COURT OF APPEALS
SECOND DISTRICT OF TEXAS
CHRISTOPHER MARK TAYLOR
THE STATE OF TEXAS
FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
---------In three points, appellant Christopher Mark Taylor appeals his conviction
for online harassment.2 We affirm.
See Tex. R. App. P. 47.4.
See Act of June 1, 2009, 81st Leg., R.S., ch. 911, § 1, 2009 Tex. Gen.
Laws 2441, 2441–42 (amended 2011) (current version at Tex. Penal Code Ann.
§ 33.07 (West Supp. 2011)). Because the relevant portion of the former ―Online
Harassment‖ section of the penal code is the same as the current ―Online
Impersonation‖ statute, we will cite to the current statute throughout this opinion.
See Tex. Penal Code Ann. § 33.07(b).
Scheri Couch manages a website by which she provides psychic services
under the name ―Sataya.‖3 Through the website, Couch’s customers may chat
with her and may obtain psychic readings. In 2009, Couch began to receive
messages through the chat function from someone who was ―very abrupt, very
rude, [and] sometimes obscene.‖ On approximately September 23, 2009, Couch
received a package in the mail with ―stylized writing‖ and a ―love stamp for the
postage stamp.‖ The package included what appeared to be a used condom
(the condom actually contained soy milk).
Then, on September 27, Couch
received a message that stated in part,
Here is the deal Shitaya! [Y]ou are going to stop putting . . . curses
on me and my family. You are a fake dumbslut; your reviews all
show that you are NOT real! [Y]ou are not a descendent and [I] am
frankly really tired of all this . . . that you are causing. You are a
witch . . . .
On October 6, Couch received a chat message that purported to be from
her hairdresser, Renee Adam.4
The person pretending to be Adam invited
Couch to lunch at a restaurant. Couch, believing that Adam had actually sent the
message, went to the restaurant, but Adam was not there. When Couch called
Couch, who has taken some collegiate psychology classes and charges
$3 per minute for her services, claims to be a direct descendant of Jesus and
Adam confirmed at trial that she did not send the message. She said that
she was shocked and surprised to learn that someone had used her name to
Adam, Adam said that she did not know anything about the lunch meeting.
Couch realized that the chat message she had received had not been sent by
Adam, and Couch became very frightened. She felt uneasy going to the grocery
store or ―anywhere to do anything,‖ and she became ―fearful of the chat function
on [her] website.‖ Later in October, when Couch received another chat message
that purported to be from Adam, Couch responded, ―You are not, nor have you
ever been [Adam].‖ Couch told the person who was masquerading as Adam that
she knew he had used a myriad of names while chatting on the website.
The person responded, ―[S]peaking of used[,] [I] hope you enjoyed your care
package.‖ Later, Couch received a package containing panties that appeared to
be soiled; the package also contained a note that accused Couch of being a
The Lewisville Police Department (LPD) investigated Couch’s claim of
harassment. LPD Detective William Wawro discovered that the chat messages
that Couch had received had been sent from a computer at the University of
North Texas. Employees of the university gave information to Detective Wawro
that caused him to suspect that the messages had been sent by appellant.
During appellant’s meeting with Detective Wawro, he confessed that he had sent
the messages to Couch and had mailed the condom and panties to her.
Appellant explained that he used Adam’s name because he had seen it on
The panties, which had been cut, actually had Nutella on them.
Couch’s Facebook webpage. He claimed that he had pretended to be Adam
because he needed a psychic, and he wanted to determine the validity of
Couch’s claim to have psychic abilities. Detective Wawro arrested appellant.
Appellant eventually sent Couch a letter to apologize for his actions.
The State charged appellant with online harassment. Appellant retained
counsel and pled not guilty. At trial, he testified that he had looked for a psychic
through an internet search and had found Couch. He had determined to test
Couch’s psychic ability by arranging a lunch date under the guise that he was
Adam. According to appellant, Couch gave him her home address when he
conveyed to her that he needed psychic help and wanted to have a meeting.
Appellant testified that he sent the used condom to symbolize his belief that while
giving love advice, Couch took people’s money ―and then just [threw] them
away.‖ He said that he sent the panties for symbolic purposes as well but that he
did not intend to upset Couch. Appellant said that when he learned that he had
upset Couch, he wanted to apologize to her immediately.
After the parties presented closing arguments and the jury deliberated for
less than twenty minutes, the jury convicted appellant. Appellant testified again
in the punishment phase of his trial.
The trial court assessed appellant’s
punishment at 365 days’ confinement, but the court suspended the imposition of
the sentence and placed him on community supervision. Appellant brought this
Admission of Extraneous Evidence
In his first point, appellant argues that the trial court abused its discretion
by admitting evidence that he had sent the condom and panties to Couch, which
appellant asserts were extraneous acts.6 Before trial, appellant filed a motion in
limine, seeking to exclude evidence of ―any and all other alleged crimes, wrongs,
or acts‖ that he had committed. Outside of the presence of the jury, the trial court
held a hearing on appellant’s motion. Appellant urged the trial court to exclude
evidence concerning the condom and panties that he had sent to Couch in
September 2009 and November 2009, respectively. The trial court decided to
admit evidence about the condom but withheld its ruling on evidence of the
During appellant’s opening statement, his counsel conceded that
appellant sent a message to Couch but argued that appellant
wasn’t intending to harm her. . . .
He was testing her psychic
. . . [W]hile it may not have been the best course of action, he
had no intent to harm her. The facts are the facts, but what we don’t
have here is an intent to harm somebody, okay?
We will presume, without deciding, that appellant’s sending the condom
and panties does not qualify as admissible contextual evidence. See Moore v.
State, 165 S.W.3d 118, 122–25 (Tex. App.—Fort Worth 2005, no pet.). We will
also broadly construe appellant’s first point as contesting the admissibility of the
challenged evidence under both rules of evidence 403 and 404(b). See Tex. R.
Evid. 403, 404(b).
During the trial, appellant objected again, under rules of evidence 403 and
404(b), to the admission of evidence concerning the condom and panties, but the
trial court overruled his objections.
We review the trial court’s admission of evidence under an abuse of
discretion standard. Price v. State, 351 S.W.3d 148, 150 (Tex. App.—Fort Worth
2011, pet. ref’d); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g). Under this standard, the trial court’s ruling will be
upheld as long as it falls within the ―zone of reasonable disagreement.‖ Karnes
v. State, 127 S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref’d), cert.
denied, 129 S. Ct. 2391 (2009). If the trial court’s ruling on the admission of
evidence is correct under any theory of law, even if the trial court gives the wrong
reason for its ruling, we must affirm the court’s decision to admit the evidence.
Felan v. State, 44 S.W.3d 249, 254 (Tex. App.—Fort Worth 2001, pet. ref’d).
―Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .‖ Tex. R. Evid. 404(b); see Montgomery, 810 S.W.2d at 387–88;
see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)
(explaining that the defendant is generally to be tried only for the offense
charged, not for any other crimes), cert. denied, 130 S. Ct. 53 (2009). The State,
as the proponent of extraneous offense evidence, bears the burden of showing
admissibility. Russell v. State, 113 S.W.3d 530, 535 (Tex. App.—Fort Worth
2003, pet. ref’d). ―Whether extraneous offense evidence has relevance apart
from character conformity, as required by Rule 404(b), is a question for the trial
court.‖ Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
To obtain a conviction, the State was required to prove that when appellant
sent the chat message to Couch while inviting her to lunch and while claiming to
be Adam, he did so without Adam’s consent, with the intent to cause Couch to
reasonably believe that Adam sent the message, and with the intent to harm or
defraud any person. See Tex. Penal Code Ann. § 33.07(b). The penal code
defines ―harm‖ as ―anything reasonably regarded as loss, disadvantage, or
injury.‖ Id. § 1.07(a)(25) (West Supp. 2011). ―There is no requirement the harm
be physical harm.‖ Hudspeth v. State, 31 S.W.3d 409, 411 (Tex. App.—Amarillo
2000, pet. ref’d); see also Halay v. State, No. 03-07-00327-CR, 2008 WL
5424095, at *7 (Tex. App.—Austin Dec. 31, 2008, no pet.) (mem. op., not
designated for publication) (―[E]ven emotional harm and aggravation . . . can
reasonably be considered loss, disadvantage, or injury.‖); White v. State, No. 1405-00454-CR, 2006 WL 2771855, at *2 (Tex. App.—Houston [14th Dist.] Sept.
28, 2006, pet. ref’d) (mem. op., not designated for publication) (holding that
emotional distress was sufficient to qualify as harm under section 1.07(a)(25)).
At trial, through his opening statement7 and through his testimony,
appellant disputed that when he sent the message in which he masqueraded as
Adam, he had the intent to harm Couch. He claimed that he sent the message
only to test Couch’s psychic abilities.
It is at least subject to reasonable
disagreement whether evidence of appellant’s sending disturbing, sexuallythemed items (a seemingly used condom and cut and seemingly soiled panties)
before and after he pretended to be Adam was admissible to show his intent to
harm Couch (at least emotionally) and to rebut his defensive theory that he
wanted only to test her psychic abilities when he pretended to be Adam.
See Tex. R. Evid. 404(b) (stating that extraneous evidence may be admissible to
show intent); Moses, 105 S.W.3d at 626 (―Rebuttal of a defensive theory . . . is
also one of the permissible purposes for which relevant evidence may be
admitted under Rule 404(b).‖); Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim.
App. 1985) (explaining that when a defendant’s intent may not be inferred from
the criminal act itself, extraneous evidence that is relevant to intent is generally
admissible). This is especially true with regard to the panties, which appellant
sent in November 2009, after he knew that Couch had discovered that he was
not Adam and when he had already expressed his determination that Couch was
a ―fake‖ psychic.
We hold that the trial court’s decision to admit evidence
―[A] defense opening statement . . . opens the door to the admission of
extraneous-offense evidence . . . to rebut the defensive theory presented in the
defense opening statement.‖ Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim.
concerning the condom and panties, which appellant sent before and after he
committed the offense, may be justified on the basis that the evidence implies his
intent while committing the offense. See Tex. R. Evid. 404(b); Tate v. State, 981
S.W.2d 189, 190, 193 (Tex. Crim. App. 1998) (holding that evidence of a threat
made by a decedent a month or two before his death was admissible under rule
404(b), when offered by the defendant who was charged with murder and
asserted self-defense, because the threat was probative of the decedent’s state
of mind to possibly harm the defendant on the date of the offense); Amis v. State,
87 S.W.3d 582, 587 (Tex. App.—San Antonio 2002, pet. ref’d) (holding similarly).
We must also determine whether the evidence was admissible under rule
403. See Tex. R. Evid. 403 (stating that relevant evidence may be excluded ―if
its probative value is substantially outweighed by the danger of unfair prejudice‖).
If a trial court determines that evidence of an extraneous act has relevance aside
from character conformity, and a timely, proper rule 403 objection is made, the
trial court must make a balancing determination under rule 403. Karnes, 127
S.W.3d at 191. As we explained in Karnes,
Only ―unfair‖ prejudice provides the basis for exclusion of relevant
evidence. Unfair prejudice arises from evidence that has an undue
tendency to suggest that a decision be made on an improper basis,
commonly an emotional one. Rule 403 favors admissibility and a
presumption exists that relevant evidence will be more probative
than prejudicial. In evaluating the trial court’s determination under
rule 403, a reviewing court is to reverse the trial court’s judgment
―rarely and only after a clear abuse of discretion,‖ recognizing that
the trial court is in a superior position to gauge the impact of the
The trial court’s balancing determination must be measured
against the relevant criteria by which a rule 403 decision is made.
The relevant criteria in determining whether the prejudice of an
extraneous offense substantially outweighs its probative value
include: (1) how compellingly the extraneous offense evidence
serves to make a fact of consequence more or less probable—a
factor which is related to the strength of the evidence presented by
the proponent to show the defendant in fact committed the
extraneous offense; (2) the potential the other offense evidence has
to impress the jury ―in some irrational but nevertheless indelible
way‖; (3) the time the proponent will need to develop the evidence,
during which the jury will be distracted from consideration of the
indicted offense; and (4) the force of the proponent’s need for this
evidence to prove a fact of consequence, that is, does the proponent
have other probative evidence available to him to help establish this
fact, and is this fact related to an issue in dispute. When the
relevant criteria are viewed objectively and lead to the conclusion
that the danger of unfair prejudice substantially outweighs the
probative value of the proffered evidence, the appellate court should
declare that the trial court erred in failing to exclude it.
Id. at 191–92 (citations omitted).
Appellant asserts that there is a ―high probability that [his] acts inflamed
the jury.‖ We agree that evidence of the nature of a used condom and cut and
soiled panties might carry the danger of the jury being prejudiced, but not unfairly
so.8 Therefore, we cannot conclude that the trial court abused its discretion by
siding with the presumption of admissibility under the facts of this case.
As we have already explained, a trial court could reasonably conclude that
the challenged evidence served to make appellant’s intent to harm Couch, which
We note that the potential for evidence about such items to ―inflame‖ the
jury, as appellant argues, demonstrates the probative quality of evidence to show
appellant’s intent to harm Couch when he sent the items to her and when he
was an element of his crime under section 33.07(b) of the penal code and which
was the principal disputed issue in the case, more probable. Moreover, a trial
court could have rationally found that the challenged evidence related to
appellant’s intent to harm Couch and rebutted appellant’s defensive theory more
poignantly than other evidence at the State’s disposal, including logs of some of
the chat messages that he had sent to her. The State did not need significant
time to develop the evidence concerning the condom or panties.
specifically referred to the condom only four times in her testimony that
comprises over thirty pages of the reporter’s record, and she did not refer to the
panties at all.
Similarly, the majority of Detective Wawro’s and appellant’s
testimony in front of the jury was focused on matters unrelated to the condom or
Because we conclude that the trial court did not abuse its discretion by
determining that the evidence of the condom and panties was not substantially
more prejudicial than probative, we hold that the trial court did not abuse its
discretion by refusing to exclude the evidence under rule 403. See Tex. R. Evid.
403; Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) (―[W]hen
determining whether evidence is admissible under Rule 403, we do not consider
just whether the evidence is more prejudicial than probative, we consider
whether the probative value is substantially outweighed by the danger of unfair
prejudice.‖), cert. denied, 549 U.S. 1224 (2007).
Because the admissibility of evidence concerning the condom and panties
under rules 403 and 404(b) is within the zone of reasonable disagreement, we
hold that the trial court did not abuse its discretion by admitting the evidence, and
we overrule appellant’s first point. See Tex. R. Evid. 403, 404(b); Karnes, 127
S.W.3d at 189, 191–92.
The Admissibility of Information from Couch’s Website
In his second point, appellant argues that the trial court erred by ruling that
information from Couch’s website was inadmissible.
During Couch’s initial
testimony, appellant’s counsel, through cross-examination, asked her several
questions about her qualifications as a psychic and about the content of her
website. In particular, the following exchange occurred:
become a psychic?
Did you undergo any testing to
A. No, I [did] not.
Q. You didn’t take a series of tests that measure, like, how
clairvoyant you are or your -A. I have taken -Q. Let me finish my question, please. Your extrasensory
perceptions? You’ve undergone testing, correct?
A. I have undergone testing that was reviewed by my own -[DEFENSE COUNSEL]: Objection. Nonresponsive.
THE COURT: Sustained.
Q. [DEFENSE COUNSEL:] And you advertise the fact that
you’ve undergone testing, correct?
A. I don’t believe I do.
Q. Okay. All right. So when you underwent testing for
determining which psychic qualities you are stronger in, whether it’s
clairvoyance or telling the future or reading palms, whatever, were
A. I have not been tested by an authoritative body as to my
Near the end of Couch’s initial testimony, appellant’s counsel told the trial
court, ―I have some printouts that are probably sitting on my desk that directly
contradict what she has been testifying to. It’s in my file.‖ The trial court told
counsel that he could retrieve the printouts during a recess.
Counsel apparently did so, and he eventually sought to recall Couch to
impeach her testimony. During counsel’s voir dire examination of Couch outside
of the jury’s presence, he gave her a printout from her website, which showed
that Couch had claimed to have tested in the top six percent in ―ESP perception
or sensories.‖ When counsel asked Couch whether the printout conflicted with
her previous testimony about whether she had been tested, she said, ―To my
way of thinking, what I thought you were asking me, as far as any academic
testing such as at a major university, that did not happen.‖ Although counsel
argued that the printouts should be admitted because they affected Couch’s
credibility and would be ―evidence of impeachment,‖9 the trial court excluded the
printouts on the basis that they did not qualify as prior inconsistent statements.
Assuming, without deciding, that the trial court abused its discretion by
excluding evidence of the printouts, which appeared to conflict with Couch’s prior
testimony that she had not been tested to become a psychic and had not
advertised that she had been tested, we must review that error for harm.
Because the error concerns the exclusion of evidence, we apply rule 44.2(b) and
disregard the error if it did not affect appellant=s substantial rights.10 Tex. R. App.
P. 44.2(b); see Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007);
James v. State, 102 S.W.3d 162, 179 (Tex. App.—Fort Worth 2003, pet. ref’d).
A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury=s verdict. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750,
776, 66 S. Ct. 1239, 1253 (1946)).
Conversely, an error does not affect a
substantial right if we have Afair assurance that the error did not influence the
jury, or had but a slight effect.@ Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Likewise, on appeal, appellant argues that the printouts should have been
admitted because they affected Couch’s credibility.
Although appellant claims on appeal that the trial court’s exclusion of the
evidence violated his Sixth Amendment right of cross-examination and also
violated his state constitutional rights, he did not make these arguments in the
trial court, and he therefore forfeited them. See Tex. R. App. P. 33.1(a)(1);
Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005); Whitfield v. State,
137 S.W.3d 687, 692 (Tex. App.—Waco 2004, no pet.) (mem. op.).
Crim. App. 2001).
In making this determination, we review the record as a
whole, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with
other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
We may also consider the State=s theory and any defensive
To obtain a conviction under section 33.07, the State was required to
prove that (1) appellant engaged in certain acts, and (2) he did so with a specific
See Tex. Penal Code Ann. § 33.07(b).
At most, admission of the
printouts would have shown that Couch’s testimony on her qualifications and
testing was inconsistent with some of her representations on her website.
The printouts’ admission therefore could have affected the jury’s view of Couch’s
credibility. But appellant admitted before trial and at trial that he engaged in the
acts required by the statute. Specifically, he conceded that he participated in
chats with Couch on her website, and during one of those chats, he
masqueraded as Adam, without Adam’s consent, while inviting Couch to a lunch
date. Because of appellant’s admissions, weakening Couch’s credibility on a
collateral matter such as this would not likely have changed the jury’s resolution
of these elemental facts against appellant. See id. § 33.07(b)(1) (requiring, as
elements of the offense, that a person sent an electronic communication that
references a name of a person without obtaining the person’s consent). As we
explained above, appellant’s defense was not based on attacking the factual
components of Couch’s testimony that concerned appellant’s actions; rather, the
defense challenged his intent in sending the message in which he pretended to
be Adam.11 See id. § 33.07(b)(2)–(3) (explaining that a violation of the statute
requires the sender of the message to have the intent to deceive the recipient of
the message and to harm or defraud someone).
We cannot conceive how
weakening Couch’s credibility about the contents of her website would have
affected the jury’s implicit rejection of appellant’s defensive theories relating to
his intent in sending the message.
For these reasons, we hold that even if the trial court abused its discretion
by excluding evidence of the printouts from Couch’s website, this potential error
did not affect appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Walters,
247 S.W.3d at 219. We overrule appellant’s second point.
The Lack of a Limiting Instruction
In his third point, appellant contends that the trial court erred by failing to
include a limiting instruction in the jury charge concerning the proper use of the
extraneous acts discussed above. See Tex. R. Evid. 105(a). During the pretrial
hearing on appellant’s motion in limine, after the trial court ruled that evidence of
In his closing argument, appellant’s counsel conceded that appellant had
made ―bad choices,‖ but counsel argued, like he had in his opening statement,
that appellant’s intent was to only test Couch, not to deceive or harm her.
appellant’s sending the condom to Couch would be admissible, the following
colloquy occurred between appellant’s counsel and the trial court:
[DEFENSE COUNSEL]: Judge, during the trial I would still
request a limiting instruction of some sort.
THE COURT: Oh. The -- okay. You’ve got the limiting
instruction you want me to give?
[DEFENSE COUNSEL]: Actually, I do on my computer. I
assume we’ll probably have it -THE COURT:
Yeah, we’ll probably have it.
During the trial, however, when the jury heard the evidence about the condom
and panties, appellant did not request a limiting instruction.
After each side
rested and closed, as the parties were discussing the jury charge, appellant
requested a limiting instruction concerning the extraneous offenses, but the trial
court overruled the request.
Appellant’s request came too late.
The court of criminal appeals has
explained that ―a limiting instruction concerning the use of extraneous offense
evidence should be requested, and given, in the guilt-stage jury charge only if the
defendant requested a limiting instruction at the time the evidence was first
admitted.‖ Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); see
Hammock v. State, 46 S.W.3d 889, 893–94 (Tex. Crim. App. 2001). We have
applied this principle to hold that a defendant forfeits his request for a jury-charge
We reject appellant’s characterization of this exchange as a request for a
limiting instruction that the trial court denied.
instruction by not requesting the instruction upon the admission of the evidence.
See Gunter v. State, 327 S.W.3d 797, 802 (Tex. App.—Fort Worth 2010, no
pet.); Smith v. State, 316 S.W.3d 688, 700 (Tex. App.—Fort Worth 2010, pet.
ref’d). Thus, in accordance with precedent from the court of criminal appeals and
our own court, we hold that appellant forfeited his complaint about the lack of a
limiting instruction in the jury charge by not timely requesting such an instruction
when evidence of extraneous acts was presented to the jury.
appellant’s third point.
Having overruled all of appellant’s points, we affirm the trial court’s
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 22, 2012