Tienda v. State

358 S.W.3d 633 (2012)

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Nature of the Case

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Facts

David Valadez and his two passengers were the targets of a multiple-car shootout while driving southbound in Dallas on I-35E towards I-30. There had been tension between two rival groups at a nightclub earlier that evening, where members of D's group were 'throwing' gang signs and 'talking noise' to Valadez and his friends. Shortly after Valadez and his passengers left one nightclub to head to another 'after-hours' club, Valadez's car unexpectedly came under gunfire from a caravan of three or four cars also traveling southbound on I-35E towards I-30. D was a passenger in one of the cars in the caravan. Testimony at trial as to the appellant's specific involvement in the shooting varied widely. At trial, the witnesses agreed that D was at least present during the shooting; however, there was inconsistent testimony as to who fired the first gunshots, whether D was seen merely holding a gun or actually firing a weapon, which car D was riding in, and from which car the fatal shots were fired. Valadez was shot twice, causing him to lose control and crash his vehicle into the highway's center concrete divider. Valadez died as a result of the gunshot wounds. The cartridge casings consistent with at least two weapons were found at the scene of the shooting, the bullet recovered from Valadez's body could not be matched to a particular weapon, as no firearms were ever recovered. Valadez's sister, Priscilla Palomo, provided P with information regarding three MySpace profile pages that she believed D was responsible for registering and maintaining. The State used Palomo as the sponsoring witness for the accounts over D's running objection as to the authenticity of the profile pages. P was permitted to admit into evidence the names and account information associated with the profiles, photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages. P offered into evidence the subscriber reports and accompanying affidavits subpoenaed from MySpace. According to the subscriber reports, two of the MySpace accounts were created by a 'Ron Mr. T,' and the third by 'Smiley Face,' which is D's widely-known nickname. The account holder purported to live in 'D TOWN,' or 'dallas,' and registered the accounts with a 'ronnietiendajr@' or 'smileys_shit@' email address. P introduced multiple photos 'tagged' to these accounts because the person who appeared in the pictures at least resembled D. The person is shown displaying gang-affiliated tattoos and making gang-related gestures with his hands. Quotes boasting 'You aint BLASTIN You aint Lastin' and 'I live to stay fresh!! I kill to stay rich!!' were posted on the account. Under the heading 'RIP David Valadez' was a link to a song that was played by Valadez's cousin at Valadez's funeral. Another music link posted to one of the profiles was a song titled 'I Still Kill.' The instant messages exchanged between the account holder and other unidentified MySpace users included specific references to other passengers present during the shooting, circumstances surrounding the shooting, and details about the State's investigation following the shooting. The messages made specific threats to those who had been 'snitchin' and 'dont run shit but they mouth,' assigning blame to others for being the 'only reason im on lock down and have this shit on my back.' The author also generally boasted to another user that 'WUT GOES AROUND COMES AROUND' and 'U KNO HOW WE DO, WE DON'T CHASE EM WE REPALCE EM.' The author accused: 'EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME.' Several of the instant messages also complained about the author's electronic monitor, which was a condition of D's house arrest while awaiting trial. During the cross-examination of Palomo, D elicited testimony regarding the ease with which a person could create a MySpace page in someone else's name and then send messages, purportedly written by the person reflected in the profile picture, without their approval. D emphasized that any case-specific facts that were referenced were not facts solely within D's knowledge, but were known to the deceased's family, friends, and practically any other third party interested in the case. D highlighted P's failure to prove that the accounts were created by D through any technological or expert evidence, for example, by tracing the IP address listed in the subscriber report to D's personal computer. D argued that the MySpace evidence was never authenticated and was not credible evidence that the jury should consider in supporting a guilty verdict. D was found guilty and appealed. The court of appeals affirmed in that there was sufficient 'individualization' in the comments and photos to satisfy Rule 901(b)(4). D appealed.