Opinion issued December 12, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00379-CR ——————————— DESHAUN TAMIEN PHILLIPS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 21-CR-4182
MEMORANDUM OPINION
A jury found appellant Deshaun Tamien Phillips guilty of aggravated sexual
assault. After finding two enhancement paragraphs true, the jury assessed appellant’s
punishment at sixty years’ confinement. In one point of error, appellant contends
that the trial court erred in refusing to allow defense counsel to inquire about the complainant’s history of problems at her apartment complex which directly
impacted her credibility, and that the exclusion of that evidence was harmful to his
defense. We affirm.
Background
Dolores Louis is the mother of the complainant, Deandria Charles. Deandria,
who is forty-two years old, has bipolar disorder and schizophrenia. Dolores assists
Deandria on a daily basis with her medication and “ADLs” (activities of daily living)
such as cooking meals and taking care of the household, and she reminds Deandria
of her appointments.
On October 7, 2021, Dolores checked on Deandria at her apartment to make
sure that she had eaten and taken her medication that day. She testified that she left
the apartment at about 6:00 or 7:00 p.m. that evening and returned the next day just
before 12:00 noon. Dolores testified that when Deandria opened the door, she said,
“I’m so glad you’re here. I’ve been waiting for you to come.”
When Dolores entered the apartment, she noticed that someone else was there.
Deandria went to her bedroom and appellant came out of the bathroom. Dolores
testified that appellant immediately began talking to her about housing and his job
at Whataburger and told her he was waiting to receive his paycheck. Dolores testified
that she told appellant he could not stay in Deandria’s apartment and that the
apartment complex rules prohibited anyone from being in Deandria’s apartment.
2 When appellant told Dolores that he wanted to find housing, Dolores told him that
he should go to the Galveston Housing Authority and that Deandria could not help
him with that. Appellant left the apartment.
Dolores testified that as soon as Deandria locked the door she began crying
and told Dolores, “Mother, please call the police. That man raped me.” Deandria
then told her “look at what he did to me,” and she showed Dolores the bruises on her
body and told Dolores that appellant “was on her all night.” Dolores testified that
she saw bruises on Deandria’s face, neck, arms, and back and that she had not seen
any bruises on Deandria the previous night. Dolores called the police. After the
responding police officers took statements from Deandria and Dolores, Deandria
was transported to the hospital for examination.
On cross-examination, Dolores testified that Deandria knew that she was not
supposed to allow anyone other than a family member in her apartment because
doing so violated the lease. She testified that she also told the police that Deandria
was not supposed to have anyone else in her apartment because it would violate the
apartment complex rules and that Deandria could get in trouble and be evicted for
doing so. Dolores testified that she had previously reported other people being in
Deandria’s apartment who were not supposed to be there.
Deandria testified that, in October 2021, she lived in Apartment No. 235 at
the Holland House Apartments in Galveston. Deandria testified that she was not
3 allowed to have others inside of her apartment. She met appellant for the first time
outside a store near the apartment complex. Deandria testified that appellant came
to her apartment once before October 7 but nothing happened on that occasion. She
stated that when appellant came to her apartment the second time, he shoved his way
inside and grabbed her by the neck. Deandria testified that appellant seemed angry
and told her he was going to kill her, and that he was not happy because “they should
have [given him] some money.” Appellant pushed her into the bedroom where she
fell. Deandria testified that appellant grabbed her by the legs and attempted to pull
her into the bathroom. Deandria told him, “[s]top, please. Stop pulling me.”
Appellant picked her up and put her on the bed, where he took off her pajama
bottoms. Appellant began choking her and repeatedly said, “Girl, I’m going to kill
you.” Appellant touched Deandria on the inside of her vagina with his fingers and
then penetrated her with his penis. Deandria testified that she told appellant to stop
multiple times and that she never consented to have sex with him. She testified that
appellant had his hands around her throat most of the time, for about six or seven
hours, and that he stayed on top of her so that she could not leave. She also testified
that appellant struck her in the face twice with his fist. Deandria testified that she
was in fear for her life.
Deandria testified that appellant left her apartment when Dolores arrived the
next morning. She testified that she had never had sex with appellant and that she
4 never told the sexual assault nurse examiner that she and appellant had previously
had consensual sex. On cross-examination Deandria agreed that she told the
investigating officer who arrived at her apartment that she opened the door for
appellant when he knocked but that on direct examination she testified that he
forcibly pushed the door open. She acknowledged that she told the officer that
appellant punched her in the face eight times but that on direct examination she
testified that he hit her twice. She agreed that she told officers that appellant choked
her twice but that she testified he choked her more than seven times. She also agreed
that she told the officer that appellant ejaculated a couple of times but later told the
investigating detective that he ejaculated about twelve times.
Deandria testified that she had been smoking methamphetamine the first time
that appellant came to her apartment, two days prior to the assault, but that she did
not smoke on the date she was assaulted. She testified that one of the reasons she
was not permitted to have anybody in her apartment was because of drug use.
Odelia Williams, Director of Public Housing at the Galveston Housing
Authority, supervises the managers of the four public housing properties, including
Holland House. Williams testified that Holland House is a housing facility for
seniors and low-income disabled residents. The front entrance to Holland House is
open from 8:00 a.m. to 5:00 p.m. and residents must use their door key fobs after
5:00 p.m. The back entrance is accessible only by using a key fob. Williams testified
5 that residents can also exit by several side doors and that residents sometimes prop
the doors open. The Housing Authority contracts with a security company to provide
security guards at Holland House and there are cameras on the property.
When asked if she ever had problems with Deandria at Holland House,
Williams testified that she had typical issues with her involving lease violations but
no more than usual. Williams stated that she spoke with prosecutors about the issues
she had with Deandria, including drug use. When defense counsel asked Williams
on cross-examination what type of issues she had with Deandria, the State objected
on the grounds that it lacked relevance, concerned a specific instance or instances of
misconduct, and constituted improper character witness testimony. The trial court
sustained the State’s objection.
Tami McCreight is a Sexual Assault Nurse Examiner (SANE) with the
University of Texas Medical Branch—Galveston Emergency Department.
McCreight performed Deandria’s sexual assault examination. McCreight testified
that Deandria’s behavior during the exam was consistent with somebody with
reduced cognitive abilities. She testified that Deandria had multiple scabbed areas
on her face, chin, and discoloration on her lips as well as injuries to both of her
hands, her arms, her wrist, her legs, her shoulder, her knees, and her back. Deandria
told McCreight that appellant was mad and hit her with his fist, he put his hands in
every position on every part of her body, and he tried to put something in her anus
6 and her vagina. McCreight’s report stated that Deandria told her that she let appellant
in her apartment and that she was really comfortable with him. Deandria stated that
she had known appellant for a few months and that they had had consensual sex
before but “not this time.”
Following the close of evidence, the jury convicted appellant of aggravated
sexual assault and affirmatively found that appellant used his hands as a deadly
weapon. At the punishment phase, the State introduced evidence that appellant had
been previously convicted of several offenses.1
The jury found appellant guilty of the charged offense of aggravated sexual
assault and found the two enhancement paragraphs alleging obstruction or retaliation
and arson true. The jury assessed appellant’s punishment at sixty years’
confinement. The trial court signed the final judgment on April 19, 2023. This appeal
followed.
Discussion
In his sole point of error, appellant contends that the trial court committed
reversible error when it refused to allow defense counsel to question Williams, the
Public Housing Director, about Deandria’s history of allowing individuals into her
1 Appellant was previously convicted of assault causing bodily injury, family member; criminal trespass; terroristic threat against a public servant; resisting arrest, search, or transport; resisting arrest; terroristic threat; obstruction or retaliation; and arson. 7 apartment and her drug use. The State responds that appellant failed to preserve
error, the trial court did not commit error in excluding the evidence, and error, if any,
was harmless.
A. Standard of Review and Applicable Law
We review a trial court’s decision whether to admit or exclude evidence for
an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App.
2016). We will not reverse the ruling of the trial court except where there has been
a clear abuse of discretion falling outside the “zone of reasonable disagreement.”
Hart v. State, 688 S.W.3d 883, 891 (Tex. Crim. App. 2024).
An argument that evidence should have been admitted because it was offered
to attack the credibility of the complainant may involve both the Confrontation
Clause and the Rules of Evidence. Johnson v. State, 490 S.W.3d 895, 909 (Tex.
Crim. App. 2016). The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. The main purpose behind the Confrontation
Clause is to secure for the opposing party the opportunity of cross-examination
because that is “the principal means by which the believability of a witness and the
truth of his testimony are tested.” Johnson, 490 S.W.3d at 909 (quoting Davis v.
Alaska, 415 U.S. 308, 316 (1974)). The Sixth Amendment right to cross-examine a
witness allows a party to attack the general credibility of that witness “or to show
8 their possible bias, self-interest, or motives in testifying.” Hammer v. State, 296
S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing to Davis, 415 U.S. at 316). A trial
court judge can abuse his or her discretion by excluding admissible evidence that is
offered by the defendant to demonstrate the complainant’s motive to falsely accuse
him. Johnson, 490 S.W.3d at 909.
The right to cross-examine, however, is not unqualified. See id. A trial court
judge may limit the scope and extent of cross-examination, so long as those limits
do not operate to infringe upon the Confrontation Clause’s guarantee of “an
opportunity for effective cross-examination.” Johnson v. State, 433 S.W.3d 546, 552
(Tex. Crim. App. 2014) (internal citations omitted). The defendant is not entitled to
“cross-examination that is effective in whatever way, and to whatever extent,” he
might wish. Id. Whether there has been a violation of the Confrontation Clause is
determined on a case-by-case basis. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.
App. 2000). The trial court maintains broad discretion to impose reasonable limits
on cross-examination to avoid harassment, prejudice, confusion of the issues,
endangering the witness, and the injection of cumulative or collateral evidence. Id.;
Castle v. State, 748 S.W.2d 230, 233 (Tex. Crim. App. 1988) (“Generally, the scope
of cross-examination is within the control of the trial court and in the exercise of its
own discretion.”).
9 1. Analysis
Appellant complains of the trial court’s ruling that occurred during defense
counsel’s cross-examination of Williams:
Defense Counsel: Had you ever had any problems with [Ms. Charles] in that unit?
Williams: Not more than usual, just regular things, regular just lease violations.
Defense Counsel: Okay. Did you—did you speak to the prosecutors this morning about your testimony?
Williams: About being here?
Defense Counsel: About Ms. Charles and how you had some issues with her and drug use in that apartment.
Williams: Uh-huh. Yes.
Defense Counsel: Okay. So, yes, you talked to the State about that information?
Williams: Yes.
Defense Counsel: Okay. So what type of issues did you have with her?
Williams: Just her—
State: Your Honor, I’m going to object to any specific acts [sic] prior about conduct.
The Court: Response?
Defense Counsel: Well, Judge, I mean, they called her as a witness. It’s their witness. And I think that she can talk about what issues she may have had with somebody that’s—their credibility means everything to the jury.
10 The Court: Anything else?
State: Your Honor, just that I believe it’s not relevant, as well it’s improper character [evidence] of a witness who’s already testified.
The Court: Sustained.
Appellant argues that the trial court erred by sustaining the State’s objection
and that the improper ruling denied him the right to effectively cross-examine
Williams about Deandria’s motive to lie and the consequences she faced for her
repeated rule violations. In doing, so, he argues, the trial court prevented him from
fully attacking her credibility in violation of his rights under the Confrontation
Clause.
2. Preservation of Error
The State argues that appellant has failed to preserve his argument based on
the Confrontation Clause.
To preserve a complaint for appellate review, there must be a timely, specific
objection and a ruling by the trial court. TEX. R. APP. P. 33.1(a). “To be timely, a
complaint must be made as soon as the grounds for complaint [are] apparent or
should be apparent.” Ex parte Nuncio, 662 S.W.3d 903, 914 (Tex. Crim. App. 2022)
(quoting Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999)). To be
sufficiently specific, an objection need not employ “hyper-technical or formalistic
. . . words or phrases[.]” Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App.
2018) (internal citations omitted). Instead, to avoid forfeiting a complaint on appeal,
11 the party must “let the trial judge know what he wants, why he thinks he is entitled
to it, and to do so clearly enough for the judge to understand him at a time when the
judge is in the proper position to do something about it.” Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009). “This gives the trial judge and the opposing party
an opportunity to correct the error.” Id. (citing Reyna v. State, 168 S.W.3d 173, 179
(Tex. Crim. App. 2005)). Accordingly, a “general or imprecise objection may be
sufficient to preserve error for appeal, but only if the legal basis for the objection is
obvious to the court and to opposing counsel.” Buchanan v. State, 207 S.W.3d 772,
775 (Tex. Crim. App. 2006). “Usually, for a complaint to be obvious,” there will
“have been statements or actions on the record that clearly indicate what the judge
and opposing counsel understood the argument to be.” Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012).
In Reyna v. State, the Court of Criminal Appeals noted that a defendant’s
argument that the purpose of admitting evidence is to attack the victim’s credibility
can refer to either the Texas Rules of Evidence or the Confrontation Clause. See
Reyna, 168 S.W.3d at 179. In such case, it is incumbent on the proponent of the
evidence to inform the trial court why the evidence is admissible; it is not enough to
tell the judge that evidence is admissible. See id. at 177. The Court in Reyna
concluded that because the defendant “‘did not clearly articulate’ that the
Confrontation Clause demanded admission of the evidence, the trial judge ‘never
12 had the opportunity to rule upon’ this rationale.” Id. at 179. So too here. At trial, the
only reason appellant offered for the admission of Williams’s testimony was that it
went to the complainant’s credibility. There is nothing in the record showing that
appellant properly put the trial judge on notice that he was making a Confrontation
Clause argument in support of admitting the excluded evidence. Golliday, 560
S.W.3d at 670 (“Parties are not permitted to ‘bootstrap a constitutional issue from
the most innocuous trial objection,’ and trial courts must be presented with and have
the chance to rule on the specific constitutional basis for admission because it can
have such heavy implications on appeal.”).
Further, there is nothing in the exchange related to defense counsel’s objection
that suggests it was obvious to the court and to the prosecutor that appellant was
raising a complaint about the exclusion of the evidence on Confrontation Clause
grounds or another constitutional basis. See Buchanan, 207 S.W.3d at 775; Clark,
365 S.W.3d at 339 (noting for complaint to be obvious, there will have been
statements or actions clearly indicating what judge and opposing counsel understood
by arguments). In response to defense counsel’s objection, the prosecutor argued
that the evidence would constitute a specific instance or instances of misconduct,
lacked relevance, and the witness was an improper character witness, indicating that
the State understood the line of questioning to be an attempt to impeach Deandria.
This response does not demonstrate that the court and the prosecutor understood
13 appellant to be objecting on Confrontation Clause grounds. See Buchanan, 207
S.W.3d at 775. Having failed to make a constitutional argument during trial,
appellant is precluded from raising it on appeal. See TEX. R. APP. P. 33.1(a);
Golliday, 560 S.W.3d at 671 (“Appellant did not clearly articulate a constitutional
basis supporting the admission of the excluded evidence at trial. Consequently, he
did not preserve a constitutional claim for appeal.”); Reyna, 168 S.W.3d at 179; see
also Hamilton v. State, No. 01-21-00587-CR, 2023 WL 3099909, at *13 (Tex.
App.—Houston [1st Dist.] Apr. 27, 2023, pet. ref’d) (mem. op., not designated for
publication) (concluding defendant waived constitutional arguments because he
failed to “clearly articulate” to trial court that Confrontation Clause or any other
constitutional provision “demanded admission of the evidence” he sought to admit).
3. No Error
However, even if appellant had preserved his Confrontation Clause argument,
the record does not support his argument that he was denied the right to fully cross-
examine Williams to develop Deandria’s motive to lie about how and why appellant
was at her apartment. Appellant sought to question Williams about Deandria’s
previous violations of the housing rules and the potential consequences of those
violations. As appellant concedes in his brief, the jury heard evidence that Deandria
had previously engaged in drug use and had unauthorized visitors in her apartment.
Dolores testified that she told appellant he could not stay in Deandria’s apartment
14 and that the apartment complex rules prohibited anyone from being in Deandria’s
apartment. On cross-examination, Dolores testified that Deandria knew that she was
not supposed to allow anyone other than a family member in her apartment because
the lease says so. She stated that she had previously reported other people in
Deandria’s apartment who were not supposed to be there. Dolores testified that she
also told the police that Deandria was not supposed to have anyone else in her
apartment and that she could be evicted for violating the housing rules. The jury also
heard Deandria’s admission that she was not allowed to have others in her apartment
and that one of the reasons for this was her drug use. Deandria testified that appellant
had been in her apartment prior to the date of the assault, and that she had smoked
methamphetamine the first time he came to her apartment.
Defense counsel had the opportunity to cross-examine Dolores and Deandria
about Deandria’s history of allowing individuals into her apartment and her drug use
to support the defensive theory that Deandria had a motive to lie about appellant’s
presence in her apartment. The excluded testimony would merely have been
cumulative and repetitive of the evidence of Deandria’s drug use and unauthorized
visitors already before the jury, and the trial court was within its discretion to exclude
it. See Lopez, 18 S.W.3d at 222 (stating trial court maintains broad discretion to
impose reasonable limits on cross-examination to avoid, among other things,
injection of cumulative evidence); Castle, 748 S.W.2d at 233 (“Generally, the scope
15 of cross-examination is within the control of the trial court and in the exercise of its
own discretion.”); see also Johnson, 433 S.W.3d at 552 (noting defendant is not
entitled to “cross-examination that is effective in whatever way, and to whatever
extent,” he might wish). On this record, we conclude that appellant was not denied
the right to a full cross-examination to attack Deandria’s credibility in violation of
the Confrontation Clause. The trial court did not abuse its discretion in excluding the
complained-of testimony. We overrule appellant’s sole point of error.
Conclusion
We affirm the trial court’s judgment.
Amparo Monique Guerra Justice
Panel consists of Justices Goodman, Guerra, and Gunn.
Do not publish. TEX. R. APP. P. 47.2(b).