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Click here for the full text of this decision FACTS:Amanda Marie Massimo was friends with Renee Kreshak and Melissa Taylor before she had a falling out with Taylor that led to a physical altercation and to Taylor filing a police report. Shortly thereafter, Taylor began receiving threatening e-mails that Taylor believed were being sent by Massimo. The first e-mail, from the e-mail address of “[email protected],” included a threat to “kill or have you killed.” Taylor did not know what Massimo’s e-mail address was at the time, but the language used in the message was consistent with Massimo’s. Kreshak and another woman, Danielle Jones, witnessed Massimo send an e-mail message to Taylor’s e-mail address, and knew the message contained the statement, “I will kill you and your kids.” Taylor told Kreshak of other threatening e-mails, and then she reported the messages to the police. After being unable to contact Massimo in person or by phone, a detective with the Flower Mound Police Department send an e-mail message addressed to “Amanda” at the “[email protected]” address asking Massimo to contact her. A return e-mail from that address, and signed “Amanda,” asked why the detective wanted to talk to her. The detective replied that “it is in reference to harassment,” which prompted a response that “i [sic] did not harass nobody, melissa taylor [sic] broke into my e-mail and sent it herself,” and other statements. The detective addressed another message to “Amanda,” asking her to come into the police station to tell her side of the story. The response the detective received said the detective “did not have permission” to e-mail the sender, that she had no proof she was sending e-mail to Taylor, and that if the detective kept harassing her, she would speak with the chief of police and the district attorney. Soon thereafter, Massimo appeared at the police station and complained to two police officers that the detective was harassing her. The detective also later found out that Massimo had spoken to someone about having the detective killed. Massimo was charged with two counts of harassment by electronic communication. At a July 11, 2003, hearing, Massimo filed a motion for discovery and inspection of evidence that requested copies of the e-mail alleged to have been sent from Massimo to Taylor. At a pretrial hearing on Friday, July 25, the trial court granted the requested and told the prosecution to “[g]o ahead and make him a copy of those and get them to him by the end of th[e] day.” On Monday, July 28, Massimo’s attorney complained he had not received the messages. When the trial court asked if the attorney had presented himself to the district attorney’s office by 5:00 on Friday, the attorney said his understanding was that the documents were to be faxed to him. The trial court responded, “No, sir, you were supposed to get those documents yourself. No one ever mentioned anything about anything being faxed to you.” Massimo orally asked to dismiss the case or to continue it, but the trial court refused. Massimo was convicted on one count of electronic harassment. Punishment was set at 180 days’ confinement, a fine and a recommendation that Massimo be placed on community supervision. HOLDING:Affirmed. Massimo first argues that the trial court should have granted her motions to dismiss and for a continuance. The court finds it “apparent” from the exchange between the trial court and Massimo’s attorney that the trial court expected the attorney to pick up the documents he wanted, and had known about it for some time. Further, the attorney’s only reason for needing the e-mails was, he said, to hire an expert to determine their source. “An expert can be retained without the contents of the e-mails,” the court finds, and as Massimo had been represented by counsel since April 28, 2003, yet waited until 17 days before trial to file her motion for discovery and inspection, failure to get an expert or the e-mails until the eve of trial is not the state’s fault. Massimo has not shown any harm in getting the e-mails on Monday instead of Friday before trial, and was at least partially, if not totally, responsible for their last-minute production. Further, had there been a violation of a trial court’s pretrial discovery order that caused Massimo surprise, the proper procedure would have been to request a continuance of the trial in a written motion or even a formal oral motion. Massimo’s request for a continuance was only in the form of a complaint that he needed time to get an expert. The court then turns to Massimo’s argument that two e-mails were improperly admitted: the first e-mail, State’s Exhibit 1, and the exchange between Massimo and the detective, State’s Exhibit 6. Massimo complains that they were not properly authenticated. She also says Exhibit 6 was hearsay. Texas Rule of Evidence 901(a) requires authentication or identification of e-mail as a condition precedent to admissibility. One way that condition can be satisfied is by examining the appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with the circumstances. Though there is little state case law on the what exactly may be considered, the court borrows from a case that analyzed the federal equivalent of the state rule, which considered four factors relevant to the facts of the case: 1. consistency with the e-mail address on another e-mail sent by the defendant; 2. the author’s awareness through the e-mail of the details of defendant’s conduct; 3. the e-mail’s inclusion of similar requests that the defendant had made by phone during the time period; and 4. the e-mail’s reference to the author by the defendant’s nickname. Using these factors as a guideline, the court makes several observations, including the facts that the first e-mail was sent to Taylor shortly after her physical altercation with Massimo, that Kreshak witnessed Massimo sending a similar threatening e-mail to Taylor that incorporated the “same vulgarities” as were in Exhibit 1, and that Massimo had apparently told Kreshak that she was sending threatening e-mails because she and Taylor did not like each other. Considering these and other facts, the court rules that it was not an abuse of discretion to admit Exhibit 1 into evidence over Massimo’s lack-of-authentication objection. As for Exhibit 6, the court again finds no abuse of the trial court’s discretion. The court cites several facts relevant to this exhibit, including the fact that the e-mails were sent to and responded by “Amanda,” Massimo’s first name, that the author knew of the investigation into threats against Taylor without the detective first specifying so, and that shortly after the author threatened to complain to the detective’s superior, Massimo appeared at the station and did just that. The court also rules that Exhibit 6 was not hearsay. It is a verbal expression offered against Massimo, and is Massimo’s own statement in her individual capacity. Finally, the court finds the evidence legally and factually sufficient to support the conviction. OPINION:McCoy, J.; Livingston, Dauphinot and McCoy, JJ.

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