Christopher Allen Phillips v. State

436 S.W.3d 333, 2014 Tex. App. LEXIS 5316, 2014 WL 1998730
CourtCourt of Appeals of Texas
DecidedMay 15, 2014
Docket10-12-00164-CR
StatusPublished
Cited by6 cases

This text of 436 S.W.3d 333 (Christopher Allen Phillips v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher Allen Phillips v. State, 436 S.W.3d 333, 2014 Tex. App. LEXIS 5316, 2014 WL 1998730 (Tex. Ct. App. 2014).

Opinions

OPINION

REX D. DAVIS, Justice.

A jury convicted Appellant Christopher Allen Phillips of aggravated robbery and assessed his punishment, enhanced by a prior felony conviction, at life imprisonment. This appeal ensued.

Background

Phillips does not challenge the sufficiency of the evidence, but the record shows that on January 17, 2011, Marcia Judd was just finishing styling her client Loraine Price’s hair at the Mane Attraction beauty salon in Hewitt when a six-foot-tall man wearing solid black, including a black mask, black gloves, and black shoes, came through the front door of the salon with a gun drawn. The man demanded money, but neither Judd nor Price had any money on them. Judd admitted, however, that her purse was “in the back.” The man began to lead Judd to the back of the salon. The man then looked back toward Price and told her to get up. Judd then remembered that she had Mace in her pocket and attempted to spray the man with it. As Judd and the man began fighting over the Mace, Price ran outside. Judd said that inside the salon, the man caused her to fall down on her back and [335]*335that her head hit the concrete. She heard a gunshot, and the man then grabbed her purse and ran out the door. A green backpack that he had brought with him was left lying on the floor. The backpack was later found to have a crack pipe in it. Price said that as she was running away from the salon, she also saw the man point the gun at her and take a shot at her.

Jerry Sims testified that he was at Judd’s Veterinary Clinic next door to the Mane Attraction when Price came in terrified and said that someone was going to shoot them. Sims stepped out of the clinic and saw a man run and jump into the passenger side of a car. Sims said that he did not actually see a driver but that he assumed there was a driver because the man got into the passenger side, and the passenger door may not have even been closed before the car “burned rubber.”

About thirty minutes later, a credit card from Judd’s stolen purse was used at A & A Food Mart in McGregor, and it was caught on surveillance video. The car at the gas station matched the description that was provided by Sims. Surveillance showed Phillips getting into the passenger seat and Andre Dulin getting into the driver’s seat of the car. Hewitt Police Detective Brad Bond testified, “They would have had to go straight there without making any stops in order to get there in time.” Dulin used Judd’s credit card, and Phillips was next to him when he used it. Dulin is only five foot, seven inches tall, and Detective Bond said that Phillips matched the description given of the actual robber.

Dulin testified that he was indicted for the same robbery for which Phillips was on trial, as well as indicted for two drug cases (possession of cocaine) and for a credit card abuse case. There had been no deals made about any of his cases. Dulin stated that he was driving with Phillips as his passenger when Phillips saw the beauty salon and told him to pull in. Dulin pulled in and parked his car backwards. When asked if he knew that Phillips wanted to rob the place, Dulin replied, “No, not really.” Dulin said that he first knew Phillips wanted to rob the place when he saw Phillips put on gloves and a hoodie as he was backing up the car. When Phillips got out, Dulin waited even when he heard women screaming. Dulin said Phillips was in the salon about four or five minutes at the longest. Phillips came out of the salon and had a purse in his hand. They then drove off and went to the gas station in McGregor, where he used the credit card.

Several days after the robbery, Dulin was stopped and arrested because he had warrants. McGregor Police Officer Kelly Dunlap inventoried his vehicle and found a purse between the passenger seat and the center console, “shoved down almost against the floorboard.” The contents of the purse belonged to Judd and the Mane Attraction. Dulin testified that he called his cousin and told him to call Phillips after he was arrested. They “[u]sed a three-way.” Dulin was mad at Phillips and told him that he had been arrested because Phillips left the black bag from the purse in his ear,

Jury Charge

In his first issue, Phillips contends that the trial court erred by not including an instruction in the guilt/innocence charge about “how to consider the ‘jailhouse testimony’ of Kavin Diggs and Elroy Slaughter in accordance with” article 38.075 of the Code of Criminal Procedure. We will first determine whether the charge was erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex.Crim.App.2010); Watkins v. State, 333 S.W.3d 771, 776 (Tex.App.-Waco 2010, pet. ref'd). But because Phillips did not object to the charge on this basis, error will not result in reversal of his [336]*336conviction in the absence of “egregious harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).

Article 38.075, which became effective on September 1, 2009, provides:

(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

Tex.Code Crim. Proc. Ann. art. 38.075 (West Supp. 2013). Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that it is therefore “imprudent” to convict a person based on an incarcerated informant’s statement providing information related to a crime that only declares the crime was committed without additional evidence to substantiate the informant’s claim. Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009); see Watkins, 333 S.W.3d at 778. Both Phillips and the State agree that if article 38.075 applies, the trial court was under a duty to instruct the jury sua sponte according to article 38.075. See Brooks v. State, 357 S.W.3d 777, 781 (Tex.App.-Houston [14th Dist.] 2011, pet. refd) (“Analyzing article 38.075 under case law applicable to similar corroboration requirements, we conclude that the trial court was under a duty to instruct the jury sua sponte according to article 38.075.”).

Kavin Diggs testified that he was in jail with Phillips at the time of trial. They had been in a cell together, and Phillips tried to get him to say that he heard Andre Dulin, Phillips’s alleged accomplice, say that Dulin committed the offense by himself. Diggs told Phillips that he would not say anything like that because he had never heard Dulin say anything like that. Diggs stated that he had only heard Dulin and Phillips each say that the other one had committed the offense.

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Bluebook (online)
436 S.W.3d 333, 2014 Tex. App. LEXIS 5316, 2014 WL 1998730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-allen-phillips-v-state-texapp-2014.