act is not admissible to

prove a person’s character” but “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.”); Ortiz v. State, 93 S.W.3d 79, 94 (Tex. Crim. App. 2002) (“Gang membership

evidence is admissible . . . if it is relevant to show a noncharacter purpose that in turn tends to

show the commission of the crime.”).

The State’s theory of the case was that the victim was murdered because he was

suspected of being a “snitch” and the Aryan Brotherhood kills “snitches.” Thus, evidence that

Walcott was a member of the Aryan Brotherhood would establish a motive for him to kill the

victim, and evidence of motive is considered “highly relevant” circumstantial evidence tending

to prove the commission of an offense. See Colone v. State, 573 S.W.3d 249, 266–67 (Tex.

Crim. App. 2019); see also Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.—Houston [14th

Dist.] 2006, pet. ref’d) (“Evidence showing motive to commit murder is a significant

circumstance indicating guilt, and it is therefore relevant and admissible.”). It would not have

been outside the zone of reasonable disagreement for the district court to admit the evidence on

that basis. See Vasquez, 67 S.W.3d at 240 (evidence of gang membership admissible to show

motive for gang-related crime); Medina, 7 S.W.3d at 643 (evidence of gang-related activities

admissible to explain context in which offense occurred); Barrientos, 539 S.W.3d at 494

(evidence of gang membership admissible because it helped explain actions of defendant and co-

defendant on night of murder and provided evidence of motive).

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It also would not have been outside the zone of reasonable disagreement for the

district court to decline to exclude the evidence under Rule 403, which allows for the exclusion

of relevant evidence only “if its probative value is substantially outweighed by a danger of . . .

unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting

cumulative evidence.” Tex. R. Evid. 403. “The term ‘probative value’ refers to the inherent

probative force of an item of evidence—that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation—coupled with the proponent’s

need for that item of evidence.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).

“‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.” Id. “It is only when there exists a clear disparity

between the degree of prejudice produced by the offered evidence and its probative value that

Rule 403 is applicable.” Id. “A Rule 403 analysis generally balances the following four factors,

though they are not exclusive: (1) how probative the evidence is, (2) the potential of the evidence

to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent

needs to develop the evidence; and (4) the proponent’s need for the evidence.” Colone, 573

S.W.3d at 266; see also Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. App. 2006)

(explaining factors in more detail and observing that they “may well blend together in practice”).

Regarding the probative value of the evidence and the State’s need for it, as we

have already explained, the evidence showed that Walcott had a motive to kill the victim. More

than that, it provided the jury with important contextual information to help it understand the

crime. As the State explained in its brief, “[W]ithout evidence that Appellant and his accomplice

are members of the Aryan Brotherhood, as well as what that gang does to snitches, this murder is

hard to fathom: why would two people, seemingly without provocation, kidnap a person, torture

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him, and murder him in a horrific fashion?” Additionally, the evidence established the

relationship between Walcott and Free, who participated in the kidnapping and killing, and

helped to explain why Free and Walcott involved McDaniel, another gang member, who was one

of the key witnesses for the State. The evidence further helped to explain why McDaniel was

afraid for his life after reporting the crime and helped the jury to evaluate his credibility as a

witness. The evidence also tended to refute Walcott’s defensive theory that he went to the motel

where the victim was kidnapped for the sole purpose of purchasing drugs and that he was

unaware of and an unwitting participant in Free’s plan to kidnap and kill the victim. In sum, the

evidence was highly probative of motive and other critical issues in the case and the State’s need

for the evidence was significant in that it helped to contextualize the entire crime for the jury.

Thus, the first and fourth factors weigh against exclusion.

Regarding the potential of the evidence to impress the jury in some irrational, but

nevertheless indelible way, evidence of gang membership is considered “highly inflammatory.”

See Barrientos, 539 S.W.3d at 492; Galvez, 962 S.W.2d at 206. Thus, the second factor weighs

in favor of exclusion. However, the third factor, the time needed to develop the evidence,

weighs against exclusion in this case. The State developed the evidence through the testimony of

a single witness, McDaniel, and the questions related to the Aryan Brotherhood did not consume

an inordinate amount of time during the trial.

In sum, while the second factor weighs in favor of excluding the evidence, the

first, third, and fourth factors weigh against exclusion. On this record, we cannot conclude that

the district court abused its discretion in finding that the probative value of the evidence was not

“substantially outweighed” by the danger of unfair prejudice. See Barrientos, 539 S.W.3d at

494–95; McCallum v. State, 311 S.W.3d 9, 15–16 (Tex. App.—San Antonio 2010, no pet.).

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Because we conclude that Walcott failed to preserve error in the admission of the

gang-related evidence and that even if he had preserved error, the district court did not abuse its

discretion in admitting it, we overrule Walcott’s first issue.

Facebook message

In a hearing outside the presence of the jury, the victim’s mother testified that in

August 2019, she received a Facebook message from someone identifying herself as “Danielle

Turveville.” In the message, the person asked for forgiveness for “what I’ve done to your son

Michael,” stated that she was “fully responsible” for taking his life, claimed to be “the main

ringleader for his death,” and asserted that she shot the victim. Walcott sought to admit the

contents of this message as a “prior inconsistent statement” of Turbeville, see Tex. R. Evid.

613(a), but the State objected, arguing that Walcott had failed to authenticate the message and

that it was inadmissible for that reason, see id. R. 901(a). The district court sustained the State’s

objection. In his second issue, Walcott asserts that the exclusion of this evidence denied him his

constitutional right to present a complete defense at trial. See Potier v. State, 68 S.W.3d 657,

659 (Tex. Crim. App. 2002) (“[T]he exclusion of a defendant’s evidence can amount to a

violation of the right to compel the attendance of witnesses in the defendant’s favor.”); Martinez

v. State, 212 S.W.3d 411, 423 (Tex. App.—Austin 2006, pet. ref’d) (“A trial court’s ruling

excluding evidence may rise to the level of a constitutional violation if the ruling excludes

otherwise relevant and reliable evidence which ‘forms such a vital portion of the case that

exclusion effectively precludes the defendant from presenting a defense.’” (quoting Wiley v.

State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002))).

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The State argues that Walcott forfeited this constitutional ground by not raising

the argument at trial. We agree. The constitutional right to present a complete defense is subject

to forfeiture by not bringing to the trial court’s attention the denial of that right. See Anderson v.

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009); Carrion v. State, 488 S.W.3d 925, 928

(Tex. App.—Eastland 2016, pet. ref’d). Here, Walcott responded to the State’s authentication

objection by arguing that it should be admissible as a prior inconsistent statement under Texas

Rule of Evidence 613. He never articulated to the trial court that the exclusion of the evidence

would violate his constitutional right to present a complete defense. Accordingly, he has failed

to preserve that issue for our review. See Leza v. State, 351 S.W.3d 344, 360–61 (Tex. Crim.

App. 2011) (concluding that appellant’s argument that proffered evidence satisfied exception to

hearsay rule did not preserve error regarding denial of right to present complete defense because

defendant “never alerted the trial court in any way that exclusion . . . would violate any federal

constitutional right”); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)

(concluding that argument based on evidentiary rule did not preserve error regarding denial of

defendant’s right to present defense) see also Cerda v. State, No. 03-12-00582-CR, 2014 WL

4179359, at *6 (Tex. App.—Austin Aug. 22, 2014, pet. ref’d) (mem. op., not designated for

publication) (“Because appellant did not articulate that his right to present a meaningful defense

supported the admission of the complained-of excluded evidence . . . the trial court never had the

opportunity to rule on this rationale.”).

Additionally, even if Walcott had preserved error, we cannot conclude on this

record that the district court abused its discretion in excluding the evidence. The constitutional

right to present a complete defense “is qualified by the requirement that the evidence be relevant

and not excluded by an established evidentiary rule.” Davis v. State, 313 S.W.3d 317, 329 n.26

16

(Tex. Crim. App. 2010). “A bedrock condition of admissibility of evidence in any legal contest

is its relevance to an issue in the case—that is to say, its tendency to make a fact of consequence

to determination of the action more or less probable.” Tienda v. State, 358 S.W.3d 633, 638

(Tex. Crim. App. 2012). “Evidence has no relevance if it is not authentically what its proponent

claims it to be.” Id. “Rule 901(a) of the Rules of Evidence defines authentication as a ‘condition

precedent’ to admissibility of evidence that requires the proponent to make a threshold showing

that would be ‘sufficient to support a finding that the matter in question is what its proponent

claims.’” Id. (quoting Tex. R. Evid. 901(a)). “Evidence may be authenticated in a number of

ways, including by direct testimony from a witness with personal knowledge, by comparison

with other authenticated evidence, or by circumstantial evidence.” Id.

“In the context of communications, the authentication issue that generally arises is

whether the evidence is sufficiently linked to the purported author.” Campbell v. State, 382

S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.). “In evaluating whether an electronic

communication has been sufficiently linked to the purported author,” this Court has

“recognize[d] that electronic communications are susceptible to fabrication and manipulation.”

Id. at 549–50. Social networking websites such as Facebook “allow users to establish an online

account, create a profile, and then invite others to access that profile as a ‘friend.’” Id. at 550.

“Accordingly, with respect to identity, Facebook presents an authentication concern that is

twofold.” Id. “First, because anyone can establish a fictitious profile under any name, the

person viewing the profile has no way of knowing whether the profile is legitimate.” Id.

“Second, because a person may gain access to another person’s account by obtaining the user’s

name and password, the person viewing communications on or from an account profile cannot be

certain that the author is in fact the profile owner.” Id. “Thus, the fact that an electronic

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communication on its face purports to originate from a certain person’s social networking

account is generally insufficient standing alone to authenticate that person as the author of the

communication.” Id. Other evidence of authenticity is required, such as internal similarities

between the purported message and other verified messages of the author, unique speech and

writing patterns used by the purported author, and the inclusion of information that only the

purported author would know. See Tienda, 358 S.W.3d at 640–45; Campbell, 382 S.W.3d at

551–53.

Here, the Facebook message purported to be from “Danielle Turveville,” which is

not even the correct spelling of Turbeville’s last name. In a hearing outside the presence of the

jury, Turbeville testified that she had not sent any Facebook message to the victim’s mother or

any other member of the victim’s family and that she had deactivated her Facebook account in

late summer or early fall of 2019 after learning from police that her account might have been

hacked. Michael Eskelin, a private investigator who had been hired by the defense to assist with

the case, testified that the username of Turbeville’s Facebook account was

“Danielle.Turbeville.9” and that the account was currently active, although he could not

determine when it had been activated or who had activated it. The username of the Facebook

account that had been associated with the message to the victim’s mother was

“Danielle.Turveville.7121,” and Eskelin had been unable to find any Facebook account

containing that username. Thus, he agreed with the prosecutor that he had “no idea” who had

created that account. As for the message itself, it contained information describing the crime that

would have been known to other people in addition to Turbeville at the time the message was

sent, approximately one year after the murder. Moreover, Walcott presented no evidence that the

message contained a photograph or other identifying information of Turbeville, any speech or

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writing patterns that were unique to Turbeville, or that the message was similar in any way to

other communication that Turbeville had sent. On this record, we cannot conclude that it was

outside the zone of reasonable disagreement for the district court to conclude that Walcott had

failed to sufficiently authenticate the Facebook message and to exclude the evidence for that

reason. See Dering v. State, 465 S.W.3d 668, 672 (Tex. App.—Eastland 2015, no pet.)

(concluding that trial court did not err in excluding Facebook posts because “[t]here was no

evidence of the authenticity of who the purported author was of any of the Facebook posts”).

We overrule Walcott’s second issue.

CONCLUSION

We affirm the district court’s judgment of conviction.

__________________________________________

Gisela D. Triana, Justice

Before Justices Goodwin, Triana, and Kelly

Affirmed

Filed: May 21, 2021

Do Not Publish

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