Many people use text messages to convey all types of communications, and in some cases, to discuss illegal activity. While you might feel that it is an invasion of your privacy, law enforcement authorities may be able to use your text messages as evidence in your criminal case. This real threat underscores the importance of working with an experienced criminal defense lawyer who knows how to challenge this evidence in court and pretrial motions.
The Law Office of Mike offers a 30-minute case evaluation in which you can discuss your specific situation with an experienced criminal defense attorney. We have over 20 years of legal experience, have achieved more than 120 case dismissals since 2020, and have a 4.8 Google review rating with over 200 reviews. Contact us today to take advantage of your confidential case review.
Are Text Messages Admissible in Texas Criminal Courts?
Yes, text messages are generally admissible in Texas criminal courts if they meet the legal standards established in the rules of evidence. Text messages and other digital communications are treated like other forms of documents or writings. Rules of evidence that these messages must satisfy include the following:
Relevance
Texas Rule of Evidence 401 requires evidence to be relevant before it can be admitted to court. Evidence is deemed relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Therefore, if the messages are related to the criminal prosecution and have bearing on the case, they can generally be admitted.
General Admissibility
Texas Rule of Evidence 402 is the general admissibility rule of evidence, which states that relevant evidence can generally be admissible unless the United States or Texas Constitution, a statute, other rules or evidence, or other rules prescribed under statutory authority say otherwise.
Authentication
Texas Rule of Evidence 901 may provide the strongest basis to challenge text messages because this rule requires that evidence be authenticated. Under Texas Rule of Evidence 901(a), the evidence must be sufficient to support a finding that the item is what the proponent claims it is. In practical terms, when dealing with text message evidence, this means that the prosecutor must prove that the party sent the message, the phone numbers receiving or sending the texts belonged to you or the other party, and that the messages have not been altered.
Prosecutors may be able to meet this evidentiary burden through evidence such as:
- Your phone number being shown in the message
- The recipient’s own testimony
- Metadata
- Phone records
- Device extraction reports
Hearsay Rule
Texas Rules of Evidence 802 generally excludes hearsay evidence, which is an out-of-court statement that is offered as evidence prove the truth of the matter asserted in the statement. However, there are many exceptions to hearsay rules, including your own admissions, business records, and present sense impressions.
How Law Enforcement Might Use Text Messages as Evidence
Law enforcement is becoming increasingly adept at using text messages in criminal cases. Here are some examples where you might see text messages being admitted into evidence in Texas criminal cases:
- Domestic violence cases: Sometimes, text messages may establish the crime itself. For example, a person may threaten their significant other, which could support criminal charges for domestic violence. A person apologizing in text could also serve as an admission.
- Drug crime cases: Text messages are often used in controlled substances cases, such as showing messages between someone buying and selling drugs. They are also often used in drug conspiracy cases. Under Penal Code § 15.02, a person can face a conspiracy charge if they agree with at least one other person to engage in conduct with the intent to commit a felony and one of them performs an overt act to pursue the agreement. Prosecutors may use communications about how to commit the crime as possible evidence to support these criminal charges.
- Sex crimes: Cellphone text messages could also be used in a criminal proceeding for a sex crime, such as to show online solicitation of a minor for sexual purposes or sending or receiving child pornography.
- Theft crimes: The Texas prosecutor may introduce text message evidence if the suspect was bragging about their latest score. They could also use GPS data or metadata to show location information.
- Violent crimes: Text messages could also apply in violent crime cases to show planning or threats toward the victim. Prosecutors may introduce this evidence to establish intent and premeditation.
Any time you send a text message, you run the risk of that communication being intercepted and potentially used against you in a court of law.
How Criminal Defense Lawyers Challenge Text Messages
Even though Texas courts allow text messages to be used as evidence in criminal cases, skilled legal representation may be able to challenge the admissibility by making various legal arguments. Criminal defense lawyers may be able to object to the admission of this evidence during the discovery process by filing pretrial motions to suppress the evidence. They could also call the reliability of the communication into question during the trial.
Some objections that skilled criminal defense attorneys may make about text messages used as evidence in criminal cases could include the following:
Illegally Obtained Evidence
Law enforcement does not have an unfettered right to access your cell phone and start digging through it to find any evidence to use against you. The Fourth Amendment to the Unites States Constitution protects you from unreasonable searches and seizures. The Fifth Amendment to the United States Constitution protects you from being forced to be a witness against yourself, so you don’t have to give law enforcement your phone, computer, or device password. Even if they obtain your device during an arrest, that does not allow them to scroll through its contents.
Law enforcement agencies must generally obtain a search warrant before they can go through the contents of a cell phone.
Law enforcement or another party may have hacked or used unauthorized access to obtain text messages illegally. This could include guessing passwords, hacking accounts, or using spyware. Illegally obtained evidence may be suppressed and precluded from being used in your criminal case.
Relevance
Criminal defense lawyers may argue that the text messages being offered do not prove anything material. For example, the prosecutor could just be trying to have the messages admitted to paint you in a negative light or show that you discussed other crimes that are not relevant to the current matter. This could allow your attorney to make relevance challenges to the offered messages. If a text message is more prejudicial than it is probative of something relevant to the case, a judge can decide to exclude it.
Hearsay
Your lawyer may be able to challenge text messages that were sent to you or others from other parties. Something that someone else said might not be admitted as evidence if a hearsay exception does not exist.
Lack of Authentication
Authentication challenges are one of the most effective strategies that criminal defense lawyers may be able to make regarding text messages. Today, there are various apps that people can use to create fake text messages. Therefore, the prosecution may need to use various forensic tools to authenticate text messages when a criminal defense lawyer challenges the authenticity of the message. For example, your lawyer might argue that the message did not come directly from you, putting the burden on the prosecutor to show that the text came from the phone number and source they have named.
Alteration
Sometimes, a text message exchange may have occurred, but this exchange could have been altered. This may apply when screenshots are used. This evidence can have problems such as:
- Cropped communications
- Edited content
- Missing context
- Altered timestamps
- Incomplete communications
Texas courts generally prefer full message exports or forensic downloads demonstrating this information so that the entire context of the conversation can be viewed. If information is obviously missing, your lawyer might argue that this evidence is not reliable.
Chain of Custody
Another legal challenge that criminal defense lawyers may make is that this evidence was improperly handled, which calls its credibility into question.
Contact an Experienced Attorney Today to Learn How We Can Help with Your Case
If you are concerned about how text messages might be used in your criminal case, you need experienced legal representation. The Law Office of Mike Howard has over 20 years of criminal law experience and knows how to effectively challenge this type of evidence. Contact us today for your 30-minute case review.
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