In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00243-CR
NO. 09-25-00244-CR
JERRETT PAUL PROCTOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause Nos. 29159 and 29157
MEMORANDUM OPINION
In appellate cause number 09-25-00243-CR, Appellant Jerrett Paul Proctor
(“Proctor”) appeals his conviction for online solicitation of a minor in trial cause
number 29159. In appellate cause number 09-25-00244-CR, Proctor appeals his
conviction for child grooming in trial cause number 29157. We affirm.
1
Procedural Background
Proctor was indicted for five separate offenses against the same child, PF. The
five cases 1 were tried together, and the jury returned a guilty verdict on two of the
five offenses, online solicitation of a minor and child grooming. See Tex. Penal Code
Ann. § 33.021 and § 15.032. At the time of the alleged offenses, PF2 was sixteen
years old and was Proctor’s stepdaughter. Proctor pleaded not guilty. In May of
2025, a jury found Proctor guilty of online solicitation of a minor and child
grooming. The jury was unable to reach a unanimous agreement for punishment.
The trial court declared a mistrial as to punishment. In June of 2025, a second jury
heard punishment evidence and sentenced Proctor to 20 years confinement for the
online solicitation of a minor (which had a punishment range of 2-20 years) and 10
years confinement for child grooming (which had a punishment range of 2-10 years).
1
The five cases were Trial Cause No. 29157 (Child Grooming), Trial Cause No. 29158 (Indecency with a Child), Trial Cause No. 29159 (Online Solicitation), Trial Cause No. 29160 (Sexual Assault of Child), and Trial Cause No. 29161 (Felony Assault of a Child). The jury found Proctor not guilty in cause numbers 29158, 29160, and 29161, and guilty in 29157 and 29159.
2
We use initials to refer to the victim, other children who testified in the cases, and others when necessary to protect the privacy of the children or victim. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]”). Because the indictments in trial cause numbers 29159 and 29157 use the pseudonym “PF” for the victim, we will use the same pseudonym when referring to the victim.
2
The trial court entered a Judgment of Conviction in each case, with the sentences to
run concurrently. Proctor filed a notice of appeal in both cases.
Issues on Appeal
In both of his appeals, Proctor raises the same three issues. In his first issue,
Proctor argues that the trial court violated the Fourth Amendment of the United
States Constitution, Article 1 § 9 of the Texas Constitution, and Texas law by
admitting text messages that were extracted from a cellular telephone without a
warrant, subpoena, or valid third-party consent. In his second issue, Proctor asserts
that the trial court abused its discretion when it allowed the State to reopen its case
after resting and present witnesses who had remained in the courtroom after
invocation of the sequestration of witnesses as provided for in Texas Rule of
Evidence 614 (“the Rule”). And in his third issue, Proctor alleges that the trial court
abused its discretion in allowing the State to reopen and present testimony under the
false assertion that the witnesses would be rebuttal witnesses, resulting in unfair
prejudice to Proctor and denial of a fair trial.
Evidence and Testimony Presented at the Guilt/Innocence Stage of Trial
1. Testimony of Detective Ronnie Gerald Freeman Jr.
Ronnie Gerald Freeman Jr. testified that he has been in law enforcement for
twenty-six years and is a digital forensic detective with the Beaumont Police
Department. He collects, analyzes, and processes digital media, which includes cell
3
phones, computers, DVRs, NVRs, game consoles, and flash drives. Detective
Freeman testified that information such as call logs, contacts, and messages, can be
extracted from a cell phone.
Detective Freeman testified that the cell phone that was part of this
investigation came into his custody in July of 2024. He testified that he did not have
the passcode for the cell phone. Detective Freeman discussed Cellebrite and Graykey
as two programs that can be used to extract cell phone information. He stated that
his attempt to use Graykey to access information on the cell phone was unsuccessful
and he attributed this to an error with the Graykey program. The only data he was
able to extract from the phone was to retrieve the SIM card, which “pretty much
provides . . . a phone number of the device[]” and that was by using Cellebrite.
2. Testimony of Detective Tomas Barboza
Tomas Barboza testified that he has been a detective for the Port Arthur Police
Department for fifteen years. He has over 250 hours of cell phone forensics, which
include “extracting, mapping, [and] being able to analyze data.” Detective Barboza
stated that the software program, Cellebrite, was not compatible with PF’s phone.
He attributed the incompatibility due to the length of time the phone had been in
evidence, and because it had been in airplane mode, which was from January 2024
until March of 2025. Detective Barboza stated that during the time the phone was in
4
evidence and on airplane mode, the phone was not able to update and “keep up with”
the Cellebrite software.
That said, Detective Barboza explained that he was able to manually extract
data from the phone using a passcode provided by the person who had custody of
the phone. By using the passcode to access the phone, he was “able to obtain the
messages between the phone number of the owner of the phone and the person of
interest.” He was able to retrieve all messages between the two numbers from
December 2023 to January 2024. Detective Barboza explained how he was able to
retrieve the messages and then create a video showing those messages as follows:
Q. What, if any, efforts did you undertake to preserve what you
observed on that cell phone?
A. I have a -- it’s a camera viewer. It’s something like a -- actually it’s
almost like this microphone here. It has a little arm over it. I can set it
on my computer. And it sits on top of the phone, and it records what
I’m doing on the phone itself. So I was able to take a few snapshot
pictures, with that same camera, of the information in the phone and
also make a video of all the text messages. I just took the time and just
scrolled up, paused for a minute and let it try to record, focusing into
that conversation.
The video was saved to a thumb drive. Detective Barboza identified the thumb drive,
which he also referred to as a USB memory device, and he testified he had labeled
it with his initials at the time it was created. Detective Barboza confirmed that the
thumb drive which was marked as State’s Exhibit #1 and reflects his initials “contain
the screenshots from that cell phone that [he] testified about, as well as [the] video
of the limited exchange of text messages that [he] just testified about[.]”
5
3. Testimony by KF
KF testified that she is the younger sister of PF, that Proctor is her stepfather
and that her mother is Kristina Proctor (“Kristina”). KF stated that in January of
2024, she borrowed PF’s cell phone, and when she had it she was “being nosey[]”
and she found messages on PF’s phone where PF had texted a friend about what she
and Proctor were doing. According to KF, her stepsister, MP, was with KF at that
time, and MP also saw the messages on PF’s phone. After reading the messages on
PF’s phone, KF and MP confronted PF about the messages they had read on her
phone. KF stated that PF admitted that the messages were true. KF testified that the
three girls went to Kristina to tell her about what was happening.
Later, her stepfather, Proctor, came home, and KF recalls him saying that he
and PF had a “different kind of relationship than just stepdaughter-daughter.” KF
remembered that Proctor said that he “would never do it to [KF] because [KF was]
too ugly for it.” KF recalled that Proctor and PF “would go out of the house a lot
together without anyone else[]” and that Proctor bought PF lingerie as well as sex
toys like a vibrator and dildo. KF confirmed that she also went to a forensic interview
at the Garth House sometime later in January of 2024.
4. Testimony by MP
MP testified that PF and KF are her “stepsisters,” that Proctor is her father and
Kristina is her stepmother. MP explained that she and KF saw disturbing
6
communications on PF’s cell phone when they had borrowed the phone. MP and KF
talked to PF about the communications and then the three of them also spoke to
Kristina about what they saw on PF’s cell phone. MP testified that when the three
girls talked to Kristina, she “did nothing.” MP also testified that when Proctor came
home, he sat on the bed and said he “never meant to harm [PF] and that . . . it was
consensual.” And MP recalled that Proctor also pointed at MP and told her not to
tell her mother because he could go to prison.
MP testified that Proctor and PF’s relationship was “[a]wfully close[]” and
that “they would go places, and [MP] wasn’t allowed to go with them.” She recalled
that Proctor bought PF “very sexual items and toys” and vapes.
MP testified that she told her mother, CA, and that her mother called the
police. Two days after Proctor told MP not to tell anyone, Baleigh Hancock with
CPS came to MP’s school to talk to MP, and MP explained that she was not truthful
with Baleigh Hancock because she was afraid that Proctor would go to prison. Later,
when MP was interviewed at the Garth House, she told the interviewer what had
really happened.
5. Testimony of Kristina Proctor
Kristina Proctor testified that she is Proctor’s wife, PF and KF’s mother and
MP’s stepmother. Kristina denied that PF, KF, and MP had talked to her about
Proctor in January of 2024. She denied that any of them “came to [her] about text
7
messages[]” or that any of them came to her “about a concern that arose from looking
at PF’s phone about an inappropriate relationship with [Proctor].” Kristina denied
that PF came to her and discussed “a relationship of a sexual nature with [Proctor].”
She testified that KF and MP would be lying if they had testified that Proctor had
stated what happened between him and PF was “consensual” or if they said that
Proctor had told them not to tell anyone because he would go to jail.
Kristina testified that she had given the cell phone that PF used to PF and that
she monitored PF’s use of the phone. Kristina told the jury she did not see or view
any text messages between PF and Proctor when she would monitor PF’s phone.
Kristina stated that to her knowledge Proctor had never sent PF any text messages.
Kristina testified that she paid bills and received the electronic bills each month that
were associated with PF’s phone. Kristina also stated that she did not give consent
for the phone to be “look[ed] through.”
6. Testimony of PF
PF testified that at the time in question on weekdays, she lived with her
grandmother in Vidor, Texas, where she was attending school, and on the weekends,
she would go to her mother’s house in Kountze, Texas. PF testified that Proctor is
her stepfather and he lived in the house in Kountze with her “mother, stepsister, and
younger sister.” PF’s cell phone was a red Apple iPhone 12 Mini. PF testified that
she and Proctor would text each other several times a week during late 2023.
8
PF identified State’s Exhibit #1, the flash drive that contained text messages
and a video. Proctor’s attorney objected to the exhibit, arguing it could not be
properly authenticated. The trial court overruled the objection, and it was admitted
into evidence. Proctor’s legal counsel argued that there was no way to authenticate
the messages because the investigator “couldn’t download the phone itself, and so
we don’t have any way to authenticate -- without the cell phone records, we don’t
have any way to authenticate.” The trial court overruled the objection and indicated
that PF could authenticate the text messages as they were offered.
The State’s attorney had PF look at screenshots from her phone that were
downloaded onto the flash drive, and after identifying the persons by photographs,
names and phone numbers, PF confirmed that the screenshots were from her phone.
As PF was questioned regarding specific text messages, she confirmed that the
messages came from her phone and that the messages were between herself and
Proctor.
In explaining certain text messages, PF testified that Proctor sometimes
referred to PF as “Boo[,]” “Pabby[,]” “PaBae[,]” and “[W]ifey[.]” PF explained the
messages to the jury, which included among other things texts where Proctor said
PF has “pretty ass eyes,” texts where Proctor would talk to PF about getting her a
pedicure, where Proctor stated he wanted to “make [PF] feel like a million bucks[,]”
where Proctor stated he was the “only man [PF will] ever need[,]” and texts where
9
Proctor said he wanted to “do [her] hood[]” which PF explained meant that Proctor
was asking if she wanted to have her clitoris pierced. Other messages included
messages from Proctor about buying PF a lot of undergarments such as bras and
panties from Victoria’s Secret, and texts from Proctor asking if PF wanted to wear
stockings, and references to filming, recording, and a photo shoot. There were
multiple texts regarding an upcoming weekend and inquiries from Proctor about
whether PF was “still 100 percent game[]” or if she was “getting cold feet.” Some
texts also had various emojis and PF explained the emojis. PF testified that Proctor
asked about her menstrual cycle, and the texts included asking if her “period[]” had
started to whether or not her “S-H-I-T is broke[,]” if her periods were “consistent”
and “whether or not [PF had] skipped any months at a time or just weeks.” PF
responded and informed Proctor that she had “just started[]” her period, then Proctor
responded with skull emojis and texted “[b]ut, honestly, that’s the best and safest
time” and that “[i]t [didn’t] bother [Proctor] one bit, just can’t do other stuff[,]” and
that “[m]ost boys are just grossed out and won’t.” PF also explained that it was
“probable[]” that based on her communications with Proctor that he may have
thought she was pregnant. PF explained that the emojis and one text meant Proctor
wanted “[PF] to shave [her] vagina before the weekend.” PF testified that in addition
to lingerie, Proctor also purchased other things for her such as vapes with marijuana
cartridges, a vibrator, and a dildo. One message from Proctor asked if PF wanted to
10
take a break from her little sister and go with Proctor to his camper. PF testified that
her response to that message was as long as there was “[n]o funny business.” There
were several messages where Proctor told PF she should be deleting their texts.
Some texts from Proctor suggested using other platforms such as Discord and
Pinterest to communicate.
PF confirmed that in January of 2024, PF’s younger sister, KF, and stepsister,
MP, saw some text messages on her phone. The text messages they saw on her phone
were between PF and a friend, and PF was telling her friend about what was
happening between PF and Proctor. PF testified that after KF and MP questioned PF
about the messages, PF admitted to KF and MP what was happening between PF
and Proctor. The girls agreed that PF should tell PF’s mother Kristina about it.
On cross-examination, Proctor’s defense attorney asked PF if she was “tech
savvy[]” and knew how to delete things from text messages as follows:
Q. That’s about it. Okay. And so you knew how to -- and it’s pretty
clear, from whatever these messages are, that you were able to go
through and individually delete certain things. Is that correct?
A. Right.
Q. And you could add -- essentially, add and delete stuff from the
messages.
A. You can’t add.
Q. Okay. But you were able to selectively delete stuff. Correct?
A. Yes.
11
On redirect, the State’s attorney had PF explain further about the information she
had deleted which she testified had to do with texts she had received from Proctor
after they had an intimate sexual encounter, and she testified as follows:
Q. And that was one of those days, just to be clear, that the Defendant
inserted his penis into your vagina.
A. Yes.
Q. And after that was done, then did you get – what happened
afterwards?
A. Got dressed, got [MP] up and got ready.
Q. And the three of you went to your appointment?
A. As far as I remember.
Q. Are you -- let’s be clear. You did, in fact, delete some of those text
messages. Right?
A. Yes.
Q. Did you delete it because he asked you to?
A. Yes. And --Q. And why?
A. I was ashamed and embarrassed.
Q. Now, those remaining text messages, did you change them up? Did
you manipulate them in any way -- doctor them up?
A. No, sir. It would say if I had or not.
Q. Okay. Did you falsify those texts, meaning did you use some type of
an app or software or burner phone, or whatever, to send text messages
that would have spoofed this -- JP’[s] phone?
A. No, sir.
Q. That would have mimicked his phone?
A. No, sir.
Q. Did you make this up because you were mad at your mother,
Kristina?
A. No, sir.
Q. Did you make this up because you were mad at JP? 3
A. No, sir.
Q. In fact, you weren’t mad at JP at all, were you?
A. No, sir.
3
PF called the defendant, Jarrett Paul Proctor, “JP.”
12
The State initially rested its case after the testimony of PF.
7. Defense calls Simmons to Testify and Trial Court Admits Defense Exhibit #1
Proctor’s defense attorney called Sergeant Kendra Simmons to testify. Sergeant
Kendra Simmons testified that she is with the Hardin County Sheriffs’ Office and
that she was the lead investigator on the case. She attended the LIT police academy
in Beaumont and has been trained in “criminal investigations, sexual assault
investigations, [and] homicide investigations.” She began her investigation in this
case on January 14, 2024. She received an “outcry document[]” and then scheduled
a forensic interview at the Garth House and a SANE exam, and she received some
statements. During her investigation, Simmons learned that on the weekends PF
lived with her mother and Proctor. Simmons testified that PF’s biological father
provided the cell phone to her after PF had given it to him. Simmons recalled that
PF’s cell phone was given to her at the Garth House during PF’s forensic interview.
Simmons testified that PF’s biological father gave his consent to search PF’s cell
phone. Simmons stated that she was not aware that PF’s biological father was not
the “owner” of the cell phone and she did not obtain a warrant to search the cell
phone, nor did she issue a subpoena for the cell phone’s records or for records
associated with Proctor’s text messages because she “didn’t feel like it was
necessary[]” for this type of investigation.
13
After Simmons testified, the Defendant then introduced Defense Exhibit #1,
the trial court admitted the exhibit, and the defense rested. The defense also made
motions for directed verdicts relying in part on the Defense Exhibit #1, which were
denied by the trial court. The Defendant stated on the record outside the presence of
the jury that the defendant did not wish to testify in his own defense. After an
adjournment, the jury returned and was seated.
8. State Reopens Case to Present Rebuttal Witnesses
Before the charge was read to the jury and before closing arguments, the State
made a motion to reopen its case to offer rebuttal witnesses pertaining to the cell
phone record which is Defense Exhibit #1. Proctor’s defense attorney objected to
the State’s request to reopen its case and argued:
[W]e anticipate one of these witnesses has been present for the entire
trial and was subject to the rule. I understand this is rebuttal, but I need
to make an objection to that, any witness that was not physically
excused.
The trial court overruled the objection and stated the rebuttal witnesses would be
allowed to testify “under the circumstances[.]” The State called two rebuttal
witnesses, Alex Crank and Michele Revia.
Alex Crank was sworn in and the trial court noted that he had been present for
the “entirety of the trial.” Crank testified that he has a background in law
enforcement and that he currently works for the Hardin County District Attorney’s
Office as an evidence technician, trial coordinator, and investigator. Crank testified
14
that the admitted phone records in Defendant’s Exhibit #1 were from FirstNet, a
subset of AT&T, and that Crank was also a FirstNet customer. Crank testified that
he had received many bills or invoices from FirstNet. Investigator Crank testified
that he was able to review those records and he also accessed his own FirstNet
account. Crank stated:
An hour ago, hour and a half ago, I logged into the system and
attempted to locate a text record similar to what I had seen in evidence.
I found what I believe to be a similar record. And in reviewing those, I
noted that there were texts that were sent and received by me that were
not reflected on the record that AT&T provided to me.
State’s Exhibit #7 was admitted, which was Investigator Crank’s phone record.
Crank answered questions comparing Defense Exhibit #1 and State’s Exhibit #7.
Investigator Crank testified that there were known text messages between himself
and his wife, for example, and also between himself and the State’s Investigator
Sadie Guidry, as another example, which were not reflected on his bill which is
marked as State’s Exhibit #7. In response to the missing information on State’s
Exhibit #7, Investigator Crank stated:
I would say that now that I have my own personal experience, knowing
that texts I sent and received are not reflected on the bill or on the
downloaded text messages, I can’t say -- I have my own personal
experience that things I know occurred on that phone are not reflected
on this. So I have to look at Defense Exhibit 1 with a different set of
eyes now.
Michele Revia was the State’s second rebuttal witness. Defense counsel
objected to Revia testifying as a witness:
15
This next witness was not on a witness list. I know and understand it’s
a rebuttal witness, but essentially she’s being called to have the exact
same testimony that the investigator just testified to, essentially,
bolstering the same content. And I object to it because it wasn’t
provided. I have no information about this person at all to conduct
cross-examination. And I don’t feel comfortable doing it in realtime, so
to speak. So I object to the testimony of this witness.
[T]his witness has been sitting in that room with all these other
witnesses, but she was not under the rule. So I object to the whole thing.
The trial court overruled the objection. Revia testified that PF is her great niece, and
she had been in the court room to observe the trial. Revia also testified that AT&T
is her phone carrier, and she understood that FirstNet is a subsidiary of AT&T. She
testified about her knowledge of accessing, reviewing, and manipulating her own
cell phone records:
Q. And please tell the jury about your experience with being able to
go online and view certain records as it relates to your account.
A. To my personal account, I was able to go on and log into my account
and pull up my data from my phone number and download text
message[s], phone[], calls. Anything made, I can just pick them up, in
the year, and download them.
Q. And in what format did it come up in?
A. You can choose. You can choose to download it onto your own
computer as an Excel.
Q. Excel spreadsheet?
A. Correct. As a CSV -- or CVS format. And you can also print it
directly from AT&T.
Q. Now, your experience with Excel spreadsheets, are they -- once
you’ve downloaded it in that format, can it be manipulated; in other
words, can the information be added or deleted?
A. I opened it all three ways that I could. I could manipulate those in
the Excel and the CVS -- or I’m not sure which one it was, but I could
manipulate -- I could go in and just select what I wanted to and delete
it and hit print and it was gone. I just wanted to see if it could be done,
16
and I just did it. But the only way you could not manipulate it is if you
printed it directly from the AT&T website.
Analysis
In his first issue, Proctor argues that the trial court erred in admitting text
messages extracted from a cell phone without a warrant, subpoena, or valid thirdparty consent, in violation of the constitutions of the United States and Texas as well
as Texas law. Proctor did not make this objection at the time State’s Exhibit #1 was
offered into evidence during trial. When the evidence was offered and admitted,
Proctor’s objection was solely based on the alleged inability to “authenticate” the
text messages. The trial court overruled Proctor’s authentication objection and ruled
that PF could authenticate the extracted messages through her testimony. During the
trial, the only time Proctor made any argument pertaining to a possible constitutional
issue was after both parties had rested and he asked for a jury instruction under article
38.23, which was also denied. On appeal Proctor does not argue that the trial court
erred in refusing to grant the Defendant an instruction under article 38.23, so we do
not discuss this any further.
A party must first present the trial court with a timely request, objection, or
motion indicating the specific grounds for the desired ruling if those grounds are not
apparent from context. Tex. R. App. P. 33.1(a)(1). The trial court must have either
ruled on the request, objection, or motion, either expressly or implicitly, or, in the
17
absence of a ruling, the complaining party must have objected to the trial court’s
refusal to rule. Tex. R. App. P. 33.1(a)(2). The issue raised on appeal must also
comport with the objection made at trial. Jackson v. State, Nos. 09-16-00492-CR &
09-16-00493-CR, 2017 Tex. App. LEXIS 5686, at *6 (Tex. App.—Beaumont June
21, 2017, no pet.) (mem. op., not designated for publication) (citing Wilson v. State,
71 S.W.3d 346, 349 (Tex. Crim. App. 2002)); see also Swain v. State, 181 S.W.3d
359, 367 (Tex. Crim. App. 2005). Even alleged constitutional errors may be waived.
See Jackson, 2017 Tex. App. LEXIS 5686, at *6; (citing Curry v. State, 910 S.W.2d
490, 496 n.2 (Tex. Crim. App. 1995)). The alleged constitutional challenge as to
how the State obtained the messages or the argument that the victim’s father lacked
authority to consent to allow the State to view and copy the messages onto the thumb
drive were not timely made at trial nor preserved for review on appeal. See Wilson,
71 S.W.3d at 349; Curry, 910 S.W.2d at 496 n.2; Jackson, 2017 Tex. App. LEXIS
5686, at *6.
Even if Proctor had preserved his argument that the State violated Proctor’s
rights under the Fourth Amendment of the United States Constitution, Article 1 § 9
of the Texas Constitution, and Texas law because they failed to obtain a warrant or
obtain his or his wife’s authority to search the phone, we conclude his argument is
unfounded.
18
There is no evidence in the record that PF’s cell phone was owned by Proctor,
nor does Proctor contend he used it or that he had any “legitimate expectation of
privacy” as to the cell phone’s content. The record shows that although Kristina
Proctor (PF’s mother) may have paid for the cell phone, Kristina gave the phone to
PF to use, PF had a passcode for the cell phone, and PF gave that passcode to the
investigators and she and her biological father gave permission for the messages and
photos on the phone to be viewed. To challenge the constitutionality of a search, a
defendant must have “a legitimate expectation of privacy in the place invaded.”
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (plurality opinion).
Absent a reasonable and legitimate expectation of privacy, a defendant lacks
standing to raise a constitutional challenge like this, and we do not consider the
substance of his complaint. See King v. State, 670 S.W.3d 653, 656 (Tex. Crim. App.
2023) (citing Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004)). The
evidence here does not establish that Proctor had any reasonable or legitimate
expectation of privacy in PF’s cell phone. See State v. Granville, 423 S.W.3d 399,
409 (Tex. Crim. App. 2014) (“Although a person may have a reasonable and
legitimate expectation of privacy in the contents of his cell phone, he may lose that
expectation under some circumstances, such as if he abandons his cell phone, lends
it to others to use, or gives his consent to its search.” (emphasis added)); Smith v.
State, No. 09-24-00198-CR, 2025 Tex. App. LEXIS 635, **11-17 (Tex. App.—
19
Beaumont 2025, no pet.) (mem. op., not designated for publication). (The Fourth
Amendment was not implicated when the defendant gave the passwords to his
girlfriend and allowed her to use his phone and computer and the girlfriend provided
improper materials and images that she found to the State.); Young v. State, No. 05-09-00267-CR, 2010 Tex. App. LEXIS 9832, at **9-10 (Tex. App.—Dallas 2010,
pet. ref’d) (not designated for publication) (adult female who had given a minor, not
her son, a cell phone to use did not have an objectively reasonable expectation of
privacy in the phone).
That said, to the extent the Appellant also argues on appeal that the trial court
abused its discretion in making its ruling regarding the authentication of State’s
Exhibit #1, we agree that objection was preserved. Even so, for the reasons we
explain below, we also reject Proctor’s argument that the trial court erred in
overruling his authentication objection and admitting the evidence. A trial court’s
admission of evidence is reviewed under an abuse of discretion standard. Hanks v.
State, No. 09-23-00132-CR, 2024 Tex. App. LEXIS 6748, at **39-41 (Tex. App.—
Beaumont Sept. 11, 2024, pet. ref’d) (mem. op., not designated for publication)
(citing Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018)). An appellate
court must uphold the trial court’s admission of evidence if the ruling is within the
zone of reasonable disagreement. Id. at *41. To authenticate evidence, the proponent
of an item of evidence is required to produce evidence which is sufficient to support
20
the finding that the item of evidence is what the proponent claims it to be. Tex. R.
Evid. 901(a).
Regarding authentication, ultimately it is the jury’s role to determine whether
an item of evidence is indeed what its proponent claims it to be, and the trial court
need only make a preliminary determination that the proponent of the item has
supplied facts which are sufficient to support a reasonable jury’s determination that
the proffered evidence is authentic. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim.
App. 2015). Our review of a trial court’s ruling on authentication is otherwise
deferential. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
When PF testified regarding the text messages, she identified the messages
and provided explanations of the use of emojis between Proctor and herself, as well
as the details of the messages. “Evidence may be authenticated in a number of ways,
including by direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence, or by circumstantial evidence.”
Tienda, 358 S.W.3d at 638. When authenticating an electronic communication, a
witness qualifies as having knowledge of the communication when the witness
participated in an exchange of messages and can testify to an exhibit’s fair and
accurate depiction of the messages exchanged. See Hanks, 2024 Tex. App. LEXIS
6748, at **43-44 (citing Chavezcasarrubias v. State, No. 02-14-00418-CR, 2015
Tex. App. LEXIS 10652, at **4-5 (Tex. App.—Fort Worth Oct. 15, 2015, no pet.)
21
(mem. op., not designated for publication) (citing Tex. R. Evid. 901(b)(1)); Aekins
v. State, No. 04-13-00064-CR, 2013 Tex. App. LEXIS 13694, at **13-16 (Tex.
App.—San Antonio Nov. 6, 2013) (mem. op., not designated for publication), aff’d,
447 S.W.3d 270 (Tex. Crim. App. 2014); see also Peña v. State, 467 S.W.3d 71, 75
(Tex. App.—San Antonio 2015, no pet.).
We conclude that the trial court could have reasonably made a preliminary
determination that the State had supplied facts which were sufficient to support a
reasonable jury’s determination that the proffered evidence is authentic. The
testimony from PF established the messages were between PF and Proctor, and PF
testified that she participated in the exchange of the messages and was a person with
personal knowledge of the messages under Rule 901. See Hanks, 2024 Tex. App.
LEXIS 6748, at *45 (citing Tex. R. Evid. 901(a), (b)(1)). Detective Barboza also
testified how he copied the text messages from PF’s cell phone and created the flash
drive that was used at trial. Additionally, the testimony of PF and Detective Barboza
was sufficient to support a reasonable jury determination that the text messages were
taken from PF’s cell phone and were authentic. Id. (citing Fowler, 544 S.W.3d at
849). We overrule issue one.
In Proctor’s second and third issues, he complains about the trial court
allowing the State to reopen its case after resting because he contends that the
rebuttal witnesses had been present during trial and were not excused under the Rule,
22
which had been invoked early in the trial, and because it was offered under the false
assertion that the witnesses would be rebuttal witnesses, resulting in unfair prejudice
to Proctor and denial of a fair trial.
We review a trial court’s ruling on the exclusion or admission of witnesses
under Texas Rule of Evidence 614 for an abuse of discretion. See Russell v. State,
155 S.W.3d 176, 179-80 (Tex. Crim. App. 2005). Similarly, we review a trial court’s
ruling on a motion to reopen a case for abuse of discretion. See Peek v. State, 106
S.W.3d 72, 79 (Tex. Crim. App. 2003); Reeves v. State, 113 S.W.3d 791, 794 (Tex.
App.—Dallas 2003, no pet.). And the admissibility of testimony from rebuttal
witnesses is also within the discretion of the trial court. See Shield v. State, 38
S.W.2d 76, 80 (Tex. Crim. 1931); Jasso v. State, 699 S.W.2d 658, 661 (Tex. App.—
San Antonio 1985, no pet.). We assume such discretion was properly exercised
unless an abuse of discretion is evident from the record. Jasso, 699 S.W.2d at 661.
Article 36.02 of the Texas Code of Criminal Procedure provides that the trial
court “shall allow testimony to be introduced at any time before the argument of a
cause is concluded, if it appears that it is necessary to a due administration of
justice.” Tex. Code Crim. Proc. Ann. art. 36.02. “‘[D]ue administration of justice’
means a judge should reopen the case if the evidence would materially change the
case in the proponent’s favor.” Peek, 106 S.W.3d at 79. “While Article 36.02
mandates certain circumstances in which a trial court is required to reopen the
23
evidence before argument is concluded, it does not limit a trial court’s discretion to
reopen a case at any time before argument has concluded.” Davison v. State, Nos.
09-22-00008-CR, 09-22-00009-CR, 09-22-00010-CR, 09-22-00011-CR, 09-22-00012-CR, 09-22-00013-CR, 09-22-00014-CR, 09-22-00015-CR, 09-22-00016-CR, & 09-22-00017-CR, 2022 Tex. App. LEXIS 7210, at **4-5 (Tex. App.—
Beaumont Sept. 28, 2022, pet. ref’d) (mem. op., not designated for publication)
(citing Fury v. State, 607 S.W.3d 866, 875 (Tex. App.—Houston [14th Dist.] 2020,
pet. ref’d); Swanner v. State, 499 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.]
2016, no pet.)).
The record shows that the State moved to reopen the evidence prior to closing
argument and after the defense had introduced Defense Exhibit #1, which the
defense represented was a part of Kristina’s cell phone bill. Before the State called
its first rebuttal witness, the defense attorney made an objection stating each of the
witnesses had been present during the trial and were not excluded during the
testimony of other witnesses under the Rule. The defense did not make any argument
about whether the rebuttal evidence was material or necessary for the due
administration of justice.
With respect to the trial court’s decision to allow the State to reopen the
evidence and present testimony from the two rebuttal witnesses, we conclude the
trial court did not abuse its discretion by allowing the State to reopen the evidence
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after the State had rested but before closing arguments had commenced. See Fury,
607 S.W.3d at 875; Swanner, 499 S.W.3d at 920. The timing was such that it was
within the trial court’s sound discretion to reopen the case for the “due administration
of justice.” See Tex. Code Crim. Proc. Ann. art. 36.02; Peek, 106 S.W.3d at 79; Fury,
607 S.W.3d at 875; Swanner, 499 S.W.3d at 920; Reeves, 113 S.W.3d at 794.
As to Proctor’s argument about a violation of Rule 614, we note that an
alleged violation of Rule 614 does not result in automatic reversal. Webb v. State,
766 S.W.2d 236, 240 (Tex. Crim. App. 1989). Texas Rule of Evidence 614 provides
that “at a party’s request, the court must order witnesses excluded so that they cannot
hear other witnesses’ testimony. Or the court may do so on its own.” Tex. R.
Evidence 614. The purpose of the Rule is to prevent witness corroboration,
contradiction, and influencing. Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—
Fort Worth 2003, pet. ref’d.) (citing Minor v. State, 91 S.W.3d 824, 829 (Tex.
App.—Fort Worth 2002, pet ref’d)).
In Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996), the Court of
Criminal Appeals noted that the Rule does not mention what sanctions, if any, a trial
court should impose for violations of the Rule. The Court went on to explain that
“[u]nlike the trial court’s obligation to order witnesses excluded during other
witnesses’ testimony, the court’s decision to allow testimony from a witness who
has violated the rule is a discretionary matter.” Id. Further, it has been held that the
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trial court’s ruling on an objection to a witness testifying when the witness has
remained in the courtroom after having been placed under the “[R]ule” may not be
relied upon as a ground for reversal unless an abuse of discretion is shown; and it
will be presumed on appeal that such discretion was properly exercised until the
contrary has been shown. See id. (citing Valdez v. State, 776 S.W.2d 162, 170 (Tex.
Crim. App. 1989)). The “witnesses” contemplated by the Rule are those witnesses a
party anticipates calling to testify. See Tell v. State, 908 S.W.2d 535, 540 (Tex.
App.—Fort Worth 1995, no pet.).4
Appellate courts conduct a two-step analysis to determine whether a trial court
has abused its discretion by allowing a witness to testify when that witness violated
the Rule. Harris, 122 S.W.3d 871 at 882 (citing Minor, 91 S.W.3d at 829). We first
determine what kind of witness was involved: (1) a person who was not intended to
be called to testify and who was not connected to the case-in-chief but who has, due
to events during trial, become a necessary witness; or (2) a person who had been
sworn or listed as a witness in the case and either heard or discussed another’s
testimony. Id. (citing Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App. 1988),
4
At the time that Tell and Bell were decided, the sequestration rule was known as Texas Rule of Criminal Evidence 613 and the discussion in each opinion references “Rule 613.” On March 1, 1998, the criminal and civil rules of evidence were combined and the numbering was changed. The substance of the former Texas Rule of Criminal Evidence 613 is now part of “Tex. R. of Evid. 614.” We refer to the witness sequestration rule as either the “Rule” or “Rule 614.”
26
cert. denied, 492 U.S. 925 (1989)). Generally, an abuse of discretion for an alleged
Rule 614 violation will not be found when the witness is someone the offering party
had not anticipated would be called to testify as a witness. Id. (citing Minor, 91
S.W.3d at 829; Phillips v. State, 64 S.W.3d 458, 459-60 (Tex. App.—Houston [1st
Dist.] 2001, no pet.)).
The State called Crank and Revia as rebuttal witnesses. The State stated on
the record in this case that it had not anticipated calling either rebuttal witness when
the trial court instructed prospective witnesses regarding the Rule, and the State
noted it did not decide to call the rebuttal witnesses until the Defense offered and
admitted Defense Exhibit #1. So, the witnesses in question did not fall within the
category of witnesses any of the parties had anticipated would testify. During trial,
Kristina testified that PF and Proctor did not exchange texts and that when she had
monitored PF’s phone, she had never seen any texts between PF and Proctor. There
was some initial discussion outside the presence of the jury about Kristina’s cell
phone records, but none of the cell phone records were admitted into evidence at that
time or at the time the State rested. The next day, during the Defense’s case-in-chief,
the Defense attorney offered what he represented was a true and accurate redacted
part of Kristina’s cell phone billing record, which he stated Kristina had downloaded
from her cell phone provider to show what texts PF’s phone had received. The
document was admitted as Defense Exhibit #1, and the Defense rested. Even though
27
the State had initially stated it had no rebuttal witnesses, before the charge was read
to the jury and before closing arguments, the State sought to reopen the evidence and
offer testimony from Crank and Revia as rebuttal witnesses. The State did so because
the rebuttal witnesses had the same cell phone carrier as Kristina, and each could
provide testimony about the ability to see their own bill and text messages.
Crank testified that he was familiar with accessing and reviewing his phone’s
billing records. Crank explained that his billing records did not reflect all his text
messages that he had exchanged with other individuals. Revia also testified
regarding her knowledge of accessing and reviewing her phone’s online billing
records as well as being able to manipulate the billing record by selecting specific
sections to be generated in a printout.
The record shows that neither Crank nor Revia participated as witnesses in
the State’s case-in-chief, nor did they have personal knowledge of the offense in
question, so they were not likely to be called as a witness when the Rule was
invoked. Guerra, 771 S.W.2d at 476. There is no abuse of discretion when this
category of a witness is allowed to testify. Id.; Webb, 766 S.W.2d at 240; see Harris,
122 S.W.3d at 882. On this record, we cannot say the trial court abused its discretion
in allowing the State to reopen and present testimony and evidence with the two
rebuttal witnesses.
We overrule issues two and three.
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Having overruled all of Proctor’s issues in his appeals, we affirm the trial
court’s judgments.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on April 2, 2026
Opinion Delivered August 5, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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