Frederick Patterson v. State ( 2005 )

                              NUMBER 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.

                                        O P I N I ON

           Before Chief Justice Valdez and Justices Castillo and Garza

                                         Opinion by Justice Garza

This appeal follows three convictions stemming from three controlled purchases of crack cocaine by Santos Castro Castañeda, a compensated informant working for the Edna Police Department and the Jackson County Sheriff=s Department. Castañeda made the purchases through Acie Jones, Jesse Darnell Chase, and Lisa Robinson.  The crack cocaine sold to Castañeda was allegedly supplied to Jones, Chase, and Robinson by appellant, Frederick W. Patterson. Appellant was indicted and convicted on three counts of delivery of a controlled substance and was sentenced to ten years= imprisonment for each offense, with the sentences to run concurrently.  Tex. Health & Safety Code Ann. ' 481.002 (8), (9) (Vernon Supp. 2004-05).^[1]  Appellant was also assessed court costs in the amount of $140 and a fine of $2,000 for each offense.  Appellant now challenges his conviction by two issues:  (1) there is insufficient evidence to corroborate testimony given at trial by Castañeda, a paid informant, or testimony given by Jones, Chase, and Robinson, who are accomplice witnesses as a matter of law; and (2) counsel provided appellant with ineffective assistance at trial.  For the reasons that follow, we affirm the judgment of the trial court.

Background

The three controlled transactions leading to appellant=s convictions occurred over the course of two months.  At trial, two officers from the Jackson County Sheriff=s Department testified about how the transactions unfolded.  Prior to each transaction, the officers met with Castañeda and searched her person, belongings, and vehicle for illegal drugs.  None were found.  An electronic audio transmitting and recording device (i.e., a wire) was then placed in her purse, and she was given money to purchase illegal drugs.  The two officers then followed Castañeda at a generous distance, remaining in the same general area but often allowing her to move beyond their sight. 

Castañeda approached numerous drug users and dealers and asked where she could purchase crack cocaine.  Three of the individuals she approached (Jones, Chase, and Robinson) indicated that she could purchase crack cocaine from appellant.  Each individual accompanied her to an area near appellant=s house, where he or she took Castañeda=s money and then went into appellant=s house.  Castañeda was left waiting in her car during all three transactions.  Each individual subsequently returned to the car with crack cocaine, which they each indicated had come from appellant.  After each transaction, Castañeda rendezvoused with the officers and delivered into their possession the crack cocaine she had purchased.    

Throughout the investigation, the officers monitored the audio transmissions generated by the wire carried by Castañeda and were thereby able to listen to conversations she had with the people she came into contact with.  The conversations were primarily with Jones, Chase, and Robinson, though Castañeda did have two conversations with appellant, which are detailed below.  The officers recorded the transmissions generated by the wire, and the recordings were played for the jury at trial.  A transcript of the recordings was also admitted into evidence, along with the crack cocaine recovered by the officers after each transaction. 

The most substantial evidence linking appellant to the transactions was the testimony from Castañeda, Jones, Chase, and Robinson.  Castañeda testified that she saw appellant at or near his house before or after each of the transactions, though she never saw the transactions, never saw appellant in possession of any crack cocaine, and never saw any exchange of money between appellant and Jones, Chase, or Robinson.  Castañeda had a conversation with appellant before the first transaction, which was captured by the wire and is documented below. During that conversation, appellant did not directly respond to Castañeda=s request for crack cocaine.  In a second conversation that occurred before the third transaction, Castañeda commented that appellant had been drinking too much.  Appellant apparently did not respond to Castañeda=s comment.

At trial, Jones, Chase, and Robinson testified that they purchased the crack cocaine from appellant and gave it to Castañeda.  The two officers testified that they never actually saw appellant during the transactions and never actually saw Castañeda come into contact with Jones, Chase, or Robinson.  They also did not see Jones, Chase, or Robinson come into contact with appellant. One of the officers testified that he recognized appellant=s voice during the following exchange documented on a recording generated during the first transaction:

Castañeda:                                                  What=s up [appellant=s name]?  

Voice Identified as Appellant=s:             (Inaudible)

Castañeda:                                                  Can you fix me up a tight fifty?

Voice Identified as Appellant=s:             You see that white boy on the corner?  On that  bicycle. (Inaudible)

The exchange then ended abruptly, with appellant driving off in his car apparently to avoid the Awhite boy on the corner.@

In addition to the foregoing exchange, the recordings also contained numerous comments by Jones, Chase, and Robinson indicating that they could obtain crack cocaine from appellant and that the crack cocaine they ultimately sold to Castañeda had come from appellant.  This constituted the entirety of the evidence incriminating appellant in the transactions.

I. Corroboration of Testimony by Informant and Accomplices

Appellant=s first issue is comprised of two sub-issues, one challenging the sufficiency of the evidence to corroborate the testimony of the informant (Castañeda) and another challenging the sufficiency of the evidence to corroborate the testimony given by the three accomplice witnesses (Jones, Chase, and Robinson).  At the outset, this Court must decide a preliminary question of law: may an informant corroborate the testimony of an accomplice and vice versa?  To the best of this Court=s knowledge, no Texas court has addressed this question.  We answer the question in the affirmative.   

A. Corroboration Statutes

The legislature has mandated that a defendant may not be convicted based on the testimony of an informant except as follows:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). 

A similar provision restricts the use of testimony by accomplice witnesses:  AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@  See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). 

Article 38.17 further provides, AIn all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.@  See Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005). 

B.  Issue Preservation

The State contends that this Court should not address the merits of appellant=s first issue because it was not preserved by a timely objection at trial.  For the reasons that follow, we conclude that no timely objection at trial is required to preserve for appellate review complaints regarding the sufficiency of corroboration evidence.   

In general, to preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1; see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).  A party=s failure to timely and specifically object at trial usually amounts to a procedural default that prevents review of the error on appeal.  See Blue, 41 S.W.3d at 131.  This is a general rule to which there are exceptions, as shown below.  

Before addressing the question of issue preservation, we note that appellant is not challenging the trial court=s failure to submit an accomplice-witness jury instruction, which would be a jury-charge error and could be raised for the first time on appeal.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  Instead, appellant argues that the informant and accomplice testimony was insufficiently corroborated. 

Although the State maintains that appellant was required to preserve this issue at trial, no authority is cited for this proposition other than the general mandate of rule 33.1.  See Tex. R. App. P. 33.1.  We are unaware of any case precedent requiring that an objection be made to preserve a challenge to the sufficiency of corroboration evidence on appeal.  Likewise, we are unaware of any case precedent holding that the issue can be raised for the first time on appeal.  

Criminal defendants may bring challenges to the legal and factual sufficiency of the evidence on appeal without raising the issue at trial.  See Moff v. State, 131 S.W.3d 485, 488B89 (Tex. Crim. App. 2004).  But a challenge to the sufficiency of corroboration evidence is different than an ordinary legal or factual sufficiency challenge.  See Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999).  The informant-witness rule and the accomplice-witness rule are statutorily imposed and are not derived from federal or state constitutional principles that define the legal and factual sufficiency standards.  Id.  Thus, we cannot conclude, as appellant urges, that no objection is required to preserve the sufficiency of corroboration evidence simply because no objection at trial is required to bring ordinary challenges to the legal and factual sufficiency of the evidence.

Instead, we must turn to the law on procedural defaults to determine whether the issue can be raised for the first time on appeal.  The court of criminal appeals has explained that the criminal justice system in Texas contains three distinct kinds of rules:  (1) absolute requirements and prohibitions, (2) rights of litigants which must be implemented by the system unless expressly waived, and (3) rights of litigants which are to be implemented upon request and are otherwise forfeited.  Marin v. State, 851 S.W.2d 275, 279 (Tex Crim. App. 1993), overruled in part by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see also Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004). Rights which are waivable only, as well as absolute systemic requirements and prohibitions, cannot be made subject to rules of procedural default because, by definition, they are not forfeitable.  Marin, 851 S.W.2d at 279; Garcia, 149 S.W.3d at 144.  Therefore, to determine whether the sufficiency of corroboration evidence can be raised for the first time on appeal, we must decide whether the issue is subject to rules of procedural default by determining which category of rules it implicates. 

As noted above, the provisions regarding corroboration of testimony by informants and accomplice witnesses are found in the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. arts. 38.141, 38.14.  The informant-witness provision states that a Adefendant may not be convicted . . . unless the [informant=s] testimony is corroborated by other evidence tending to connect the defendant with the offense committed.@  Tex. Code Crim. Proc. Ann. art. 38.141.  The accomplice-witness provision contains a similar rule: AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed . . . .@  Tex. Code Crim. Proc. Ann. art. 38.14. If such requirements are not fulfilled, Athe court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.@  See Tex. Code Crim. Proc. Ann. art. 38.17. 

From the foregoing provisions, it appears that the sufficiency of corroboration evidence is an absolute requirement and therefore falls in the first category.  We are mindful that it could also fall in the second category because the provisions impose a duty on the trial court to render a judgment of acquittal sua sponte if the evidence is insufficient.   See id.; Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The provisions do not use language such as Aon motion of the defendant@ or Aon the defendant=s request.@  There is no indication in the code of criminal procedure that sufficient corroboration evidence is required only if demanded by the defendant, and we are unaware of any case law requiring the defendant to speak up to enforce the corroboration requirements.  We therefore disagree with the State=s contention that the sufficiency of corroboration evidence cannot be raised for the first time on appeal. 

Because appellant did not expressly waive the sufficiency of corroboration evidence at trial, this Court does not need to decide whether the issue falls in the first or second category.  For the purposes of this appeal, we need only hold that the issue does not fall in the third category and is therefore not subject to procedural default.  See Tex. R. App. P. 47.1.                                  

C. Accomplices as a Matter of Law

Before addressing the essential question raised by appellant=s first issue, we must resolve an additional point, which, according to the State, would defeat appellant=s first issue regardless of whether there was sufficient corroboration evidence.  The State contends that Jones, Chase, and Robinson were not accomplices as a matter of law because, at the time of their testimony against appellant, they had already been indicted, tried, and convicted for delivery of a controlled substance.  We disagree.

An accomplice is a person who participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state.  Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App.1996)).  The person=s participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged.  Id.  A person is an accomplice as a matter of law if he or she would be susceptible to prosecution for the offense with which the accused is charged or a lesser included offense.  Id.; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).  A co‑indictee is an accomplice as a matter of law.  Hendricks v. State, 508 S.W.2d 633, 634 (Tex. Crim. App. 1974).       

Although the court of criminal appeals has used the expression Asusceptible to prosecution@ to describe an accomplice, the court has clarified that what it means by that expression is that Aa person is an accomplice if there is sufficient evidence connecting them to the criminal offense as a blameworthy participant.@  Blake, 971 S.W.2d at 454B55.  According to the court, AWhether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice statusCwhat matters is the evidence in the record.@  Id. at 455.  Accordingly, we conclude that there is no merit to the State=s contention that a person ceases to be an accomplice upon conviction for the offense in which he or she was an accomplice.  Given the ample evidence adduced at trial to show that Jones, Chase, and Robinson committed delivery of a controlled substance, the same offense with which appellant was charged, we conclude that they were accomplices as a matter of law and proceed to address appellant=s first issue on the merits.

D.  AOther Evidence@ under Corroboration Statutes

Appellant contends that his conviction cannot be upheld because the testimony by the informant is corroborated only by testimony from accomplices and the testimony from the accomplices is corroborated only by the testimony of the informant. Appellant thus presents the essential question:  what constitutes Aother evidence@ under the corroboration statutes?  See Tex. Code Crim. Proc. Ann. arts. 38.141, 38.14.  The State contends that accomplice testimony amounts to Aother evidence@ under the informant-testimony provision and that informant testimony amounts to Aother evidence@ under the accomplice-witness provision.  Thus, according to the State, an accomplice may corroborate the testimony of an informant and an informant may corroborate the testimony of an accomplice.  We agree.   The informant and accomplice corroboration provisions are located in different sections of the code of criminal procedure. Neither provision defines Aother evidence,@ but each necessarily implies that more of the same evidence would not be Aother evidence@ under either provision.  That is, one accomplice cannot corroborate another accomplice=s testimony, and one informant cannot corroborate another informant=s testimony.  See Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971).       

Although a conviction may not be had based upon un-corroborated testimony of an informant or an accomplice, the code of criminal procedure places no restrictions on the use of informant testimony to corroborate accomplice testimony or vice versa. See Tex. Code Crim. Proc. Ann. arts. 38.141, 38.14.  The code simply precludes a conviction based on pure informant or accomplice testimony.  It says nothing about a conviction based upon both informant and accomplice testimony.  We are aware of the absence of guiding case precedent in this area of the law, but we are confident that the legislature would have combined the informant and accomplice corroboration provisions if it had intended to prohibit an informant from corroborating the testimony of an accomplice and vice versa.^[2]  We therefore proceed to decide whether testimony in this case is sufficiently corroborated.

E. Corroboration of Informant=s Testimony

To corroborate an informant=s testimony, there must be some non‑informant evidence that tends to connect the accused to the commission of the offense.  See Young v. State, 95 S.W.3d 448, 451 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).  In determining whether there is Aother evidence@ tending to connect an accused to the offense, a court must eliminate all informant testimony and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense.  See id.  Non‑informant evidence does not, by itself, have to establish the guilt of the defendant beyond a reasonable doubt, but it must tend to connect the defendant with the offense.  See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).  The Atends‑to‑connect@ standard does not present a high threshold.  See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.CAustin 2002, no pet.).  The link that Atends to connect@ the defendant to the offense need not be a direct link.  McDuff, 939 S.W.2d at 613; Burks v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994).  Even insignificant circumstances may create a sufficient link.  See Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). If sufficient corroborating evidence is lacking, the defendant will be entitled to a verdict of acquittal.  See Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005).

We have reviewed the evidence and conclude that the testimony of Jones, Chase, and Robinson sufficiently links appellant to the offenses for which he was convicted and therefore corroborates the testimony of Castañeda.  Each of the witnesses testified that they took money from Castañeda and purchased crack cocaine from appellant.  They testified that they then delivered the crack cocaine to Castañeda, who delivered it to law enforcement agents.  This evidence tends to connect appellant to the offenses.   

F. Corroboration of Accomplices= Testimony

Next, we consider whether the testimony of Jones, Chase, and Robinson was sufficiently corroborated.   To do so, we must eliminate from consideration all accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect appellant with the offenses.  McDuff, 939 S.W.2d at 612. 

We have reviewed the record and conclude that the testimony of Castañeda, along with the transcript of the recordings generated by the wire she carried and the testimony of the two law enforcement agents, are sufficient to connect appellant to the offenses.  Castañeda observed appellant at the scene of each drug transaction.  She spoke to appellant before two of the transactions and understood that he was selling her crack cocaine through Jones, Chase, and Robinson.  Castañeda also observed appellant acting suspiciously.  Before the first transaction, Castañeda asked appellant to sell her $50 worth of crack cocaine, but appellant responded that there was a Awhite boy on the corner@ and left the scene, only to return a few minutes later.  After the third transaction, appellant poked his head outside his front door and watched Robinson deliver crack cocaine to Castañeda.    Although these circumstances may appear insignificant to some, the court of criminal appeals has expressly stated that insignificant circumstances may create a sufficient link to corroborate accomplice testimony.  See Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).  We note that these circumstances are not offered to prove appellant=s guilt.  See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).  Rather, they Atend to connect@ appellant to the underlying offenses and are therefore a sufficient basis to allow accomplice testimony against appellant.  See id.

For these reasons, we overrule appellant=s first issue.

II. Ineffective Assistance of Counsel

In his second issue, appellant contends that his trial counsel was ineffective for failing to request a jury instruction on informant and accomplice witness corroboration. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687B88 (1984).  To prevail on a claim of ineffective assistance of counsel, an appellant must, by a preponderance of the evidence, prove (1) trial counsel=s performance fell below an objective standard of reasonableness, and (2) counsel=s deficient representation prejudiced appellant=s defense.  Id. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  To carry this burden, an appellant must show that the attorney=s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney=s deficiency, the result of the trial would have been different.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). 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.  Strickland, 466 U.S. at 686.  If, however, Athere is at least the possibility that the conduct could have been legitimate trial strategy,@ then we must Adefer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal.@  Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).

Our review of counsel=s representation is highly deferential, and we indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable representation.  See Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. An appellate court should not use hindsight to second‑guess the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness.  Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.BTexarkana 1999, no pet.).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Although counsel=s failure to object to the jury charge in this case was a Aglaring error,@ see Robinson v. State, 665 S.W.2d 826, 831 (Tex. App.CAustin 1984, pet. ref=d) (stating that counsel=s failure to request a charge pursuant to article 38.14 when it was clear that witness was accomplice witness as a matter of law was a glaring error, but finding that representation was not ineffective because there was ample corroboration by other evidence), we cannot conclude that counsel=s deficient representation prejudiced appellant=s defense.  As discussed above, the evidence adduced by the State was sufficient to corroborate the testimony of the informant and the accomplices.  We therefore cannot conclude that, but for the counsel=s deficiency, the result of the trial would have been different.  See Tong, 25 S.W.3d at 712.

Accordingly, appellant=s second issue is overruled and the judgment of the trial court is affirmed.          

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.                                             

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

Opinion delivered and filed

this the 6th day of October, 2005.

---

^[1] Appellant was indicted in three separate criminal actions, cause numbers 04-05-7032, 04-06-7033, and 04-06-7034.  The three cases were tried together in the trial court and have been consolidated on appeal. 

^[2] Article 38.141 became effective in September 2001.  In 2002, without any guiding precedent, the court in Young v. State interpreted the meaning of article 38.141 by looking to case law interpreting the similarly‑worded article 38.14.  95 S.W.3d 448, 451 (Tex. App.BHouston [1st Dist.] 2002, pet. ref=d). The court noted that AIn interpreting the meaning of article 38.141, we must assume that the legislature was aware of case law interpreting the similar language used in article 38.14.@  Id.  At the time of enacting 38.141 case law interpreting 38.14 prohibited accomplices from corroborating each other.  Clearly, if the legislature had intended to prohibit an informant from corroborating an accomplice or vice versa, it could have done so.