Flowers v. State

• Decision Date: 17 September 2014
• Docket Number: No. 06–13–00102–CR.,06–13–00102–CR.
• Parties: Quadreuy FLOWERS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

438 S.W.3d 96

Quadreuy FLOWERS, Appellant

v.The STATE of Texas, Appellee.

No. 06–13–00102–CR.

Court of Appeals of Texas, Texarkana.

Submitted Feb. 19, 2014.

Decided June 3, 2014.

Discretionary Review Refused September 17, 2014.

Justin Smith, Harrell & Stoebner, Temple, for Appellant.

Lauren Sutton, Asst, Dist. Atty., Texarkana, for the State.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Dusty Duckett, the girlfriend of Quadreuy Flowers, was in bed with Darius Carter when a man entered the bedroom and fatally shot Carter. Flowers was convicted of Carter's murder. We affirm Flowers' conviction.

On the night of the shooting, although the only light in the bedroom was cast by the glow of the television set, Duckett identified Flowers as the murderer. At trial, Duckett testified that after Flowers had shot Carter, the gun jammed and would not fire. Flowers then struck Duckett with the gun and raged, “[B]itch, I'm going to shoot the shit out you.” According to Duckett's trial testimony, Flowers then chased Duckett to the nearby apartment of McGraw. Jessica McGraw, who knew Flowers from high school, testified that she saw Flowers chasing Duckett and that Duckett had taken refuge from him in her apartment.

When interviewed by the police, Flowers claimed he was with Tevin Willis at the time of the murder. Detective Kimberly Weaver asked Flowers, “[S]o do you mind if we go through your phone to get his number?” to which Flowers replied, “Oh no, it's saved under ‘T–Will.’ ” The police, though, did not limit their search of the data on Flowers' cell phone to obtaining Willis' telephone number; rather, they accessed, reviewed, and photographed Flowers' telephone call history as well. At trial, the State introduced a series of screenshots of Flowers' cell phone's call log, which revealed that Flowers had used his cell phone to call Willis at a time that Flowers said they were together. Willis testified at trial that Flowers was not with him at the time of the murder and that Flowers had confessed in a telephone conversation with Willis that he had, indeed, killed Carter.

On the morning of trial, but before trial began, the trial court addressed some preliminary issues outside the presence of the jury regarding the police's video-recorded interrogation of Flowers. At that time, Flowers objected to the introduction of certain anticipated evidence against him. Flowers argued that the scope of the permission he had given to the police regarding the data on his cell phone was limited to obtaining Willis' telephone number. Flowers argued that the police exceeded the scope of the permission by reviewing the phone calls made on that cell phone and photographing his call history list. The trial court overruled Flowers' pretrial objection and overruled his renewed objection when the State attempted to introduce the photographs of the call history list at trial. The trial court did grant Flowers a running objection to information gleaned from the search of his cell phone.

Flowers also complains of the ruling of the trial court pertaining to certain impeachment evidence Flowers proposed to introduce. Flowers attempted to impeach Duckett by introducing evidence of what he claimed was a prior inconsistent statement made by her. At a hearing conducted outside the presence of the jury, Kelisha Aubrey testified that Duckett had made a prior statement that there were no arguments between her and Flowers, that Flowers had not chased her from the scene of the shooting to McGraw's apartment, and that Duckett “didn't hear nothing.” The trial court sustained the State's objection to the prior inconsistent statement.

The jury found Flowers guilty and assessed his punishment at ninety-nine years' imprisonment with a $10,000.00 fine. The trial court sentenced Flowers consistent with the jury's assessment and ordered him to pay $249.00 in court costs as well.

On appeal, Flowers raises three issues. Flowers claims the trial court erred in denying his attempt to impeach Duckett with what he claims was a prior inconsistent statement. Second, Flowers argues the search of his cell phone exceeded the scope of his consent and should have been excluded. Third, Flowers complains that the record fails to contain sufficient evidence to support the award of court costs.

I. The Trial Court Did Not Abuse its Discretion in Excluding the Alleged Prior Inconsistent Statement

In his first point of error, Flowers argues that the trial court erred in excluding Duckett's prior inconsistent statement.¹ Flowers argues that the proper foundation was laid for the introduction of Duckett's statement, saying that if the evidence of the prior inconsistent statement had been permitted, the State could have requested a limiting instruction for the jury not to consider the statement for the truth of the matter asserted. The State makes a two-fold response; it first alleges that Flowers failed to lay the proper predicate for introduction of the testimony and then it maintains that if the trial court erred in excluding the testimony, any such error was harmless.

On cross-examination of Duckett, Flowers began to lay the foundation to impeach her with a prior inconsistent statement. Duckett said she “did not remember” stating in the presence of Aubrey on November 14, 2013, while at the Bi–State Justice Building, that “Jessica McGraw was a liar, she wasn't there, Quadreuy walked—you said Quadreuy walked into the house, didn't say anything, fired a shot, and simply left, there was no argument, no fighting or anything, and just walked out.” Duckett also testified that she did not remember stating in the same conversation that Flowers kicked in the door.

Flowers later called Aubrey, who testified outside the presence of the jury that she overheard the following conversation between Duckett, “Sawaya[,] and Theresa” at the Bi–State Justice Building on November 14, 2013:

What she said is she told Theresa, she said, I'm going to tell you what happened, and she was very irate. She said, I was asleep. Me and D.C. was asleep. Quadreuy kicked the door in. He came in, shot D.C., and left. And that's when Sawaya and I, I also, I said, so, you know, there was no argument, and Jessica didn't see you, you didn't run to Jessica's apartment. She said, no, Jessica is a liar, there was no arguments, I was asleep, he kicked in the door, shot D.C. and left. And also she said she didn't hear nothing. Jessica was a liar, Jessica didn't know anything.

Flowers informed the trial court he was not seeking admission of the statement for “the truth of the matter asserted,” but only for the purpose of impeachment. The State pointed out that Duckett did not deny having made the statement, but merely stated that she did not “remember” having made it. Flowers later stated, “This witness is being called to rebut the fabricated tales that Ms. McGraw has told.” The State further argued that the statement was hearsay, that the proper foundation had not been laid, and that the statement constituted “totally improper impeachment for Jessica McGraw.” Flowers clarified,

There are two separate arguments. It is an inconsistent statement of Ms. Duckett. For Ms. McGraw, it's simply a rebuttal witness that has heard a statement that is relevant, and it's not hearsay, because it's not offered for the truth of the matter asserted.

The trial court expressed some doubts as to whether the proper predicate had been laid for this testimony. Flowers re-called Duckett outside the presence of the jury, and she testified that the statement made by Aubrey, “was false, that was not true.” After making two more assertions of the falsity of the statement, the following colloquy occurred:

Q. .... you didn't say it?

A. No, sir, I didn't.

Q. Not on November 14th at approximately 2:30 in the afternoon?

A. No, sir, I didn't.

Duckett repeatedly denied having made the statement. The trial court sustained the State's objection and rejected Flowers' request to re-call Duckett to finish laying the predicate in front of the jury. Thus, we must consider whether Flowers laid the proper foundation or predicate under Rule 613(a) of the Texas Rules of Evidence.

A. Flowers Failed to Lay the Proper Predicate

Flowers argues on appeal that the statement was admissible as a prior inconsistent statement to impeach Duckett.² The State responds that Flowers failed to lay the proper foundation and that the statement is not inconsistent with Flowers' trial testimony.³ The State argues that Flowers failed to lay the proper foundation because he failed to inform Duckett of the identity of the person to whom she had allegedly made the statement.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010). Abuse of discretion occurs only if the decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App.2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App.2009).

Rule 613(a) of the Texas Rules of Evidence imposes three requirements to establish the proper predicate or foundation for impeachment testimony: (1) identification (“the time and place and the person to whom [the statement] was made”), (2) “the contents of such statement,” and (3) the witness “must be afforded an opportunity to explain or deny such statement.” Tex.R. Evid. 613(a); see Ellingsworth v. State, 487 S.W.2d 108, 112 (Tex.Crim.App.1972); Osteen v. State, 61 S.W.3d 90, 91 (Tex.App.-Waco 2001, no pet.). The plain language of Rule 613(a) does not require the witness to...