brief of defendant- appellant patterson
DESCRIPTION
Brief of Steve Patterson, Appellant,02-12-00172-CRTC #10-00267Steve Robert Patterson v. The State of TexasTRANSCRIPT
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IN THE COURT OF APPEALSSECOND JUDICIAL DISTRICT
FORT WORTH, TEXAS
CASE NO.
02-12-00172-CR
STEVE ROBERT PATTERSON,Defendant-Appellant
v.
STATE OF TEXASPlaintiff-Appellee.
APPEAL FROM 235th JUDICIAL DISTRICT COURTOF COOK COUNTY, TEXASJUDGE JANELLE HAVERKAMP
BRIEF OF DEFENDANT-APPELLANT
ORAL ARGUMENTREQUESTED
MICHAEL C. LOWETexas Bar No. 24007573
700 N. Pearl StreetPlaza of the Americas, N. TowerSuite 2170
Dallas, Texas 75201214.526.1900214.748.4348 (Facsimile)
Attorney for Defendant-AppellantSteve Robert Patterson
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IDENTITY OF PARTIES AND COUNSEL
Plaintiff-Appellee:
Trial Counsel:
State of Texas
Lisa Decker, Assistant District AttorneyRon Poole, Assistant District Attorney
100 South Dixon StreetGainesville, Texas 76240
Appellee Counsel: Janice Warder, District AttorneyLisa Decker, Assistant District Attorney
100 South Dixon StreetGainesville, Texas 76240
Defendant-Appellant:
Trial Counsel:
Steve Robert Patterson
Hatcher & HarrisJim J. Hatcher, Attorney at Law
Belvin R. Harris, Attorney at Law109 West CaliforniaGainesville, Texas 76240
Appellant Counsel: Michael C. LoweBoard Certified - Criminal LawTexas Board of Legal Specialization
State Bar No. 24007573700 N. Pearl St., Suite 2170Dallas, Texas 75201Phone: (214)526-1900Facsimile: (214)748-4348
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TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv
STATEMENT OF CASE 1
ISSUE PRESENTED 1
STATEMENT OF FACTS 2-3
SUMMARY OF THE ARGUMENT 4
ARGUMENT 4-11
PRAYER 12
CERTIFICATE OF SERVICE 12
in
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INDEX OF AUTHORITIES
Cases Page
Ellison v. State, 201 S.W.3d 714, 718, 721, 722, 723 (Tex.Crim.App. 2006) 4
King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) 5
thJames v. State, 264 S.W.3d 215, 222 (Tex.App.-Houston [14 Dist.],
2008, pet. refd) 5
Saldano v. State, 232 S.W.3d 77, 102 (Tex.Crim.App. 2007) 5
DeLeon v. State, 322 S.W.3d 375, 386 (Tex.App.-Houston [14th Dist.],2010, pet. refd) 7
Strickland v. Washington, 466 U.S. 668,689, 104 S.Ct. 2052,80L.Ed.2d674(1984) 8
Statutes
TEX. CRIM. PROC. CODE 37.07 4
TEX. R. APP. P. 44.2(b). 5
IV
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STATEMENT OF CASE
On January 23, 2012, Judge Janelle Haverkamp accepted Appellant's plea of
guilty to an indictment alleging Second Degree Felony Intoxication Manslaughter. See
RR, Vol.11, p. 13. Judge Haverkamp reset the case for March 19, 2012 to begin jury
selection on Appellant's plea of guilty. Wat 19. On March 20, Appellant pled guilty in
front of a jury after jury selection was completed the previous day. See RR, Vol. IV, p.
24. The following day, the jury sentenced Appellant to 20 years in the Texas Department
of Criminal Justice ("TDCJ") See RR, Vol. V, p.228.
ISSUES PRESENTED
1. Did Judge Haverkamp abuse her discretion by allowing Trooper Hellinger to
testify concerning Appellant's suitability for probation and future dangerousness?
2. Did Judge Haverkamp abuse her discretion by allowing Cooke County Sheriff,
Michael E. Compton, to testify concerning Appellant's suitability for probation?
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STATEMENT OF FACTS
On January 23, 2012, Judge Janelle Haverkamp accepted Appellant's plea of
guilty to an indictment alleging Second Degree Felony Intoxication Manslaughter
wherein Appellant's intoxication caused the death of his brother, David Patterson. See
RR, Vol. II, p. 13, Vol. IV, p.25; C.R., p.5. Judge Haverkamp reset the case for March 19,
2012 to begin jury selection on Appellant's plea of guilty. Id at 19. Appellant filed an
unsworn application for community supervision and elected to be sentenced by jury
before trial. See C.R., p.33 & p.35. Appellant later testified that he had never before been
convicted of a felony. See R.R. Vol. V, p. 163. On March 20, Appellant pled guilty in
front of a jury after jury selection was completed the previous day. See RR, Vol. IV, p.
24. Based on his plea, Judge Haverkamp instructed the jury to find Appellant guilty. See
C.R., p.45. Judge Haverkamp instructed the jury to impose a sentence anywhere from two
to twenty years TDCJ and an optional fine up to $10,000 or community supervision. Id at
p.52. The jury sentenced Appellant to 20 years in the ("TDCJ") See RR, Vol. V, p.228.
On June 24, 2010, Appellant was driving his Corvette while intoxicated with his
brother, David Patterson in the passenger seat near Lake Kiowa in Cooke County. See
R.R., Vol. IV, p.26. Due to Appellant's intoxication, he lost control of his vehicle on FM
902 which caused his vehicle to spin out of control and collide with a tree off the side of
the road on FM 902. Id. The impact of the collision caused the death of Appellant's
brother, David Patterson. Id.
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During the sentencing phase, Appellant offered several witnesses and attempted to
establish through these witnesses that Appellant was a suitable candidate for community
supervision. See R.R., Vol. IV, p. 132, 134, 155, 169 & p. 178. During the State's case in
chief, the State attempted to offer testimony through Trooper Hellinger concerning
Appellant's suitability for community supervision. See R.R., Vol. IV, p. 106. However,
Judge Haverkamp sustained Appellant's objection to such testimony based on Trooper
Hellinger's lack of qualification to give such opinion testimony. Id.
The State offered the testimony of three witnesses in rebuttal designed to establish
Appellant's unsuitability for community supervision. In particular, the State re-offered
Trooper Hellinger who, over the same objection of Defense counsel, was permitted to
testify concerning Appellant's unsuitability for community supervision and the risk
Appellant posed to the community for future dangerousness. See R.R., Vol. V, p. 120-121.
The State also offered the testimony of Cooke County Sheriff, Michael Compton. Over
the same objection, the Court allowed Sheriff Compton to testify concerning Appellant's
unsuitability for community supervision. See R.R., Vol. V, p. 128 & 131. No evidence
was offered to demonstrate that Sheriff Compton or Trooper Hellinger personally knew
Appellant or had received any special training or other experience concerning community
supervision.
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SUMMARY OF ARGUMENT
The harm exacted against Appellant due to the Trial Court's evidentiary rulings
require this Court to grant Appellant a new sentencing trial. The Trial Court improperly
admitted the opinion testimony of Trooper Hellinger wherein he predicted there is a
"good chance" Appellant would kill again and should therefore receive a lengthy
sentence in the penitentiary. The Trial Court also improperly admitted the opinion
testimony of Cooke County Sheriff Michael Compton wherein he instructed the jury to
"send him to jail" and gave his opinion that Appellant was unsuitable for community
supervision.
ARGUMENT
In the sentencing phase of a jury trial, the scope of testimony is guided by the
Texas Code ofCriminal Procedure. TEX. CRIM. PROC. CODE 37.07. The Texas Court
of Criminal Appeals has interpreted article 37.07 in a way that gives the trial judge broad
discretion. In particular, the court can admit "any matter the court deems relevant to
sentencing." Id; Ellison v. State, 201 S.W.3d 714, 718 (Tex.Crim.App. 2006) (Court
permitted probation officer to testify concerning unsuitability for community
supervision). In a case wherein a Defendant is eligible to receive community supervision,
the jury must decide two separate issues. See Ellison, 201 S.W.3d at 718. First the jury
must decide the truth or falsity of the information in the Defendant's application for
community supervision. Id. If the jury decides that the application is truthful, the jury
must then decide whether that Defendant is suitable for community supervision. Id. The
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testimony concerning whether the Defendant on trial is a suitable candidate for
community supervision. Id at 722. Although a broad range of evidence may be offered at
sentencing, the trial judge is not required to admit such evidence "if it is excludable under
some other statute or rule." Id at 721. Therefore, the sentencing Court must still
determine whether the opinion testimony is being offered by a witness qualified to give
such testimony. Id at 723. In such a case, the most important factor concerning the
witness' qualification under Texas Rule of Evidence 701 is whether said witness can
testify based on "firsthand knowledge." Id at 723.
A trial court's improper admission of evidence is non-constitutional error. See
King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The standard of review is
abuse of discretion. See Ellison, 201 S.W.3d at 723. To prevail on an abuse of discretion
point of error, the Appellant must show the improperly admitted evidence affected
Appellant's substantial right in which the error had a substantial and injurious effect or
influence in determining the jury's verdict. King, 953 S.W.2d at 271; James v. State, 264
S.WJd 215, 222 (Tex.App.-Houston [14* Dist.], 2008, pet. refd); TEX. R. APP. P.44.2(b). The evidence is considered harmless if the trial record contains other properly
admitted evidence that is probative of the same matter. See Saldano v. State, 232 S.WJd
77, 102 (Tex.Crim.App. 2007).
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I.
TROOPER'S ERRONEOUS RECIDIVISM TESTIMONY INFLUENCED JURY
During the State's case in chief, the State attempted to offer testimony through
Trooper Hellinger concerning Appellant's suitability for community supervision. See
R.R., Vol. IV, p. 106. However, Judge Haverkamp sustained Appellant's objection to
such testimony based on Trooper Hellinger's lack of qualification to give such opinion
testimony. Id. The State re-offered Trooper Hellinger in rebuttal who, over the same
objection of Defense counsel, was permitted to testify concerning Appellant's
unsuitability for community supervision and the risk Appellant posed to the community
for future dangerousness. See R.R., Vol. V, p. 120-121. The State never offered to qualify
Trooper Hellinger concerning suitability for community supervision because Trooper
Hellinger possessed no such qualifications or knowledge. Having previously discussed
the Ellison standard set out to qualify a witness for testimony concerning probation
suitability, the record utterly fails to demonstrate a single thread of commonality with the
standards set out in Ellison. There's no evidence Trooper Hellinger had any
qualifications, training or experience related to community supervision.
If nothing else, Ellison's holding emphasized that such a witness must have
personal knowledge of the Defendant to be Rule 701 qualified to give an opinion
concerning probation suitability. There's nothing in the record to establish whether
Trooper Hellinger had any personal knowledge of Appellant. Moreover, Trooper
Hellinger and the State weren't satisfied with blithe predictions concerning Appellant's
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suitability for probation. Trooper Hellinger went on to offer his vacuous prediction that
there would be a "good chance" that Appellant will kill someone else in the community if
he were given probation. See R.R., Vol. V, p. 121.
Because the Trial Court erroneously allowed Trooper Hellinger to testify over the
objection of Appellant's counsel, this Court must examine the entire record and
determine whether this testimony meets the abuse of discretion standard. In particular, the
Court should examine whether other evidence was offered concerning the same subject
matter. In this case, there is no other evidence in the record concerning Appellant's likely
future dangerousness or likelihood of recidivism. The Court should next consider this
testimony's likely impact on the jury and whether it had a substantial and injurious effect
on the jury. James v. State, 264 S.W.3d 215, 222 (Tex.App.-Houston [l^Dist.], 2008,pet. ref d); Tex. r. app. P. 44.2(b).
Although other Courts of Appeal have offered little guidance concerning the
applicable standard of review in a case like the present, there is ample authority
suggesting that improperly admitted opinion testimony offered against a Defendant
concerning probation suitability requires a new punishment hearing if Defense counsel
fails to object to such testimony. DeLeon v. State, 322 S.W.3d 375, 386 (Tex.App.-
Houston [14th Dist.], 2010, pet. refd). In DeLeon, Defendant's counsel offered the
testimony of a probation officer during the punishment phase of his trial alleging
Indecency by Contact. Id. During cross-examination by the State, the State elicited
testimony from said probation officer that the Defendant was unsuitable for probation, he
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testimony from said probation officer that the Defendant was unsuitable for probation, he
posed a risk for re-offending and should be sentenced to the penitentiary. Id. DeLeon's
counsel did not object to this testimony. DeLeon was sentenced to fourteen years in the
penitentiary. Id. In applying the more stringent Strickland standard, the Houston 14th held
it was likely that this testimony had an effect on the jury's assessment of punishment and
there was a "reasonable probability" that the punishment would have been different had
such testimony not been improperly admitted. Id at 386.
Therefore, had defense counsel not objected to Hellinger's testimony, Appellant
would have brought this point of error as an Ineffective Assistance of Counsel point of
error. Such a claim would have been even more onerous to establish than the applicable
abuse of discretion standard. In particular, an Appellant claiming ineffective assistance of
counsel under the Sixth Amendment to the United States Constitution must establish (1)
that Counsel's actions fell below the objective professional standard and (2) Appellant
must affirmative establish prejudice by showing a reasonable probability that, but for
counsel's unprofessional errors, the result would have been different. Strickland v.
Washington, 466 U.S. 668,689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The applicable
standard of review requires only that Appellant establish the improperly admitted
evidence affected Appellant's substantial right in which the error had a substantial and
injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d
266, 271 (Tex.Crim.App. 1997); James v. State, 264 S.W.3d 215, 222 (Tex.App.-thHouston [14 Dist.], 2008, pet. refd); TEX.R.APP.P.44.2(b).
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The improperly admitted testimony strikes directly at the issue for the jury to
determine. That is, the jury was tasked with deciding whether Appellant posed a
continuing risk to the community and whether said risk was sufficient to deny him
community supervision or sentence him to a lengthy penitentiary sentence. Appellant's
future dangerousness to the community formed the entire theme for the State's closing
argument wherein the State went as far as promising that "He's going to kill somebody
else." See R.R., Vol. V, p.188, 212, 219, lines 12-13. In fact, the jury sentenced this sixty-
six year old Appellant to five more years than the State requested from the jury. See R.R.,
Vol. V, p.220, line 1; R.R., Vol. IV, p.234, Iine8. In this case, it is clear that the jury
believed Trooper Hellinger's improperly admitted opinion that there was a "good
chance" he would kill again if given probation or a shorter penitentiary sentence.
II.
SHERIFF'S GRATUITOUS INSTRUCTIONS INFLUENCED JURY
The State also offered the testimony of Cooke County Sheriff, Michael Compton.
Over Defense counsel's proper objection, the Court allowed Sheriff Compton to testify
concerning Appellant's unsuitability for community supervision. See R.R., Vol. V, p. 128
& 131. The elected Sheriff for Cooke County testified "send him to jail." See R.R., Vol.
V, p.131, lines 17. No evidence was offered to demonstrate that Sheriff Compton
personally knew Appellant or had received any special training or other experience
concerning community supervision. In fact, Sheriff Compton said he didn't personally
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know Appellant and had minimal familiarity with the case. See R.R., Vol. V, p. 129, lines
6-10. As previous set forth herein, the Ellison decision requires that a witness be properly
qualified to give such testimony. Ellison v. State, 201 S.W.3d 714, 718 (Tex.Crim.App.
2006). There's no evidence in the record showing that Sheriff Compton had any
experience or training concerning any of the matters about which he testified. More
importantly, the Ellison holding requires that, at a minimum, the witness have personal
experience with the Defendant about whom they are giving their opinion. Id. Sheriff
Compton had no such knowledge and wasn't even familiar with the investigation against
Appellant. Because Defense counsel made the proper objection and the court overruled
said objection, it is clear that Sheriff Compton's testimony was improperly admitted. We
must next turn to the harm analysis.
As previously set forth, this court must next decide the impact the improperly
admitted testimony had on the jury. The question is whether the improper testimony had
a substantial and injurious effect on the jury. James v. State, 264 S.W.3d 215, 222
(Tex.App.-Houston [14th Dist.], 2008, pet. refd); Tex. r. app. P. 44.2(b). As previously
discussed herein, there is ample authority suggesting that improperly admitted opinion
testimony offered against a Defendant concerning probation suitability requires a new
punishment hearing if Defense counsel fails to object to such testimony. DeLeon v. State,
322 S.W. 3d 375, 386 (Tex.App-Houston [14th Dist.], 2010, pet. refd).
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The harm to Appellant is far greater than the harm exacted against the Defendant
in DeLeon and the standard of review in this case is less onerous than the Strickland
standard applied in the DeLeon case. Sheriff Compton is the elected Sheriff for Cooke
County. The State offered his testimony not because of his great experience or knowledge
concerning the case. Sheriff Compton's testimony was simply designed to influence the
jury's decision with testimony from a prominent Cooke County public figure without
offering any other valuable assistance to the jury. Had the State offered to call the mayor
of Gainesville, Texas, the substance of the testimony would have been no different.
Appellant did not receive a fair sentencing in this case. The Trial Court's rulings caused
substantial harm to Appellant. The improperly admitted testimony from Trooper
Hellinger and Sheriff Compton influenced the jury and caused a different outcome had
such testimony been excluded.
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PRAYER
In accordance with Hie foregoing argument, this Court should" reverse the
judgment and order a new punishment trial in this case.
Respectfully simmiftcd.
Michael C. LoweBoard Certified - Criminal LawTexas Board of Legal Specialization
State Bar No. 24007573700 N. Pearl St.. Suite 2170
Dallas, Texas 75201Phone: (214)526-1900Facsimile: (214)748-4348
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing/document has been
mailed to counsel for Appellee. Lisa Decker. 100 South fyu^on St., Gainesville. Texas
76240.
Michael C. Lowe
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