Patterson v. State

• Decision Date: 26 October 2006
• Docket Number: No. 13-04-482-CR.,No. 13-04-483-CR.,No. 13-04-484-CR.,13-04-482-CR.,13-04-483-CR.,13-04-484-CR.
• Citation: 204 S.W.3d 852
• Parties: Frederick PATTERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

204 S.W.3d 852

Frederick PATTERSON, Appellant, v. The STATE of Texas, Appellee.

No. 13-04-482-CR.

No. 13-04-483-CR.

No. 13-04-484-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

October 26, 2006.

COPYRIGHT MATERIAL OMITTED

Jeff Blackburn, Attorney At Law, Lubbock, Joseph Rutherford Willie, Attorney At Law, Houston, for Appellant.

Robert E. Bell, Attorney At Law, Edna, Jim Vollers, Attorney At Law, Austin, for Appellee.

Before the court en banc.

OPINION ON REHEARING

Opinion on rehearing by Justice GARZA.

On the motion of appellant, Frederick W. Patterson, the en banc Court has reconsidered the merits of the instant appeal and now orders that the panel's opinion in this matter be withdrawn and that the following opinion by the en banc Court be issued in its place.¹

This appeal follows three convictions stemming from three controlled purchases of crack cocaine by Santos Castro Castaneda, a paid informant working for the Edna Police Department and the Jackson County Sheriff's Department. Castaneda made the purchases of crack cocaine through Acie Jones, Jesse Darnell Chase, and Lisa Robinson. The crack cocaine sold to Castaneda was allegedly supplied to Jones, Chase, and Robinson by appellant.

Appellant was indicted and convicted on three counts of delivery of a controlled substance and was sentenced to ten years' imprisonment for each offense, with the sentences to run concurrently. TEX. HEALTH & SAFETY CODE ANN. § 481.002(8), (9) (Vernon Supp.2006). Appellant was also assessed court costs in the amount of $140 and a fine of $2,000 for each offense. Appellant now challenges his conviction by two issues: (1) there is insufficient evidence to corroborate testimony given at trial by Castaneda, a paid informant, or testimony given by Jones, Chase, and Robinson, who are accomplice witnesses as a matter of law; and (2) counsel provided appellant with ineffective assistance at trial. For the reasons that follow, we affirm the judgment of the trial court.

Background

The three controlled transactions leading to appellant's arrest and convictions occurred over the course of two months. At trial, two officers from the Jackson County Sheriff's Department testified about how the transactions unfolded. Prior to each transaction, the officers met with Castaneda and searched her person, belongings, and vehicle for illegal drugs. None were found. An electronic audio transmitting and recording device (i.e., a wire) was then placed in her purse, and she was given money to purchase illegal drugs. The two officers then followed Castaneda at a generous distance, remaining in the same general area but often allowing her to move beyond their sight.

Castaneda approached numerous drug users and dealers and asked where she could purchase crack cocaine. Three of the individuals she approached (Jones, Chase, and Robinson) indicated that she could purchase crack cocaine from appellant. Each individual accompanied her to an area near appellant's house, where he or she took Castaneda's money and then went into appellant's house. Castaneda was left waiting in her car during all three transactions. Each individual subsequently returned to the car with crack cocaine, which they each indicated had come from appellant. After each transaction, Castaneda rendezvoused with the officers and delivered into their possession the crack cocaine she had purchased.

Throughout the investigation, the officers monitored the audio transmissions generated by the wire carried by Castaneda and were thereby able to listen to conversations she had with the various people with whom she came into contact. The conversations were primarily with Jones, Chase, and Robinson, though Castaneda did have two conversations with appellant, which are detailed below. The officers recorded the transmissions generated by the wire, and the recordings were played for the jury at trial. A transcript of the recordings was also admitted into evidence, along with the crack cocaine recovered by the officers after each transaction.

There was also trial testimony from Castaneda, Jones, Chase, and Robinson. Castaneda testified that she saw appellant at or near his house before or after each of the transactions, though she never saw the transactions, never saw appellant in possession of any crack cocaine, and never saw any exchange of money between appellant and Jones, Chase, or Robinson. Castaneda had a conversation with appellant before the first transaction, which was captured by the wire and is documented below. During that conversation, appellant did not directly respond to Castaneda's request for crack cocaine, though he did react to it. In a second conversation that occurred before the third transaction, Castaneda commented that appellant had been drinking too much alcohol. Based on the recording, appellant apparently did not respond to Castaneda's comment.

At trial, Jones, Chase, and Robinson testified that they purchased the crack cocaine from appellant and then gave it to Castaneda. For their part, the two officers involved in the operation testified that they never actually saw appellant during the transactions and never actually saw Castaneda come into contact with Jones, Chase, or Robinson. They also did not see Jones, Chase, or Robinson come into contact with appellant. One of the officers testified that he recognized appellant's voice during the following exchange documented on a recording generated during the first transaction:

Castaneda: What's up, [appellant's name]?

Appellant: (Inaudible)

Castaneda: Can you fix me up a tight fifty?

Appellant: You see that white boy on the corner? On that bicycle. (Inaudible)

The exchange then ended abruptly, with appellant driving off in his car ostensibly to avoid the "white boy on the corner."

In addition to the foregoing exchange, the recordings also contained numerous comments by Jones, Chase, and Robinson indicating that they could obtain crack cocaine from appellant and that the crack cocaine they ultimately sold to Castaneda had come from appellant.

This constitutes the entire record of evidence incriminating appellant in the transactions.

I. Corroboration of Testimony by Informant and Accomplices

Appellant's first issue is comprised of two sub-issues, one challenging the sufficiency of the evidence to corroborate the testimony of the informant (Castaneda) and the second challenging the sufficiency of the evidence to corroborate the testimony given by the three accomplice witnesses (Jones, Chase, and Robinson). At the outset, this Court must decide a preliminary question of law: may an informant corroborate the testimony of an accomplice and vice versa?

A. Corroboration Statutes

The legislature has mandated that a defendant may not be convicted based on the testimony of an informant except as follows:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

TEX.CODE CRIM. PROC. ANN. art. 38.141 (Vernon 2005).

A similar provision restricts the use of testimony by accomplice witnesses:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005).

Article 38.17 provides, "In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction." See TEX.CODE CRIM. PROC. ANN. art. 38.17 (Vernon 2005).

B. Issue Preservation

The State contends that this Court should not address the merits of appellant's first issue because it was not preserved by a timely objection at trial. For the reasons that follow, we conclude that no timely objection at trial is required to preserve for appellate review complaints regarding the sufficiency of corroboration evidence.

In general, to preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. TEX.R.APP. P. 33.1; see Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.2000). A party's failure to timely and specifically object at trial usually amounts to a procedural default that prevents review of the error on appeal. See Blue, 41 S.W.3d at 131. This is a general rule to which there are exceptions, as shown below.

Before addressing the question of issue preservation, we note that appellant is not challenging the trial court's failure to submit an accomplice-witness jury instruction, which would be a jury-charge error and could be raised for the first time on appeal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). Instead, appellant argues that there is insufficient evidence to corroborate the testimony of the informant and accomplices.

Although the State maintains that appellant was required to preserve this issue at trial, no authority is cited for this proposition other than the general mandate of rule 33.1. See TEX.R.APP. P. 33.1. We are unaware of any case precedent requiring that an objection be made to preserve a challenge to the sufficiency of corroboration evidence on appeal. Likewise, we are unaware of any case precedent holding that the issue can be raised for the first...