Herbert Leroy Patterson v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00293-CR
HERBERT LEROY PATTERSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-1213-C2
MEMORANDUM OPINION
The jury convicted Herbert Leroy Patterson of the offense of continuous sexual
abuse of a child and assessed his punishment at 45 years confinement. The jury also
convicted Patterson of the offense of indecency with a child and assessed his
punishment at 20 years confinement and a $5,000 fine. The trial court ordered the
sentences to run consecutively. We affirm.
Background Facts
D.K. lived with her grandmother, Evelyn Price. Price dated Patterson, and
Patterson also lived in her home. D.K. testified at trial that sometimes Patterson would
come home late at night and that he would come in her room and try to “mess with
her.” D.K. further testified that Patterson would tell her to go to the washroom and that
Patterson would take off her clothes. Patterson would offer D.K. money to go to the
washroom with him. D.K said that Patterson would try to put his “private part” in her
“private part” but that he was not able to do so. D.K testified that Patterson touched
her with his mouth and his hands on her “private part.” Patterson also made her hold
his “private part” and move her hand “up and down.” Patterson told D.K. not to tell
anyone.
One night, Patterson sent D.K. to the washroom and told her to take off her
clothes. D.K’s Aunt Lakeisha came to the washroom, and Patterson sent D.K. outside.
Lakeisha later found D.K. outside, and D.K. told her aunt what had happened. D.K.’s
other aunt, Latrenda, came to the house and took D.K to the hospital the following day.
D.K.’s grandmother, Evelyn, did not believe the allegations and called D.K. a liar.
Jury Instruction
In the first issue, Patterson argues that the trial court erred in denying his
requested jury instruction on character evidence. Appellate review of alleged jury-
charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.
Crim. App. 1994). Initially, the court must determine whether error actually exists in
the charge. If error is found, the court must then evaluate whether sufficient harm
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resulted from the error to require reversal. Id. at 731-32. If an error was properly
preserved by objection, reversal will be necessary if the error is not harmless. Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not
preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Patterson requested a jury instruction on character evidence based on the Fifth
Circuit Criminal Pattern Jury Instruction 1.09. Patterson contends that he presented
character evidence to the jury that warranted submission of the requested instruction.
Patterson requested the trial court to instruct the jury as follows:
Where a defendant has offered evidence of good character for moral and
safe relations with small children or young girls, you should consider such
evidence along with all the other evidence in the case. Evidence of a
defendant’s character that is inconsistent with those traits of character
ordinarily involved in the commission of the crimes charged in this case
may give rise to a reasonable doubt, since you may think it improbable
that a person of good character in respect to those traits would commit
such crimes. You will always bear in mind, however, that the law never
imposes on a defendant in any criminal case the burden or duty of calling
any witnesses or producing any evidence.
In Jones v. State, 566 S.W.2d 628, 629 (Tex. Crim. App. 1978), the Court held that
the judge is not required to give a special instruction on good character. The Court
stated that the defendant is able to present evidence of good character to the jury, and
the trial court is only required to permit that evidence to go to the jury for consideration
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in connection with other testimony in the case. Id. The trial court did not err in refusing
the requested jury instruction. We overrule the first issue.
Cumulative Sentences
In the second issue, Patterson argues that the trial court erred in imposing
cumulative sentences because the imposition of cumulative sentences violates his
statutory right to jury sentencing under article 37.07 of the Texas Code of Criminal
Procedure. Patterson argues that although he elected to have the jury assess his
punishment, the trial court was allowed to increase his sentence by ordering that it run
consecutively.
The trial court has the sole authority to order sentences to run consecutively. See
TEX. CODE. CRIM. PRO. ANN. art. 42.08 (a) (West 2006). The trial court’s authority to
order cumulative sentences does not conflict with the right to have the jury assess
punishment. Johnson v. State, 492 S.W.2d 505, 507 (Tex. Crim. App. 1973). Patterson
contends that the issue should be revisited because the content and application of article
37.07 have changed significantly since the court of criminal appeals' holding. As an
intermediate court of appeals, we are bound to follow the precedent of the court of
criminal appeals. We overrule the second issue.
Conclusion
We affirm the trial court’s judgments.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 5, 2014
Do not publish
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