Opinion issued July 30, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00105-CR ——————————— DONELL VONCELLO PHILLIPS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1521971
MEMORANDUM OPINION
A jury convicted appellant Donell Voncello Phillips of sexual assault of a
child, a second-degree felony. After Phillips pleaded true to two enhancement
allegations, the trial court sentenced him to 60 years’ imprisonment. On appeal, he
contends that his counsel was ineffective and the trial court abused its discretion in denying his motion for a new trial based on ineffective assistance of counsel. We
affirm.
Background
L.R., the complainant, lived in an apartment with her mother and two
younger siblings. Her mother had been in a long-term relationship with Phillips for
L.R.’s entire life, and L.R. considered him her stepfather. In January 2015, when
L.R. was 14 years old, her mother picked her up from school and dropped her off
at home. Around 6:30 p.m., Phillips joined L.R. and her siblings at the apartment.
After her siblings went to bed, L.R. argued with Phillips over a phone charger
while they were in the living room. L.R. became angry, told Phillips to stop lying,
and slapped him in the face. Phillips stood up and tried to grab L.R., but she ran to
another room.
Sometime later, L.R. returned to the living room where Phillips, dressed
only in boxers, playfully told her to “cross the line,” as if to fight or wrestle with
her. Phillips grabbed L.R. by her ankle, causing her to fall onto her back on the
floor. He lay on top of her, pinning her with his body, and held one of her arms
down. Phillips slid his hand up the leg of L.R’s shorts, moved her underwear aside,
and penetrated her vagina with his finger. As L.R. struggled against him, Phillips
kissed her on the mouth, lifted her shirt and bra, and kissed her breast. L.R. pushed
him off of her and stood up. Phillips tried to pull her back down by her arm, but
2 she pulled away and ran to the bathroom. She locked the bathroom door behind her
and cried. Later, Phillips asked L.R. through the bathroom door if she was mad at
him and if she wanted him to pick her up from school the next day. She told him to
leave her alone and that she did not care. L.R. stayed in the bathroom until she
heard Phillips leave the house. L.R. fell asleep before her mother came home.
The next morning, L.R. told her mother what happened the night before, and
they went to the hospital where L.R. was examined and they spoke to police.
About two weeks later, Officer S. Sanchez, an investigator with the Houston Police
Department child sexual abuse unit was assigned to the case. Officer Sanchez
interviewed both L.R. and her mother and then scheduled a forensic interview of
L.R. at the Children’s Assessment Center. The interview occurred on February 19,
2015. Officer Sanchez interviewed Phillips in March 2015 and interviewed L.R.
again. L.R.’s account remained consistent, and Phillips was charged with sexual
abuse of a child.
At trial, witnesses testified to these facts. In addition, L.R. testified about her
life at home after Phillips’s arrest. When Phillips was charged, Phillips lived with
L.R.’s family, and, after he was arrested, she wanted to help him get out of jail.
After charges were filed and Phillips was in custody, L.R. spoke with him by
phone. The jury heard recordings of the calls, in which Phillips repeatedly told
L.R. that if she said she was lying, he would get out of jail. He impressed upon her
3 that she was the one who would decide whether he came home or not. He
suggested that to ensure his release, she only needed to write a letter recanting the
allegations. L.R. asked him why he had done what he did to her, and he responded
that they would talk about it after the proceedings were over.
L.R. and her mother met with the defense investigator. By the time of the
meeting, L.R.’s mother no longer believed her. While with the investigator, L.R.
signed an affidavit recanting the statements she made to the police department and
to the Children’s Assessment Center. During trial, she testified that she had signed
the affidavit to try to help Phillips, but it was untruthful. She averred that she told
the truth to the police and the Children’s Assessment Center. She decided to tell
the truth because her 10-year-old sister lived at home.
Dr. Lawrence Thompson, Jr., Director of Therapy and Psychological
Services at the Children’s Assessment Center testified that children who are abused
by people they love may have mixed feelings and may be manipulated by the
perpetrator. He opined that children may even recant their stories. L.R.’s mother
and aunt testified for Phillips. L.R.’s mother testified that she did not believe L.R.,
and her aunt testified that L.R. had never been known to tell the truth.
The jury found Phillips guilty of sexual assault of a child. At the punishment
hearing, Phillips pleaded true to two enhancements paragraphs alleging that he had
previously been convicted of two felonies. Phillips’s mother testified, describing
4 her son as kind, generous, and loving. She told the court that he had been taking
college courses and was close to receiving a degree. On cross-examination, the
State asked her to list Phillips’s children and elicited testimony that Phillips
fathered a child with a girl who was sixteen or seventeen at the time. The court
sentenced Phillips to 60 years’ imprisonment.
Phillips filed a motion for a new trial based on ineffective assistance of
counsel. In the motion, Phillips alleged that counsel was ineffective for (1) failing
to hire expert witnesses and failing to investigate, as evidenced by the lack of notes
in the case file; (2) failing to introduce letters that L.R. wrote Phillips while he was
incarcerated; and (3) failing to present any witnesses during the trial.
Trial counsel testified at the hearing on the motion. In response to the
allegations, he said that the lack of notes in his file was because he did not write
them; he hired an investigator and that investigator obtained an affidavit from L.R.,
which was discussed during L.R.’s testimony at trial; and he made the strategic
decision not to introduce letters written by L.R. to Phillips or to hire a private
psychological evaluator. He also testified to plea negotiations that ended a week
before trial in which he advocated for his client. And he testified that, contrary to
Phillips’s motion for a new trial, he did call witnesses at both the
guilt-or-innocence phase and during punishment.
5 The court denied the motion stating that Phillips did not prove that he was
prejudiced by any alleged errors. The record reflects that counsel performed an
investigation, including hiring an investigator; that he did call witnesses throughout
the proceedings; and that he had strategic reasons for not introducing the letters.
The court held that based on the evidence of guilt, there was no reasonable
probability that the result of the case would be different.
Ineffective Assistance of Counsel
On appeal, Phillips contends that the trial court abused its discretion when it
denied his motion for a new trial based on ineffective assistance of counsel. To
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Opinion issued July 30, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00105-CR ——————————— DONELL VONCELLO PHILLIPS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1521971
MEMORANDUM OPINION
A jury convicted appellant Donell Voncello Phillips of sexual assault of a
child, a second-degree felony. After Phillips pleaded true to two enhancement
allegations, the trial court sentenced him to 60 years’ imprisonment. On appeal, he
contends that his counsel was ineffective and the trial court abused its discretion in denying his motion for a new trial based on ineffective assistance of counsel. We
affirm.
Background
L.R., the complainant, lived in an apartment with her mother and two
younger siblings. Her mother had been in a long-term relationship with Phillips for
L.R.’s entire life, and L.R. considered him her stepfather. In January 2015, when
L.R. was 14 years old, her mother picked her up from school and dropped her off
at home. Around 6:30 p.m., Phillips joined L.R. and her siblings at the apartment.
After her siblings went to bed, L.R. argued with Phillips over a phone charger
while they were in the living room. L.R. became angry, told Phillips to stop lying,
and slapped him in the face. Phillips stood up and tried to grab L.R., but she ran to
another room.
Sometime later, L.R. returned to the living room where Phillips, dressed
only in boxers, playfully told her to “cross the line,” as if to fight or wrestle with
her. Phillips grabbed L.R. by her ankle, causing her to fall onto her back on the
floor. He lay on top of her, pinning her with his body, and held one of her arms
down. Phillips slid his hand up the leg of L.R’s shorts, moved her underwear aside,
and penetrated her vagina with his finger. As L.R. struggled against him, Phillips
kissed her on the mouth, lifted her shirt and bra, and kissed her breast. L.R. pushed
him off of her and stood up. Phillips tried to pull her back down by her arm, but
2 she pulled away and ran to the bathroom. She locked the bathroom door behind her
and cried. Later, Phillips asked L.R. through the bathroom door if she was mad at
him and if she wanted him to pick her up from school the next day. She told him to
leave her alone and that she did not care. L.R. stayed in the bathroom until she
heard Phillips leave the house. L.R. fell asleep before her mother came home.
The next morning, L.R. told her mother what happened the night before, and
they went to the hospital where L.R. was examined and they spoke to police.
About two weeks later, Officer S. Sanchez, an investigator with the Houston Police
Department child sexual abuse unit was assigned to the case. Officer Sanchez
interviewed both L.R. and her mother and then scheduled a forensic interview of
L.R. at the Children’s Assessment Center. The interview occurred on February 19,
2015. Officer Sanchez interviewed Phillips in March 2015 and interviewed L.R.
again. L.R.’s account remained consistent, and Phillips was charged with sexual
abuse of a child.
At trial, witnesses testified to these facts. In addition, L.R. testified about her
life at home after Phillips’s arrest. When Phillips was charged, Phillips lived with
L.R.’s family, and, after he was arrested, she wanted to help him get out of jail.
After charges were filed and Phillips was in custody, L.R. spoke with him by
phone. The jury heard recordings of the calls, in which Phillips repeatedly told
L.R. that if she said she was lying, he would get out of jail. He impressed upon her
3 that she was the one who would decide whether he came home or not. He
suggested that to ensure his release, she only needed to write a letter recanting the
allegations. L.R. asked him why he had done what he did to her, and he responded
that they would talk about it after the proceedings were over.
L.R. and her mother met with the defense investigator. By the time of the
meeting, L.R.’s mother no longer believed her. While with the investigator, L.R.
signed an affidavit recanting the statements she made to the police department and
to the Children’s Assessment Center. During trial, she testified that she had signed
the affidavit to try to help Phillips, but it was untruthful. She averred that she told
the truth to the police and the Children’s Assessment Center. She decided to tell
the truth because her 10-year-old sister lived at home.
Dr. Lawrence Thompson, Jr., Director of Therapy and Psychological
Services at the Children’s Assessment Center testified that children who are abused
by people they love may have mixed feelings and may be manipulated by the
perpetrator. He opined that children may even recant their stories. L.R.’s mother
and aunt testified for Phillips. L.R.’s mother testified that she did not believe L.R.,
and her aunt testified that L.R. had never been known to tell the truth.
The jury found Phillips guilty of sexual assault of a child. At the punishment
hearing, Phillips pleaded true to two enhancements paragraphs alleging that he had
previously been convicted of two felonies. Phillips’s mother testified, describing
4 her son as kind, generous, and loving. She told the court that he had been taking
college courses and was close to receiving a degree. On cross-examination, the
State asked her to list Phillips’s children and elicited testimony that Phillips
fathered a child with a girl who was sixteen or seventeen at the time. The court
sentenced Phillips to 60 years’ imprisonment.
Phillips filed a motion for a new trial based on ineffective assistance of
counsel. In the motion, Phillips alleged that counsel was ineffective for (1) failing
to hire expert witnesses and failing to investigate, as evidenced by the lack of notes
in the case file; (2) failing to introduce letters that L.R. wrote Phillips while he was
incarcerated; and (3) failing to present any witnesses during the trial.
Trial counsel testified at the hearing on the motion. In response to the
allegations, he said that the lack of notes in his file was because he did not write
them; he hired an investigator and that investigator obtained an affidavit from L.R.,
which was discussed during L.R.’s testimony at trial; and he made the strategic
decision not to introduce letters written by L.R. to Phillips or to hire a private
psychological evaluator. He also testified to plea negotiations that ended a week
before trial in which he advocated for his client. And he testified that, contrary to
Phillips’s motion for a new trial, he did call witnesses at both the
guilt-or-innocence phase and during punishment.
5 The court denied the motion stating that Phillips did not prove that he was
prejudiced by any alleged errors. The record reflects that counsel performed an
investigation, including hiring an investigator; that he did call witnesses throughout
the proceedings; and that he had strategic reasons for not introducing the letters.
The court held that based on the evidence of guilt, there was no reasonable
probability that the result of the case would be different.
Ineffective Assistance of Counsel
On appeal, Phillips contends that the trial court abused its discretion when it
denied his motion for a new trial based on ineffective assistance of counsel. To
support his issue, Phillips identifies various acts and omissions of trial counsel that
he claims constitute ineffective assistance of counsel including that: (1) his counsel
failed to investigate and prepare for trial; (2) his counsel produced a witness during
the punishment hearing that bolstered the State’s case; and (3) his counsel’s overall
performance, including not submitting motions to the court, eliciting testimony that
was negative about Phillips, and failing to properly impeach witnesses, prejudiced
him. Several of these arguments were not presented to the trial court in the motion
for a new trial, and therefore are not properly preserved for review. See TEX. R.
APP. P. 33.1 We review the complaint that is preserved: that trial counsel was
ineffective for failing to investigate and prepare for trial.
6 A. Applicable Legal Principles and Standard of Review
When, as here, an appellant presented issues of ineffective assistance in a
motion for a new trial, we review the trial court’s denial of the motion for an abuse
of discretion. Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). A trial court abuses its discretion if no reasonable view of the
record could support its ruling. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex.
Crim. App. 2013). We view the evidence in the light most favorable to the trial
court’s ruling and presume that the trial court made all findings, express and
implied, in favor of the prevailing party. Id.
The trial court is the sole judge of witness credibility at the hearing on a
motion for a new trial, whether presented through live testimony or affidavit. Id.
We defer to a trial court’s findings of historical facts as well as mixed questions of
law and fact that turn on an evaluation of credibility and demeanor. Id.
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) counsel’s performance was deficient and (2) a reasonable
probability exists that but for counsel’s deficient performance, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
The defendant has the burden to establish both prongs by a preponderance of the
7 evidence; failure to make either showing defeats an ineffectiveness claim. Lopez v.
State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
We begin by presuming that trial counsel performed within professional
norms. See Lopez, 343 S.W.3d at 142. We do not assume that counsel lacked a
sound reason for making the choices he did; on the contrary, the defendant bears
the burden to demonstrate that no plausible reason exists for a particular act or
omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v.
State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Under the first Strickland prong, any judicial review of whether counsel’s
performance was deficient “must be highly deferential to trial counsel and avoid
the deleterious effects of hindsight.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). A court making such a determination must make the strong
presumption that counsel’s conduct fell within the wide range of reasonable
assistance that the complained-of act or omission might be considered sound trial
strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
Under the second Strickland prong, a defendant must show more than “that
the errors had some conceivable effect on the outcome of the proceeding.” Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 693). The defendant must show that there is a reasonable probability that, but for
his attorney’s errors, the jury would have had a reasonable doubt about his guilt or
8 that the extent of his punishment would have been less. Id. (quoting Strickland,
466 U.S. at 695). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed. Id. at 697.
B. Analysis
We need not decide whether Phillips’s trial counsel’s alleged errors
amounted to ineffective assistance of counsel because Phillips has not established
that he was prejudiced. See id.
The State presented a strong case that Phillips was guilty. L.R. provided a
clear description of Phillips’s act of sexual abuse and her testimony was consistent
under cross-examination. The State’s other witnesses bolstered L.R.’s credibility
by describing detailed and consistent interactions with her. The State played jail
phone calls between Phillips and L.R. for the jury. During the calls, L.R. asked
Phillips why he had done this to her. Instead of denying the allegation, he
responded that they would talk about it after the case concluded. The jury also
heard testimony that L.R.’s mother and Phillips pressured L.R. to recant her
account of sexual abuse and sign an affidavit of non-prosecution.
Phillips contends that the totality of his counsel’s alleged errors demonstrate
prejudice. For prejudice to be assumed, an appellant must demonstrate that defense
9 counsel “entirely fail[ed] to subject the prosecution’s case to meaningful
adversarial testing,” so that there was a constructive denial of the assistance of
counsel altogether. United States v. Cronic, 466 U.S. 648, 659 (1984); see also Bell
v. Cone, 535 U.S. 685, 696–97 (2002) (noting that, under Cronic, defense
counsel’s failure to test the prosecution’s case must be “complete” before prejudice
is presumed); Ex Parte McFarland, 163 S.W.3d 743, 752–53 (Tex. Crim. App.
2005) (discussing constructive denial of counsel and presumed prejudice). The
record reflects that Phillips’s trial counsel pursued a reasonable and vigorous
defense. Counsel cross-examined each of the State’s witnesses, including L.R.
Counsel called two witnesses, L.R.’s mother and aunt, who each opined that L.R.
was untruthful and that her account of the allegation changed between her initial
outcry and her trial testimony. At the punishment stage, counsel presented
mitigation testimony from Phillips’s mother. While her testimony on
cross-examination brought out that he had fathered a child with a sixteen or
seventeen-year-old girl, her overall testimony was emotional and supportive. The
trial court commented that it “listened intently” to her testimony and “felt for her.”
In light of the strength of the evidence against Phillips, we cannot conclude
that there is a reasonable probability that the outcome of the proceeding would
have been different but for counsel’s ineffective assistance. See West v. State, 474
S.W.3d 785, 793–94 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding
10 appellant failed to show prejudice when record contained ample evidence of guilt).
Accordingly, Phillips has not met his burden to prove he suffered prejudice from
any presumed deficiency in trial counsel’s performance. The trial court did not
abuse its discretion in denying Phillips’s motion for a new trial based on
ineffective assistance of counsel.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).