Phillips v. State No. PD-0789-14

Case Summary written by Frederick C. Hutterer, Staff Member.

JUDGE RICHARDSON delivered the opinion of the court, in which PRESIDING JUDGE KELLER and JUDGE NEWELL filed concurring opinions.

On January 17, 2007, Christopher Allen Phillips robbed a hair salon at gunpoint. Police arrested Andre Dulin, who was seen with Phillips at a grocery store after the robbery. Police discovered that Dulin was in possession of property stolen from the hair salon. Dulin testified against Phillips at Phillips’ trial.

After the defense called its witnesses, the State called two rebuttal witnesses. The witnesses were inmates who had spent time with Phillips in the county jail. Kavin Diggs stated that Phillips attempted to persuade him to testify that Diggs heard Dulin say that he had committed the crime alone. Elroy Slaughter testified that Phillips attempted to persuade him to sign an affidavit, which would clear Phillips’ name. During direct examination, Slaughter testified to never having met Dulin. On cross-examination, however, Slaughter claimed that he had informed a case investigator that he had met with Dulin. While the defense tried to impeach Slaughter, Slaughter maintained that Phillips attempted to convince him to sign an affidavit stating that “Andre was trying to put the case off on him.” During redirect, Slaughter claimed that he felt as though Phillips was trying to persuade him to lie.

The trial court read the jury charge without objection, which contained an accomplice-witness charge. The charge, pursuant to Article 38.14 of the Texas Code of Criminal Procedure, informed the jury that it was prohibited from convicting Phillips solely on the basis of Dulin’s testimony without additional evidence.

During its closing, the State asked whether “an innocent person go[es] around the jail asking people he’s just met to sign affidavits and lie for him?” The prosecution continued to emphasize this point without objection from the defense.

On appeal, the court of appeals held that the testimony did not sufficiently connect Phillips with the robbery, and that the witnesses’ testimony was not against Phillips’ interest. The court of appeals stated that the trial court did not err when it did not include an instruction pursuant to Article 38.075(a).

Issue: Whether statements by defendants to jailhouse witnesses are capable of being against defendants’ interests even if the statements do not pose a risk of criminal liability.

The Court of Criminal Appeals held that a statement against one’s interest is a statement that adversely affects his position. As a result, the court concluded that the trial court erred when it failed to include a jury instruction pursuant to Article 38.075(a).

The court reasoned that the court of appeals’ definition of “a statement against the defendant’s interest” was unduly narrow. The court stated that a defendant’s statement may be against his interest regardless of whether the statement is sufficient to support accomplicewitness testimony. Article 38.075(a) does not contain language limiting its applicability to statements against interest, so the court did not interpret the Article to contain such a limitation. The Court added that a defendant’s statement to a jailhouse witness, regardless of whether it has the effect of exposing him to liability, could still be against his interest.

The court concluded that the legislature did not indicate what a “statement against the defendant’s interest” is, but that the purpose of Article 38.075(a) would be most effectively achieved by giving the phrase a broad meaning—“a statement that is against a defendant’s interest is one that is adverse to his position.”

As a result, the court held that Phillips’ alleged requests for the witnesses to lie were adverse to his position and against his interest. The court asserted that the trial court erred by failing to include a jury instruction pursuant to Article 38.075(a). Furthermore, the court vacated and remanded the case to the court of appeals because the court did not perform a harm analysis or address two issues on appeal.

PRESIDING JUDGE KELLER, concurring.

Judge Keller stated that the testimony in the case should have been analyzed as though it were accomplice-witness testimony. Because an accomplice-witness instruction is normally required for accomplicewitness testimony, Judge Keller held that an instruction would have been appropriate in this case as well.

JUDGE NEWELL, concurring.

Judge Newell agreed with the majority’s holding that a jury instruction is necessary when a jailhouse witness testifies to a statement made by a defendant which could then be used against the defendant in trial. Judge Newell also disagreed with Presiding Judge Keller’s assertion that a lack of jury instruction is normally harmless when the statement isn’t confessional. Judge Newell reasoned that a denial of such an instruction could have an effect on a jury’s verdict, even in a close trial.