Killian v. State
| Decision Date | 02 June 2020 |
| Docket Number | No. 05-19-00227-CR,05-19-00227-CR |
| Parties | KYLIL JAMALL KILLIAN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 416th Judicial District Court Collin County, Texas
Before Justices Bridges, Molberg, and Carlyle
Opinion by Justice Molberg
A jury convicted Kylil Jamall Killian of one count of continuous sexual abuse of a child under the age of fourteen and one count of indecency with a child by contact. The trial court assessed punishment of fifty years' imprisonment for the continuous sexual abuse of a child conviction and ten years' imprisonment for the indecency with a child by contact conviction, to run concurrently. In three issues, Killian contends his attorney rendered ineffective assistance of counsel, the evidence is not legally sufficient to support the convictions, and the trial court erred by denying his motion for directed verdict on the indecency with a child by contact charge. We affirm the trial court's judgment.
On April 2, 2018, K.M. was in the fifth grade and on the school playground at recess when she saw someone who looked like Killian, her stepbrother, and she started crying. A friend took K.M. to the school counselor, and K.M. told the counselor Killian had raped her several times. The counselor reported the sexual abuse and contacted K.M.'s mother. The following day, Fernando Robledo, an investigator with the Collin County Sheriff's Office Child Abuse Task Force, interviewed Killian and scheduled a forensic interview for K.M. Investigator Robledo also scheduled and conducted a forensic interview of the school friend who was present when K.M. "initially outcried."
McKenzie McIntosh, a forensic interviewer at the Children's Advocacy Center of Collin County, interviewed K.M. on April 3, 2018. K.M. told McIntosh Killian began raping her when she was in the fourth grade and ten years old and he raped her several times until she was in the fifth grade and eleven years old. K.M. also told McIntosh Killian grabbed and groped her breasts and licked her nipples. As described herein, K.M. provided specific and compelling details of the sexual abuse to McIntosh.
Killian was charged by indictment with one count of continuous sexual abuse of a child and one count of indecency with a child by sexual contact. Killian pleaded not guilty, and he elected for the trial court to set punishment. After both sides rested and the jury was dismissed for the day, Killian's attorney moved for an instructed verdict on the indecency with a child by contact count on the grounds K.M. did not testify that Killian's mouth contacted her breasts. The trial court denied Killian's motion. A jury found Killian guilty on both counts. During the punishment phase, Philip Portwood, a former inmate who became acquainted with Killian during his confinement in the Collin County jail, testified on behalf of the State about statements Killian made while in prison. Testifying that Killian told him he sexually abused K.M., Portwood described the sexual abuse, as related to him by Killian, with specificity. Portwood also testified Killian told him that "the only way to get out of this is if [K.M.] were to die," and on several occasions, he asked Portwood to kill K.M. or find someone to kill her. At the conclusion of the punishment phase, the trial court sentenced Killian to fifty years' imprisonment for the continuous sexual abuse of a child conviction and ten years' imprisonment for the indecency with a child by contact conviction. This appeal followed.
In his first issue on appeal, Killian claims he received ineffective assistance of counsel because his attorney:
A defendant is entitled to reasonably effective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. CONST. amend. VI. The right to counsel, however, does not mean the right to errorless counsel. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); Rubio v. State, 596 S.W.3d 410, 426 (Tex. App.—Dallas 2020, no pet.). In most cases, we review an ineffective assistance of counsel claim under the Strickland v. Washington standard, whichincludes a performance prong and a prejudice prong. 466 U.S. 668, 687 (1984); Rubio, 596 S.W.3d at 426. To obtain a reversal of a conviction due to ineffective assistance of counsel under Strickland, an appellant must demonstrate by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Rubio, 596 S.W.3d at 426; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Our review of counsel's representation under the first prong of Strickland is highly deferential. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, including the possibility that counsel's actions were strategic. Strickland, 466 U.S. at 689; Rubio, 596 S.W.3d at 426; see also Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We focus on the totality of the representation afforded and not on individual alleged errors. Rubio, 596 S.W.3d at 426; see also Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). We consider the adequacy of assistance as viewed at the time of trial, not in hindsight. Rubio, 596 S.W.3d at 426; see also Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We may not second-guess counsel's strategic decisions, and defense counsel's trial strategy cannot be considered ineffective assistance ofcounsel simply because another attorney would have used a different strategy. Rubio, 596 S.W.3d at 426; see also Ex Parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
To defeat the presumption of reasonable representation, an allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Rubio, 596 S.W.3d at 426; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). We will not speculate to find defense counsel ineffective. Rubio, 596 S.W.3d at 426; Wilson v. State, No. 05-17-01003-CR, 2018 WL 6333245, at *3 (Tex. App.—Dallas Nov. 29, 2018, no pet.) (mem. op., not designated for publication); see also Wood v. State, 260 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rubio, 596 S.W.3d at 426; Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 814. Thus, if the record does not contain affirmative evidence of trial counsel's reasoning or strategy, we normally presume counsel's performance was not deficient. Rubio, 596 S.W.3d at 426-27; see also Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Moreover, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander, 101 S.W.3d at 111. For these reasons, the record on direct appeal frequently is insufficientlydeveloped to support a claim of ineffective assistance of counsel. Rubio, 596 S.W.3d at 427. The best way to make a sufficient record to support such a claim is by a hearing on an application for writ of habeas corpus or, alternatively, a hearing on a motion for new trial. Rubio, 596 S.W.3d at 427; see also Thompson, 9 S.W.3d at 814-15; Jackson, 877 S.W.2d at 772-73 (Baird, J., concurring). Only when "counsel's ineffectiveness is so apparent from the record" will an appellant asserting an ineffective assistance of counsel claim prevail on direct appeal. Rubio, 596 S.W.3d at 427; see also Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003).
To show prejudice under the second prong of Strickland, an appellant must demonstrate a reasonable probability that the outcome would have differed but for trial counsel's errors. Strickland, 466 U.S. at 694; see also Jackson, 877 S.W.2d at 771. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 694). It is not sufficient to show defense counsel's errors "had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Rather, to establish prejudice, an appellant must show that counsel's errors were "so serious as to deprive the defendant of a fair trial, a trial whose result was reliable." Id. at 687. Failure to satisfy either prong of the Strickland standard is fatal. Rubio, 596 S.W.3d at 427; see also Perez, 310 S.W.3d at 893; Ex parte Martinez, 195 S.W.3d 713, 730 n.14(Tex. Crim. App. 2006); Rylander, 101 S.W.3d at 110. Thus, we need not examine both Strickland prongs if one cannot be met. Rubio, 596 S.W.3d at 427; see also Strickland, 466 U.S. at 697.
In rare cases, an appellant claiming ineffective assistance of counsel is not required to...
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