Lewis Lavon Jones v. State, 06-16-00110-CR

Lewis Lavon Jones, a long-time family friend, was convicted by a Panola County jury of indecency with a child by sexual contact based on (1) a photo of Jones’ penis texted to the victim and (2) testimony that Jones caused the victim to touch his penis; sentenced to 15 years (enhanced range).
Before trial Jones filed a written election for the jury to assess punishment, but during trial the jury was discharged and the court assessed punishment without objection; the final judgment states Jones elected court punishment.
The State introduced: (State’s Ex. 1) a photograph of a cell-phone screen showing a penis with a callback number; (State’s Exs. 3–8) screenshots of text-message exchanges between Jones and the victim’s father; father identified the screenshots as messages he exchanged with Jones.
Jones objected that the exhibits lacked proper predicate/authentication. The recorded interview (played later) contained Jones’s admission that he sent the pictures.
Jones was found indigent and appointed counsel, but he did not file the required motion and affidavit to obtain the appellate record free of charge; the clerk later filed costs for the appellate record which the State concedes was erroneous to assess.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Jones’s written election for the jury to assess punishment remained binding	Jones: he elected in writing for the jury to assess punishment, so the court erred by having the court assess punishment	State/Court: Jones failed to object when the jury was dismissed and the court assessed punishment; silence constitutes waiver of the election	Court: Waiver — Jones’s failure to object is presumed consent; no error in court assessing punishment
Admissibility/authentication of photograph and text-message screenshots	Jones: State produced no adequate predicate/authentication for the screenshots and photo	State: father identified the screenshots/photograph as what he saw and exchanged; exhibits bore Jones’s phone number; later interview corroborated authorship	Court: No abuse of discretion — preliminary authentication met the liberal Rule 901/104 standard; later evidence (recorded admission) made any error harmless
Whether Jones was improperly assessed the $223 cost of the appellate record	Jones: as an indigent appellant, he should not be charged for the record	State: appellant did not file a timely motion/affidavit for a free record	Court: Denied — Jones failed to timely file the motion and affidavit required by Texas R. App. P. 20.2; appellate record costs properly requested though State concedes it was error to assess it in the bill of costs

Hackey v. State, 500 S.W.2d 520 (Tex. Crim. App. 1973) (silence or allowance of court sentencing after jury election is treated as waiver)
Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015) (text-message authentication standards and liberal threshold for preliminary admissibility)
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (trial court gate-keeping under Rule 104; threshold authentication inquiry)
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) (standard of appellate review for evidentiary rulings)
Searcy v. State, 231 S.W.3d 539 (Tex. App.—Texarkana 2007) (prematurely admitted evidence may be rendered admissible by subsequently admitted evidence)
James v. State, 102 S.W.3d 162 (Tex. App.—Fort Worth 2002) (same principle regarding subsequent evidence curing earlier admission error)
Griffin v. Illinois, 351 U.S. 12 (U.S. 1956) (indigent criminal defendants entitled to appellate record under due process)
Abdnor v. State, 712 S.W.2d 136 (Tex. Crim. App. 1986) (indigence for appointed counsel vs. indigence for free appellate record and requirement of due diligence)
Castillo v. State, 595 S.W.2d 552 (Tex. Crim. App. 1980) (indigency for counsel not dispositive for record costs)
Gray v. State, 928 S.W.2d 561 (Tex. Crim. App. 1996) (requirement to timely file motion/affidavit and show diligence to obtain free appellate record)