Opinion issued July 30, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00105-CR
                            ———————————
                 DONELL VONCELLO PHILLIPS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Case No. 1521971


                          MEMORANDUM OPINION

      A jury convicted appellant Donell Voncello Phillips of sexual assault of a

child, a second-degree felony. After Phillips pleaded true to two enhancement

allegations, the trial court sentenced him to 60 years’ imprisonment. On appeal, he

contends that his counsel was ineffective and the trial court abused its discretion in
denying his motion for a new trial based on ineffective assistance of counsel. We

affirm.

                                    Background

      L.R., the complainant, lived in an apartment with her mother and two

younger siblings. Her mother had been in a long-term relationship with Phillips for

L.R.’s entire life, and L.R. considered him her stepfather. In January 2015, when

L.R. was 14 years old, her mother picked her up from school and dropped her off

at home. Around 6:30 p.m., Phillips joined L.R. and her siblings at the apartment.

After her siblings went to bed, L.R. argued with Phillips over a phone charger

while they were in the living room. L.R. became angry, told Phillips to stop lying,

and slapped him in the face. Phillips stood up and tried to grab L.R., but she ran to

another room.

      Sometime later, L.R. returned to the living room where Phillips, dressed

only in boxers, playfully told her to “cross the line,” as if to fight or wrestle with

her. Phillips grabbed L.R. by her ankle, causing her to fall onto her back on the

floor. He lay on top of her, pinning her with his body, and held one of her arms

down. Phillips slid his hand up the leg of L.R’s shorts, moved her underwear aside,

and penetrated her vagina with his finger. As L.R. struggled against him, Phillips

kissed her on the mouth, lifted her shirt and bra, and kissed her breast. L.R. pushed

him off of her and stood up. Phillips tried to pull her back down by her arm, but


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she pulled away and ran to the bathroom. She locked the bathroom door behind her

and cried. Later, Phillips asked L.R. through the bathroom door if she was mad at

him and if she wanted him to pick her up from school the next day. She told him to

leave her alone and that she did not care. L.R. stayed in the bathroom until she

heard Phillips leave the house. L.R. fell asleep before her mother came home.

      The next morning, L.R. told her mother what happened the night before, and

they went to the hospital where L.R. was examined and they spoke to police.

About two weeks later, Officer S. Sanchez, an investigator with the Houston Police

Department child sexual abuse unit was assigned to the case. Officer Sanchez

interviewed both L.R. and her mother and then scheduled a forensic interview of

L.R. at the Children’s Assessment Center. The interview occurred on February 19,

2015. Officer Sanchez interviewed Phillips in March 2015 and interviewed L.R.

again. L.R.’s account remained consistent, and Phillips was charged with sexual

abuse of a child.

      At trial, witnesses testified to these facts. In addition, L.R. testified about her

life at home after Phillips’s arrest. When Phillips was charged, Phillips lived with

L.R.’s family, and, after he was arrested, she wanted to help him get out of jail.

After charges were filed and Phillips was in custody, L.R. spoke with him by

phone. The jury heard recordings of the calls, in which Phillips repeatedly told

L.R. that if she said she was lying, he would get out of jail. He impressed upon her


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that she was the one who would decide whether he came home or not. He

suggested that to ensure his release, she only needed to write a letter recanting the

allegations. L.R. asked him why he had done what he did to her, and he responded

that they would talk about it after the proceedings were over.

      L.R. and her mother met with the defense investigator. By the time of the

meeting, L.R.’s mother no longer believed her. While with the investigator, L.R.

signed an affidavit recanting the statements she made to the police department and

to the Children’s Assessment Center. During trial, she testified that she had signed

the affidavit to try to help Phillips, but it was untruthful. She averred that she told

the truth to the police and the Children’s Assessment Center. She decided to tell

the truth because her 10-year-old sister lived at home.

      Dr. Lawrence Thompson, Jr., Director of Therapy and Psychological

Services at the Children’s Assessment Center testified that children who are abused

by people they love may have mixed feelings and may be manipulated by the

perpetrator. He opined that children may even recant their stories. L.R.’s mother

and aunt testified for Phillips. L.R.’s mother testified that she did not believe L.R.,

and her aunt testified that L.R. had never been known to tell the truth.

      The jury found Phillips guilty of sexual assault of a child. At the punishment

hearing, Phillips pleaded true to two enhancements paragraphs alleging that he had

previously been convicted of two felonies. Phillips’s mother testified, describing


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her son as kind, generous, and loving. She told the court that he had been taking

college courses and was close to receiving a degree. On cross-examination, the

State asked her to list Phillips’s children and elicited testimony that Phillips

fathered a child with a girl who was sixteen or seventeen at the time. The court

sentenced Phillips to 60 years’ imprisonment.

      Phillips filed a motion for a new trial based on ineffective assistance of

counsel. In the motion, Phillips alleged that counsel was ineffective for (1) failing

to hire expert witnesses and failing to investigate, as evidenced by the lack of notes

in the case file; (2) failing to introduce letters that L.R. wrote Phillips while he was

incarcerated; and (3) failing to present any witnesses during the trial.

      Trial counsel testified at the hearing on the motion. In response to the

allegations, he said that the lack of notes in his file was because he did not write

them; he hired an investigator and that investigator obtained an affidavit from L.R.,

which was discussed during L.R.’s testimony at trial; and he made the strategic

decision not to introduce letters written by L.R. to Phillips or to hire a private

psychological evaluator. He also testified to plea negotiations that ended a week

before trial in which he advocated for his client. And he testified that, contrary to

Phillips’s motion for a new trial, he did call witnesses at both the

guilt-or-innocence phase and during punishment.




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      The court denied the motion stating that Phillips did not prove that he was

prejudiced by any alleged errors. The record reflects that counsel performed an

investigation, including hiring an investigator; that he did call witnesses throughout

the proceedings; and that he had strategic reasons for not introducing the letters.

The court held that based on the evidence of guilt, there was no reasonable

probability that the result of the case would be different.

                          Ineffective Assistance of Counsel

      On appeal, Phillips contends that the trial court abused its discretion when it

denied his motion for a new trial based on ineffective assistance of counsel. To

support his issue, Phillips identifies various acts and omissions of trial counsel that

he claims constitute ineffective assistance of counsel including that: (1) his counsel

failed to investigate and prepare for trial; (2) his counsel produced a witness during

the punishment hearing that bolstered the State’s case; and (3) his counsel’s overall

performance, including not submitting motions to the court, eliciting testimony that

was negative about Phillips, and failing to properly impeach witnesses, prejudiced

him. Several of these arguments were not presented to the trial court in the motion

for a new trial, and therefore are not properly preserved for review. See TEX. R.

APP. P. 33.1 We review the complaint that is preserved: that trial counsel was

ineffective for failing to investigate and prepare for trial.




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A.    Applicable Legal Principles and Standard of Review

      When, as here, an appellant presented issues of ineffective assistance in a

motion for a new trial, we review the trial court’s denial of the motion for an abuse

of discretion. Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). A trial court abuses its discretion if no reasonable view of the

record could support its ruling. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex.

Crim. App. 2013). We view the evidence in the light most favorable to the trial

court’s ruling and presume that the trial court made all findings, express and

implied, in favor of the prevailing party. Id.

      The trial court is the sole judge of witness credibility at the hearing on a

motion for a new trial, whether presented through live testimony or affidavit. Id.

We defer to a trial court’s findings of historical facts as well as mixed questions of

law and fact that turn on an evaluation of credibility and demeanor. Id.

      To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) counsel’s performance was deficient and (2) a reasonable

probability exists that but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

The defendant has the burden to establish both prongs by a preponderance of the




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evidence; failure to make either showing defeats an ineffectiveness claim. Lopez v.

State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

      We begin by presuming that trial counsel performed within professional

norms. See Lopez, 343 S.W.3d at 142. We do not assume that counsel lacked a

sound reason for making the choices he did; on the contrary, the defendant bears

the burden to demonstrate that no plausible reason exists for a particular act or

omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v.

State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

      Under the first Strickland prong, any judicial review of whether counsel’s

performance was deficient “must be highly deferential to trial counsel and avoid

the deleterious effects of hindsight.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). A court making such a determination must make the strong

presumption that counsel’s conduct fell within the wide range of reasonable

assistance that the complained-of act or omission might be considered sound trial

strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

      Under the second Strickland prong, a defendant must show more than “that

the errors had some conceivable effect on the outcome of the proceeding.” Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 693). The defendant must show that there is a reasonable probability that, but for

his attorney’s errors, the jury would have had a reasonable doubt about his guilt or


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that the extent of his punishment would have been less. Id. (quoting Strickland,

466 U.S. at 695). A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694. “If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed. Id. at 697.

B.    Analysis

      We need not decide whether Phillips’s trial counsel’s alleged errors

amounted to ineffective assistance of counsel because Phillips has not established

that he was prejudiced. See id.

      The State presented a strong case that Phillips was guilty. L.R. provided a

clear description of Phillips’s act of sexual abuse and her testimony was consistent

under cross-examination. The State’s other witnesses bolstered L.R.’s credibility

by describing detailed and consistent interactions with her. The State played jail

phone calls between Phillips and L.R. for the jury. During the calls, L.R. asked

Phillips why he had done this to her. Instead of denying the allegation, he

responded that they would talk about it after the case concluded. The jury also

heard testimony that L.R.’s mother and Phillips pressured L.R. to recant her

account of sexual abuse and sign an affidavit of non-prosecution.

      Phillips contends that the totality of his counsel’s alleged errors demonstrate

prejudice. For prejudice to be assumed, an appellant must demonstrate that defense


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counsel “entirely fail[ed] to subject the prosecution’s case to meaningful

adversarial testing,” so that there was a constructive denial of the assistance of

counsel altogether. United States v. Cronic, 466 U.S. 648, 659 (1984); see also Bell

v. Cone, 535 U.S. 685, 696–97 (2002) (noting that, under Cronic, defense

counsel’s failure to test the prosecution’s case must be “complete” before prejudice

is presumed); Ex Parte McFarland, 163 S.W.3d 743, 752–53 (Tex. Crim. App.

2005) (discussing constructive denial of counsel and presumed prejudice). The

record reflects that Phillips’s trial counsel pursued a reasonable and vigorous

defense. Counsel cross-examined each of the State’s witnesses, including L.R.

Counsel called two witnesses, L.R.’s mother and aunt, who each opined that L.R.

was untruthful and that her account of the allegation changed between her initial

outcry and her trial testimony. At the punishment stage, counsel presented

mitigation testimony from Phillips’s mother. While her testimony on

cross-examination brought out that he had fathered a child with a sixteen or

seventeen-year-old girl, her overall testimony was emotional and supportive. The

trial court commented that it “listened intently” to her testimony and “felt for her.”

      In light of the strength of the evidence against Phillips, we cannot conclude

that there is a reasonable probability that the outcome of the proceeding would

have been different but for counsel’s ineffective assistance. See West v. State, 474

S.W.3d 785, 793–94 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding


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appellant failed to show prejudice when record contained ample evidence of guilt).

Accordingly, Phillips has not met his burden to prove he suffered prejudice from

any presumed deficiency in trial counsel’s performance. The trial court did not

abuse its discretion in denying Phillips’s motion for a new trial based on

ineffective assistance of counsel.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Peter Kelly
                                                Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




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