Brianna Carrie v. Willie Jones

CORRECTED OPINION

BRIANNA CARRIE * NO. 2021-CA-0659

VERSUS *
COURT OF APPEAL
WILLIE JONES *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-03906, DIVISION “I”
Honorable Lori Jupiter, Judge
******
Judge Paula A. Brown
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)

Brianna Carrie
8319 Apple Street
New Orleans, LA 70118

PRO SE PLAINTIFF/APPELLEE

Richard G. Perque
LAW OFFICES OF RICHARD G. PERQUE, LLC
700 Camp Street
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
JANUARY 21, 2022

PAB
DLD
JCL
This is a civil appeal arising out of alleged domestic abuse.

Plaintiff/Appellee, Brianna Carrie (“Plaintiff”), filed a petition for protection from

abuse from Defendant/Appellant, Willie Jones (“Defendant”). Following a

hearing, the district court entered judgment in favor of Plaintiff and issued a twelve

(12) month order of protection against Defendant. It is from this judgment

Defendant seeks appellate review. For the reasons that follow, we affirm the

district court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 7, 2021, Plaintiff filed, in the district court, a petition for protection

from abuse, pursuant to La. R.S. 46:2131 et seq.1 (the “Petition”), against

Defendant. Plaintiff alleged that she and Defendant formerly dated and share a

child in common.2 Plaintiff contended that Defendant had slapped, choked,

stalked, threatened her life with bodily harm, and verbally and mentally harassed

her. Plaintiff complained that in the most recent incidents of abuse Defendant sent

1
La. R.S. 46:2131 et seq. is the Domestic Abuse Assistance Act.
2
Plaintiff did not seek protection for the minor child.

1

her threatening text messages on April 21, [2021], writing that he hoped Plaintiff

would die so that he could take his son away, and a March 21, [2021] text message,

wherein Defendant threatened Plaintiff to repay money he loaned her or he “will

show” her. Plaintiff alleged that she and Defendant mostly communicated via text,

and since she began dating someone else, Defendant has told her repeatedly that if

she did not tell him where she lives, he “will show” her and her new boyfriend

Plaintiff also alleged past incidents of abuse. Plaintiff contended in 2019,

Defendant appeared at her brother’s house with his firearm holstered around his

waist and threatened her. Plaintiff further alleged that she and Defendant broke up

in 2019, and Defendant has continuously threatened her since that time. Plaintiff

contended that because Defendant carries a firearm, she does not feel safe. In

2018, after their son was born, Plaintiff alleged Defendant hit, slapped and choked

her.

Plaintiff prayed for immediate issuance of an ex parte temporary restraining

order (“TRO”) to prohibit Defendant from abusing, harassing, assaulting, stalking,

and threatening her; to prohibit Defendant from contacting her, including by means

of a third party; to prohibit Defendant from going within one hundred (100) yards

of her person, residence, and place of employment; to order Defendant not to

damage any of her belongings or interfere with her living conditions; to order

Defendant to seek professional counseling or complete a court-monitored domestic

abuse intervention program; and that Defendant be cast with costs. On May 7,

2021, the district court issued a TRO, effective through the pendency of the

protection order hearing (the “hearing”) scheduled for May 27, 2021.

On May 17, 2021, Defendant, in opposition to the Petition, filed a motion to

dissolve/vacate protection order and dismiss the petition for protection. In that

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motion, Defendant argued that the protection order was wrongfully issued against

him; the petition should have been denied on its face for failure to allege harm,

danger or abuse sufficient for ex parte relief; Plaintiff is not entitled to the relief of

a protection order; and Plaintiff would not prevail in the proof of what is asserted

to be entitled to an order of protection. The district court denied Defendant’s

motion on May 18, 2021.

On May 27, 2021, Plaintiff, in proper person, and Defendant, represented by

counsel, appeared for the hearing. At the conclusion of the hearing, the district

court, relying on Plaintiff’s testimony and photocopies of text message

screenshots, issued a twelve (12) month protection order in favor of Plaintiff and

against Defendant, effective through May 27, 2022. Defendant was ordered to

cease all abuse against Plaintiff and refrain from contacting her, to not go within

one hundred (100) yards of Plaintiff’s person or her residence, to stay away from

her place of employment, and to not damage any of Plaintiff’s property and

belongings or in any way interfere with Plaintiff’s living conditions. The district

court ordered Defendant to transfer possession of his firearm to the sheriff’s

department and ordered him to seek professional counseling and/or complete a

court monitored domestic abuse intervention program. The district court granted

Plaintiff temporary custody of her and Defendant’s shared child in common and

ordered supervised visitation for Defendant. All costs were cast against Defendant.

This appeal timely followed.

STANDARD OF REVIEW

This Court has previously set forth the standard of review for protection

orders:

3

“An appellate court reviews domestic orders for an abuse of
discretion.” Patterson v. Charles, 19-0333, p. 9 (La. App. 4 Cir.
9/11/19), 282 So.3d 1075, 1082 (citation omitted). “The trial court sitting
as a trier of fact is in the best position to evaluate the demeanor of the
witnesses, and its credibility determinations will not be disturbed on
appeal absent manifest error.” Id (citation omitted). In addition, as to
evidentiary issues, “[a] trial court is granted broad discretion in its
rulings on evidentiary issues which will not be disturbed on appeal
absent a clear abuse of that discretion.” Cipolla v. Cox Commc’ns La.,
LLC, 19-0509, p. 2 (La. App. 4 Cir. 8/5/20), 305 So.3d 911,
914 (quoting Freeman v. Phillips 66 Co., 16-0247, p. 4 (La. App. 4 Cir.
12/21/16), 208 So.3d 437, 441). The Court is also “required to examine
the record ... for legal error.” St. Germain v. St. Germain, 20-0146, p. 9
(La. App. 4 Cir. 3/17/21), 315 So.3d 443, 450 (citing City of New
Orleans v. Badine Land Ltd., 07-1066, p. 3 (La. App. 4 Cir. 5/21/08),
985 So.2d 832, 834). “[L]egal errors are reviewed under the de
novo standard of review.” Id. (quoting 1026 Conti Condominiums, LLC
v. 1025 Bienville, LLC, 15-0301, p. 5 (La. App. 4 Cir. 12/23/2015), 183
So.3d 724, 727).

“A legal error occurs when a trial court applies incorrect principles of
law and such errors are prejudicial.” Id. (citation omitted). “Legal errors
are prejudicial when they materially affect the outcome and deprive a
party of substantial rights.” Id. (quoting Evans v. Lungrin, 97-0541, p. 7
(La. 2/6/98), 708 So.2d 731, 735). “Where an error of law taints the
record, we are not bound to affirm the judgment of the lower court.” Id.
(quoting City of New Orleans, 07-1066, p. 3, 985 So.2d at 834-35).
However, “[a]s long as the trier of fact’s findings are reasonable in light
of the record as a whole, the appellate court will affirm.” Shaw v. Young,
15-0974, p. 4 (La. App. 4 Cir. 8/17/16), 199 So.3d 1180, 1184 (citation
omitted).

McKinsey v. Castle, 2021-0368, pp. 5-6, 2021 WL 3522093, at * 3 (La. App. 4

Cir. 8/10/21).

DISCUSSION

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On appeal, Defendant assigns two (2) errors: (1) the district court abused its

discretion in the issuance of a protection order by failing to find a violation of the

Criminal Code as required pursuant to La. R.S. 46:2132(3) and (2) the district

court erred in admitting text messages, which were unauthenticated and lacked the

proper foundation, into evidence. Because Defendant’s second assigned error is an

evidentiary issue, we will address it first.

Authentication of and Admissibility of the Text Messages

Defendant, citing La. C.E. art. 901(A), argues that the introduction of the

unauthenticated text messages between him and Plaintiff over his objection was in

direct contrast to the rules of evidence. Defendant further argues the text messages

offered into evidence are inadmissible hearsay as defined by La. C.E. art. 801(C).3

At the hearing, after Plaintiff, who appeared pro se, was sworn in, the

district court proceeded to query her regarding the allegations contained in the

Petition. Plaintiff testified that Defendant repeatedly texted her threats and curse

words. After she testified, Plaintiff provided the district court with photocopies of

twelve (12) screenshots of text message exchanges (the “text messages”) between

her and Defendant. Before reviewing the documents, the district court instructed

defense counsel to review the text messages with Defendant.

Following, the district court, addressing counsel for Defendant, asked,

“[H]as your client looked at these and authenticated these? I want to take a look at

them. Do you have, is there any objection? Let me take a look at it. [Defendant],

can you stand up and raise your right hand?” There being no contemporaneous

objection, the district court swore in Defendant and began to question him

3
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present
trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art.
801(C).

5

regarding the contents of the text messages. The district court first asked

Defendant to recite his phone number. The phone number recited by the

Defendant is the number depicted as a sender and recipient of the text messages.

After Defendant authenticated his phone number, the district court read a

few text message exchanges in open court, to which Defendant responded that the

text messages were not abusive. Defendant further stated that if there were text

messages from him, he was retaliating against Plaintiff because of the voicemail

messages she left on his phone. The district court advised Plaintiff that she could

submit the text messages into evidence, and, again, asked counsel for Defendant if

there were any objections. This time, counsel for Defendant lodged an objection to

admitting the text messages into evidence on grounds that the text messages were

taken out of context, the defense had just received the text messages, and the text

messages did not relate to Plaintiff’s allegations. The district court overruled

Defendant’s objection and admitted the text messages into evidence. The district

court reasoned that Defendant’s authentication of his phone number indicated he

had received the text messages within some point in time.

A trial judge shall make the initial authentication decision as to the

admissibility of evidence. State v. Lee, 2001-2082, p. 9 (La. App. 4 Cir. 8/21/02),

826 So.2d 616, 624; see also La C.E. art. 104(A). “‘Authentication’ is a process

whereby something is shown to be what it purports to be.” State v. Coleman, 2012-

1408, p. 22 (La. App. 4 Cir. 1/8/14), 133 So.3d 9, 25 (citing Malloy v. Vanwinkle,

1994-2060 (La. App. 4 Cir. 9/28/95), 662 So.2d 96, 100). “[I]t is a fundamental

law of evidence that an article or substance which is introduced as demonstrative

evidence, or to which a witness is asked to testify, must be sufficiently identified as

the one involved in the occurrence in question.” McKinsey, 2021-0368, p. 7, 2021

6

WL 3522093, at * 3 (quoting State v. Hotoph, 1999-243 (La. App. 5 Cir.

11/10/99), 750 So.2d 1036, 1045)(citation omitted). La. C.E. art. 901(A) provides

that the requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims. La. C.E. art. 901(B) provides an

illustrative, though not exhaustive, list of examples of authentication or

identification of evidence. See Archaga v. Johnson, 2019-0085, p. 12 (La. App. 5

Cir. 10/16/19), 280 So.3d 331, 340-341. Authentication of photocopies of text

message exchanges may be accomplished by the recipient, or by a person who has

personal knowledge of and digitally possesses the original text message exchanges.

Id., 2019-0085, p. 13, 280 So.3d at 341.

In the case sub judice, both Plaintiff and Defendant authenticated the text

messages. Plaintiff offered to introduce the text messages into evidence during her

case-in-chief to show threats and abuse endured from Defendant. On cross-

examination, Plaintiff testified that all of the text messages were stored on her cell

phone. The record is devoid of any additional controverting testimony or evidence

elicited from Plaintiff as to the authenticity of the text messages. Defendant, after

being duly sworn, testified to his phone number, which is clearly depicted as the

sender and recipient of the text messages. When questioned by the district court

regarding a specific text message exchange, Defendant admitted to sending

Plaintiff the text message. In addition, Defendant testified that the text messages

showed the lack of communication he had with Plaintiff; thus, further

corroborating that he had sufficient personal knowledge of the text messages, and

that he was the sender and recipient of the text messages. We conclude the record

supports a finding that the text messages were properly authenticated.

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We further conclude that the text messages were not improperly admitted

into evidence. La. C.E. art. 801(D)(2)(a) provides that a statement that is offered

against a party and is the party’s own statement, in either his individual or

representative capacity, is not inadmissible hearsay. Because the statements

contained in the text messages were made by both Plaintiff and Defendant, the text

messages are not inadmissible hearsay.4

Accordingly, the district court did not abuse its discretion in authenticating

and admitting Plaintiff’s text messages. This assignment of error is without merit.

Issuance of the Protection Order

In his second assignment of error, Defendant argues that the district court

abused its discretion in the issuance of a protection order against him. Specifically,

Defendant contends that Plaintiff failed to provide any specific instances of

domestic abuse, physical or non-physical, as defined in the Criminal Code of

Louisiana as required pursuant to La. R.S. 46:2132(3), and instead the district court

solely relied on photocopies of unauthenticated hearsay text messages as evidence

of abuse.

Under the Domestic Abuse Assistance Act, a court may issue a protection

order pursuant to La. R.S. 46:2131 et seq. The intent of the Act is to provide a

civil remedy of immediate and easily accessible protection to endangered persons

from domestic abuse. See D.M.S. v. I.D.S., 2014-0364, p. 15 (La. App. 4 Cir.

3/4/15), 225 So. 3d 1127, 1137. “‘Domestic abuse’ includes but is not limited to

physical or sexual abuse and any offense against the person, physical or non-

physical, as defined in the Criminal Code of Louisiana, except negligent injury and

4
See Archaga, 19-0085, pp. 13-14, 280 So.3d at 341 (wherein the appellate court held that
pursuant to La. C.E. art. 801(D)(2)(a), photocopies of text messages admitted into evidence by
the plaintiff and against the defendant were not inadmissible hearsay).

8

defamation, committed by one family member, household member, or dating

partner against another.” La. R.S. 46:2132(3). Moreover, “the definition of

domestic abuse in La. R.S. 46:2132(3) does not include nonphysical acts, such as

general harassment and family arguments, unless the non-physical acts constitute

an offense against the person as defined in the Louisiana Criminal code.” S.M. v.

T.M., 2019-369, p. 8 (La. App. 5 Cir. 12/26/19), 289 So.3d 141, 147.

As previously noted, “[a]n appellate court reviews domestic orders for an

abuse of discretion.” McKinsey, 2021-0368, p. 3, 2021 WL 3522093 at * 2. “In

accordance with La. R.S. 46:2135 and 46:2136, the issuance of a protection order

requires that there be ‘good cause shown’ [by the petitioner].” Id. at * 2 (citation

omitted). Pursuant to La. R.S. 46:2135, “good cause shown” is an immediate and

present danger of abuse against the petitioner. See Id. Upon “good cause shown,”

the court may enter a TRO, as it deems necessary to protect the petitioner from

domestic abuse. See La. R.S. 46:2135(A). “The court shall consider any and all

past history of abuse, or threats thereof, in determining the existence of an

immediate and present danger of abuse.” Id. “There is no requirement that the

abuse itself be recent, immediate, or present.” Id. The petitioner must show that

allegations of abuse are true by a preponderance of the evidence. See Id.; see also

Rodriguez v. Claassen, 2016-0610, pp. 9-10 (La. App. 4 Cir. 12/21/16) 207 So.3d

490, 496-497. “Proof is sufficient to constitute a preponderance of the evidence

when the entirety of the evidence, both direct and circumstantial, shows that the

fact sought to be proved is more probable than not.” Patterson v. Charles, 2019-

0333, p. 10 (La. App. 4 Cir. 9/11/19) 282 So.3d 1075, 1083 (citing Head v.

Robichaux, 2018-0366, pp. 3-4 (La. App. 1 Cir. 11/2/18), 265 So.3d 813,

816)(citation omitted).

9

At the May 27, 2021 hearing, Plaintiff, Defendant and Defendant’s wife

testified. Plaintiff testified that she and Defendant were dating partners from 2015

until their separation in 2019. After she and Defendant separated, he followed her

in his truck, stalked her and threatened her life. Plaintiff relayed a specific incident

after the separation, while she was at her brother’s house, defendant appeared,

uninvited, with his firearm strapped around his hip and demanded to see his son, or

he was going to “show” her. Plaintiff said she and Defendant mostly

communicated via text message, and Defendant repeatedly texted her threats and

curse words. She mostly communicated with Defendant’s wife regarding Plaintiff

and Defendant’s son. Plaintiff testified that because Defendant carries a firearm on

him all the time, she does not feel safe. According to Plaintiff, Defendant told her

he was going to kill her if she did not repay him money and has told her “I will

show you” on multiple occasions, which she interpreted as a threat to her life.

Defendant admitted he texted Plaintiff, but he denied physically threatening,

and abusing her. Defendant also affirmed that he owns and carries a firearm but

testified that he has never intimidated, threatened, or pointed his firearm at

Plaintiff. When specifically questioned by the district court, Defendant admitted

he texted Plaintiff on April 21, [2021], stating that he hoped she would just die so

that he could take his son away. However, Defendant explained that he has had

Plaintiff blocked from calling his phone for over three (3) years and any text

message he sent her was in retaliation to the threatening messages she left on his

voicemail, wherein Plaintiff allegedly cursed at him and told him she wished he

10

would die.5 Defendant said that he and Plaintiff barely communicated, as Plaintiff

typically spoke to his wife Angela, regarding their son.

Defendant also testified that when he said he would “show her”, he meant

that he would show her with legal proceedings; he only threatened to take her to

court regarding their son. Defendant corroborated Plaintiff’s testimony that he did

go to her brother’s house, but he said he only went to see his son. Defendant

relayed that his only request to Plaintiff was for her to repay the $2,500 he loaned

her for a car.

Angela testified that she knows Plaintiff from a previous employment

relationship. She recounted that Plaintiff and Defendant share a child and she

communicates with Plaintiff on Defendant’s behalf. Angela stated that she does

not recall any instances of threats made upon Plaintiff by Defendant. Angela also

affirmed that Defendant owns a firearm and carries it with him all the time but said

she had never seen Defendant point it at anyone.

The district court, after hearing the testimony of the parties, issued an order

of protection against Defendant. In reaching its decision, the district court

explained:

[Plaintiff] filed this petition for protection from abuse, she filed it on
her behalf and she wants to be protected from you, [Defendant],
because she feels that you are a threat to her. The reason why she
feel[s] like you’re a threat to her [ ] is because she said several
incident[s,] one of which she says on April 21 you texted and told her
that wish she would die, that’s something you have admitted to . . .
you testified was true. There is other past incidents (sic) of abuse
whereby . . . [Plaintiff] feels like you can be a possible threat or threat
to her as not only from April 21 but from a period of a long time in
which she has testified today[,] that she’s made the decision now to

5
At the hearing, Defendant played a voicemail message, dated October 19, 2021, which
purportedly was a recording of Plaintiff making threatening statements to him. Defendant did
not offer any such recordings or statements allegedly made by Plaintiff into evidence, and the
record does not contain a transcription of the recording.

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come to the court to use the legal system for protection. So therefore,
I’m going to grant this petition for protection from abuse.

It is well-settled law that “[w]hen the factual findings are based on the

credibility of witness testimony, the appellate court must give great deference to

the fact finder’s decision to credit witness testimony.” Watts v. Watts, 2008-0834,

p. 2 (La. App. 4 Cir. 4/8/09), 10 So.3d 855, 857 (quoting Kees v. Kees, 2008-0124,

08-0125, p. 7 (La. App. 4 Cir. 8/13/08), 992 So.2d 568, 571). “Even if an appellate

court feels its own evaluations and inferences are more reasonable than the

factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed upon review where conflict exists in testimony.” Guste

Homes Resident Mgmt. Corp. v. Thomas, 2020-0110, p. 8 (La. App. 4 Cir.

7/29/20), 302 So.3d 1181, 1187 (quoting River Garden Apartments v. Robinson,

2012-0938, pp. 4-5 (La. App. 4 Cir. 1/23/13), 108 So.3d 352, 356).

Our review of the record shows that based on Plaintiff’s testimony and the

text message exchanges6 between her and Defendant, a reasonable factual basis

exists to support the district court’s issuance of a protection order under the

Criminal Code for assault.7 Plaintiff testified that Defendant told her he was going

to “kill her” and “show her”, which she interpreted as threats on her life, and she

did not feel safe because Defendant carries a firearm. Defendant admitted he

texted Plaintiff that he hoped she dies. Further, review of the text messages

6
The text messages were riddled with derogatory words and unflattering name-calling. While
unpleasant and harsh, name calling alone does not arise to the level of domestic abuse under La.
R.S. 46:2131 et seq.
7
An “[a]ssault is an attempt to commit a battery, or the intentional placing of another in
reasonable apprehension of receiving a battery.” La. R.S. 14:36. In Claassen, supra, this Court
reasoned that although “words alone may not be sufficient to constitute an assault, … threats
coupled with the present ability to carry out the threats are sufficient when one is placed in
reasonable apprehension of receiving injury.” Claassen, 2016-0610, p. 11, 207 So.3d at n. 3
(citing Castiglione v. Galpin, 325 So.2d 725, 726 (La. App. 4th Cir. 1976)).

12

reflects that Defendant told Plaintiff, “I’m going to beat the (sic) out of you[.]” In

reviewing the entirety of the evidence, we conclude the district court did not abuse

its discretion in issuing a protection order. This assignment of error is without

merit.

CONCLUSION

The district court did not abuse its discretion in authenticating and admitting

the text messages and, in turn, issuing an order of protection in favor of Plaintiff

and against Defendant. The district court’s judgment is affirmed.

AFFIRMED

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