Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00160-CR Christopher Michael Webb, Appellant v. The State of Texas, Appellee On appeal from the 18th District Court of Johnson County, Texas Judge John Wilson Weeks, presiding Trial Court Cause No. DC-F202400583 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION Christopher Michael Webb was convicted of one count of continuous sexual assault of a child and one count of prohibited sexual conduct—a habitual offense—and sentenced to life in prison on both counts. We affirm the trial court’s judgments. Because Webb does not question the sufficiency of the evidence to support his convictions, we will not discuss the facts of the underlying cases. INTRODUCTION OF VIDEO/PHOTOGRAPHS In his first and second issues, Webb contends the trial court abused its discretion when it admitted State’s Exhibit 1, a video, and State’s Exhibits 4, 5, and 6, photographs, because the State did not establish the proper predicate. We review a trial court's ruling on authentication issues for an abuse of discretion. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). This deferential standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. A trial court judge is given considerable latitude with regard to evidentiary rulings. Id. Rule 901, which governs the authentication requirement for the admissibility of evidence, requires the proponent of an item of evidence to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” TEX. R. EVID. 901(a). The authentication requirement is a liberal standard of admissibility. Fowler, 544 S.W.3d at 849 (quoting Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)). The proponent must only produce sufficient evidence that a reasonable fact finder could properly find authenticity. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Conclusive proof of authenticity before allowing the admission of disputed evidence is not required. Fowler, 544 S.W.3d at 848. It is ultimately the jury's role to determine whether an Webb v. State Page 2 item of evidence is indeed what its proponent claims; the trial court need only make the preliminary determination that the proponent of the evidence has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic. Id. at 848–49; Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). Evidence may be authenticated in a number of ways, including direct testimony from a witness with personal knowledge, comparison with other authenticated evidence, or circumstantial evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012); see Butler, 459 S.W.3d at 602 (noting that authenticating evidence may be direct or circumstantial). Further, authenticity may be established with evidence of “distinctive characteristics and the like,” including “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” TEX. R. EVID. 901(b)(4). Video The State sought to introduce a video which depicted Webb having sex with H.H., the victim in this case and Webb’s daughter. Chief Deputy James Saulter of the Johnson County Sheriff's Office received a video from an informant who had, in Saulter's words, “always been credible and reliable and given me very good information.” The video depicted Webb having sex with Webb v. State Page 3 H.H. Saulter was able to identify Webb in the video because he had known Webb for some time, working on Webb’s other cases. He identified Webb in the video by Webb’s facial features and distinctive tattoos. Saulter also identified H.H. in the video after meeting her in person and observing tattoos on her which were also visible in the video. Through his investigation, Saulter determined that a third party had taken the video. Regardless, he was absolutely certain that the video depicted Webb and H.H. having sex and testified that State’s Exhibit 1 was a fair and accurate copy of the video he received from his informant. At trial, Webb contended that because it was unknown who took the video or whether the video was altered in any way prior to the State receiving it, the “foundation” for the admissibility of the video was improper. On appeal, Webb only raises the unknown alteration argument from trial. 1 Saulter had testified that he received the video from a reliable informant who thought Saulter needed to see it. Saulter could identify Webb in the video because of Saulter’s past familiarity with him and because of Webb’s tattoos. After meeting H.H., Saulter could identify her as well in the video. Although 1 Webb adds to his argument on appeal, however, that because it was unknown whether the video was accurate, whether the recording device had any issues, or whether the device correctly and accurately recorded the events of that day, the trial court’s determination that the video had been properly authenticated was improper. We do not address these additional arguments because they do not comport with Webb’s argument at trial and thus, are not preserved for our review. See TEX. R. APP. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Webb v. State Page 4 Saulter did not, and could not, say the video had not been altered before he received it, it was within the zone of reasonable disagreement for the trial court to determine that Saulter provided sufficient evidence, through his knowledge of Webb’s and H.H.’s physical features and tattoos and his certainty of his ability to identify them in the video, that a reasonable juror could find the exhibit was what the State purported it to be—a video of Webb having sex with H.H. Thus, the trial court did not abuse its discretion in admitting the video, and Webb’s first issue is overruled. Photographs The State also sought to introduce photographs obtained from Webb’s Facebook page depicting Webb in a white minivan which had been jointly owned at one time by Webb and H.H.’s mother. Webb’s only complaint at trial about the “foundation” for admissibility of these photographs was that the sponsoring witness did not take the photographs. However, a sponsoring witness is not required to be the person who operated the camera. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988); Standmire v. State, 475 S.W.3d 336, 344 (Tex. App.—Waco 2014, pet. ref’d). Webb did not argue at trial, as he argues on appeal, that the sponsoring witness, because she did not take the photographs, could not testify whether the photographs were tampered with or altered in any way. This argument made on appeal does not Webb v. State Page 5 comport with the argument made at trial. Thus, it is not preserved for our review. See TEX. R. APP. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Webb’s second issue is overruled. HEARSAY Next, Webb contends the trial court abused its discretion in permitting the State to introduce a letter written by H.H. over Webb’s hearsay objection because, Webb argues, the letter did not meet the “then-existing mental, emotional, or physical condition” exception to the hearsay rule asserted by the State. A hearsay statement is an out-of-court statement offered for the truth of the matter asserted. See TEX. R. EVID. 801(d). Such statements are inadmissible unless they fall under a recognized exception to the hearsay rule. See TEX. R. EVID. 802, 803, 804. A recognized exception is Rule 803(3): statements expressing the declarant's then-existing state of mind or emotional, sensory, or physical condition. See TEX. R. EVID. 803(3). A trial court's ruling on a hearsay objection is reviewed for an abuse of discretion. Green v. State, 713 S.W.3d 865, 882 (Tex. Crim. App. 2025). It will not be reversed unless it “was so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Id. (quoting Taylor v. State, 268 Webb v. State Page 6 S.W.3d 571, 579 (Tex. Crim. App. 2008)). H.H. testified at trial. By then, she was 23 years old. During direct examination, the State handed H.H. State’s Exhibit 9, a note which H.H. agreed she wrote on March 20, 2014, and was in her handwriting. H.H. testified that in the note, she described her sexual activity with Webb which, at the time the note was written, was “non-stop and constantly.” On redirect, H.H. said she did not remember writing the note but verified that the handwriting was hers and that everything in it was true and correct. She also agreed that she wrote her thoughts at the time in the note and that no one made her write them down. The State offered the note into evidence. Webb objected to its introduction on the basis of hearsay, among other reasons not at issue here. The State then asserted the note was offered as an exception to hearsay under Rule 803(3), the “then-existing mental, emotional or physical condition” exception. After reading the text of Rule 803(3) and reviewing the exhibit, the trial court overruled Webb’s objection and admitted the note into evidence. The State then again elicited from H.H. that the note was written in March of 2014, and that, in it, she discussed her feelings, what was happening with Webb, and why she may have been inappropriately touching others at that time. The State put the note on a screen for the jury to see and read it in its entirety to Webb v. State Page 7 them: Well, why is it hard to keep my hand—hands to myself? Well, in fighting wise, it is not hard for me to back off, unless you're standing over there and constantly hitting me, then I will hit you back. But otherwise, like just touching others, well, I have a lot of reasons. I’m like that, like I’ve been away from my parents and my grandparents, and when my dad was around, he raped me nonstop, and I have had a hard time finding love from anyone. So I pretty much daydream by touching other girls slash boys. It’s the fact when I touch people, I feel like someone is actually there for me, and that’s why I am pretty much what you call sexually active. And would think if you had been—and you would think if you have been raped, you don't want to be touched, but it's different for me. It gives me a feeling somebody loves me, nothing like I’ve ever felt, and it’s scary, but I’ve made it. On appeal, Webb contends that statements admitted under Rule 803(3) are usually spontaneous remarks about pain or some other sensation which the declarant makes at the time the sensation is experienced and because the State did not inquire about what H.H. was feeling at the time she wrote the note, the trial court abused its discretion in admitting it. Although Webb is correct that some caselaw has noted that statements admitted under the Rule 803(3) exception are usually spontaneous remarks about pain or other sensation made by the declarant while the sensation, not readily observable by a third party, is being experienced, see Power v. Kelley, 70 S.W.3d 137, 141 (Tex. App.—San Antonio 2001, pet. denied), that is not the only fact pattern in which the exception may be applied. See Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim. App. 2000) (statement of fear falls within Rule Webb v. State Page 8 803(3) hearsay exception); Tate v. State, 981 S.W.2d 189, 194 (Tex. Crim. App. 1998) (Keller, J., concurring) (“[A] statement that expresses an intent to kill should be admissible under R.803(3).”); Caballero v. State, 695 S.W.3d 467, 484 n.3 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d) (statement by declarant that he was going to kick in someone’s teeth could qualify as a then-existing mental or emotional condition); Pena v. State, 864 S.W.2d 147, 149-50 (Tex. App.—Waco 1993, no writ) (statement that declarant wanted to leave defendant but felt economically trapped properly admitted as exception to hearsay under Rule 803(3)). If it was, the different examples of a then-existing state of mind “(such as motive, intent, or plan)” or emotional, sensory, or physical condition “(such as mental feeling, pain, or bodily health)” offered in the exception would be unnecessary. See TEX. R. EVID. 803(3). H.H.’s statements in her note at least qualify as statements of mental feelings as she was writing them. Accordingly, the trial court did not abuse its discretion in overruling Webb’s hearsay objection, and his third issue is overruled. UNPRESERVED COMPLAINTS In his last three issues, Webb complains that the State made two improper arguments during its closing punishment argument and that the trial court erred in failing to ask whether Webb had a reason why the sentences should not be pronounced against him as required by article 42.07 of the Texas Webb v. State Page 9 Code of Criminal Procedure. Webb did not object to any of these alleged errors. The Court of Criminal Appeals has held, and recently reaffirmed, that the right not to be subjected to improper jury argument is forfeited by the failure to object. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (applying the principles of Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)); see also Irsan v. State, 708 S.W.3d 584, 604 (Tex. Crim. App. 2025). Further, a complaint about the court's failure to follow article 42.07 must be preserved for our review. TEX. R. APP. P. 33.1(a)(1); see Tenon v. State, 563 S.W.2d 622, 623–24 (Tex. Crim. App. 1978) (holding that nothing was preserved for review when appellant failed to object to the trial court's failure to follow article 42.07); Hunter v. State, 691 S.W.3d 247, 253 (Tex. App.—Dallas 2024, no pet.); Eisen v. State, 40 S.W.3d 628, 637 (Tex. App.—Waco 2001, pet. ref'd). Webb acknowledges that he did not object at trial regarding any of the errors raised in his last three issues. Regardless, he argues that we should reach the merits of his issues. None of Webb’s arguments in these issues persuade us to bypass the established preservation requirements. Accordingly, because Webb did not object, his fourth, fifth, and sixth issues are not preserved and are overruled. Webb v. State Page 10 CONCLUSION Having overruled Webb’s issues on appeal, we affirm the trial court’s judgments. LEE HARRIS Justice OPINION DELIVERED and FILED: September 17, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CRPM Webb v. State Page 11