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

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

u

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

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

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?

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.

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.

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

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).

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

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

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).

S

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

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).

10

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.

11

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

12