Kevin Scott v. State

Citation: Not availableDocket: 03-18-00021-CR

Court: Court of Appeals of Texas; October 11, 2018; Texas; State Appellate Court

Original Court Document: View Document

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Kevin Scott was charged with indecent exposure for allegedly exposing his penis to Olivia Keller in a public place without her consent, constituting a Class B misdemeanor under Texas Penal Code § 21.08. The jury found him guilty, and during the punishment phase, an agreement between Scott and the State resulted in his sentence of 100 days in county jail. On appeal, Scott argued that the county court erred in admitting an audio and video recording of Keller's statements to Officer Vanessa Bremner, claiming it was hearsay not fitting the excited-utterance exception. 

During the trial, Keller described the incident to Officer Bremner, detailing how a blue Ford Taurus stopped near her while she was exercising, the driver whistled at her, and she observed his exposed penis, which she found gross. Officer Bremner testified that she spoke with Keller about the incident about thirty minutes later, noting that Keller was not traumatized and declined victim assistance services. The court overruled Scott's objection, allowing the recording to be played for the jury, where Keller reiterated her account, confirming the driver's exposure and her reaction. The appellate court affirmed the county court's judgment.

Officer Cantu testified about her investigation involving a vehicle linked to a 911 call made by Keller. She confirmed that the license plate number provided by Keller belonged to a vehicle owned by Scott, and found a Facebook page for Scott that included a photograph of a blue Ford Taurus, consistent with the description given by Keller. Cantu stated that Keller described the perpetrator as either a white or Hispanic male, and the Facebook photo matched this description. During the testimony, a photograph from Scott's Facebook page and a status update showing the blue Ford Taurus were admitted into evidence.

Keller then testified about the incident, stating she was exercising at a park when a blue sedan drove by, turned around, and stopped next to her. She described the driver as having his penis exposed and being erect, with his pants partially unzipped. Keller recalled the license plate number and immediately reported the incident to the police. She expressed confidence that Scott was the perpetrator and noted that the vehicle on Scott's Facebook looked similar to the one involved in the incident. Keller identified Scott in a photo lineup after some hesitation, indicating she had doubts but was fairly confident in her choice.

Keller’s 911 call was played in court, where she described the driver as masturbating and provided a description of the car. In the photo lineup recording, she initially found two individuals who resembled the perpetrator but ultimately identified Scott on her second attempt. She requested to view the lineup a third time, but was informed it was against police policy.

Detective Bernal later testified that he contacted Scott for an interview, during which Scott denied committing the offense multiple times but responded oddly when asked about whether he flagged down women and exposed himself, only denying the flagging part without denying the exposure.

Detective Bernal testified that Scott initially claimed his actions were a one-time occurrence when questioned about whether he had engaged in similar behavior before. During the trial, a recording of Scott's interview was shown, in which he denied exposing himself while driving but acknowledged driving a blue Ford Taurus around the time of the incident. Scott expressed remorse if the police believed he had committed the offense but insisted it was not a habitual behavior. Witness Christine Alexandra confirmed Scott's tattoos. Ultimately, the jury found Scott guilty.

Scott appealed the county court's decision to admit Officer Bremner's dashboard camera recording, arguing it constituted hearsay and did not meet the excited-utterance exception because the witness, Keller, was not emotionally affected at the time of her interaction with Officer Bremner. Scott highlighted that Bremner arrived 30 minutes after the incident, and Keller reported feeling merely grossed out, not traumatized, and declined victim assistance services. Scott contended that the county court abused its discretion by admitting the recording. The appellate court acknowledged the possibility of an abuse of discretion in the evidentiary ruling but noted that it must assess whether Scott was harmed by this ruling. The State argued that Scott failed to preserve this issue for appeal.

Scott objected to the admission of a recording, but the State argued he failed to specify which parts were hearsay. Citing relevant case law, the State noted that a trial court does not abuse its discretion in admitting evidence in its entirety if the objecting party does not identify specific inadmissible portions. Assuming Scott preserved his claim for appeal, the admission of evidence was deemed non-constitutional error, necessitating disregard unless it impacted substantial rights. Substantial rights are affected if the error had a significant effect on the jury's verdict. 

A reviewing court must consider the entire record, including testimony, physical evidence, and the nature of the alleged error, along with jury instructions, closing arguments, and the State's emphasis on the error. If the court can confidently ascertain that the error had little to no influence on the jury, then substantial rights were not affected. Scott contended that the admission of the recording harmed him by highlighting inconsistencies in witness Keller’s testimony, suggesting her out-of-court statements, made shortly after the incident, undermined his defense and contributed to his conviction. However, the recording itself was brief, and similar statements regarding the crime were established through other testimonies and the 911 call made by Keller.

Scott argued that the admission of a recording harmed him due to the lack of cross-examination of statements made in it. However, he had the opportunity to extensively cross-examine Keller about her recollections, descriptions of the perpetrator, and her certainty regarding Scott as the suspect. Although Scott pointed to inconsistencies between Keller’s testimony and the 911 recording concerning the perpetrator’s actions and appearance, Keller consistently stated she saw the perpetrator’s erect penis during the incident. Scott also highlighted Keller's failure to mention tattoos on the perpetrator, contrasting it with testimony indicating he himself had tattoos.

Scott's defense included arguing that his potentially incriminating statements to Detective Bernal were the result of misleading questions after he denied any wrongdoing. The prosecution did not reference the recording in their opening or closing arguments. Evidence against Scott was substantial, including Keller's identification of him as the perpetrator in the photo lineup and during her testimony, her description of the perpetrator’s vehicle, and corroborating testimony regarding the vehicle's ownership and similarity to the one she witnessed.

Scott's own statements suggested guilt, as he admitted to driving a blue Ford Taurus on the day of the offense and expressed remorse contingent on the belief of his guilt. Given this overwhelming evidence, the court concluded that any error from admitting the recording did not significantly influence the jury's verdict and did not affect Scott's substantial rights. Consequently, the court overruled Scott's appeal and affirmed the conviction.