Richard Lynn Phillips Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 15, 2023
• Docket: 10-22-00112-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00112-CR

RICHARD LYNN PHILLIPS JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 45892CR

MEMORANDUM OPINION

In one issue, appellant, Richard Lynn Phillips Jr., challenges his conviction for

continuous sexual abuse of a young child. See TEX. PENAL CODE ANN. § 21.02.

Specifically, Phillips contends that the trial court abused its discretion by admitting

evidence of Phillips’s illegal drug use over his objection. We affirm. Analysis

Assuming, without deciding, that the trial court erred by admitting evidence of

Phillips’s illegal drug use, such admission was harmless. Because admission of evidence

is subject to non-constitutional error analysis, we evaluate whether Phillips’s substantial

rights were affected. TEX. R. APP. P. 44.2(b). “A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury's

verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). A criminal

conviction should not be overturned for non-constitutional error if, after examining the

record as a whole, this Court has fair assurance that the error did not influence the jury,

or merely had a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

In this analysis, we consider “everything in the record, including any testimony or

physical evidence admitted for the jury's consideration, the nature of the evidence

supporting the verdict, the character of the alleged error and how it might be considered

in connection with other evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex.

Crim. App. 2000); see Schmutz, 440 S.W.3d at 39 (“In assessing the likelihood that the jury’s

decision was adversely affected by the error, an appellate court considers everything in

the record. This includes testimony, physical evidence, jury instructions, the State’s

theories and any defensive theories, closing arguments, and voir dire, if applicable.”

(citing Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002))).

Phillips v. State Page 2 Considering the record in its entirety, we hold that the trial court’s admission of

the child’s testimony regarding Phillips’s illegal drug use did not have a substantial and

injurious effect or influence on the jury’s verdict. Phillips’s drug use was briefly

discussed during the testimony of one of the child victims, A.M., when she described a

single instance of Phillips putting crystals in a clear pipe and smoking it to help bone pain

when he was cold. The State did not emphasize Phillips’s drug use in its opening

statement or closing argument.

Unrelated to the admission of evidence suggesting Phillips’s drug use, the record

consists of overwhelming evidence to support Phillips’s conviction. A.M. testified to

multiple instances of Phillips touching and licking her and R.G.’s genitals and forcing the

two children to touch and lick his penis. Another child victim, R.G., also testified about

Phillips’s inappropriate touching and kissing. The testimony of these child victims alone

is sufficient to support Phillips’s conviction for continuous sexual abuse of a young child.

See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Garner v. State, 523 S.W.3d 266, 271 (Tex.

App.—Dallas 2017, no pet.).

Additionally, two forensic examiners conducted forensic interviews of the girls.

A.M. recounted multiple sexual abuse acts and identified Phillips as the abuser. Another

witness testified to finding an undressed Phillips and A.M. in bed together. Police also

seized Phillips’s cell phone and discovered numerous images and videos of child

pornography.

Phillips v. State Page 3 Furthermore, the jury charge included the following limiting instructions:

You are instructed that if there is any testimony before you in this case regarding the defendant having committed crimes, wrong, or bad acts other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other crimes, wrongs, or bad acts, if any were committed.

If you find that there is evidence in this case of the defendant having committed other crimes, wrongs, or acts against the children who are victims of the alleged offenses, and if you believe beyond a reasonable doubt that such crimes, wrongs, or acts were committed, then you can consider that evidence for any bearing such evidence may have on relevant matters, including the state of mind of the defendant and the children, and/or the previous and subsequent relationship between the defendant and the children.

If you find beyond a reasonable doubt that the defendant committed any other crimes, wrongs, or bad acts, other than those committed against the children who are the victims of the alleged offenses, then you may consider same for the following purpose and for no other purpose: in proving motive, opportunity, intent, identity, absence of mistake, knowledge, lack of accident, or credibility.

See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b); see also TEX. R. EVID. 404(b).

Also at trial, Joe Fitzgerald, a deputy with the Ellis County Sheriff’s Office, testified

that he and other officers executed two warrants for Phillips’s arrest and that among the

items found on Phillips’s person was “a glass pipe used for smoking narcotics.” Phillips

did not object to this testimony, nor did he object when the State presented photographic

evidence of the glass pipe. Rather, Phillips admitted in his testimony that the glass pipe

was his “meth pipe.”

Phillips v. State Page 4 Any error in the admission of A.M.’s testimony about Phillips’s drug use was

cured because Phillips did not object to Deputy Fitzgerald’s testimony about seizing “a

glass pipe used for smoking narcotics” and the State’s photograph of Phillips’s glass pipe,

and because he admitted that the glass pipe was his “meth pipe.” See Lane v. State, 151

S.W.3d 188, 193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of evidence

is cured where the same evidence comes in elsewhere without objection.’” (quoting Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998))); see also Estrada v. State, 313 S.W.3d

274, 302 n.29 (Tex. Crim. App. 2010) (noting that any error was harmless when “very

similar” evidence was admitted without objection); Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003) (“In addition, a party must object each time the inadmissible evidence

is offered or obtain a running objection.”).

After examining the record as a whole, we have fair assurance that the error, if

any, did not influence the jury, or merely had a slight effect. See Schmutz, 440 S.W.3d at

39; see also Johnson, 967 S.W.2d at 417. Thus, we conclude that any error in the admission

of the drug evidence was harmless. See TEX. R. APP. P. 44.2(b); see also Schmutz, 440 S.W.3d

at 39; Johnson, 967 S.W.2d at 417. We overrule Phillips’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Phillips v. State Page 5 STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed March 15, 2023 Do not publish [CRPM]

Phillips v. State Page 6