Willis v. State

1

CYNTHIA D. WILLIS, Appellant v. THE STATE OF TEXAS, Appellee

No. 01-21-00438-CR

Court of Appeals of Texas, First District

May 11, 2023

Do not publish. Tex.R.App.P. 47.2(b).

On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1584804

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

MEMORANDUM OPINION

April L. Farris Justice

A jury convicted appellant Cynthia D. Willis of the first-degree felony offense of murder and sentenced her to fifty years' imprisonment. See Tex. Penal Code §§ 19.02(b)(1), (2), (c), 12.32(a). Willis raises three issues on appeal. First, she argues that her trial counsel provided ineffective assistance. Also in her first issue- which we construe as her second issue-Willis complains that the trial court erred by not sua sponte instructing the jury on the lesser-included offense of manslaughter. In her third issue, Willis argues that the trial court erred by admitting evidence of an extraneous offense. We affirm.

Background

Willis was married to Eric "Mickey" Willis, and they had three children together. Mickey had other adult children from prior relationships, and Willis also had a child from a previous relationship. Willis, Mickey, and their three children lived in a rental house in Spring. Willis's child from a prior relationship would stay there from time to time as well.

The last time anyone saw Mickey alive was on March 9, 2018. He recently had begun having an extramarital affair with a woman he had known since middle school. On the evening of March 9 Mickey had dinner with his girlfriend, picked up his son from a friend's house just before midnight, and returned home and went to bed.

Early in the morning on March 10, Willis woke up her children, told them to pack a bag with some clothes, and drove them to Humble. She did not explain why they were leaving, and Mickey did not go with them. Willis and the children stayed in a hotel in Humble for a couple of nights before she took the children to her sister's house in Humble on March 12. Willis stayed at her sister's house for a few nights, but the children stayed there for several weeks.

On March 19, one of Mickey's grown daughters contacted the police and requested a welfare check for Mickey. Neither Mickey's children nor his father, who worked with him had heard from Mickey since March 9, and he had not shown up to work since then. Someone also contacted Mickey's landlord, who had keys to the Mickey's rental house. Before officers arrived at Mickey's house for the welfare check, Mickey's father met the landlord at the house. The landlord unlocked the front door and immediately smelled a noxious odor. Fearing the odor might be gas, the landlord shut the door and called the gas company. A representative of the gas company arrived but did not believe the smell was gas.

Shortly thereafter, Deputy Shawanna Mosley-Banks with the Harris County Sheriff's Office arrived at Mickey's house to conduct the welfare check. Upon entering the residence, she smelled the odor and recognized it as a decaying body. Mosley-Banks, Mickey's father, and the landlord entered the house. They first checked the three secondary bedrooms, finding no one occupying them. Upon reaching the closed door of the primary bedroom, they heard a loud noise coming from a television inside the bedroom. When Mosley-Banks opened the door, she saw a silhouette of a body lying on the bed covered by a blanket. She approached the bed, pulled back the covers, and discovered Mickey's body in a state of decay. She ushered Mickey's father and landlord out of the house and called for additional officers. The officers determined that there was no sign of forced entry into the house. The investigation and a later autopsy revealed that Mickey died from a single gunshot wound to the head. Police never located the firearm.

A Harris County grand jury indicted Willis for murder. See Tex. Penal Code § 19.02(b)(1), (2). She was arrested in Houston on March 24.

Trial occurred over seven days. Mickey's children and coworkers testified that Mickey owned a construction company and had a reputation for a good work ethic. He was also an attentive father both to his children and to Willis's child. Mickey's absence from work and his failure to call his coworkers and children after March 9 were unusual, eventually prompting the request for the welfare check.

Family and coworkers also testified about problems in Mickey and Willis's marriage. One of Mickey's coworkers testified that he saw Willis stab Mickey with a knife in 2000 or 2001 outside the couple's home after the coworker dropped Mickey off after work. The coworker called the police, but police were unable to find Mickey or Willis at the house by the time they arrived. Consequently, no charges were filed against Willis.

Coworkers also testified that they knew Mickey recently began dating another woman, and text messages Willis sent to Mickey before his death showed that she was aware of the affair. Mickey had contacted a lawyer about divorcing Willis. He had paid the lawyer a partial retainer and obtained some documents to start the divorce proceeding, but he had not filed for divorce before his death.

The trial evidence included cell phone records showing that Willis's and Mickey's cell phones travelled together on the morning of March 10, 2018, from the house to the hotel in Humble, indicating that Willis took Mickey's cell phone with her. Although Willis had called or texted Mickey numerous times before that morning, the records showed that she never contacted him again afterwards. She also texted a friend on the morning of March 9 discussing problems she was having with Mickey and telling her friend, "Putting my plan into motion."

Willis called in sick to work for several days beginning on March 9, and she never went to work again after March 9. Willis's sister, however, testified that while Willis and the children stayed at her house for a few days after March 12, Willis did not appear to be sick. Text messages Willis sent to her children around this time also conflicted with her excuse for missing work due to illness. At some point, Willis left her children at her sister's house.

After the State rested during the guilt-innocence phase of trial, defense counsel made a motion for directed verdict, which the trial court denied. After the defense rested, both sides gave closing arguments. The jury returned a verdict of guilty.

During the punishment phase of trial, Willis testified about Mickey's character. She expressly refused to accept the jury's guilty verdict, denying her involvement in the murder. She testified that Mickey had "always cheated" on her, but she nevertheless stayed with him "to keep the family together." She testified that Mickey had been a drug dealer, had been in and out of prison, and owed money to people at various times, including in 2018, for which he had received threats. She also testified that Mickey had pulled a gun on her in 2003, but the charges were later dropped. She denied having ever stabbed Mickey.

After both sides rested and presented closing arguments, the jury sentenced Willis to fifty years' imprisonment. Willis filed a motion for new trial arguing that her trial counsel was ineffective. The trial court did not hold a hearing on the motion for new trial, and it was overruled by operation of law. Tex.R.App.P. 21.8(c). This appeal followed.

Ineffective Assistance of Counsel

In her first issue, Willis argues that her trial counsel was ineffective for failing to investigate, prepare for trial properly object, raise "crucial issues" such as sudden passion during trial, request a jury instruction on the lesser-included offense of manslaughter, and present mitigating evidence at the punishment phase of trial. She argues that these failures establish her ineffective assistance of counsel claim.

A. Standard of Review and Governing Law

The Sixth Amendment of the United States Constitution guarantees that in "all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish that counsel's assistance was ineffective, the defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Id. at 687; see Johnson v. State, 624 S.W.3d 579, 587 (Tex. Crim. App. 2021) (stating that prejudice prong requires showing reasonable probability that but for counsel's unprofessional errors, result of proceeding would have been different). The defendant bears the burden to prove both prongs by a preponderance of the evidence, and the "failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Richardson v. State, 606 S.W.3d 375, 381 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd).

Under the first prong, counsel's performance is deficient if it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88; Johnson, 624 S.W.3d at 585. "[J]udicial review of whether counsel's performance was deficient must be highly deferential to trial counsel and avoid the deleterious effects of hindsight." Richardson, 606 S.W.3d at 381.

At the outset, there is a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and that the conduct constituted sound trial strategy. Johnson, 624 S.W.3d at 586 (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim....