                                      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.


Phillips v. State                                                                       Page 2
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




Phillips v. State                                                                        Page 5
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


Phillips v. State                                                                     Page 7
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
Phillips v. State                                                                                    Page 9
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.
Phillips v. State                                                                                  Page 10
Phillips v. State   Page 11
