Kelly Patterson v. State ( 2008 )

Opinion issued February 7, 2008

Opinion issued February 7, 2008

In The

Court of Appeals

For The

First District of Texas

NOS. 01-07-00259-CR & 01-07-00260-CR

KELLY PATTERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1071120 & 1071121

MEMORANDUM OPINION

          After finding appellant Kelly Patterson guilty of the offenses of aggravated assault of a public servant and burglary of a habitation, the jury assessed punishment at twenty years’ confinement for the aggravated assault on a public servant conviction and five years’ confinement for the burglary of a habitation conviction.  See Tex. Pen. Code Ann. §§ 22.02(b)(2)(B) and 30.02 (Vernon 2003 & Supp. 2007).  The trial court ordered that the two sentences run concurrently.  In his sole issue on appeal, Patterson contends that the trial court violated his constitutional right to confront a witness against him when it denied his request that the State produce the witness’s written statement prior to cross-examining the witness.  Concluding that Patterson failed to preserve this issue for review, we affirm.

Background

          Late one afternoon in May 2006, Patterson and two other men gathered at an apartment complex.  A resident, Chris Hatfield, watched through his broken window blinds as the three men approached the door of his neighbor, who ran a small concession out of her apartment selling snacks to children after school.  The men kicked down the door and entered the neighbor’s apartment. When Hatfield saw this, he called 911, and the police responded within minutes. 

The responding officer, Officer Boutte, headed toward the apartment.  As Officer Boutte began to go up the stairs to the apartment, one of the men stepped out of the apartment.  Officer Boutte began to instruct the man to get down on the ground when he realized that others were still inside the apartment and that he needed assistance.  As Officer Boutte retreated, Patterson came out of the apartment armed with an assault rifle and began shooting at him.  Officer Boutte exchanged fire with Patterson while he called for assistance. When Officer Boutte attempted to reload, Patterson and the other two men ran from the scene.  At about the same time, several additional officers arrived and apprehended Patterson as he tried to flee. 

During trial, the State called Hatfield to testify about the events that he had observed from his apartment that day.  Hatfield revealed during cross-examination that he had written notes of his observations and had given them to several officers during the investigation immediately after the incident.  Following this revelation, defense counsel sought additional details:

DEFENSE

COUNSEL:           Did you have an opportunity to refresh your                                                      recollection with those notes?  Have you seen any?

A.                         I haven’t seen my report since that night . . . .

Q.                         Well, what I’m asking did you ever have to sign anything to say that was your report?

A.                       That night I went to the station downtown and I signed ‑- I wrote my report.  It was typed by an officer and then I signed it and he notarized it that night. . . .

After this testimony, a bench conference ensued: 

DEFENSE

COUNSEL:           Your Honor, we request a copy if the State has it.

* * *

THE COURT:      He says he hasn’t seen it.  He hasn’t used it to refresh his recollection. 

PROSECUTOR:  That’s right.

DEFENSE

COUNSEL:           Well, I just want to see if it’s basically what he’s saying.

THE COURT:      I don’t blame [sic] I think that the standard is, unless he used it to refresh his recollection, and if there is something that is inconsistent in Brady would require the State to give you that statement.  I assume there’s nothing inconsistent.

PROSECUTOR:  Right, nothing inconsistent.

DEFENSE

COUNSEL:           Now, I don’t know it’s inconsistent unless I see it, though.

THE COURT:      I’m going to go by your word as an officer of the court, as I am, the Prosecutor –

DEFENSE

COUNSEL:           I’m not saying she is hiding it.  I’m just asking for it.

THE COURT:      I think the law is, you don’t get it unless this witness used it to testify.  And he says, specifically, he hasn’t seen it since he signed it that night.  He didn’t use it to refresh his recollection before he testified.  So, if I’m wrong, I’m wrong; and you got me.  But I have to go by what I understand the law to be.

Patterson timely noticed this appeal, but made no further effort to make a copy of Hatfield’s written statement a part of the record. 

Discussion

Patterson contends on appeal that the trial court violated his constitutional right to confront the witnesses against him by denying his request for Hatfield’s written statement.[1]  The trial court denied Patterson’s request that the State provide him with Hatfield’s prior written statement because Hatfield testified that he did not use the statement to refresh his memory.  See Tex. R. Evid. 612.  The statement, however, should have been made available to Patterson under Rule 615 of the Texas Rules of Evidence, which codifies Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961).  According to that rule, a defendant has the right to examine the recorded statement or report of a prosecution witness for the purpose of cross-examination and impeachment if the witness has testified on direct examination about the subject matter of the statement or report. Tex. R. Evid. 615. 

Patterson, however, waived the claimed error by failing to properly incorporate Hatfield’s written statement into the appellate record or show that he was denied the opportunity to make the statement part of the record.  See Gilbreath v. State, 500 S.W.2d 527, 528 (Tex. Crim. App. 1973).  As appellant, Patterson bore the responsibility to request that the report be made a part of the record on appeal, either by bill of exception or by post-trial motion, so that he could demonstrate any harm resulting from the trial court’s action.  See Tex. R. App. P. 33.2, 44.2; Cantrell v. State, 731 S.W.2d 84, 94 (Tex. Crim. App. 1987); Gilbreath, 500 S.W.2d at 528; Johnson v. State, 919 S.W.2d 473, 479 (Tex. App.—Fort Worth 1996, pet. ref’d).   Patterson did not make such a request, and therefore failed to preserve error.  

Conclusion

          Patterson waived his claim that the refusal to provide Hatfield’s statement violated his constitutional rights under the Confrontation Clause.  Accordingly, we affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]  Patterson’s contention rests on the Sixth and Fourteenth Amendments to the United States Constitution, which provide that in all criminal prosecutions, state as well as federal, the accused has a right “to be confronted with the witnesses against him.”  U.S. Const. amend. VI; Lilly v. Virginia, 527 U.S. 116, 123, 119 S. Ct. 1887, 1893 (1999) (plurality opinion).