Clifton Lamont Patterson v. State ( 2012 )

Opinion issued March 1, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00054-CR

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CLIFTON LAMONT PATTERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1126692

MEMORANDUM OPINION

          A jury found appellant, Clifton Lamont Patterson, guilty of the offense of aggravated sexual assault of a disabled individual.  See Tex. Penal Code Ann. § 22.021(a)(l)(A)(i), (a)(2)(C) (Vernon Supp. 2011).  The jury assessed punishment at 30 years in prison.  On appeal, appellant raises two issues in which he contends that (1) the trial court abused its discretion by denying his motion to suppress his custodial statement, and (2) the trial court erred by denying his motion for mistrial.

          We affirm.

Background

          At the time of the offense, the complainant, L.P., was a 26-year-old woman, who had been diagnosed with mental retardation as young child.  L.P. has an IQ of 19 and the mental age of a 32-month-old child.  L.P. lived in a two-bedroom apartment with her mother, Betty.

          In late 2006, Betty met appellant, who was homeless.  Betty felt sorry for appellant and permitted him to sleep in her car.  After a few nights, Betty allowed appellant to sleep in her apartment.  Appellant slept in Betty’s bedroom, Betty slept on the couch, and L.P. slept in her own bedroom.  After a few months, Betty gave appellant a key to her apartment.

          On the morning of July 25, 2007, Betty went to work at her job at a nearby hospital.  When Betty left, appellant was sleeping in Betty’s bedroom, and L.P. was in her own bedroom.  Betty came home later that morning to bring L.P. and appellant breakfast.  At that time, everything appeared normal, and Betty returned to work.  Betty returned home around noon to bring appellant and L.P. lunch.  When she walked in the apartment, Betty heard L.P. crying.  Betty asked L.P. what had happened.  After L.P. responded, Betty asked appellant why he had hit L.P.  Appellant stated that L.P. had attacked him.  Betty did not believe appellant.  She asked him to leave the apartment and to return her key. Appellant gave Betty the key and left.

          Betty then went to L.P.’s room where she found L.P. crying hysterically and holding her arm.  L.P. indicated that appellant had hit her on the arm.  Betty saw that L.P. had a bite mark and a large bruise on her arm.  L.P. also began continuously repeating the following statement: “You did it.  You did it.  On the floor.  On the floor.  What happened? What happened?”  Betty believed that the “you” referenced by L.P. was appellant.  Betty then noticed a droplet of blood the size of a quarter on the floor of L.P.’s bedroom.  She knew that L.P. was not menstruating at that time.  The blood on the floor and L.P.’s statements led Betty to fear that appellant had sexually assaulted L.P.  Betty examined L.P.’s genitals and saw that L.P.’s vaginal area was swollen and irritated.  Betty observed a vaginal tear and blood. 

          Betty left the apartment to look for appellant, but she could not find him. Because she did not have a telephone, Betty went to her workplace, and her boss called the police.  Betty then returned to the apartment.  L.P. pointed to her genitals and to her bottom while repeating, “You did it.  On the floor.” 

          The police arrived quickly.  One of the officers was Officer B. Johnson.  L.P. pulled Officer Johnson by the arm into her bedroom and pointed to four, fresh spots of blood on the floor.  L.P. was upset and crying.  She was grabbing her crotch and repeating, “He did it.  He did it.”  Officer Johnson took a report from Betty, including a description of appellant. 

          Officer Johnson sat in his patrol car in the parking lot of Betty’s apartment building to fill out his report.  He noticed a man fitting the physical description provided by Betty.  Officer Johnson called appellant over to the patrol car.  Officer Johnson asked appellant for identification, which appellant provided.  Officer Johnson saw that appellant’s name matched that given by Betty as the person she feared had assaulted her daughter. 

          Officer Johnson noticed that appellant’s eyes were blood shot, his speech was slurred, and he smelled of marijuana.  Appellant was arrested for public intoxication and transported to jail by two other officers.  Officer Johnson notified the homicide division, which investigates sexual assaults, that the suspect in the case had been arrested for public intoxication.

          That same day, another officer took L.P. and Betty to the hospital where L.P. was examined by a medical doctor.  The doctor found bruising and an abrasion on L.P.’s left forearm and right leg.  Although she was unable to perform a full pelvic examination, the doctor observed that L.P. had a brownish vaginal discharge, an abrasion and bleeding indicative of trauma to the vagina.  The doctor’s findings were consistent with penetration without adequate lubrication.

          The day after his arrest, while he was still in custody in jail, appellant was interviewed by Sergeant K. Rivera of the sex crimes unit of the homicide division.  Sergeant Rivera informed appellant of his statutory and Miranda rights.  Appellant stated that he understood and waived these rights.  During his audio taped interview, appellant stated that he had penetrated L.P. vaginally and anally but stated that L.P. had initiated the sexual activity.

          Appellant was indicted for the offense of aggravated sexual assault of a disabled person.  The indictment provided in relevant part as follows:

Clifton Lamont Patterson, hereafter styled the Defendant, heretofore on or about JULY 25, 2007, did then and there unlawfully, intentionally and knowingly cause the penetration of the SEXUAL ORGAN of [L.P.], hereinafter called the Complainant, a DISABLED PERSON, by placing HIS SEXUAL ORGAN in the SEXUAL ORGAN of the Complainant, without the effective consent of the Complainant, namely, the Defendant knew that as a result of mental disease and defect that the Complainant was at the time of the sexual assault incapable of appraising the nature of the act and of resisting the act.

          Appellant filed a pretrial motion to suppress his recorded statement.  Among his grounds for suppression was his assertion that Officer Johnson did not have probable cause to make a warrantless arrest for public intoxication; thus, his statement given while in custody following his arrest must be suppressed.  Following a hearing at which Officer Johnson testified, the trial court denied the motion.

          The jury found appellant guilty of aggravated sexual assault and assessed his punishment at 30 years in prison.  This appeal followed in which appellant raises two issues challenging his conviction. 

Motion to Suppress

          In his first issue, appellant contends that the trial court erred in overruling appellant’s motion to suppress because his custodial statement was “the product of an illegal arrest.”  Appellant contends that Officer Johnson lacked probable cause to make a warrantless arrest for public intoxication. Appellant asserts that the evidence did not support a conclusion that a reasonably prudent officer would have believed that appellant posed a danger to himself or others, a required showing for the offense of public intoxication.

A.      Standard of Review

          We review a trial court’s ruling on a motion to suppress under a bifurcated standard.  See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  The trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented at a suppression hearing.  Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007).  We give almost total deference to the trial court’s determination of historical facts that depend on credibility and demeanor of witnesses, but we review de novo the court’s application of the law to the facts.  See id. at 25.  When, as here, no findings of fact were requested or filed, an appellate court reviews the evidence in the light most favorable to the trial court’s ruling and assumes the trial court made implicit findings of fact supported by the record.  State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).  The party that prevailed in the trial court is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.  See State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

B.      Analysis

          In Texas, a police officer may arrest an individual without a warrant only if (1) the officer had probable cause with respect to the individual in question, and (2) the officer has statutory authority to make such a warrantless arrest.  See Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005).  An officer has statutory authority to make an arrest when the officer observes a suspect committing a criminal offense.  See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) (“A peace officer may arrest an offender without warrant for any offense committed in his presence or within his view.”). 

          Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to justify a prudent man in believing that the person arrested had committed or was committing an offense.  Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964); see Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006).  The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer.  Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800 (2003); Beck, 379 U.S. at 96–97, 85 S. Ct. at 228.  A finding of probable cause requires “more than bare suspicion” but “less than . . . would justify . . . conviction.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310 (1949).

          Here, the State asserts that Officer Johnson arrested appellant without a warrant because the officer observed appellant committing the offense of public intoxication.  The offense of public intoxication occurs when an individual (1) appears in a public place while intoxicated and (2) is so intoxicated that he might endanger himself or another.  See Tex. Penal Code Ann. § 49.02(a) (Vernon 2011).  Appellant argues that Officer Johnson did not have probable cause to arrest him for public intoxication because the State failed to show that appellant was a danger to himself or others.[1] 

          The evidence showed that, at the time of the arrest, Officer Johnson possessed the following information: (1) appellant smelled of marijuana; (2) appellant’s eyes were bloodshot; and (3) his speech was slurred.  We agree with appellant that these factors alone are not enough to justify an arrest for public intoxication.  See Commander v. State, 748 S.W.2d 270, 272 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (concluding that physical manifestations of alcoholic consumption alone are not sufficient to constitute public intoxication).  

          The State asserts that the evidence showed that appellant was a potential danger either to himself or to others. See Tex. Penal Code Ann. § 49.02(a).  On cross-examination at the suppression hearing, the defense asked Officer Johnson how appellant was a danger to himself.  Officer Johnson responded, “[Appellant] was intoxicated at the time I arrested him.  He could have fallen, hurt himself, or he could have [done] anything at that time.  He could have wandered out into the street.  The apartment complex is located off of North MacGregor which is a very busy street . . . .”

          Appellant argues that Officer Johnson’s testimony is not sufficient to satisfy the danger requirement because the possibility that appellant may have been injured was too speculative.  We disagree with appellant. 

          The danger need not be immediate or apparent; it is sufficient if the defendant places himself or others in potential danger.  See Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977).  It is sufficient if the accused renders himself or others “subject to potential danger.”  Id.  The only question is whether, under the facts and circumstances within his knowledge, the officer had reasonably trustworthy information that would warrant a prudent person in believing that the defendant or others were facing potential danger.  Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App. 1978).  When an officer is confronted with a person intoxicated in a public place, his determination as to probable danger that may befall the individual is not reviewed under the same standard used in a judicial determination of guilt.  Id.  A prudent man could reasonably assume that a person under the influence of marijuana is at risk to cause injury, not only to himself, but to motorists, if, as here, he is walking in the vicinity of a busy street.  See Simpson v. State, 886 S.W.2d 449, 455 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (concluding reasonable to assume moving vehicles posed danger to intoxicated person in street); White v. State, 714 S.W.2d 78, 79 (Tex. App.—San Antonio 1986, no pet.) (holding that appellant posed potential danger by being intoxicated in a parking lot “where it is reasonable to assume that cars would travel in and out”); see also Garcia v. State, No. 14–09–00662–CR, 2010 WL 1223139, at *2 (Tex. App.—Houston [14th Dist.] March 30, 2010, no pet.) (mem. op., not designated for publication.) (“Appellant exposed himself to potential danger by attempting to walk in a parking lot of a public place while in a state of intoxication”).

          Viewed in the light most favorable to the trial court’s ruling, the facts and circumstances surrounding appellant’s arrest justified a conclusion by the trial court that Officer Johnson had probable cause to arrest appellant for public intoxication.  See White, 714 S.W.2d at 79–80.  We hold that the trial court did not abuse its discretion when it denied appellant’s motion to suppress.

          We overrule appellant’s first issue.

Motion for Mistrial

          In his second issue, appellant asserts that the trial court erred in denying his motion for mistrial “after the State in final argument commented on Appellant’s failure to testify.”  Appellant complains of the following statement made by the prosecutor during closing argument at the guilt-innocence phase of the trial:

And the defense, I know, is coming up here and the defense wants to talk about everything in the world but what actually happened and I don’t blame her.  I mean, if I were in their same shoes, I would be doing the same thing because if I were Clifton Patterson, I wouldn’t want to have to talk about what happened.

          Defense counsel objected on the ground that the prosecutor was commenting on appellant’s decision not to testify.  The trial court implicitly sustained the objection informing the jury, “Okay. Ladies and gentlemen, he has the absolute right not to testify and that cannot be used against him.  I don’t believe that’s what you are saying.  Please, let’s not state it.”  The defense then moved for a mistrial, which the trial court overruled.

A.      Legal Principles

          We review a trial court’s denial of a motion for mistrial for an abuse of discretion and uphold the trial court’s ruling if it was within the zone of reasonable disagreement.  Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).  A mistrial is required only in extreme circumstances, where the prejudice is incurable.  Id.  “A mistrial is the trial court’s remedy for improper conduct that is ‘so prejudicial that expenditure of further time and expense would be wasteful and futile.’”  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).

          Commenting on an accused’s failure to testify violates his state and federal constitutional privileges against self-incrimination.  Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011).  Such a violation occurs when “the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.”  Id. (quoting Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007)).       “Mistrial is the appropriate remedy when . . . the objectionable events ‘are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.’” Id. at 739 (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)).  To evaluate whether the trial court abused its discretion in denying a mistrial for improper jury argument, the Court of Criminal Appeals in Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004) adopted the three factors from Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), which balance: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).  See Archie, 340 S.W.3d at 739. 

B.      Analysis

          The first Mosley factor looks at the severity of the misconduct, or in other words, the magnitude of the prejudicial effect of the prosecutor’s remarks.  Id. In analyzing the first factor, it appears that the prosecutor did not deliberately refer to appellant’s failure to testify.  Rather, when read in the context of the record, the prosecutor was responding to the defense’s earlier argument that appellant should be found not guilty because Officer Johnson did not have probable cause to arrest him for public intoxication, an issue which was re-litigated at trial and which the jury was instructed to consider in the jury charge.  Because the complained-of comments were made in the context of responding to the defense’s argument, the magnitude of any prejudice was concomitantly diminished.  See id.  at 741.  In addition, the prosecutor’s comment was brief and not repeated.  Although the nature of the constitutional right affected by the prosecutor’s remark was serious, the prejudicial effect was also lessened by the absence of flagrancy and persistency.  See Perez v. State, 187 S.W.3d 110, 112–13 (Tex. App.—Waco 2006, no pet.).  We conclude that the extent of prejudice was not so great here as necessarily to render a firm and timely curative instruction inefficacious.  See Archie, 340 S.W.3d at 741.

          Under the second Mosley factor, the reviewing court considers the character of the measures adopted to cure the misconduct.  Id.  In this case, the trial court immediately instructed the jury that appellant had “the absolute right not to testify and that cannot be used against him.”  The trial court also indicated that it did not believe that the prosecutor was commenting on appellant’s decision not to testify but, nonetheless instructed that the lack of testimony by appellant should not be mentioned.  In addition, the court’s charge instructed the jury that it could not consider, for any purpose, appellant’s decision not to testify. 

          The law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury. Id. (citing Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).  Here, given the context in which it was made, the prosecutor’s comment was “not so indelible that the jury would simply ignore the trial court’s specific and timely instruction to disregard [it].”  See id.

          Under the third Mosley factor, the reviewing court looks to the certainty of conviction absent the misconduct.  Considering all the evidence, the certainty of appellant’s conviction absent the prosecutor’s comment was great.  Betty’s testimony regarding what she found when she came home on the day of the incident was compelling, including L.P.’s hysterical demeanor, the statements that L.P. continued to repeat, the blood on the floor, the bite mark on L.P.’s arm, and what she saw when she examined L.P.’s genitalia. 

          Officer Johnson testified regarding L.P.’s hysterical and emotional state that day as well her actions of grabbing her crotch and bottom and repeating, “He did it.”  Officer Johnson also testified that he saw fresh blood droplets on the floor of L.P.’s bedroom.  The medical doctor who examined L.P. provided testimony regarding L.P.’s physical condition, including vaginal trauma and bleeding.  Lastly, the jury heard appellant’s statement in which he admitted to having sex with L.P., a person which the evidence showed has the mental age of a 32 month old child.  In sum, the evidence supporting appellant’s conviction was strong, and the jury would almost certainly have convicted appellant regardless of the prosecutor’s comment during his closing argument. 

          Balancing the three Mosley factors, we hold that the trial court did not abuse its discretion in denying appellant’s motion for mistrial.  We overrule appellant’s second issue.

Conclusion

          We affirm the judgment of the trial court.

Laura Carter Higley

                                                                      Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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

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[1]         Appellant does not argue that he was not in a public place or that he was not intoxicated at the time of the arrest.