Recio v. State

1

PHILLIP RECIO, Appellant v. THE STATE OF TEXAS, Appellee

No. 14-22-00231-CR

Court of Appeals of Texas, Fourteenth District

May 9, 2023

Do Not Publish - Tex.R.App.P. 47.2(b).

On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1679574

Panel consists of Justices Zimmerer, Spain, and Hassan.

MEMORANDUM OPINION

Meagan Hassan Justice

A jury found Appellant Phillip Recio guilty of continuous sexual abuse of a child and the trial court assessed punishment at 25 years' confinement. Appellant raises a single issue on appeal and asserts that he received ineffective assistance of counsel at trial. For the reasons below, we affirm.

Background

Appellant married Complainant's Mother in July 2014. After the marriage Appellant and Mother moved in together, along with nine-year-old Complainant and her two brothers.

In September 2018, Complainant made an outcry of sexual abuse to her Father and Stepmother. Appellant was arrested and charged with continuous sexual abuse of a child. See Tex Penal Code Ann. § 21.02. Appellant proceeded to a jury trial in February 2022.

I. Evidence at Trial

The jury heard testimony from ten witnesses at trial; six presented by the State and four presented by Appellant. Relevant portions of their testimonies are summarized below.

Stepmother

Stepmother testified that she was concerned about certain text messages sent from Appellant to Complainant in the summer of 2016, when Complainant and her brothers were staying with Father. Photographs of these text messages were admitted into evidence.

Stepmother characterized the text messages as "flirtatious." In the messages, Appellant repeatedly asked Complainant to send him pictures of her; told Complainant he "miss[ed]" her and "wish[ed] [she] were here snuggling" with him; told Complainant they could "cuddle and watch a movie" when she got home; and told Complainant that he loved and missed her. Stepmother thought the messages were "unusual" and showed them to Father, Paternal Grandmother, and Maternal Grandmother. Stepmother said Maternal Grandmother was dismissive of the messages and believed that Appellant was "just . . . trying to be a loving dad."

Stepmother said she and Father did not report the text messages to authorities but chose instead to monitor Complainant. Stepmother recalled that the text messages eventually "kind of died down." Stepmother agreed that, for approximately two years after the text messages, she "did not see anything that alarmed" her. According to Stepmother, the only "suspicious" thing she noted was that Complainant was "pulling away and not being as outgoing as she was."

In September 2018, Complainant and her brothers were staying with Father and Stepmother for the weekend. Stepmother recalled that the children were "complaining" and did not want to return to Mother's house. Stepmother said the children inquired as to how they could have custody changed from Mother to Father.

According to Stepmother, Father proceeded to question Complainant about the text messages she had received from Appellant two years earlier. Stepmother recalled asking Complainant if Appellant had "touched [her] in any inappropriate way," to which Complainant responded by crying and "curl[ing] up into a ball." Stepmother said Mother and Maternal Grandmother were informed of Complainant's outcry.

Father

Father also recalled seeing the "unusual" text messages sent from Appellant to Complainant in the summer of 2016. After discussing the messages with Stepmother, Paternal Grandmother, and Maternal Grandmother, Father said the decision was made "to not go forward with anything, that it really wasn't bad enough, that it [sic] just, red flag, something's going on here. It's just something to keep an eye on."

According to Father, Complainant and her brothers were visiting him and Stepmother for a weekend in September 2018. Father recalled that the children were "frustrated" and "not happy with homelife [with Mother] in Houston at that point." Father said Complainant "was more withdrawn than usual."

When the children were preparing to return to Houston, Father said Complainant "started acting fidgety and nervous." Father asked Complainant about the text messages she had received from Appellant two years earlier and Complainant "started crying and she said that she couldn't speak of it because he said he would hurt people." Father said Complainant told them she had been sexually abused by Appellant.

Claudia Hauser

Hauser is a forensic interviewer employed at the Children's Assessment Center. Hauser interviewed Complainant in October 2018 regarding the sexual abuse allegations. Hauser said Complainant was "very reluctant" to talk, was "very quiet," and "wasn't answering any of [her] questions." Eventually, Complainant began to share the details of the abuse. Hauser opined that Complainant's behavior was consistent with a child that had been sexually abused.

Susan Camazine

Camazine is the sexual assault nurse who examined Complainant in October 2018. According to Camazine, Complainant was "withdrawn, very quiet, she was trembling throughout our time together, she was tense, fidgeting, very anxious, she was constantly looking down to the floor, wringing her hands, [and] tapping her feet."

Camazine said she was unable to complete Complainant's genital examination because Complainant "was not in an emotional place to allow me to do that exam." Camazine testified that, in her experience, patients "very seldom" refused that portion of the exam.

Complainant

Complainant said she first met Appellant when she was nine years old. According to Complainant, the first "inappropriate" interaction with Appellant occurred when she was laying on the couch next to him watching a movie and he touched her waist and thighs.

Complainant said other incidents with Appellant occurred in his bedroom. On one occasion, Complainant recalled that Appellant had her take off her pants so he could rub Neosporin into chigger bites on her "groin area." Complainant recalled other incidents where Appellant would touch her "breast, [] butt, [] thighs, [and] waist." In exchange for this contact, Complainant said Appellant would "treat [her] better" than her brothers and "offer [her] things, like candy or, at one point, cats." Complainant said these interactions would regularly occur throughout the time she lived with Appellant.

Complainant testified that Appellant made her watch the movie "The Secretary," which portrayed a "completely obedient" woman. Complainant said Appellant told her she "should be more like the woman portrayed in the movie."

Complainant also discussed the September 2018 weekend spent with Father and Stepmother, at which she made the sexual abuse outcry. On the drive from Houston to her Father's house, Complainant recalled that she was "upset" because Mother and Appellant "took [her] phone." Complainant said her brothers had their phones taken away, too.

On the Sunday she was supposed to return to Houston, Complainant said her Father and Stepmother asked her if Appellant had sexually abused her. In response, Complainant said she "didn't say anything to them" and only "nodded." Mother came to the house the next day and Complainant told her she had been inappropriately touched by Appellant.

Dr. Crowson

Dr. Crowson is a clinical psychologist and watched Complainant's October 2018 forensic interview from an adjacent room. Dr. Crowson noted that Complainant exhibited certain behaviors, including "avoidance, withdrawal, [and] trying to detach from the situation." Reviewing the text messages admitted into evidence, Dr. Crowson opined that they suggested "grooming in the sense that there was encouragement of secrecy, [and] forced affection and threats if she wasn't responding in a quick enough manner."

Connie Recio

Connie Recio is Appellant's mother. Connie said she lived with Appellant, Mother, Complainant, and Complainant's two brothers for one-and-a-half years starting in February 2017. During this time, Connie said Appellant was employed as a railroad car technician and would work either the second shift (3:00 p.m. to 11:00 p.m.) or the third shift (11:00 p.m. to 7:00 a.m.). Connie said she was generally at the house "[a]ll the time" since she had recently retired.

Connie said her bedroom was on the house's second floor and shared a Jack-and-Jill bathroom with Complainant's bedroom. Connie recalled that the bathroom's doors were generally kept open so she could monitor whether Complainant was using her tablet "after it was bedtime."

During her time living with the family, Connie said she did not see Complainant exhibit any behavior suggesting Complainant "was either unhappy or [] felt threatened or that she was scared in any way." From what she observed, Connie said it appeared Appellant "was a good father to the kids that were in that house." Connie said she did not see anything to substantiate Complainant's sexual assault allegations.

Maternal Grandmother

Maternal Grandmother recalled visiting Appellant, Mother, and the three children at their Houston home. When asked if she had observed unusual behavior while visiting the family, Maternal Grandmother said she "never saw [Complainant] uneasy, you know. I never did see her act like anything was, you know, going on or inappropriate." According to Maternal Grandmother, she thought Appellant had a "good relationship" with Complainant and that he was "always supportive of all three kids."

Mother

At the time of trial, Mother said she had not seen Complainant in over three years because of a court order. Mother said she married Appellant in 2014 and, afterwards, the family moved in together. Mother said her children "loved" Appellant ...