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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00020-CR
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CLYDE PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 114-1027-09
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Clyde Phillips appeals[1] a trial court’s judgment adjudicating his guilt for possession of a controlled substance and sentencing him to four years’ incarceration.[2] In a single point of error, Phillips complains that the trial court’s judgment[3] “incorrectly reflect[s] that Mr. Phillips entered a plea of ‘true’ to the entirety of the Motion to Adjudicate.” Phillips argues that although he pled true to several allegations of community supervision violations, he pled “not true” as to one allegation. He urges this Court to reform the portion of the judgment stating “Plea to Motion to Adjudicate: True.” The State has agreed that “the Court has the authority to correct this mistake in the judgment.” We modify the judgment accordingly.
The Texas Rules of Appellate Procedure give this Court authority to reform judgments to make the record speak the truth when the matter has been called to our attention by any source. Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). The record reflects that Phillips pled true to the following allegations in the State’s motion to adjudicate: commission of the new offense of fleeing from a police officer, change of address without permission, failure to pay court-appointed counsel fees, failure to pay for urinalysis fees, failure to pay monthly supervision fees, failure to pay restitution, failure to pay substance abuse questionnaire fee, and failure to pay Crimestoppers fee.[4] However, with respect to the allegation that Phillips attempted to alter or falsify drug test results by “flushing with water,” a plea of not true was entered.
We hereby modify the trial court's judgment to reflect Phillips’ plea of “true” to the allegations contained within paragraphs II, III, VII, VIII, IX, X, XI, and XII of the State’s motion to adjudicate and his plea of “not true” to the allegation contained within paragraph VI.
As modified, we affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: June 15, 2011
Date Decided: June 16, 2011
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[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Phillips presents a single brief addressing this case and the trial court’s adjudication of guilt for a separate offense of possession of marihuana. The issues and arguments are the same for both convictions, and we reach the same conclusion in both cases. Please see our opinion of instant date, Phillips v. State, cause number 06–11–00021–CR.
[3]Phillips does not challenge the sufficiency of the evidence supporting revocation. A plea of “true” to even one allegation is sufficient to support a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).
[4]The allegations to which Phillips pled true were contained within paragraphs II, III, VII, VIII, IX, X, XI, and XII in the State’s motion to adjudicate guilt. The State abandoned allegations contained in paragraphs IV and V. Phillips pled “not true” to Paragraph VI.
ght="14" border="0"> The exclusion of this testimony was therefore a procedural bar, not ineffective assistance of counsel.
4) Testimony of Recer and Loyd
Fox contends his trial counsel failed to call Recer, who would have testified he saw L.C.'s brother put mud on the side of the mobile home, under the window of L.C.'s bedroom, at the direction of L.C.'s mother. Fox further contends Loyd would have testified L.C.'s mother told him Fox had not assaulted her daughter. However, trial counsel was never questioned regarding this evidence at the hearing on the motion for new trial. Without an explanation from trial counsel, nothing is presented for review. Goodspeed, 2005 Tex. Crim. App. LEXIS 520; Garcia, 57 S.W.3d at 440. Further, we cannot say counsel's conduct in this regard was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5.
d. Failure To Hire a Defense Expert
Fox contends it was ineffective assistance of trial counsel not to hire an expert to counter the State's expert. At the hearing on the motion for new trial, trial counsel was asked:
[Defense]: Okay. Did it -- did you consider or think about the need for, potentially, at least, having another expert, counter expert, at least look at it [the video] to see if there could be any help to offset the anticipated State's testimony?
[Counsel]: No.
No other explanation was sought or provided as to why trial counsel chose not to hire a counter expert. Without an explanation from the attorney, nothing is presented for review. Goodspeed, 2005 Tex. Crim. App. LEXIS 520; Garcia, 57 S.W.3d at 440. Further, there is no showing there is a reasonable probability that, but for counsel's failure to hire an expert, the result of the trial would have been different. Tong, 25 S.W.3d at 712. Finally, we cannot say, under these facts, counsel's conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5.
e. Eliciting Unfavorable Hearsay
Fox alleges it was ineffective assistance of trial counsel to ask Tammy Morrison, "[d]idn't she [Gaudreau] tell you that [Fox] was with her that night?" which resulted in the following response: "She told me that -- I asked her if he was there, she said they were drinking, she can't promise that he was there, she could not say yes or no." Trial counsel was not questioned at the hearing on the motion for new trial regarding this issue. Without an explanation from the attorney, nothing is presented for review. Goodspeed, 2005 Tex. Crim. App. LEXIS 520; Garcia, 57 S.W.3d at 440. Further, we cannot say counsel's conduct in this regard was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5.
f. Inability to Present Opinion Testimony
Fox contends his trial counsel was ineffective because counsel did not know how to elicit opinion testimony concerning L.C.'s truthfulness. The record shows that trial counsel could not qualify Erica Kitchens to testify as to L.C.'s bad reputation for truthfulness; he therefore withdrew her as a witness. Trial counsel could have qualified Kitchens as an opinion witness on this subject, but did not do so because he thought the predicate for qualifying a reputation witness and an opinion witness is the same. Fox, however, fails to state how this inability was prejudicial to him. Even though this may constitute deficient performance, Fox fails to show how it prejudiced him.
g. Failure To Present Evidence of L.C.'s Psychiatric History
Fox contends his trial counsel was ineffective for failing to further develop testimony regarding L.C.'s mental and emotional problems. Trial counsel stated numerous times at the hearing on the motion for new trial that, in hindsight,
I should have flushed that [L.C.'s mental/emotional problems] out better . . . . [I]t didn't impress me perhaps as much as it should have. . . . [Y]es, I wished I had developed it more during guilt-innocence, and it's regrettable that I didn't, because I think it is extremely relevant to her ability to accurately recall what happened to her.
In spite of counsel's regrets, considerable testimony was presented at trial on this subject. Further, even if this constitutes deficient performance, Fox has not shown how it prejudiced him.
h. Failure To Move for a Mistrial During State's Closing Argument
During the State's closing argument, the following occurred:
[State]: . . . . If you listen to the defense counsel, we let everybody go free. There [are] 150,000 in Texas prisons, all of them there is a what if. This is a case of good versus evil. Evil always does try to tempt you with what if. Look at this.
[Defense]: Your Honor, I object to referring to the defense as evil.
THE COURT: All right. Sustained.
[Defense]: Ask the jury be instructed to disregard the comment.
THE COURT: Please disregard evil.
Fox alleges the failure of trial counsel to move for a mistrial deprived Fox of the effective assistance of counsel. At the hearing on the motion for new trial, trial counsel testified as follows:
I didn't ask for a mistrial. I didn't think this Judge was going to grant it, and in my opinion, if you ask for a mistrial and you don't get it, the jury takes that as an indication that the Judge -- some indication of the Judge's impression of the case.
. . . .
That was a tactical decision I made. I consciously made that tactical decision.
Trial counsel made a legitimate strategic decision based on his knowledge and experience. We cannot say he rendered ineffective assistance in doing so.
i. Failure To Object to the State's Injection of Harmful Facts
In his brief before this Court, Fox contends that:
During final arguments and wholly outside the record, the State argued that the defense had failed to show as promised that the case was about money and then the prosecutor injected wholly new facts: "Hadn't been a lawsuit filed in over three years."
Fox argues that, because there was no testimony a lawsuit had or had not been filed, his trial counsel was ineffective for not objecting to these "new facts." Trial counsel was not questioned, however, regarding this issue at the hearing on the motion for new trial. Without an explanation from the attorney, nothing is presented for review. Goodspeed, 2005 Tex. Crim. App. LEXIS 520; Garcia, 57 S.W.3d at 440. Further, we cannot say counsel's conduct in this regard was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5. Even if this did constitute deficient performance, Fox fails to show how it prejudiced him.
j . Failure To Object to Expert's Testimony L.C. Had Been Sexually Abused
Fox alleges his trial counsel was ineffective in failing to object to Andrews' testimony that L.C. had been sexually abused. At the hearing on the motion for new trial, trial counsel testified he could not recall Andrews' testimony and, without reviewing the transcript of that testimony, he could not comment on why he did not object. No further questions were asked on this subject, and counsel was not provided with the transcript of Andrews' testimony to facilitate counsel's answer. Without an explanation from the attorney, nothing is presented for review. Goodspeed, 2005 Tex. Crim. App. LEXIS 520; Garcia, 57 S.W.3d at 440. Further, we cannot say counsel's conduct in this regard was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 Tex. Crim. App. LEXIS 520, at *5.
Fox's contentions of ineffective assistance of counsel are overruled.
BRADY VIOLATION
Fox contends the State committed a Brady violation by suppressing exculpatory evidence. He identifies L.C.'s psychiatric history and the Child Protective Services (CPS) report dated May 22, 2001, as the exculpatory evidence. The State responds that the evidence was not suppressed and, citing Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet. ref'd), that Fox had full access to this information.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution is violated when a prosecutor fails to disclose evidence favorable to the accused that creates a probability sufficient to undermine confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). In order to establish a due process violation under Brady, a defendant must show: 1) evidence was suppressed; 2) the suppressed evidence was favorable to the defense; and 3) the suppressed evidence was material to either guilt or punishment. Id.; Taylor, 93 S.W.3d at 498–99.
The first element of Brady is present if the prosecution actively suppresses evidence or negligently fails to disclose it. Taylor, 93 S.W.3d at 499. However, the state is not required to facilitate the compilation of exculpatory material that could have been compiled by the defense. Id. Thus, without suppression, there is no Brady violation. Id. There is no Brady violation if it is not shown that the defendant was denied access to the allegedly favorable material. Id. If the defense has the opportunity to cross-examine concerning the allegedly exculpatory material and there is no showing the defense would have pursued a different trial strategy if he or she had known this information sooner, no Brady violation is shown. Id.
The record in the instant case shows that Fox was aware of L.C.'s psychiatric history. In fact, Fox elicited testimony during the guilt/innocence phase from L.C.'s brother, Ethan Cassidy, concerning L.C.'s mental history:
[Defense]: [L.C.]'s got some pretty severe emotional problems, correct?
[Ethan]: Yes, sir.
[Defense]: All right. She tried to commit suicide?
[Ethan]: Yes. Yes, sir, she has.
[Defense]: How many times?
[Ethan]: I would say about three times.
Further, L.C.'s therapist, Andrews, testified on direct examination and was cross-examined by Fox concerning L.C.'s post-traumatic stress disorder, her suicide attempts, and a medication she was taking. Fox was aware of L.C.'s medical history, and the record does not show Fox was restricted from accessing the CPS report. Fox could have independently compiled the psychiatric history, including the CPS report. Hence, there is no Brady violation. See id. (prosecutor not required to furnish defendant with exculpatory and mitigating evidence which is equally and fully accessible to defense).
Moreover, Fox, in his opening statement, articulated that his defense would be that the claim of sexual assault by L.C. was motivated by money, not due to her mental problems. On appeal, Fox has not shown that his trial counsel would have pursued a different trial strategy if he had known about the CPS report or L.C.'s psychiatric history. Again, there is no Brady violation.
CONCLUSION
In summary, the trial court did not abuse its discretion by failing to sua sponte conduct a hearing to determine L.C.'s mental competency or in overruling Fox's motion for a mistrial. Fox's own question to the State's expert of whether L.C.'s story appeared to be realistic induced the response that, in the witness' opinion, L.C. was telling the truth. Fox's complaint about being limited in his cross-examination of Andrews failed to be specific enough to put the trial court on notice Fox was making a Confrontation Clause argument. The trial court did not abuse its discretion in denying Fox's motion for new trial because the alleged "new evidence" developed at the hearing on that motion was known by Fox's trial counsel. Fox did not receive ineffective assistance of counsel. The State did not suppress evidence, and Fox had full access to the information he contends was suppressed.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: July 13, 2005
Date Decided: August 30, 2005
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