Michael Lowery v. State
11-14-00274-CR
Tex. App.Oct 13, 2016Background
- Michael Lowery was convicted of murdering his wife Amber; jury assessed life imprisonment. The appeal challenges evidentiary rulings, not sufficiency of the evidence.
- The State presented evidence of marital discord, threatening statements by Michael, heated texts on July 23, 2013, Amber’s report to her brother that she was scared and that “if anything were to happen to me… Mike had done it,” and human remains found in a burn pile on the Lowery property with DNA strongly supporting they were Amber’s.
- Defense theory: Amber may have left voluntarily or committed suicide; Michael denied threats and disputed several witnesses’ accounts; he testified he returned home, she left, and he did not delete texts or transport anyone.
- At trial: (1) Amber’s statement to her brother Christensen was admitted on redirect after defense cross-examination; (2) David Lowery read from a Word document containing copied Facebook messages between Amber and David; (3) the statement “Life has been hell” (Amber to David) was admitted.
- Appeal raises three issues: admissibility of Amber’s statement to Christensen (hearsay/truth), authentication/admissibility of Facebook message document, and admission of Amber’s “Life has been hell” statement (state-of-mind exception).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lowery) | Held |
|---|---|---|---|
| 1. Admission of Amber’s statement to Christensen (“if anything were to happen… Mike had done it”) | Statement was admissible to explain Christensen’s conduct and concern (effect on listener), not offered for its truth | Statement was hearsay offered to prove guilt; no hearsay “open door” exception | Admitted: court reasonably found it offered for its effect on listener (not hearsay); no abuse of discretion |
| 2. Use of Word document containing Facebook messages (authentication) | Sufficient foundation: witness testified he copied/pasted messages after contacting Amber on Facebook; document used to refresh/relate content | Document unauthenticated, unreliable hearsay; trial objections preserved | Overruled: trial court properly found preliminary facts to support a reasonable jury finding of authenticity; objections preserved |
| 3. Admission of Amber’s “Life has been hell” Facebook message (state-of-mind) | Admissible under state-of-mind hearsay exception to show Amber’s then-existing feelings about the marriage | Hearsay; should be excluded | Admitted: falls within Rule 803(3) state-of-mind exception; no abuse of discretion |
Key Cases Cited
- Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) (standard of review for trial-court evidentiary rulings)
- Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001) (review deference to trial court)
- Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) (out‑of‑court statements not hearsay if offered for effect on listener)
- In re Bexar County Criminal Dist. Attorney’s Office, 224 S.W.3d 182 (Tex. 2007) (statements not hearsay when offered for effect on listener)
- Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (authentication standard: proponent must supply facts supporting a reasonable jury finding of authenticity)
- Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015) (trial court’s preliminary authentication role under Rule 104)
- Fain v. State, 986 S.W.2d 666 (Tex. App.—Austin 1998) (statements describing declarant’s unhappiness in a relationship fit Rule 803(3))