Richard Lynn Phillips Jr. v. the State of Texas

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Do not publish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