In The
Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-12-00357-CR __________________
LEON PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 11-10884 __________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Leon Phillips of aggravated sexual assault of a
child as a prior felony offender and assessed punishment at life imprisonment. In
three appellate issues, Phillips challenges the sufficiency of the evidence to support
his conviction, the prosecutor’s comments to the jury that allegedly abrogated
Phillips’s right to remain silent, and the effectiveness of trial counsel’s assistance
during the punishment phase. We affirm the trial court’s judgment.
1 ISSUE ONE
In his first issue, Phillips argues that the evidence was insufficient to support
his conviction. The “Jackson v. Virginia legal-sufficiency standard is the only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010). In evaluating the legal sufficiency of the evidence, we review
all the evidence in the light most favorable to the verdict to determine whether any
rational fact-finder could have found the essential elements of the offense beyond a
reasonable doubt. Id. at 902 n.19 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
The jury is the ultimate authority on the credibility of witnesses and the
weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s
responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214
S.W.3d at 13. If the record contains conflicting inferences, we must presume that
the jury resolved such facts in favor of the verdict and defer to that resolution.
2 Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). We also determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at
778. We may not substitute our judgment for that of the fact finder concerning the
weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000).
L.P. testified that Phillips attempted to put his penis into her rectum, that it
was painful, and she cried and screamed. The sexual assault nurse examiner,
Brenda Garrison, testified that L.P. told her Phillips “had put his thing in her
bottom[,]” and upon examining L.P., she found that L.P. had two anal tears that
were consistent with L.P.’s account. Other witnesses testified that L.P. gave
differing accounts concerning what transpired with respect to the offense. It was
the jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts, and
we must presume that the jury resolved conflicting inferences in favor of the
verdict and defer to that resolution. See Brooks, 323 S.W.3d at 900 n.13; Clayton,
235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. In addition, the testimony of a
sexual assault victim alone is sufficient evidence of penetration to support a
3 conviction, even if the victim is a child. Karnes v. State, 873 S.W.2d 92, 96 (Tex.
App.—Dallas 1994, no pet.). Viewing the evidence in the light most favorable to
the verdict, we conclude that the evidence was legally sufficient to support
Phillips’s conviction. See Brooks, 323 S.W.3d at 902 n.19. Accordingly, we
overrule issue one.
ISSUE TWO
In his second issue, Phillips contends that the prosecutor’s comments during
closing argument in the punishment phase abrogated his right to remain silent.
After the jury returned its verdict of guilty, Phillips pleaded “not true” to the
enhancement paragraphs alleged in the indictment, and the State abandoned one of
the enhancement paragraphs. During closing argument, the prosecutor argued as
follows, in pertinent part:
Do you know the difference in sexual assault and aggravated assault? When it’s aggravated, it’s because it was a child under 14; that’s the difference. He has a prior conviction for both, and he hasn’t even owned up to that. He didn’t own up to this. He forced his 13-year-old daughter to come in here and tell you what happened, put her through a trial and humiliation and heartbreak and embarrassment, and today he still is not owning up to his prior convictions. He hasn’t owned up to anything or taken responsibility for anything.
Phillips contends that the prosecutor’s argument specifically referred to his failure
to testify. As Phillips points out in his brief, defense counsel did not object to the
4 prosecutor’s argument; however, Phillips argues that no objection was necessary
because the error was so fundamental that no instruction to disregard the improper
argument could cure the error. A defendant’s right not to be subjected to incurable
erroneous jury arguments is forfeited by failure to object. Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996) (citing Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993)). Assuming without deciding that the prosecutor’s
argument was objectionable, Phillips’s failure to object at trial waived his right to
complain about the argument on appeal. See Cockrell, 933 S.W.2d at 89; Marin,
851 S.W.2d at 279; see also Tex. R. App. P. 33.1(a). We overrule issue two.
ISSUE THREE
In his third issue, Phillips asserts that trial counsel was ineffective for failing
to object to the prosecutor’s argument that Phillips contends abrogated his right to
remain silent. To prevail on a claim of ineffective assistance of counsel, an
appellant must satisfy a two-pronged test:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
5 Strickland v.
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In The
Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-12-00357-CR __________________
LEON PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 11-10884 __________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Leon Phillips of aggravated sexual assault of a
child as a prior felony offender and assessed punishment at life imprisonment. In
three appellate issues, Phillips challenges the sufficiency of the evidence to support
his conviction, the prosecutor’s comments to the jury that allegedly abrogated
Phillips’s right to remain silent, and the effectiveness of trial counsel’s assistance
during the punishment phase. We affirm the trial court’s judgment.
1 ISSUE ONE
In his first issue, Phillips argues that the evidence was insufficient to support
his conviction. The “Jackson v. Virginia legal-sufficiency standard is the only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required
to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010). In evaluating the legal sufficiency of the evidence, we review
all the evidence in the light most favorable to the verdict to determine whether any
rational fact-finder could have found the essential elements of the offense beyond a
reasonable doubt. Id. at 902 n.19 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
The jury is the ultimate authority on the credibility of witnesses and the
weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s
responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214
S.W.3d at 13. If the record contains conflicting inferences, we must presume that
the jury resolved such facts in favor of the verdict and defer to that resolution.
2 Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). We also determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at
778. We may not substitute our judgment for that of the fact finder concerning the
weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000).
L.P. testified that Phillips attempted to put his penis into her rectum, that it
was painful, and she cried and screamed. The sexual assault nurse examiner,
Brenda Garrison, testified that L.P. told her Phillips “had put his thing in her
bottom[,]” and upon examining L.P., she found that L.P. had two anal tears that
were consistent with L.P.’s account. Other witnesses testified that L.P. gave
differing accounts concerning what transpired with respect to the offense. It was
the jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts, and
we must presume that the jury resolved conflicting inferences in favor of the
verdict and defer to that resolution. See Brooks, 323 S.W.3d at 900 n.13; Clayton,
235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. In addition, the testimony of a
sexual assault victim alone is sufficient evidence of penetration to support a
3 conviction, even if the victim is a child. Karnes v. State, 873 S.W.2d 92, 96 (Tex.
App.—Dallas 1994, no pet.). Viewing the evidence in the light most favorable to
the verdict, we conclude that the evidence was legally sufficient to support
Phillips’s conviction. See Brooks, 323 S.W.3d at 902 n.19. Accordingly, we
overrule issue one.
ISSUE TWO
In his second issue, Phillips contends that the prosecutor’s comments during
closing argument in the punishment phase abrogated his right to remain silent.
After the jury returned its verdict of guilty, Phillips pleaded “not true” to the
enhancement paragraphs alleged in the indictment, and the State abandoned one of
the enhancement paragraphs. During closing argument, the prosecutor argued as
follows, in pertinent part:
Do you know the difference in sexual assault and aggravated assault? When it’s aggravated, it’s because it was a child under 14; that’s the difference. He has a prior conviction for both, and he hasn’t even owned up to that. He didn’t own up to this. He forced his 13-year-old daughter to come in here and tell you what happened, put her through a trial and humiliation and heartbreak and embarrassment, and today he still is not owning up to his prior convictions. He hasn’t owned up to anything or taken responsibility for anything.
Phillips contends that the prosecutor’s argument specifically referred to his failure
to testify. As Phillips points out in his brief, defense counsel did not object to the
4 prosecutor’s argument; however, Phillips argues that no objection was necessary
because the error was so fundamental that no instruction to disregard the improper
argument could cure the error. A defendant’s right not to be subjected to incurable
erroneous jury arguments is forfeited by failure to object. Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996) (citing Marin v. State, 851 S.W.2d 275, 279
(Tex. Crim. App. 1993)). Assuming without deciding that the prosecutor’s
argument was objectionable, Phillips’s failure to object at trial waived his right to
complain about the argument on appeal. See Cockrell, 933 S.W.2d at 89; Marin,
851 S.W.2d at 279; see also Tex. R. App. P. 33.1(a). We overrule issue two.
ISSUE THREE
In his third issue, Phillips asserts that trial counsel was ineffective for failing
to object to the prosecutor’s argument that Phillips contends abrogated his right to
remain silent. To prevail on a claim of ineffective assistance of counsel, an
appellant must satisfy a two-pronged test:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
5 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.
1986). An appellant must demonstrate a reasonable probability that but for his
counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s
representation is highly deferential and presumes that counsel’s actions fell within
the wide range of reasonable and professional assistance.” Id.
Phillips must prove that there was no professional reason for specific acts or
omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d
482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually
insufficient to demonstrate that “counsel’s representation was so deficient . . . as to
overcome the presumption that counsel’s conduct was reasonable and
professional.” Bone, 77 S.W.3d at 833 (citation omitted).
The record is silent concerning trial counsel’s reasons for not objecting.
Phillips did not file a motion for new trial or otherwise create a record elucidating
counsel’s possible reasons for not objecting. Even assuming without deciding that
6 the prosecutor’s comments were improper, trial counsel may have decided against
objecting to avoid further emphasizing the comments. See Castoreno v. State, 932
S.W.2d 597, 603 (Tex. App.—San Antonio 1996, pet. ref’d). We must presume
that counsel’s conduct falls within a wide range of reasonable representation. See
Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833. With a silent record, we
cannot presume that counsel’s conduct constituted ineffective assistance. See
Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. Accordingly, we overrule
Phillips’s third issue and affirm the trial court’s judgment.
AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
Submitted on April 2, 2013 Opinion Delivered April 24, 2013 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.