Phillips v. State

651 S.W.3d 677

Andre Tremond PHILLIPS, Appellant

v.The STATE of Texas

No. 02-21-00116-CR

Court of Appeals of Texas, Fort Worth.

Delivered: July 28, 2022

ATTORNEY FOR APPELLANT: HEATHER M. LYTLE, ARLINGTON, TEXAS.

ATTORNEY FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, CHIEF OF THE POST-CONVICTION DIVISION; ANNE GRADY, ALEXANDER HAYNES, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

Before Kerr, Womack, and Wallach, JJ.

Opinion by Justice Wallach The jury convicted Appellant Andre Phillips of driving while intoxicated–felony repetition and assessed punishment at seven years’ confinement, and the trial court sentenced him accordingly. See Tex. Penal Code Ann. §§ 49.04, 49.09(b). In seven points, Phillips argues that his right to a fair trial was violated by the State's argument that he had failed to take responsibility for his actions (point one), that the trial court reversibly erred by admitting hearsay and conclusory evidence (points two and three), and that he was denied effective assistance of counsel (points four through seven). Because Phillips has not shown reversible error or that his trial counsel was ineffective, we affirm.

Background

On the night of July 20, 2019, Phillips's vehicle hit a parked car on a residential street. An ambulance called to the scene took Phillips to the hospital, where his blood was drawn and a police officer conducted field sobriety tests; testing showed his blood alcohol content at the time of the draw was 0.13.

At trial, Lucia Geisler testified that it was her car that had been hit and that Phillips had been the driver. Her car had been parked outside of her brother's house at the time, and she and her family were having a barbecue in the front yard. The family witnessed the accident and then gathered around Phillips's car when it seemed like Phillips was trying to drive away from the scene. Geisler testified that she smelled alcohol on Phillips's breath and that after the accident, he climbed into the passenger seat.

The State played for the jury a recording of Geisler's 911 call in which she described the driver as a man who was wearing a black shirt and who "only ha[d] one leg"—Phillips previously had a leg removed after an accident. She also said, as she later did at trial, that the driver had moved to the passenger seat. The same exhibit also included a recording of the 911 call made by Phillips's friend, Robert Harrison; Harrison requested an ambulance for Phillips and said that Phillips had been moved to the passenger side because the steering wheel had been "jammed on him."

Fort Worth Police Officer Christopher Martin testified about responding to the accident, about interviewing Phillips at the hospital to which he had been transported after the accident, and about conducting field sobriety testing on Phillips. The State played footage from Martin's bodycam recording of that interview; in the video, Phillips has on a black shirt.

To show that Phillips had two prior DWI convictions—from 2008 and 2016—the State relied on testimony of Tarrant County Sheriff's Deputy Homero Carnero, who testified without objection that the fingerprints associated with the prior judgments matched fingerprints taken from Phillips on the day of trial and when he had been booked into jail in 1991. However, when the State moved to admit records and the fingerprints associated with the prior judgments, Phillips objected that Carnero had not shown the jury the points of comparison on the fingerprints. The trial court overruled the objection.

Phillips testified in his own defense and stated that Harrison was the driver. Harrison also testified for the defense and said that he had been driving Phillips's car and that Phillips was the passenger. He claimed to have hit the parked car when he swerved to avoid another car that was backing out of a driveway.

The State then played for the jury police bodycam footage showing Harrison responding "Yes" when a police officer asked him if he had been "riding passenger" and if Phillips had been driving the whole time. The State also produced two affidavits that Harrison had executed for the defense. In the first, Harrison said that Phillips "was not under the influence of alcohol" at the time of the accident and said nothing about Harrison driving the car. In the second, executed a month later, Harrison claimed that he had been driving.

In his closing argument, the prosecutor argued that Phillips had not taken responsibility for his actions. The trial court sustained Phillips's first objection to the argument and instructed the jury to disregard the prosecutor's initial comments, but the trial court overruled Phillips's subsequent objections to other comments by the prosecutor about Phillips's taking responsibility. The jury found Phillips guilty, and Phillips now appeals.

Discussion

I. Jury Argument

In his first point, Phillips argues that the State violated his right to a fair trial by repeatedly arguing to the jury that it should hold against him his "failure to take responsibility" by insisting on a jury trial. We disagree.

A felony defendant has a constitutional right to a jury trial. U.S. Const. amend. VI ; Tex. Const. art. 1, § 10 ; Duncan v. Louisiana , 391 U.S. 145, 157–58, 88 S. Ct. 1444, 1452, 20 L.Ed.2d 491 (1968). Thus, a prosecutor cannot, explicitly or in effect, ask the jury to penalize a defendant for exercising that right. Carlock v. State , 8 S.W.3d 717, 724 (Tex. App.—Waco 1999, pet. ref'd) ; see also Taylor v. State , 987 S.W.2d 597, 599–600 (Tex. App.—Texarkana 1999, pet. ref'd). Indeed, a prosecutor's argument is permissible only if it falls within one of four areas: "(1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement." Wages v. State , 703 S.W.2d 736, 741 (Tex. App.—Houston [14th Dist.] 1985) (citing Campbell v. State , 610 S.W.2d 754, 756 (Tex. Crim. App. 1980), and Alejandro v. State , 493 S.W.2d 230, 231 (Tex. Crim. App. 1973) ), pet. dism'd , 770 S.W.2d 779 (Tex. Crim. App. 1987) ; see also Polk v. State , No. 02-16-00051-CR, 2016 WL 6519120, at *2 (Tex. App.—Fort Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication).

Here, the prosecutor argued that Phillips had failed to take responsibility for his crime, and the trial court initially sustained Phillips's objection:

[Prosecutor:] Every single defendant who is charged with a crime, has a Constitutional right to have a jury trial. It doesn't matter how much evidence is against them, how guilty they are, how straightforward the case is, or how easy it would be to find them guilty, they still have a constitutional right to ask for a trial.

So there's no catch. You're not missing anything. This is really the case today. We're only here because this defendant has a Constitutional right to have a trial no matter what, and because he's refusing to take responsibility for the offense. And at the end of the day—

[Defense counsel]: Excuse me, Your Honor. I'm going to object to improper argument. The defendant in any case is not required to plead guilty, and this attempts to change the burden of proof to the defense.

THE COURT: All right. I'm going to sustain that particular objection.

The jury will disregard.

[Prosecutor]: Which -- which particular point was I --

THE COURT: I think it was about him refusing to take responsibility. He's got a right to have a jury trial.

[Prosecutor]: Right. And that --

THE COURT: I've sustained the objection.

[Prosecutor]: Okay.

[Defense counsel]: And you've instructed the jury to disregard that; is that correct?

THE COURT: The jury will disregard.

[Defense counsel]: Thank you, Judge.

[Prosecutor]: May I rephrase?

THE COURT: You may conduct your argument.

After that, the prosecutor continued his argument by saying that Phillips was not required to take responsibility but that he had indeed not done so, and this time the trial court overruled Phillips's objections:

[Prosecutor]: Okay. He doesn't have to take responsibility. But, clearly, he's not taking responsibility. That's why we're here.

[Defense counsel]: Once again, Your Honor, this attempts to change the burden of proof, and we object to it.¹

THE COURT: I'll overrule that particular objection.

....

[Prosecutor:] At the end of the day, like I said, when a defendant doesn't want to take responsibility for an offense, it's up to the jury --

[Defense counsel]: Objection, Your Honor, you've already ruled that that's an improper thing to say during closing argument, and you've instructed the jury to disregard it. I'm going to object.

THE COURT: Well, the Court has instructed the jury. And I'm going to overrule the particular objection at this time and allow the argument.

[Prosecutor]: When a defendant doesn't want to take responsibility for an offense --

[Defense counsel]: Your Honor, you've already ruled about this business about taking responsibility. Every defendant has a right to a jury trial. This attempts to change the burden of proof, and we object to it.

THE COURT: The jury has been instructed. I overrule the objection.

[Prosecutor]: I'll say it again. When a defendant doesn't want to take responsibility for an offense, it's up to the jury to make him do it.

[Defense counsel]: And, Your Honor, as the Court knows, I'm required to object every time that the defense believes that there's an improper argument, or I waive my objection. So I'm going to object again on the same basis that I have. This is an attempt to change the burden of proof on the defendant.

THE COURT: The burden of proof is always on the state. It never shifts to the defendant. The Court has instructed the jury. I'll overrule the particular objection.

Regarding the argument to which the trial court sustained Phillips's argument, he does not argue that the trial court's instruction was insufficient to cure any harm arising from the argument, and we conclude that it was sufficient. See Wages , ...