Ghost Writer: Court Of Appeals Of Texas Finds Unsigned Letter Was Properly Authenticated

Like its federal counterpart, Texas Rule of Evidence 901(b)(2) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:….

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

And, like its federal counterpart, Texas Rule of Evidence 901(b)(4) allows for authentication through

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

The recent opinion of the Court of Appeals of Texas, Dallas, in Delagarza v. State, 2011 WL 3484797 (Tex.App.-Dallas 2011), provides good illustrations of how (and maybe how not) to authenticate writings under these Rules.

In Delagarza, Joe David Delagarza was convicted of deadly conduct, evading arrest, and aggravated assault.

The events leading to Delagarza’s convictions occurred over two days. They began the afternoon of July 17, 2008 when multiple gunshots were fired at and into his ex-wife’s house while she, her son, and two grandchildren were inside, and they ended the following afternoon with a short car chase and shoot-out with police officers. Although he shot at more than one officer, Delagarza was charged with aggravated assault against one officer only, Dennis Burnside.

At trial, the prosecution called more than fifteen witnesses, including Delagarza’s ex-wife Angelita Barron, his older daughter Mona Lisa.

Mona Lisa, whose children were at Barron’s house the day of the shooting, testified she received an unsigned letter from Delagarza dated November 28, 2008. Over objection, the letter was admitted into evidence and read to the jury. In the letter, Delagarza explained why he and [his friend Nicole] Crittenden had gone to Barron’s house. Delagarza stated he told Crittenden that [his daughter] Sarah had complained to him that Barron had mistreated her as a child. Delagarza also told Crittenden that Barron had tried to poison him because he had multiple affairs while they were together. Crittenden thought Barron “needed her a—kicked,” and when Crittenden tried to “kick [her] a—at her house,” Barron started throwing things at her. Crittenden came back to the car and shot up Barron’s car. A bullet “accidentally ricocheted off the truck and hit the door.” Delagarza stated he did not remember what happened after that because he was “under the influence of ice [methamphetamine] for days and…had strong demonic spirits” living in him as a result of abuse he suffered at the hands of his father and stepfather.

After he was convicted, Delagarza appealed, claiming, inter alia, that the unsigned letter was improperly authenticated. At trial, “[t]he letter was admitted over Delagarza’s objection to its ‘authenticity’ and followed testimony from both Barron and Mona Lisa identifying the handwriting on the letter as Delagarza’s.” According to Delagarza the letter was improperly authenticated because “[n]either Barron nor Mona Lisa testified how they were familiar with Delagarza’s handwriting.” The court, though, quickly noted that “Barron and Delagarza were together for approximately thirteen years and Mona Lisa was his daughter.”

The court then concluded,

Further, the letter contained sufficient distinctive internal characteristics to support a finding that Delagarza authored the letter. The letter included intimate details of Delagarza’s childhood and relationship with Barron, the confrontation between Crittenden and Barron, and Delagarza’s state of mind the day Barron’s house was shot and the days following. From these details, the trial court could have believed a reasonable juror could find the letter had been properly authenticated.

It thus seems clear that the letter was (or could have been) authenticated under Texas Rule of Evidence 901(b)(4). But what about Texas Rule of Evidence 901(b)(2)? If someone merely says that they are the ex-wife or daughter as the alleged author of a letter, is that enough, in and of itself, to find that the witness has enough knowledge of the the alleged author’s handwriting to authenticate the letter? If you showed me a letter and asked me if it was written by by father, I would have no idea. I’ve probably seen my father’s handwriting a handful of times over the years, and I don’t think that I could pick out a letter written from him of shown two or three letters. Thus, I think that a witness must state how he is familiar with the alleged author’s handwriting before he can authenticate a writing under Texas Rule of Evidence 901(b)(2). 

-CM