Frederick Patterson v. State ( 2006 )

NUMBERS 13-04-482-CR

13-04-483-CR

13-04-484-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FREDERICK PATTERSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Jackson County, Texas.

DISSENTING OPINION ON REHEARING

Before the Court En Banc Dissenting Opinion on Rehearing by Justice Yañez

In his second issue, appellant contends his trial counsel was ineffective for failing to request either an accomplice witness or confidential informant instruction in the jury charge. Appellant's counsel did not object to the charge, which contained neither instruction. Although the majority concludes that counsel's failure to object to the charge was a "glaring error," it holds appellant cannot show he was prejudiced by the error because there was ample corroboration by other evidence. I would hold that the accomplice witness and confidential informant testimony was essential to the State's case, and in light of the remaining evidence, there is a reasonable probability that if the jury had been informed it could not convict appellant without corroboration of the accomplice witness and confidential informant testimony, the result of the proceeding would have been different. Accordingly, I would hold that counsel's failure to request an instruction on the law of accomplice witness testimony and confidential informant testimony deprived appellant of effective assistance of counsel. I respectfully dissent.

Standard of Review and Applicable Law

To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that he was prejudiced by his counsel's deficient performance. ⁽¹⁾ Counsel's performance is deficient when his representation falls below the objective standard of professional norms. ⁽²⁾ However, our "review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." ⁽³⁾

To show prejudice, "appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ⁽⁴⁾ "In other words, the appellant must prove counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ⁽⁵⁾  

When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim, and thus it is often incomplete or inadequate for this purpose. ⁽⁶⁾ However, some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." ⁽⁷⁾

If a prosecution witness is an accomplice as a matter of law (or a confidential informant), the trial court is under a duty to instruct the jury accordingly and failure to do so is error. ⁽⁸⁾ Accordingly, the failure of counsel to request an accomplice witness instruction or a confidential informant instruction when facts warrant such instructions constitutes deficient performance. ⁽⁹⁾

If an appellant fails to object to the omission of an accomplice witness or confidential informant instruction, as in the present case, he or she must prove egregious harm to prevail on appeal. ⁽¹⁰⁾ Egregious harm results from errors that deny the defendant a "fair and impartial trial," "go to the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect his defensive theory." ⁽¹¹⁾ "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." ⁽¹²⁾ In reviewing the trial court's failure to instruct the jury on the accomplice witness rule, we examine the record for evidence corroborating the accomplice witness testimony. ⁽¹³⁾ If the evidence "clearly warrants conviction independent of the accomplice testimony, the court's failure to instruct on the law of accomplice testimony is not reversible error." ⁽¹⁴⁾

The court of criminal appeals has stated that an accomplice witness instruction is given to inform the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense. ⁽¹⁵⁾ Non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve. ⁽¹⁶⁾ A harmless error analysis for the omission of an accomplice witness instruction should be flexible, taking into account the existence and strength of any non-accomplice testimony and the applicable standard of harm. ⁽¹⁷⁾ Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." ⁽¹⁸⁾

To determine the sufficiency of the corroboration, regardless of whether an objection was made, we eliminate the testimony of the accomplice witness and examine the testimony of the other witnesses. ⁽¹⁹⁾ In determining the strength of the particular item of non-accomplice evidence, we must examine (1) its reliability or believability, and (2) the strength of its tendency to connect the defendant to the crime. ⁽²⁰⁾  

Analysis

I agree with the majority that in determining whether there is "other evidence" tending to connect an accused with the offense under article 38.14, ⁽²¹⁾ the "other evidence" used to corroborate accomplice witness testimony cannot include uncorroborated confidential informant testimony. Uncorroborated confidential informant testimony is not "evidence" (unless independently corroborated), and thus, cannot constitute "other evidence" under the accomplice witness statute. Similarly, uncorroborated accomplice witness testimony is not "evidence" (unless independently corroborated), and thus, cannot constitute "other evidence" under the confidential informant statute. ⁽²²⁾  

However, I disagree with the majority's conclusion that the independent evidence (non-accomplice, non-confidential informant testimony) "tends to connect" appellant to the offense.

To determine the sufficiency of the corroboration, I first eliminate the testimony of the accomplice witnesses (Acie Jones, Jesse D. Chase, and Lisa Robinson) to determine "whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense." ⁽²³⁾

Here, the independent evidence consists of (1) the testimony of Officer Curt Gabrysch of the Jackson County Sheriff's Department, (2) the testimony of Officer Craig Repka of the Edna Police Department, and (3) audio recordings (and transcripts) of alleged drug transactions between the confidential informant, Santos Castro Castaneda ("Santos") and the accomplices, Jones (on June 13, 2002), Chase (on August 2, 2002), and Robinson (on August 2, 2002), respectively.

Officer Gabrysch testified that he and Officer Repka supplied Santos with money to purchase crack cocaine from known drug dealers. A "body wire" was placed in Santos's purse to record her conversations with drug dealers and enable the officers to listen to the conversations from a mobile unmarked car. Officer Gabrysch testified that prior to each of the transactions, Santos was searched to ensure that she did not possess drugs and that after each transaction, she returned with crack cocaine. Officer Gabrysch testified that (1) neither he nor Officer Repka saw appellant deliver drugs to anyone, (2) he did not see Santos at appellant's house, (3) he did not see any contact between Acie Jones and appellant, (4) he did not see any contact between Santos and appellant, and (5) he did not see appellant's house and did not know how many persons may have been inside. Officer Gabrysch testified that he, Officer Repka, and Santos assisted in preparing the transcript of the audiotapes. Significantly, Officer Gabrysch did not specifically testify that he was able to independently identify appellant's voice on the audiotape. With regard to appellant's voice on the tape, Officer Gabrysch testified as follows:

[Appellant's counsel]: All right. And one thing you did in here would you agree with me, Officer, that on this tape that's been introduced, on the tape do you ever hear the voice of Frederick Patterson, yes or no?

[Officer Gabrysch]; Yes.

[Counsel]: On June 13 you hear the voice of Frederick Patterson on the tape?

[Officer Gabrysch]: Yes.

[Counsel]: Okay. Do you recall what if anything he says?

[Officer Gabrysch]: I don't recall without looking at the transcript.

[Counsel]: Let's assume that's correct. Okay? And we'll assume it's correct that you heard his voice on there. When you heard his voice on there would you agree with me there's nothing that he said or you heard him say on that tape that would implicate him in any kind of narcotics transaction. Is that a fair statement?

[Officer Gabrysch]: No. It's not.

[Counsel]: Okay. So something he said would implicate him. Not the fact that you heard his voice but something that he said would implicate that he was involved in the narcotics transaction. That's your take?

[Officer Gabrysch]: In my opinion, yes.

. . . .

[Prosecutor]: You were asked a question if-- isn't it true that nothing that was said on the tape by Rick Patterson would implicate him in any drug transaction. Do you recall that particular question?"

[Officer Gabrysch]: Yes, I do.

[Prosecutor]: Is there not something that he says on that tape, he being Rick Patterson, that does implicate him in this drug transaction?

[Officer Gabrysch]: In my opinion, yes.

[Prosecutor]: Tell us what it is that he says on that tape that implicates him in this drug transaction?

[Officer Gabrysch]: Asked him to hook her [Santos] up with a tight fifty which is $50 worth of crack cocaine and in response said, do you see that white boy over there on the corner on that bike.

There are no other references in Officer Gabrysch's testimony regarding appellant's voice on the audiotape.

Officer Repka testified that as a confidential informant, Santos was paid a total of approximately $3,000 for her work as an informant, or approximately $100 per arrest. He also testified that he (1) did not see Santos's car parked near appellant's house, and (2) did not see appellant deliver drugs to anyone. Officer Repka's testimony does not include any identification of appellant's voice on the audiotape.

Except for Santos (the confidential informant), the three accomplice witnesses, and the two officers, the only other witness was appellant. Appellant testified he had never been involved with the delivery of drugs. With regard to the "white boy on the corner" statement, appellant testified he did not know whether he made the statement.

Although Santos's testimony may not be considered as "other evidence" unless it is independently corroborated, she testified that with regard to each of the transactions, she waited outside of appellant's house while each accomplice witness went into the house and returned with cocaine. Santos testified that she did not see appellant give drugs to any of the accomplices and did not see any of the accomplices give appellant money in return. Santos testified that she spoke to appellant twice. She testified that before the transaction involving Acie Jones, she spotted appellant in his vehicle, rolled the window down, and asked him "if he had a fifty." Santos testified that appellant responded, "did we spot the white man on the corner on the bike." Santos also testified that during the third transaction, when Robinson walked out of appellant's house with the drugs, appellant walked out a bit behind her. According to Santos, when she drove off, she said, "Bye, Rick." However, the transcript of the audiotape reflects that the "Bye, Rick" comment appears in the context of comments Santos made for the benefit of the officers: "Bye Lisa. O.K. I got it. Bye Rick, O.K. ya'll, I'm taking a left on taking a right on Roosevelt. . . ."

Eliminating Santos's testimony, each of the accomplice witnesses testified that they went into appellant's house and purchased cocaine from him.

I conclude that the non-accomplice non-informant testimony tending to connect appellant to the offense is reliable, but very weak. ⁽²⁴⁾ Excluding the accomplice and informant testimony, the evidence shows only that on three occasions, while being monitored by the officers at a distance, Santos drove to a location she identified as appellant's residence, and purchased cocaine from each of the three accomplices. Although appellant testified at trial and the jury therefore had an opportunity to determine whether his voice was on the audiotape, the single brief comment attributed to appellant on the audiotape was ambiguous. Although the audiotapes contain references to "Rick," there are no references to "Rick Patterson." The officers could not even verify that Santos was at or near appellant's house. I conclude that without the testimony of Santos and the accomplice witnesses, the officers' testimony and the audiotapes are insufficient to tend to connect appellant to the offense. ⁽²⁵⁾

Here, because the jury was given neither an accomplice witness instruction nor a confidential informant instruction, it was authorized to convict appellant with no corroborating evidence. The State's case relied overwhelmingly on the testimony of Santos and the accomplice witnesses. Accordingly, the jury instruction was critical to the outcome of the case. ⁽²⁶⁾ The combination of the omission of the proper accomplice witness and confidential informant instructions and extremely weak corroborating evidence may result in a significantly less persuasive case for conviction. ⁽²⁷⁾ Considering the weak nature of the non-accomplice non-confidential-informant testimony, I believe that rational jurors certainly could have found the State's case significantly less persuasive had they been properly instructed. ⁽²⁸⁾ I conclude that in light of the facts of this case, failure to give the jury instruction on accomplice witness or confidential informant corroboration amounted to egregious harm. ⁽²⁹⁾

Conclusion

Because the jury was authorized to convict appellant without any corroborating evidence, I would find that counsel's failure to object to the charge or to request accomplice witness and confidential informant instructions so undermined the trial process that the trial cannot be relied upon as having produced a just result. ⁽³⁰⁾ Accordingly, I would find there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. ⁽³¹⁾ I would therefore sustain appellant's second issue, reverse the trial court's judgment, and remand to the trial court for a new trial. ⁽³²⁾  

LINDA REYNA YAÑEZ,

Justice

Publish. Tex. R. App. P. 47.2(b).

Dissenting opinion delivered and filed

this the 26th day of October, 2006.  

1. Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

2.

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

3.

Id.

4. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

5.

Hall v. State, 161 S.W.3d 142, 152 (Tex. App.-Texarkana 2005, pet. ref'd) (citing Strickland, 466 U.S. at 686).

6.

Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).

7.

Id. at 507 (citing Massaro v. United States, 538 U.S. 500, 508 (2003)).

8.

Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). In applying the confidential informant statute, see Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005), courts have adopted the standards for corroboration of accomplice-witness testimony. See Jeffery v. State, 169 S.W.3d 439, 447 (Tex. App.-Texarkana 2005, pet. ref'd).

9. Henson v. State, 915 S.W.2d 186, 197 (Tex. App.-Corpus Christi 1996, no pet.) (citing Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex. Crim. App. 1991)).

10. Hall, 161 S.W.3d at 149 (citing Solis v. State, 792 S.W.2d 95, 97-98 (Tex. Crim. App. 1990)).

11.

Id. (citing Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. on reh'g)).

12. Id. (citing

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.--Dallas 2002, no pet.)).

13.

Id.

14. Id.

(quoting Hall v. State, 937 S.W.2d 580, 586 (Tex. App.-Texarkana 1996, pet. ref'd)).

15. Id. (citing

Herron, 86 S.W.3d at 632).

16. Id.

17. Id. at 149-50.

18. Id. at 150 (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).

19.

Id.

20.

Id.

21.

See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

22. See id. art. 38.141(a).

23.

McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).

24. See Herron, 86 S.W.3d at 632 (noting non-accomplice testimony must be evaluated for reliability and strength of tendency to connect appellant to the offense).

25. See Young v. State, 95 S.W.3d 448, 451-52 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (holding corroborating evidence was insufficient where officers could not verify that confidential informant went to appellant's house for cocaine transaction and the only identification of appellant's voice on audiotape recording of the transaction was provided by the confidential informant); cf. Dennis v. State, 151 S.W.3d 745, 749 (Tex. App.-Amarillo 2004, pet. ref'd) (holding corroborating evidence sufficient, even though the investigator did not actually see the transaction because the informant was searched prior to the meeting and wore a recording device that was monitored by the investigator, the investigator identified appellant's voice on the recording, the informant was observed going to appellant's house, appellant was seen approaching the informant's car, and the informant gave the officer cocaine on his return from the transaction); Jefferson v. State, 99 S.W.3d 790, 792-93 (Tex. App.-Eastland 2003, pet. ref'd) (holding corroborating evidence sufficient, even though the informant went by herself to a house to make a purchase, because she had been searched before she left, the officer watched her go into the house, a recording was made of the transaction, the officer testified that appellant's voice was on the recording, and the informant gave the officer cocaine when she returned to his vehicle).

26. See Hall, 161 S.W.3d at 151.

27. See Saunders, 817 S.W.2d at 693.

28. See id.; Hall, 161 S.W.3d at 151; Howard v. State, 972 S.W.2d 121, 128 (Tex. App.-Austin 1998, no pet.).

29. See Hall, 161 S.W.3d at 151; Almanza, 686 S.W.2d at 171.

30. See Hall, 161 S.W.3d at 156.

31.

See id.

32. See id.