                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             __________________
                               NO. 09-12-00357-CR
                             __________________

                          LEON PHILLIPS, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 252nd District Court
                       Jefferson County, Texas
                       Trial Cause No. 11-10884
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Leon Phillips of aggravated sexual assault of a

child as a prior felony offender and assessed punishment at life imprisonment. In

three appellate issues, Phillips challenges the sufficiency of the evidence to support

his conviction, the prosecutor’s comments to the jury that allegedly abrogated

Phillips’s right to remain silent, and the effectiveness of trial counsel’s assistance

during the punishment phase. We affirm the trial court’s judgment.



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                                    ISSUE ONE

      In his first issue, Phillips argues that the evidence was insufficient to support

his conviction. The “Jackson v. Virginia legal-sufficiency standard is the only

standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required

to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.

Crim. App. 2010). In evaluating the legal sufficiency of the evidence, we review

all the evidence in the light most favorable to the verdict to determine whether any

rational fact-finder could have found the essential elements of the offense beyond a

reasonable doubt. Id. at 902 n.19 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007).

      The jury is the ultimate authority on the credibility of witnesses and the

weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,

623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13. If the record contains conflicting inferences, we must presume that

the jury resolved such facts in favor of the verdict and defer to that resolution.

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Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). We also determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at

778. We may not substitute our judgment for that of the fact finder concerning the

weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

      L.P. testified that Phillips attempted to put his penis into her rectum, that it

was painful, and she cried and screamed. The sexual assault nurse examiner,

Brenda Garrison, testified that L.P. told her Phillips “had put his thing in her

bottom[,]” and upon examining L.P., she found that L.P. had two anal tears that

were consistent with L.P.’s account. Other witnesses testified that L.P. gave

differing accounts concerning what transpired with respect to the offense. It was

the jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts, and

we must presume that the jury resolved conflicting inferences in favor of the

verdict and defer to that resolution. See Brooks, 323 S.W.3d at 900 n.13; Clayton,

235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. In addition, the testimony of a

sexual assault victim alone is sufficient evidence of penetration to support a

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conviction, even if the victim is a child. Karnes v. State, 873 S.W.2d 92, 96 (Tex.

App.—Dallas 1994, no pet.). Viewing the evidence in the light most favorable to

the verdict, we conclude that the evidence was legally sufficient to support

Phillips’s conviction. See Brooks, 323 S.W.3d at 902 n.19. Accordingly, we

overrule issue one.

                                       ISSUE TWO

      In his second issue, Phillips contends that the prosecutor’s comments during

closing argument in the punishment phase abrogated his right to remain silent.

After the jury returned its verdict of guilty, Phillips pleaded “not true” to the

enhancement paragraphs alleged in the indictment, and the State abandoned one of

the enhancement paragraphs. During closing argument, the prosecutor argued as

follows, in pertinent part:

      Do you know the difference in sexual assault and aggravated assault?
      When it’s aggravated, it’s because it was a child under 14; that’s the
      difference. He has a prior conviction for both, and he hasn’t even
      owned up to that. He didn’t own up to this. He forced his 13-year-old
      daughter to come in here and tell you what happened, put her through
      a trial and humiliation and heartbreak and embarrassment, and today
      he still is not owning up to his prior convictions. He hasn’t owned up
      to anything or taken responsibility for anything.


Phillips contends that the prosecutor’s argument specifically referred to his failure

to testify. As Phillips points out in his brief, defense counsel did not object to the

                                          4
prosecutor’s argument; however, Phillips argues that no objection was necessary

because the error was so fundamental that no instruction to disregard the improper

argument could cure the error. A defendant’s right not to be subjected to incurable

erroneous jury arguments is forfeited by failure to object. Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996) (citing Marin v. State, 851 S.W.2d 275, 279

(Tex. Crim. App. 1993)). Assuming without deciding that the prosecutor’s

argument was objectionable, Phillips’s failure to object at trial waived his right to

complain about the argument on appeal. See Cockrell, 933 S.W.2d at 89; Marin,

851 S.W.2d at 279; see also Tex. R. App. P. 33.1(a). We overrule issue two.

                                   ISSUE THREE

      In his third issue, Phillips asserts that trial counsel was ineffective for failing

to object to the prosecutor’s argument that Phillips contends abrogated his right to

remain silent. To prevail on a claim of ineffective assistance of counsel, an

appellant must satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must show
      that the deficient performance prejudiced the defense. This requires
      showing that counsel’s errors were so serious as to deprive the
      defendant of a fair trial, a trial whose result is reliable.



                                           5
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

1986). An appellant must demonstrate a reasonable probability that but for his

counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within

the wide range of reasonable and professional assistance.” Id.

      Phillips must prove that there was no professional reason for specific acts or

omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d

482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually

insufficient to demonstrate that “counsel’s representation was so deficient . . . as to

overcome the presumption that counsel’s conduct was reasonable and

professional.” Bone, 77 S.W.3d at 833 (citation omitted).

      The record is silent concerning trial counsel’s reasons for not objecting.

Phillips did not file a motion for new trial or otherwise create a record elucidating

counsel’s possible reasons for not objecting. Even assuming without deciding that

                                          6
the prosecutor’s comments were improper, trial counsel may have decided against

objecting to avoid further emphasizing the comments. See Castoreno v. State, 932

S.W.2d 597, 603 (Tex. App.—San Antonio 1996, pet. ref’d). We must presume

that counsel’s conduct falls within a wide range of reasonable representation. See

Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833. With a silent record, we

cannot presume that counsel’s conduct constituted ineffective assistance. See

Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. Accordingly, we overrule

Phillips’s third issue and affirm the trial court’s judgment.

      AFFIRMED.




                                               ______________________________
                                                      STEVE McKEITHEN
                                                         Chief Justice


Submitted on April 2, 2013
Opinion Delivered April 24, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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