Edward David James III v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00049-CR

EDWARD DAVID JAMES III, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 079270-A-CR, Honorable Dee Johnson, Presiding

January 29, 2025
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Edward David James III appeals from his conviction for family-violence-assault by

occlusion. After he was found guilty by a jury, he was sentenced to five years of

confinement. James raises two issues: (1) Facebook message screenshots identifying

him as the sender lacked sufficient authentication, and (2) the trial court should have

instructed the jury sua sponte on the lesser offense of simple assault. We affirm the

judgment of the trial court.
Background

Appellant and Kailey Rose began dating in early 2019 and cohabited that summer.

They referred to each other as “boyfriend” and “girlfriend” to friends and family. The

evidence showed the couple exchanged daily messages over Facebook Messenger for

more than a year. Kailey testified that Appellant exhibited distinctive messaging habits,

including using asterisks for emphasis.

According to testimony, on February 25, 2020, Kailey returned home to find

Appellant intoxicated. An argument about his Facebook profile photo featuring his

teenage daughter escalated into the early morning hours. Kailey testified that during the

argument, Appellant lunged at her and struck her face repeatedly with a closed fist

causing her to fall. Appellant then grabbed her shirt collar and pulled upward, causing a

“carpet-burn” under her armpit and marks around her neck.1 The constriction also

impeded Kailey’s breathing. The event ended when their dog, Benny, bit Appellant’s

ankle, allowing Kailey to retreat to the bathroom. After repairing her damaged

eyeglasses, Kailey fled with Benny to her brother’s house.

Early the next morning, Kailey drove to the home of her friend, Megen Dees, who

observed Kailey hysterical and crying, wearing torn clothes, and displaying visible marks

around her throat and arms. Megen telephoned Andrea Gibson, a nurse, who

photographed Kailey’s injuries and urged her to file a police report. Both witnesses

corroborated Kailey’s account.

1 Photographs taken after the incident showed Kailey also had a “golf-ball-size goose egg” on her

forehead and two black eyes. She testified at trial that her armpit continues to flare up and hurt.

2
Appellant presented a different account of the events through his mother, Pat

James, who claimed she had moved in with Appellant following his breakup with Kailey.

Pat testified she was present on February 25 and witnessed nothing unusual, maintaining

that only she and her son were home. While acknowledging potential bias toward her

son and willingness to “help the situation,” Pat insisted she “would not cover up for him.”

Defense counsel highlighted these timeline discrepancies to argue the assault’s

impossibility given Pat’s testimony.

Beginning on February 26, Kailey received messages through Facebook

Messenger from an account she identified as Appellant’s. The messages to Kailey said

in relevant part:

[Feb. 26 at 12:38 * please just let me know if you are going to be gone past the
pm] first so that I can get the rent paid. I have no reason, or excuse,
for that matter, why what happened did . . . But it did, and I am
sorry . . .

[1:37 pm] * oh, and don’t ever think that it is just you . . . What happened
. . . I would’ve done to anyone who was here. Race, color,
creed, religion, . . . doesn’t matter. So let that sink in, and
forgive yourself . . . I really do Love you, but I AM slaying
Demons here right now. I’m on a completely different plane.

*oh and you DID NOT deserve it.

[1:37 pm] [link to a Youtube video]

*you were just caught in the ‘crossfire’

After Kailey replies at 1:56 p.m. that she will be coming to “get my stuff out tonight,”

and asks the other party not to be there, she receives an immediate response:

[1:56 pm] no

not going to happen like that here

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You can have your stuff

*but that isn’t going to happen today

[later in the same string]

*you can come this weekend, and we will both have people
here

*this isn’t going to happen like at Geoffs

This is My Place

I KNOW what the f$ck I did

I’m dealing with that

You ALL should really look at what the f$ck you are ALL doing

[2:09 pm, after Well you better not even call the police.
continued
disagreement] I’ll deal with my sh^t

But I WILL be here.

With my mother

So let me know what time

*matter of fact, you don’t even need to be here

*with your little Corolla

Just let your brother bring the trucks

[Mar. 1 at 2:30 I don’t need to talk to you, but just know that I have your extra
am] car key, your set of ‘Pioneer Woman’ utensils, some of
Benny’s toys and a couple of other sentimental things to
you . . .

I will leave them with my mother, and just so you know, she
doesn’t hate you

*she probably loves you more at this point

*please don’t message back

*oh . . . and I’m rea;;y sorry for everything

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* really

[Mar. 8 at 9:26 Thank you. I just really wanted you to know that what
p.m. after happened, you in NO WAY deserved. You are so amazing,
Kailey consents and honestly the best thing that has ever happened in my life.
to receiving the I am trying to stop drinking again, because it will eventually
message:] destroy me if I don’t. But you deserve pure Love, and I’m sorry
that we had such a good year for me to just throw it all away.
What happened wasn’t me, and I hope you know that in your
heart. I’ve been dealing with some things recently, and am
still trying to figure it all out. So just know that who I really am
Loves you more than anything, and if I never see you again,
just know that none of this was your fault, I hope you can heal
your heart, mind, body, and soul.

[later in the same message]

Please just take care of yourself and Benny, and know that
everything will always be okay. I’m so sorry, and I do Love
you, regardless of what I became.

In February 2020, an indictment issued alleging Appellant intentionally, knowingly

or recklessly caused bodily injury to Kailey and that the two had a dating relationship as

described by Section 71.0021(b) of the Texas Family Code. The indictment charged

Appellant with intentionally, knowingly or recklessly impeding the normal breathing or

circulation of Kailey’s blood by applying pressure to her throat or neck. In January 2024,

the jury found Appellant guilty of family-violence-occlusion assault; he was sentenced to

five years of confinement.

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Analysis

Issue 1: Admission of Facebook Messages

In his first issue, Appellant challenges the trial court’s admission of Facebook

messages alleged to be between him and Kailey (State’s Exhibit 17, quoted in part above)

on three grounds. We address each argument in turn.

A. Lack of Authentication

First, Appellant argues that the trial court erred by admitting screenshots of the

Facebook messages quoted above. He argues they were not properly authenticated and

that the State failed to establish the messages were actually sent by him. We disagree.

We review a trial court’s evidentiary rulings for abused discretion. Tienda v. State,

358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial court abuses its discretion only when

its ruling falls outside the zone of reasonable disagreement. Id. Rhomer v. State, 569

S.W.3d 664, 669 (Tex. Crim. App. 2019). Only relevant evidence is admissible, and

evidence must be authentic to be relevant. TEX. R. EVID. 401, 402; Tienda, 358 S.W.3d

at 638. Authentication is satisfied by evidence sufficient to support a finding that the

matter is what its proponent claims. TEX. R. EVID. 901(a). Rule 901(b) provides a non-

exhaustive list of several ways evidence may be authenticated, including testimony from

a witness with knowledge that “an item is what it is claimed to be,” as well as via evidence

of “distinctive characteristics” such as appearance, contents, substance, internal patterns,

or other distinctive characteristics of the item, taken together with all the circumstances.

TEX. R. EVID. 901(b)(1), (4). The trial court, in its gate-keeping role, need only determine

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whether sufficient facts exist to support a reasonable jury finding of authenticity. Tienda,

358 S.W.3d at 638.

Kailey established the messages’ authenticity through both her direct testimony

and circumstantial evidence. She testified that she and Appellant had exchanged daily

Facebook messages for over a year, and these communications came from the same

account. The messages bore Appellant’s distinctive writing style, particularly his

characteristic use of asterisks for emphasis. The messages’ substance demonstrates

intimate knowledge of personal effects and details present in a shared living arrangement:

references to Kailey’s spare car key, her Corolla, her dog Benny, and her “Pioneer

Woman” utensils. The sender claimed the residence as “My Place” and referenced his

mother being present—a detail that aligns with Pat James’s testimony about living with

Appellant. Moreover, these statements were made in the immediate aftermath of the

incident, and as Kailey sought to retrieve her belongings from their shared residence.

Appellant faults the State for not obtaining independent corroboration of Kailey’s

testimony, accessing Facebook’s records directly, or reviewing Appellant’s complete

Facebook history. But our authentication analysis focuses on the evidence actually

presented at trial, not what additional steps the State could have taken. The State need

not rule out all possibilities inconsistent with authenticity or prove authenticity beyond

reasonable doubt. Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no.

pet.) The weight of testimony to give to an interested versus disinterested witness

remains a jury determination. Tienda, 358 S.W.3d at 646. In sum, we hold that the State

sufficiently established authenticity of the messages and sufficiently allowed the jury to

determine that the statements were made by Appellant.
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B. Violation of Best Evidence Rule

Appellant next argues the Facebook message evidence violates the best evidence

rule, which requires producing original writings, recordings, or photographs to prove their

content. TEX. R. EVID. 1002. For electronic information, an “original” includes “any

printout—or other output readable by sight—if it accurately reflects the information.” TEX.

R. EVID. 1001(d); see Burleson v. State, 802 S.W.2d 429, 441 (Tex. App.—Fort Worth

1991, pet. ref’d) (holding that computer-generated “display” qualifies as original if

readable by sight). When such output is unavailable, other evidence of content is

admissible. TEX. R. EVID. 1004(b); Ellis v. State, 517 S.W.3d 922, 930 (Tex. App.—Fort

Worth 2017, no pet.).

Though Appellant characterizes the evidence as mere screenshots, the record

shows the State both offered the screenshots and uploaded the messages from Kailey’s

phone to “TechShare,” a county software system, sharing them with defense counsel.

When printer issues arose, the trial court offered to help print the TechShare messages,

but defense counsel opted to rely on the digital versions. Kailey testified the screenshots

accurately depicted her Facebook conversations with Appellant, which the trial court

confirmed through in-camera review. Finding no evidence of alterations and no objection

to the screenshots’ quality compared to the uploaded versions, the trial court properly

admitted the evidence. See Biggs v. State, No. 06-18-00177-CR, 2019 Tex. App. LEXIS

3671, at *4–7 (Tex. App.—Texarkana May 8, 2019, no pet) (mem. op.).

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C. Danger of Unfair Prejudice

Appellant further argues the Facebook messages should have been excluded

under Rule 403 because their probative value was substantially outweighed by unfair

prejudice. Although he concedes the messages’ probative value if properly

authenticated, Appellant contends their admission merely bolstered Kailey’s testimony

without serving any real evidentiary need.2 We disagree.

Trial courts have broad discretion in weighing evidence’s probative value against

potential unfair prejudice, confusion of issues, misleading effects, undue delay, or

needless cumulation. TEX. R. EVID. 403. See Perkins v. State, 664 S.W.3d 209, 216–17

(Tex. Crim. App. 2022). Our analysis conducts a balancing test to consider, for example,

whether the evidence might suggest a decision on an improper basis, distract from the

main issues, receive undue weight from an ill-equipped jury, or consume inordinate time.

See Woods v. State, No. 07-22-00208-CR, 2023 Tex. App. LEXIS 5696, at *4–5 (Tex.

App.—Amarillo Aug. 1, 2023, no pet.) (mem. op.). Improper bolstering occurs when

evidence serves only to enhance witness credibility without substantively contributing to

prove consequential facts. See Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App.

1993); Bezerra v. State, 485 S.W.3d 133, 142 (Tex. App.—Amarillo 2916, pet. ref’d).

However, evidence that makes even an incremental contribution to proving a relevant fact

is not bolstering. Id.

2 We do not address Appellant’s assertion that contested authenticity reduces the messages’
probative force, as he provides no authority for this position. See Johnson v. State, No. 05-04-01049-CR,
2005 Tex. App. LEXIS 9195, at *2–3 (Tex. App.—Dallas Nov. 4, 2005, pet. ref’d) (mem. op.).

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We hold that the Facebook messages here served legitimate evidentiary purposes

beyond bolstering Kailey’s credibility. Appellant’s defense centered on denying that he

was involved in the incident, supported by his mother’s testimony that Kailey was not

present that night. The messages provide independent evidence of events surrounding

the incident, including Appellant’s expressions of remorse and references to his actions.

In such a case with a single victim and no independent corroborating witness, the State’s

need for this evidence was substantial. While the messages make no direct admission

of assault, their allusions to the incident and expressions of regret immediately following

the period Kailey alleged she was assaulted helped rebut Appellant’s defensive theory.

As Appellant concedes, presenting the evidence consumed minimal time. The messages’

probative value outweighed their prejudicial effect, particularly given defense counsel’s

opportunity to cross-examine Kailey about them.

Having overruled each of Appellant’s three complaints about the trial court’s

admission of the Facebook messages, we accordingly overrule Appellant’s first issue.

Issue Two—Lesser-included Offense

In his second issue, Appellant contends the trial court should have instructed the

jury on simple assault as a lesser-included offense of family-violence-occlusion assault.

Such an analysis begins with determining whether error exists in the jury charge. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Though Appellant did not object to

the charge at trial, we must review his claim. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.

Crim. App. 2012). However, absent preservation, the judgment will not be reversed

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unless the trial court’s error is so egregious that it deprived Appellant of a fair trial.

Marshal v. State, 479 S.W.3d 840, 842 (Tex. Crim. App. 2016).

Family-violence-occlusion assault combines the basic assault elements of

intentionally, knowingly, or recklessly causing bodily injury under Penal Code

§ 22.01(a)(1), with enhancement provisions under § 22.01(b)(2). The enhancement

requires proof of both a qualifying family relationship defined under the Family Code3 and

impediment to normal breathing or circulation through pressure to the throat/neck or

blocking the nose/mouth. TEX. PENAL CODE ANN. § 22.01(b)(2)(B).

Appellant acknowledges the Court of Criminal Appeals has held that simple assault

is not a lesser-included offense of occlusion assault unless the parties’ relationship is

disputed or the evidence suggests only an attempted occlusion. Ortiz v. State, 623

S.W.3d 804, 808, 810 (Tex. Crim. App. 2021). He raises neither circumstance. Instead,

he argues an instruction was required because no evidence showed he directly applied

pressure to Kailey’s throat. This argument fails because the statute contains no such

requirement. See Marshal v. State, 479 S.W.3d 840, 845 (Tex. 2016) (upholding

conviction where defendant used pillow to impede breathing).

Appellant alternatively argues the instruction was necessary to present his theory

that he lacked the requisite mental state. However, simple assault and occlusion assault

share the same mens rea requirements. Compare TEX. PENAL CODE ANN. § 22.01(a)(1)

with 22.01(b)(2)(B). The difference lies not in mental state but in the enhancement

3 There is no dispute that Appellant and Kailey were in a dating relationship for nearly a year at the

time of the incident. See TEX. FAM. CODE ANN. §§ 71.0021, 71.005.

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elements that elevate the offense from a misdemeanor to a felony. We find that the trial

court properly instructed the jury on the required mental state.

We overrule Appellant’s second issue.

Conclusion

We affirm the trial court’s judgment.

Lawrence M. Doss
Justice

Do not publish.

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