Andre Tremond Phillips v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00116-CR
___________________________
ANDRE TREMOND PHILLIPS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 213th District Court
Tarrant County, Texas
Trial Court No. 1604855D
Before Kerr, Womack, and Wallach, JJ.
Opinion by Justice Wallach
OPINION
The jury convicted Appellant Andre Phillips of driving while intoxicated–
felony repetition and assessed punishment at seven years’ confinement, and the trial
court sentenced him accordingly. See Tex. Penal Code Ann. §§ 49.04, 49.09(b). In
seven points, Phillips argues that his right to a fair trial was violated by the State’s
argument that he had failed to take responsibility for his actions (point one), that the
trial court reversibly erred by admitting hearsay and conclusory evidence (points two
and three), and that he was denied effective assistance of counsel (points four through
seven). Because Phillips has not shown reversible error or that his trial counsel was
ineffective, we affirm.
Background
On the night of July 20, 2019, Phillips’s vehicle hit a parked car on a residential
street. An ambulance called to the scene took Phillips to the hospital, where his blood
was drawn and a police officer conducted field sobriety tests; testing showed his
blood alcohol content at the time of the draw was 0.13.
At trial, Lucia Geisler testified that it was her car that had been hit and that
Phillips had been the driver. Her car had been parked outside of her brother’s house
at the time, and she and her family were having a barbecue in the front yard. The
family witnessed the accident and then gathered around Phillips’s car when it seemed
like Phillips was trying to drive away from the scene. Geisler testified that she smelled
2
alcohol on Phillips’s breath and that after the accident, he climbed into the passenger
seat.
The State played for the jury a recording of Geisler’s 911 call in which she
described the driver as a man who was wearing a black shirt and who “only ha[d] one
leg”—Phillips previously had a leg removed after an accident. She also said, as she
later did at trial, that the driver had moved to the passenger seat. The same exhibit
also included a recording of the 911 call made by Phillips’s friend, Robert Harrison;
Harrison requested an ambulance for Phillips and said that Phillips had been moved
to the passenger side because the steering wheel had been “jammed on him.”
Fort Worth Police Officer Christopher Martin testified about responding to the
accident, about interviewing Phillips at the hospital to which he had been transported
after the accident, and about conducting field sobriety testing on Phillips. The State
played footage from Martin’s bodycam recording of that interview; in the video,
Phillips has on a black shirt.
To show that Phillips had two prior DWI convictions—from 2008 and 2016—
the State relied on testimony of Tarrant County Sheriff’s Deputy Homero Carnero,
who testified without objection that the fingerprints associated with the prior
judgments matched fingerprints taken from Phillips on the day of trial and when he
had been booked into jail in 1991. However, when the State moved to admit records
and the fingerprints associated with the prior judgments, Phillips objected that
3
Carnero had not shown the jury the points of comparison on the fingerprints. The
trial court overruled the objection.
Phillips testified in his own defense and stated that Harrison was the driver.
Harrison also testified for the defense and said that he had been driving Phillips’s car
and that Phillips was the passenger. He claimed to have hit the parked car when he
swerved to avoid another car that was backing out of a driveway.
The State then played for the jury police bodycam footage showing Harrison
responding “Yes” when a police officer asked him if he had been “riding passenger”
and if Phillips had been driving the whole time. The State also produced two affidavits
that Harrison had executed for the defense. In the first, Harrison said that Phillips
“was not under the influence of alcohol” at the time of the accident and said nothing
about Harrison driving the car. In the second, executed a month later, Harrison
claimed that he had been driving.
In his closing argument, the prosecutor argued that Phillips had not taken
responsibility for his actions. The trial court sustained Phillips’s first objection to the
argument and instructed the jury to disregard the prosecutor’s initial comments, but
the trial court overruled Phillips’s subsequent objections to other comments by the
prosecutor about Phillips’s taking responsibility. The jury found Phillips guilty, and
Phillips now appeals.
4
Discussion
I. Jury Argument
In his first point, Phillips argues that the State violated his right to a fair trial by
repeatedly arguing to the jury that it should hold against him his “failure to take
responsibility” by insisting on a jury trial. We disagree.
A felony defendant has a constitutional right to a jury trial. U.S. Const. amend.
VI; Tex. Const. art. 1, § 10; Duncan v. Louisiana, 391 U.S. 145, 157–58, 88 S. Ct. 1444,
1452 (1968). Thus, a prosecutor cannot, explicitly or in effect, ask the jury to penalize
a defendant for exercising that right. Carlock v. State, 8 S.W.3d 717, 724 (Tex. App.—
Waco 1999, pet. ref’d); see also Taylor v. State, 987 S.W.2d 597, 599–600 (Tex. App.—
Texarkana 1999, pet. ref’d). Indeed, a prosecutor’s argument is permissible only if it
falls within one of four areas: “(1) summation of the evidence; (2) reasonable
deductions from the evidence; (3) an answer to the argument of opposing counsel; or
(4) a plea for law enforcement.” Wages v. State, 703 S.W.2d 736, 741 (Tex. App.—
Houston [14th Dist.] 1985) (citing Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim.
App. 1980), and Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973)), pet.
dism’d, 770 S.W.2d 779 (Tex. Crim. App. 1987); see also Polk v. State, No. 02-16-00051-
CR, 2016 WL 6519120, at *2 (Tex. App.—Fort Worth Nov. 3, 2016, no pet.) (mem.
op., not designated for publication).
Here, the prosecutor argued that Phillips had failed to take responsibility for his
crime, and the trial court initially sustained Phillips’s objection:
5
[Prosecutor:] Every single defendant who is charged with a crime,
has a Constitutional right to have a jury trial. It doesn’t matter how much
evidence is against them, how guilty they are, how straightforward the
case is, or how easy it would be to find them guilty, they still have a
constitutional right to ask for a trial.
So there’s no catch. You’re not missing anything. This is really the
case today. We’re only here because this defendant has a Constitutional
right to have a trial no matter what, and because he’s refusing to take
responsibility for the offense. And at the end of the day—
[Defense counsel]: Excuse me, Your Honor. I’m going to object
to improper argument. The defendant in any case is not required to
plead guilty, and this attempts to change the burden of proof to the
defense.
THE COURT: All right. I’m going to sustain that particular
objection.
The jury will disregard.
[Prosecutor]: Which -- which particular point was I --
THE COURT: I think it was about him refusing to take
responsibility. He’s got a right to have a jury trial.
[Prosecutor]: Right. And that --
THE COURT: I’ve sustained the objection.
[Prosecutor]: Okay.
[Defense counsel]: And you’ve instructed the jury to disregard
that; is that correct?
THE COURT: The jury will disregard.
[Defense counsel]: Thank you, Judge.
[Prosecutor]: May I rephrase?
THE COURT: You may conduct your argument.
6
After that, the prosecutor continued his argument by saying that Phillips was
not required to take responsibility but that he had indeed not done so, and this time the
trial court overruled Phillips’s objections:
[Prosecutor]: Okay. He doesn’t have to take responsibility. But,
clearly, he’s not taking responsibility. That’s why we’re here.
[Defense counsel]: Once again, Your Honor, this attempts to
change the burden of proof, and we object to it.1
THE COURT: I’ll overrule that particular objection.
....
[Prosecutor:] At the end of the day, like I said, when a defendant
doesn’t want to take responsibility for an offense, it’s up to the jury --
[Defense counsel]: Objection, Your Honor, you’ve already ruled
that that’s an improper thing to say during closing argument, and you’ve
instructed the jury to disregard it. I’m going to object.
THE COURT: Well, the Court has instructed the jury. And I’m
going to overrule the particular objection at this time and allow the
argument.
[Prosecutor]: When a defendant doesn’t want to take
responsibility for an offense --
[Defense counsel]: Your Honor, you’ve already ruled about this
business about taking responsibility. Every defendant has a right to a jury
trial. This attempts to change the burden of proof, and we object to it.
THE COURT: The jury has been instructed. I overrule the
objection.
For purposes of this appeal, we assume that Phillips’s objection that the State
1
was attempting to shift the burden of proof was broad enough to include the
complaint he makes on appeal. See Tex. R. App. P. 33.1.
7
[Prosecutor]: I’ll say it again. When a defendant doesn’t want to
take responsibility for an offense, it’s up to the jury to make him do it.
[Defense counsel]: And, Your Honor, as the Court knows, I’m
required to object every time that the defense believes that there’s an
improper argument, or I waive my objection. So I’m going to object
again on the same basis that I have. This is an attempt to change the
burden of proof on the defendant.
THE COURT: The burden of proof is always on the state. It
never shifts to the defendant. The Court has instructed the jury. I’ll
overrule the particular objection.
Regarding the argument to which the trial court sustained Phillips’s argument,
he does not argue that the trial court’s instruction was insufficient to cure any harm
arising from the argument, and we conclude that it was sufficient. See Wages,
703 S.W.2d at 741 (holding that prosecutor’s comments were not so inflammatory
that their prejudicial effects were not removed by the judge’s instruction to disregard);
see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (noting that
impermissible argument is reversible only if, in light of entire record, the argument is
extreme or manifestly improper, violates a mandatory statute, or injects new facts
harmful to the accused into the proceeding and that an instruction to disregard the
remarks will usually cure the error). Thus, if that argument rose to the level of asking
the jury to punish Phillips for exercising his constitutional right, the trial court’s
instruction cured any harm from it.
Regarding the rest of the prosecutor’s argument, Phillips argues that it “went
well past responding to the evidence, or merely pointing out to the jury why it should
8
believe the evidence that contradicted [Phillips’s] testimony.” We disagree; “[w]hile
the prosecutor’s statements may straddle the line of permissible argument, they do not
rise to the level of an improper comment in these circumstances.” Polk,
2016 WL 6519120, at *3. The State was entitled to summarize and respond to
Phillips’s defense—a defense that was, in fact, centered on shifting the blame for the
events of the night onto someone else. See id. (holding State was entitled to respond to
defendant’s arguments that he had made a false confession); Head v. State, No. 03-10-
00414-CR, 2013 WL 1831576, at *7, *8 (Tex. App.—Austin Apr. 24, 2013, no pet.)
(mem. op., not designated for publication) (holding that trial court could conclude
that prosecutor’s arguments that “you sure do get credit for accepting responsibility
and not making someone go through a jury trial” was a response to defendant’s
argument that witness for State must have received a deal in exchange for his
testimony). As such, the prosecutor’s argument was not improper. We overrule
Phillips’s first point.
II. Martin’s Testimony
In his second point, Phillips argues that the trial court “wrongfully permitted
Officer Christopher Martin to identify [Phillips] in court as the driver of the vehicle,
based on inadmissible hearsay.” Martin is the Fort Worth Police Officer who was
dispatched to the scene of Phillips’s accident. Most of Martin’s testimony was about
his interview with Phillips, Phillips’s performance on a field sobriety test, and the
9
blood draw performed at the hospital. Phillips’s complaint focuses on the
identification Martin made of him toward the beginning of his testimony.
Martin testified that after going to the scene, he went to the hospital because
Phillips had been transported there by ambulance. Martin then testified that he had
been informed of the driver’s identity, and he identified Phillips as that person by
pointing to him and describing his attire. Phillips’s trial counsel then objected “to the
terminology ‘the driver,’” arguing that Martin’s testimony about “what some other
person may have told [Martin]” was hearsay; “[s]o we don’t object to him identifying
this person in court as a person he knows, but not as the driver.” The trial court then
stated, “The jury will be able to evaluate the testimony they’ve heard. And I think it’s
clear that he did not observe him as a driver, but he was identified as a driver. So with
that understanding, the [S]tate m[a]y proceed.” Phillips argues that Martin’s testimony
identifying him as the driver “was an abuse of discretion that merits reversal, given the
importance of the identification issue.”
We will assume for purposes of this opinion that the trial court abused its
discretion in its disposition of Phillips’s objection. The question we must therefore
consider is whether the trial court’s error is reversible. We will not reverse based on
non-constitutional error unless the error affected a defendant’s substantial rights. See
Tex. R. App. P. 44.2(b). “An error affects a defendant’s substantial rights when the
error has a substantial and injurious effect or influence on the jury’s verdict.” Null v.
State, 640 S.W.3d 370, 380 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (citing
10
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). “If the error had no
influence or only a slight effect on the verdict, then the error is harmless.” Id. (citing
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also Coble v. State,
330 S.W.3d 253, 280 (Tex. Crim. App. 2010). “In making a harm analysis, we examine
the entire trial record and calculate, as much as possible, the probable impact of the
error upon the rest of the evidence.” Coble, 330 S.W.3d at 280.
We conclude that the complained-of statements would have had only a slight
effect, if any, on the jury’s deliberations. Martin’s testimony was that some person or
persons had told him that Phillips was the driver. The trial judge then essentially
instructed the jury that Martin’s testimony was not evidence that he had witnessed
Phillips driving and was evidence only that someone had told Martin that Phillips was
the driver. However, the jury had already heard evidence that someone had told law
enforcement that Phillips was the driver; during Geisler’s testimony, the prosecutor
played her 911 call in which she identified the driver as a man who was missing a leg
and wearing a black shirt. See Redmond v. State, 629 S.W.3d 534, 549 (Tex. App.—Fort
Worth 2021, pet. ref’d) (holding that complained-of testimony had been admitted
elsewhere and was thus harmless). In her trial testimony, Geisler identified Phillips as
the driver,2 and when Phillips presented his and Harrison’s testimony that Harrison
was the driver, the prosecutor impeached that testimony with a police officer’s
2
Thus, Geisler’s statements to law enforcement identifying Phillips as the driver
are not hearsay. See Tex. R. Evid. 801(e)(1)(C).
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bodycam video (discussed more below) in which Harrison told officers that Phillips
had been driving.
Further, although Phillips argues that Martin’s hearsay statement was improper
bolstering of Geisler’s testimony, the record does not support that argument.3
“Bolstering” is evidence that does not substantively contribute to making a
consequential fact more or less probable and has “the sole purpose” of convincing the
factfinder “that a particular witness or source of evidence is worthy of credit.” Cohn v.
State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993). Here, there is no indication
that the State used Martin’s testimony to convince the jury that Geisler’s testimony or
her statements in the 911 call recording were credible. Rather, the prosecutor used the
testimony as a starting point to explain why Martin went to the hospital and to
identify Phillips as the person he interviewed. 4 Also, the State did not place much
emphasis on that part of Martin’s testimony. The prosecutor mentioned that part of
Martin’s testimony once more, when cross-examining Phillips; the prosecutor
included it when listing testimony and other evidence contradicting Phillips’s
3
Phillips did not mention bolstering in his trial objection, but we will assume
for purposes of this opinion that the trial court understood Phillips’s objection to
include bolstering. See, e.g., Rivas v. State, 275 S.W.3d 880, 886–87 (Tex. Crim. App.
2009) (noting that “bolstering” has ties to Rules of Evidence 608, 612, and 613 and
“reiterat[es] the principles of hearsay”).
4
If the State used Martin’s testimony only to establish why he had gone to the
hospital to interview Phillips and not to prove that Phillips was the driver, that
testimony would not be hearsay. See Tex. R. Evid. 801(d). We assume for purposes of
this appeal, however, that it was hearsay.
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testimony that he was not the driver, but he did so as a predicate to asking Phillips
“what reason does anybody have to lie against [him] and say that [he] w[as] driving, a
person with one leg in a black shirt.”5 In context, the prosecutor was using Martin’s
hearsay statement as part of its impeachment of Phillips’s testimony but not as
substantive evidence that Phillips was the driver.
Based on the record, Martin’s complained-of testimony had no or only a slight
effect on the verdict and was therefore harmless. See Coble, 330 S.W.3d at 280, 287.
We overrule Phillips’s second point.
III. Fingerprint Evidence
In his third point, Phillips argues that the trial court erred by admitting
evidence of Phillips’s prior convictions because the State’s fingerprint expert failed to
identify the specific fingerprint characteristics he observed that indicated a match and
instead “offered only the conclusory testimony that fingerprints matched with 10–
12 points of comparison on some of the prints.”
The State called Deputy Carnero to prove up Phillips’s prior DWI convictions.
See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) (noting that prior
intoxication-related offenses are elements of felony driving while intoxicated offense).
Carnero testified about his qualification to do fingerprint comparisons and about how
one makes a comparison. He then explained that he had taken Phillips’s fingerprints
5
The “person with one leg in a black shirt” referenced Geisler’s statements to
law enforcement.
13
that morning and that the card on which he had taken the prints was State’s Exhibit
15. State’s Exhibit 12 was a fingerprint card showing fingerprints that had been taken
from Phillips at the Tarrant County Jail in 1991. Both cards also contained the unique,
permanent county ID (CID) number that had been assigned to Phillips. The trial
court admitted both exhibits without objection. Carnero then testified that the two
sets of fingerprints matched.
The State showed Carnero State’s Exhibits 10 and 11, which were the
judgments and associated documents regarding Phillips’s prior convictions. That
documentation included fingerprints and Phillips’s CID number. Carnero testified
that the fingerprints and CID number on those exhibits matched the fingerprints and
CID number in Exhibits 12 and 15. When the State moved to admit Exhibits 10 and
11, Phillips took Carnero on voir dire and then objected to the exhibits’ admission.
The trial court overruled the objection.
Phillips argues that the trial court erred by admitting the evidence of the prior
convictions because Carnero “could not identify the characteristics of the fingerprints
[that] led to his conclusion that they belonged” to Phillips. However, that argument is
a mischaracterization of Carnero’s testimony. It is not that Carnero could not identify
the specific characteristics that he observed in forming his opinion but that he did not
do so—because he was never asked to do so.
Under Texas Rule of Evidence 705, an expert may state an opinion without
first testifying to the underlying facts or data supporting the opinion. Tex. R. Evid.
14
705(a). However, on cross-examination, the expert may be required to disclose that
underlying information. Id. If requested, the opposing party must be given the
opportunity to ask the expert about the underlying information before the expert states
an opinion. Tex. R. Evid. 705(b). “This examination must take place outside the jury’s
hearing.” 6 Id. Further, if the opposing party’s questioning in cross-examination reveals
that the underlying information does not provide a sufficient basis for the expert’s
opinion, the opinion is inadmissible and, thus, if the opinion has already been
disclosed, it may be stricken. See Tex. R. Evid. 705(c); Acevedo v. State, 255 S.W.3d 162,
168 (Tex. App.—San Antonio 2008, pet. ref’d). Here, however, Carnero was never
asked by Phillips to disclose the underlying information on which he based his
opinion that State’s Exhibits 10 and 11 were Phillips’s prior convictions.
The prosecutor asked Carnero, “When you looked at those fingerprints on
these two [prior] judgments and sentences, did they match with the fingerprints on
[Exhibits 12 and 15] that are already in evidence?,” Carnero answered—without
objection—“Yeah, they do.”
Q. So that would mean that those judgment sentences for convictions
belong to this defendant?
A. Yes.
Q. Did the CID numbers match as well?
6
When Phillips asked to take the witness on voir dire, the trial court did not
excuse the jury from the courtroom, and Phillips did not request the jury’s exclusion.
Thus, the jury heard all of the witness’s voir dire testimony.
15
A. Yes, they do.
Q. Okay.
It was at that point that the prosecutor moved to have State’s Exhibits 10 and
11 admitted. Only then did Phillips ask to take the witness on voir dire.
In Phillips’s voir dire questioning, he asked Carnero about the number of
points of comparisons he had found between the different fingerprints.
Q. What is your personal number of points of comparison to make such
an analysis and be comfortable with it?
A. There is no national standard, but in error resolution, we use a
minimum of 10.
Q. Ten?
A. Yes, sir.
Q. Okay. And do you -- could you tell the jury real quick what a
point of comparison is?
A. It’s one of those -- one of the characteristics I mentioned
earlier where you start counting. That’s what you refer to as a point of
comparison.
Q. And how many points of comparison did you find on State’s
Exhibit 10 that you could identify with either State’s Exhibit 15 or 12?
A. I did reach a minimum of 10, and there’s one I did go to 12.
I’m not sure which exhibit it was.
Q. Yeah, if you could make that clear, that would be great.
A. Okay. On Exhibit 10, yes, I did go to 10 points. Exhibit 11,
there was one I did go to twelve points. There’s two on Exhibit 11, one
with 10 points and the other one 12 points.
16
Phillips then asked about the number of comparisons on which Carnero had
relied in forming his opinion. When Carnero seemed about to testify about how he
established the points, Phillips interrupted him and clarified his question:
Q. How did you arrive at the number of 10?
A. I started at one point -- it’s like mapping --
Q. Oh, I’m sorry. I didn’t ask a good question. Let me start over.
You have a personal standard to testify to jurors that you must have
10 points of comparison. How did you decide on 10 rather than, say,
8 or 12 or some other number?
A. That’s -- that’s what -- how I was trained and that’s how we’ve
been sticking to.
Q. Okay. So are you aware that the FBI and some other federal
law enforcement agencies would be unhappy with just 10?
A. I wouldn’t know.
Q. Okay. How can you have confidence that 10 is enough so that
the jury will know that this really is a match?
A. Well, it depends on the examiner itself, the clarity and the --
just examiner itself. I mean, it just . . .
Q. Well, you haven’t shown the jury here which 10 points there
are; correct?
A. Correct.
Phillips then argued that Exhibits 10 and 11 (but not Carnero’s opinion derived from
them)7 were inadmissible:
7
However, for purposes of this opinion, we will construe his objection to the
admission of State’s Exhibits 10 and 11 to include an objection to the already-
admitted opinion testimony based on those exhibits.
17
[Phillips’s attorney]: Well, on that basis, Your Honor, we’re going
to object to both State’s Exhibits 10 and 11.
THE COURT: And what’s the objection?
[Phillips’s attorney]: This witness has not demonstrated to the jury
any points of comparison for which they could -- they or you or I --
could know that he, in fact, is able to say there are 10 points of
comparison, his personal standard.
THE COURT: Are you suggesting he has to show the jury the
exact 10 that match?
[Phillips’s attorney]: Yes, sir.
THE COURT: Okay. Any response for the record from the state?
[Prosecutor]: Just that, Your Honor, we qualified -- we believe we
qualified him as an expert in this area. And that he’s here to testify about
his expert testimony, not make each and every juror an expert in the
field of fingerprints. That would be my response.
[Phillips’s attorney]: He hasn’t even showed the Court what those
10 points are, Your Honor.
THE COURT: All right. I’m going to overrule the objection. And
the jury will be allowed to consider the testimony.
[Prosecutor]: Your Honor, is the evidence admitted at this point?
THE COURT: Any other objections, [Phillips’s attorney]?
[Phillips’s attorney]: No, that’s it.
THE COURT: Very well. No other objections, then State’s
Exhibits 10 and 11 are both admitted.
In other words, Phillips’s objection was that the trial court had to exclude Exhibits
10 and 11 unless Carnero showed the jury—without being asked—the specific points
of comparison that he had found. That is not, however, what Rule 705 requires. See
18
Tex. R. Evid. 705(a); cf. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd.,
249 S.W.3d 380, 389–90 (Tex. 2008) (noting that experts are not required to introduce
foundational data at trial unless the court or opposing party insists). We therefore
reject this argument.
Phillips further argues that his objection “should be construed as an objection
to the scientific reliability of [Carnero’s] methods and conclusions.” Phillips does not
specify which Kelly criteria he believes his objection could be construed to include. See
Tex. R. App. P. 38.1(i); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)
(stating that to be reliable, scientific evidence must satisfy three criteria: “(a) the
underlying scientific theory must be valid; (b) the technique applying the theory must
be valid; and (c) the technique must have been properly applied on the occasion in
question”); Moore v. State, No. 14-18-00975-CR, 2019 WL 5704348, at *2 (Tex. App.—
Houston [14th Dist.] Nov. 5, 2019, no pet.) (mem. op., not designated for
publication) (noting that in addition to right to voir dire expert under Rule 705 to
determine foundation of expert’s opinion, a party also has right to challenge expert on
the Kelly criteria). The State had no need to satisfy the first two because the Court of
Criminal Appeals has held that fingerprint-comparison analysis satisfies those criteria.
See Russeau v. State, 171 S.W.3d 871, 883 (Tex. Crim. App. 2005); see also Ross v. State,
Nos. 02-14-00210-CR, 02-14-00211-CR, 2015 WL 3637930, at *5 (Tex. App.—Fort
Worth June 11, 2015, pet. ref’d) (mem. op., not designated for publication). Thus, the
19
only possible objection Phillips could have made under Kelly was that the State had
not shown that Carnero had properly applied the technique.
However, Phillips did not object that Carnero had not properly applied the
technique by relying on only ten points of comparison for one set of fingerprints,
although he asked some questions on which such an argument perhaps could have
been based. Further, Carnero testified about what he looked for in making
comparisons, and Phillips at no point raised any issue about or elicited any testimony
suggesting that Carnero had not accurately applied the technique in deciding that
points of comparison existed. See Forward v. State, 406 S.W.3d 601, 605–06 (Tex.
App.—Eastland 2013, no pet.) (stating that there was no evidence that the fingerprint
expert performed any portion of his comparison incorrectly). In other words, Carnero
testified about his application of the technique, and Phillips’s only objection was that
Carnero had not shown the specific points of comparison, i.e., that Carnero had not
disclosed the underlying information supporting his opinion that the fingerprints
matched. If Phillips had any other objection to State’s Exhibits 10 and 11 or to the
reliability of Carnero’s testimony, he forfeited that complaint. See Tex. R. App. P. 33.1;
Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (stating complaint about
evidence admissibility is forfeited absent a timely and specific objection). We overrule
Phillips’s third point.
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IV. Ineffective Assistance of Counsel Points
In his fourth through seventh points, Phillips complains that he was denied
effective assistance of counsel by his trial attorney. However, the record does not
support his points.
To prevail on a claim of ineffective assistance of counsel, Phillips must show
that: (1) his trial counsel’s performance was deficient; and (2) that deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 692, 104 S.
Ct. 2052, 2067 (1984). “In considering ineffective-assistance-of-counsel claims, we
employ a strong presumption that counsel’s conduct fell within the wide range of
reasonable assistance and that the challenged conduct could be considered sound trial
strategy.” Ex parte Garza, 620 S.W.3d 801, 827 (Tex. Crim. App. 2021). In the absence
of evidence of trial counsel’s reasons for the challenged conduct, we find
ineffectiveness only if there is no reasonable trial strategy that could justify the
attorney’s actions. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005);
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thus, we look at the
allegations of ineffectiveness to see if the conduct was “so outrageous that no
competent attorney would have engaged in it.” Prine v. State, 537 S.W.3d 113, 116–
17 (Tex. Crim. App. 2017) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005)).
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A. Exhibit 16’s Bodycam Footage
Phillips raises two ineffectiveness points involving State’s Exhibit 16, the disk
containing bodycam video of Fort Worth Police Officer Wayne Estes. The disk
includes a video showing Phillips’s friend Robert Harrison talking to officers who
responded to the 911 call; it was in this video that Harrison acknowledged that
Phillips was the driver. In addition to the video of Harrison, Exhibit 16 also includes a
video of Estes conducting an inventory of Phillips’s car. In Phillips’s fourth point, he
contends that his trial counsel was ineffective by failing to make a hearsay objection to
the video of Harrison’s statements to officers. The State introduced the entire disk
during Estes’s testimony but did not publish the challenged footage until after
Harrison testified that he was the driver. If Phillips’s attorney had successfully
objected to the video as hearsay at the time of its admission, then the video would
have become admissible as soon as Harrison testified. See Tex. R. Evid. 613; Willover v.
State, 70 S.W.3d 841, 846 n.8 (Tex. Crim. App. 2002) (noting that evidence of
witness’s prior inconsistent statements is admissible for impeachment purposes); see
also Prine, 537 S.W.3d at 117–18 (stating that claim of ineffective assistance cannot be
supported by failure to object unless trial court would have erred by overruling
objection). Thus, the only way to prevent the video from becoming admissible would
have been to not call Harrison as a witness. Considering the defense’s reliance on
Harrison’s testimony as part of Phillips’s trial strategy to establish Harrison as the
driver, on this record, we cannot conclude that the attorney’s failure to object was not
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a calculated risk. See Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d) (“We cannot find deficiency from a calculated risk by
appellant’s trial counsel that simply did not work.”). We therefore overrule Phillips’s
fourth point.
In Phillips’s sixth point, he argues that he was denied effective assistance by his
trial attorney’s failure to object to the video’s admission as prior inconsistent
statements because Estes did not authenticate the part of the video containing those
statements. See Tex. R. Evid. 901. Although the State published only the inventory
video during Estes’s testimony, Estes did not limit his authentication testimony to
that footage. Rather, he testified about the disk in general, describing it as a disk from
the bodycam, as containing footage that was captured on July 20, 2019, and as
“accurately depict[ing] the events as [he] witnessed them on that night.”8 The trial
court had a basis on which it could properly overrule an authentication objection, see
Tex. R. Evid. 901(a), (b)(1), and on this record, Phillips’s trial attorney’s failure to
object cannot support the ineffective assistance claim.9 See Prine, 537 S.W.3d at 117–
18. We overrule his sixth point.
8
Harrison also acknowledged in his testimony that the person in the video
“seems to be” him. During the inventory video, Estes is seen talking to a man in a
white shirt, and at trial, Estes identified that person as the vehicle’s passenger.
9
Further, even if Estes had not authenticated the entire disk and Phillips’s trial
counsel had objected on that basis, there is nothing to suggest that the prosecutor
could not have then elicited testimony from Estes to authenticate the rest. Thus,
because it would have been an easy matter for State to respond to the objection and
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B. Harrison’s Affidavits
In his fifth point, Phillips asserts that his trial counsel was ineffective by failing
to object to the admission of Harrison’s affidavits as evidence of Harrison’s prior
inconsistent statements because the State did not provide a proper foundation. The
record does not support an ineffective assistance claim on this basis.
Harrison’s first affidavit was inconsistent with his trial testimony by
inference—it did not expressly say that Phillips had been driving, but it also did not
say that Harrison was the driver, and it said that Phillips “was not under the influence
of alcohol” and “was not D.U.I., or D.W.I.” This affidavit was not admissible as an
inconsistent statement because Harrison did not unequivocally deny making it. See
Tex. R. Evid. 613(a)(4). However, by the time the prosecutor moved to admit it, its
impeaching elements had already been put before the jury. Harrison had already
testified that in the affidavit he (1) stated that Phillips had not been under the
influence of alcohol and (2) did not mention driving. Cf. Johnson v. State, 583 S.W.2d
399, 404 (Tex. Crim. App. [Panel Op.] 1979) (holding admission of prior inconsistent
written statement was harmless when the statement’s contents were already before the
jury); Kane v. State, No. 04-02-00275-CR, 2003 WL 22902978, at *4 (Tex. App.—San
Antonio Dec. 10, 2003, pet. ref’d) (mem. op., not designated for publication) (same).
remedy any deficiency, it is hard to fathom how the lack of objection prejudiced
Phillips’s defense. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067.
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In the second affidavit, Harrison stated that an officer had said that Phillips
asked him to lie about being the driver, “which is not true because [Phillips] was
unconscious in the passenger seat.” This affidavit was consistent with Harrison’s trial
testimony and thus supported Phillips’s defense, which is possibly why, after the trial
court admitted the affidavits, Phillips’s attorney had Harrison read them both to the
jury and then questioned Harrison about their contents. On this record, we cannot
conclude that Phillips’s trial attorney’s failure to object to the affidavits’ admission was
so outrageous that no competent attorney would have engaged in it. See Prine,
537 S.W.3d at 116–17. We overrule Phillips’s fifth point.
C. Failure to Request Limiting Instruction
In Phillips’s seventh and final point, he argues that he was denied effective
assistance by his attorney’s failure to ask the trial court to instruct the jury that
Harrison’s affidavits and Estes’s bodycam video were to be considered as
impeachment evidence only and not as evidence of Phillips’s guilt. See Tex. R. Evid.
105. The decision to not request a limiting instruction concerning certain unfavorable
evidence may be a trial strategy to minimize the jury’s recollection of the evidence. See
Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007). “[T]o hold trial counsel’s
actions (or inaction) ineffective in the instant case would call for speculation[,] and
such speculation is beyond the purview of this [c]ourt.” Ex parte Varelas, 45 S.W.3d
627, 632 (Tex. Crim. App. 2001). We overrule Phillips’s seventh point.
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Conclusion
Having overruled Phillips’s seven points, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Publish
Delivered: July 28, 2022
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