William Ray Phillips v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00077-CR
WILLIAM RAY PHILLIPS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2014-993-C1
MEMORANDUM OPINION
In two issues, appellant, William Ray Phillips, challenges his conviction for
solicitation to commit capital murder. See TEX. PENAL CODE ANN. § 15.01 (West 2011); see
also id. § 19.03 (West Supp. 2015). Specifically, appellant contends that the trial court erred
in: (1) admitting evidence of extraneous offenses; and (2) expanding the theory of
admissibility of the extraneous offenses in the jury charge. We affirm.1
1 As this is a memorandum opinion and the parties are familiar with the facts, we recite only those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
I. BACKGROUND
Here, appellant was charged by indictment with the offense of solicitation to
commit capital murder. See id. §§ 15.01, 19.03. The record reflects that appellant sought
to have Judge Matt Johnson of the 54th Judicial District Court killed due to appellant’s
anger with Judge Johnson’s handling of appellant’s prior cases in his court. The State
later filed a notice of extraneous offenses, alleging appellant’s prior felony convictions for
possession of child pornography and failure to register as a sex offender.
At the conclusion of the trial, the jury found appellant guilty of the charged
offense. And despite appellant’s pleas of “not true” as to the enhancement paragraphs,
the jury found the paragraphs to be true and sentenced appellant to eighty years’
incarceration in the Institutional Division of the Texas Department of Criminal Justice.
The trial court certified appellant’s right of appeal, and this appeal followed.
II. EXTRANEOUS OFFENSES
In his first issue, appellant complains that the trial court erred in admitting
evidence, through the guise of motive, of appellant’s plans to have United States District
Judge Walter S. Smith Jr. and McLennan County District Attorney Abel Reyna killed also.
“A timely and specific objection is required to preserve error for appeal.” Luna v.
State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). “An
objection is timely if it is made as soon as the ground for the objection becomes apparent,
i.e., as soon as the defense knows or should know that an error has occurred.” Grant v.
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State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing Neal v. State, 256
S.W.3d 264, 279 (Tex. Crim. App. 2008)). “If a party fails to object until after an
objectionable question has been asked and answered, and he can show no legitimate
reason to justify the delay, his objection is untimely and error is waived.” Id. (citing
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc)). There are,
however, the following two exceptions to the proposition of law that a party must object
each time he thinks inadmissible evidence is being offered: (1) when the party has
secured a running objection on the issue he deems objectionable; or (2) when the defense
lodges a valid objection to all the testimony he deems objectionable on a given subject
outside of the presence of the jury. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim.
App. 1991). Furthermore, “‘[a]n error [if any] in the admission of evidence is cured when
the same evidence comes in elsewhere without objection.’” Lane v. State, 151 S.W.3d 188,
193 (Tex. Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998)); see 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.”).
At trial, appellant sought to prevent the introduction of evidence that in addition
to Judge Johnson, appellant also sought to have Judge Smith and District Attorney Reyna
killed. In doing so, appellant objected to this extraneous-offense evidence during the
testimony of several witnesses. When the objection was denied, appellant sought a
Phillips v. State Page 3
running objection to this evidence, which the trial court granted but only as to the specific
witness’s testimony during which the objection was made. This is important because the
complained-of extraneous-offense evidence was offered later at trial without objection.
Specifically, during the testimony of Special Agent Jimmy Brigance, a group
supervisor for the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the State offered
State’s Exhibit 8—a recorded encounter between Brigance and appellant that took place
inside the jail. In this encounter, Brigance, who was acting as a hired hitman for
appellant, mentioned that he knew of appellant’s desire to “get rid of” three people,
including “something about a federal judge.” Brigance also recounted these statements
in his testimony. Appellant did not object to any of this testimony, nor did he request a
running objection to Brigance’s testimony or State’s Exhibit 8. Therefore, because the
same complained-of evidence came in elsewhere during trial without objection, any error
in the admission of the complained-of evidence was cured.2 See Lane, 151 S.W.3d at 193;
Valle, 109 S.W.3d at 509; Leday, 983 S.W.3d at 718.
And even if it was error to admit the complained-of evidence and appellant had
objected each time it was offered, we cannot say that the testimony affected appellant’s
substantial rights. The purported erroneous admission of evidence is non-constitutional
2 We recognize that appellant requested in his pre-trial motion in limine a prohibition of all
references to the proposed killing of Judge Smith and District Attorney Reyna during trial. The trial court
denied appellant’s request. In any event, the Court of Criminal Appeals has stated that “[a] trial judge’s
grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for
appellate review.” Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003) (emphasis in original).
Phillips v. State Page 4
error and is subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b).
See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Under Rule 44.2(b), we
disregard all non-constitutional errors that do not affect appellant’s substantial rights.
See TEX. R. APP. P. 44.2(b); see also Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).
A substantial right is affected when the error has a substantial and injurious effect or
influence in determining the jury’s verdict. Rich, 160 S.W.3d at 577; see Johnson v. State, 43
S.W.3d 1, 4 (Tex. Crim. App. 2001). In conducting the harm 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, the jury instructions, the State’s theory and any defensive theories, closing
arguments, voir dire, and whether the State emphasized the error. Rich, 160 S.W.3d at
577.
Each time a witness mentioned the extraneous conduct, the trial court instructed
the jury to consider the evidence only for purposes of establishing appellant’s motive or
intent and not for character conformity. And though the State referenced Judge Smith
and District Attorney Reyna during its opening statement, Judge Johnson was the only
potential victim discussed during closing argument. Additionally, each witness testified
that they learned of appellant’s desire to have Judge Smith and District Attorney Reyna
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killed through conversations with Aaron Collier, a “jailhouse snitch” with a long criminal
history and minimal credibility.
Moreover, we believe that the extraneous-offense evidence had little effect on the
jury’s verdict given the overwhelming evidence of appellant’s guilt with respect to the
charged offense. The record contains numerous letters written by appellant to a faux
corporation—the Jay Smith Corporation—set up for the purpose of allowing appellant to
hire a hitman to kill Judge Johnson. Appellant’s letter contained profane tirades directed
against Judge Johnson’s character and requested that the Jay Smith Corporation “help”
in taking care of appellant’s “legal” matters, despite repeated clarifications that the
corporation did not operate in any legal capacity. 3 And finally, appellant was recorded
on video agreeing to pay $30,000 to the corporation in exchange for the assassination of
Judge Johnson.
Based on the foregoing, we cannot say that the purported error in admitting the
extraneous-offense evidence had more than a slight effect on the jury’s verdict;
accordingly, any error in the admission of the complained-of evidence was harmless. See
TEX. R. APP. P. 44.2(b); Rich, 160 S.W.3d at 577; Motilla, 78 S.W.3d at 353 (“An appellate
3In his December 28, 2013 letter to the corporation, appellant referenced his “wrongful convictions”
and had drawings of a bomb and the crosshairs of a rifle. Brigance testified that appellant expressed to
him that he wanted Judge Johnson killed by gunshot or using a bomb. And in other letters written to Karl
Fedro and others, appellant stated that his “wrongful convictions” came from Judge Johnson’s court.
Phillips v. State Page 6
court can and should consider overwhelming evidence of guilt in a harm analysis.”);
Johnson, 43 S.W.3d at 4. We overrule appellant’s first issue.
III. THE JURY CHARGE
In his second issue, appellant asserts that the trial court improperly expanded the
theory of admissibility of the aforementioned extraneous-offense evidence in the jury
charge. Appellant argues that the trial court initially limited the use of the extraneous-
offense evidence to motive; however, the trial court later allowed the insertion of
“preparation, plan or absence of mistake or accident of the defendant” in the jury charge
as additional reasons for use of this evidence by the jury.
A. Applicable Law
A claim of jury-charge error is reviewed using the procedure set forth in Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009); see also Haley v. State, No. 10-13-00264-CR, 2014 Tex. App.
LEXIS, at *2 (Tex. App.—Waco July 3, 2014, pet. ref’d) (mem. op., not designated for
publication). If error is found, we then analyze that error for harm. Middleton v. State,
125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
If an error was properly preserved by objection, reversal will be necessary if there
is some harm to the accused from the error. Almanza, 686 S.W.2d at 171. Conversely, if
error was not preserved at trial by a proper objection, a reversal will be granted only if
the jury-charge error causes egregious harm, meaning appellant did not receive a fair and
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impartial trial. Id. For both preserved and unpreserved jury-charge error, the actual
degree of harm must be assayed in light of the entire jury charge, the state of the evidence,
including contested issues and weight of probative evidence, the argument of counsel,
and any other relevant information revealed by the record of the trial as a whole. See
Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Arline v. State, 721 S.W.2d 348,
351 (Tex. Crim. App. 1986); Riggs v. State, 482 S.W.3d 270, 273-74 (Tex. App.—Waco 2015,
no pet.). To obtain reversal for charge error, appellant must have suffered actual harm,
not merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012);
Arline, 721 S.W.2d at 352.
B. Discussion
Appellant timely objected to the jury charge during trial, and his objection on
appeal comports with that made in the trial court. Accordingly, we must determine if
the jury charge is erroneous and if appellant suffered some harm from the purported
error. See Almanza, 686 S.W.2d at 171.
Assuming without deciding that the trial court improperly expanded the theory
of admissibility of the extraneous-offense evidence in the jury charge, for a number of
reasons, we are convinced that any such error did not “injure the rights of the defendant.”
See Barrios, 283 S.W.3d at 350. Specifically, the evidence of appellant’s guilt is
overwhelming. As mentioned above, appellant was recorded on video offering $30,000
to have Judge Johnson killed. The record contained numerous letters from appellant and
Phillips v. State Page 8
testimony from witnesses that established appellant’s guilt. Moreover, the trial court
repeatedly provided oral instructions to the jury at the time the evidence was presented
that they should only consider the complained-of extraneous-offense evidence for the
purposes of determining appellant’s motive and intent. See Gamboa v. State, 296 S.W.3d
574, 580 (Tex. Crim. App. 2009) (stating that juries are generally presumed to have
followed the court’s instructions); see also Breckenridge v. State, 40 S.W.3d 118, 126-27 (Tex.
App.—San Antonio 2000, pet. ref’d) (concluding that appellant did not suffer “some
harm” by the trial court’s purported instructions that allowed the jury to consider
extraneous misconduct for purposes other than proving intent because the trial court
verbally instructed the jury regarding each of the extraneous events that they were so
limited in their considerations).
Furthermore, the State did not mention the extraneous-offense evidence during
closing argument. See Lindsay v. State, 102 S.W.3d 223, 229 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (concluding that error in admission of evidence was harmless
where the State did not emphasize the evidence during closing argument). We therefore
cannot say that the purported error in the charge caused appellant some harm under
Almanza.4 See Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171; see also Williams v.
4 We also note that appellant’s expression of his desire to have Judge Smith and District Attorney
Reyna killed arguably constituted inchoate thoughts that are not expressly excludable under Texas Rule of
Evidence 404(b). See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993) (“Appellant’s assertion
that this evidence was somehow evidence of other crimes, wrongs, or acts . . . is mistaken. To constitute an
extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it.
This necessarily includes some sort of extraneous conduct on behalf of the defendant which forms part of
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State, 14-10-00448-CR, 2011 Tex. App. LEXIS 3312, at **5-9 (Tex. App.—Houston [14th
Dist.] May 3, 2011, pet. ref’d) (mem. op., not designated for publication) (concluding that
appellant did not suffer some harm by the trial court’s failure to include an extraneous-
offense limiting instruction in the charge when the record contained overwhelming
evidence of guilt; the trial court provided limiting instructions when the evidence was
introduced; and the prosecutor did not emphasize the extraneous offenses during closing
argument). We overrule appellant’s second issue.
IV. CONCLUSION
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 17, 2016
Do not publish
[CRPM]
the alleged extraneous offense. Here, the statements concerning appellant’s thoughts of kidnapping and
killing Cisneros were just that, inchoate thoughts. There is no conduct involved which alone or in
combination with these thoughts could constitute a bad act or wrong, much less a crime. Absent this,
appellant’s statements concerning his desire to kidnap and kill Cisneros did not establish prior misconduct
and thus were not expressly excludable under Rule 404(b) . . . .” (internal citations omitted)). Unlike the
situation with Judge Johnson, the record contains no evidence that appellant took steps to commission the
killing of Judge Smith or District Attorney Reyna.
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