Bradley Patterson v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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BRADLEY PATTERSON, No. 08-13-00152-CR
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Appellant, Appeal from
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v. 384th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20110D03011)
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OPINION

Bradley Patterson appeals his conviction of aggravated sexual assault of a child. A jury

found Appellant guilty and assessed his punishment at imprisonment for thirty-eight years.

Finding no error, we affirm.

FACTUAL SUMMARY

On June 10, 2011, seven-year-old J.H. was playing soccer outside her apartment with

some other children. She had ripped her pink and black soccer ball while playing with it the

week before and Appellant offered to give her a new ball if she would go with him. When J.H.

agreed, Appellant took her by the hand and led her to what she described as an old apartment in

the back with a lot of furniture in it. Once inside the apartment, J.H. began yelling. Appellant

picked up a roll of duct tape and threatened to tape her mouth if she did not stop yelling.

Appellant initially choked her and then pulled down her shorts and underwear. After putting J.H.
on the floor, Appellant pulled down his pants and she could see his private part. Appellant then

climbed on top of J.H. and put his private part on her private part. She specifically testified that

his private part touched her private part. Appellant moved up and down on her and she felt some

liquid on her private part. J.H. described these events in her testimony and she also used

anatomically correct dolls to demonstrate what Appellant did. Afterward, Appellant pulled up

his pants and instructed J.H. to pull up her pants. Appellant told J.H. that he would kill her

family if she called the police and he instructed her to count to ten before she left the apartment.

J.H. counted to ten and ran back to her apartment where she told her older sister, L.R., what had

happened. J.H. asked her not to call the police because Appellant had threatened to kill them if

she did. L.R. called the police despite the threat.

The El Paso Police Department did not direct that a sexual assault examination be

performed, but Detective Oscar Morales later collected the underwear J.H. was wearing at the

time of the assault.1 The evidence was submitted to the Texas Department of Public Safety for

testing and Christine Ceniceros, a DNA analyst, found semen on the underwear. Ceniceros

compared a buccal swab collected from Appellant and determined that the DNA on the

underwear belonged to Appellant.

ADMISSION OF THREATS

In Issue One, Appellant contends that the trial court abused its discretion by permitting

the State to “repeatedly present” to the jury evidence that Appellant threatened to kill the victim

and her family if she called the police because the State did not give him notice of its intent to

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The police sergeant who made the decision admitted it was a mistake not to direct that a sexual assault
examination be performed.
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introduce this extraneous evidence as required by TEX.R.EVID. 404(b). The State responds that

(1) Appellant failed to preserve error by objecting each time a witness testified about the threat,

(2) the threat evidence was admissible as same transaction contextual evidence so it was not

required to give notice under Rule 404(b), and (3) it gave Appellant notice of its intent to

introduce the threat evidence if notice is required.

Preservation of Error

The Rules of Appellate Procedure require a party to preserve error by making a timely

and specific objection. TEX.R.APP.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349

(Tex.Crim.App. 2002); Peralta v. State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.).

With two exceptions, a party must continue to object every time inadmissible evidence is

offered. Peralta, 338 S.W.3d at 609, citing Ethington v. State, 819 S.W.2d 854, 858

(Tex.Crim.App. 1991). The two exceptions require counsel to either (1) obtain a running

objection, or (2) request a hearing outside the presence of the jury and object to all of the

evidence he deems objectionable on a given subject. Martinez v. State, 98 S.W.3d 189, 193

(Tex.Crim.App. 2003); Ethington, 819 S.W.2d at 858-59. Evidentiary error is not preserved

when the same evidence is admitted elsewhere without objection. Peralta, 338 S.W.3d at 609.

In his brief, Appellant identifies three instances where the State utilized the threat

evidence. First, during opening statements, the prosecutor informed the jury that the State would

present evidence that Appellant told J.H. that he would kill her and her family if she called the

police. Appellant objected that this was an extraneous offense, but he did not object to a lack of

notice. Second, Appellant objected that he had not been given notice of the extraneous offense

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when the State elicited the threat evidence during J.H.’s testimony. Third, the victim’s mother,

G.H., testified without objection that J.H. was scared and did not want to say exactly what had

happened because Appellant had threatened her. As noted by the State, Appellant did not object

to testimony by the victim’s older sister, L.R., that J.H. did not want her to call the police

because Appellant had threatened to kill them if they called the police.

Appellant did not obtain a running objection, nor did he object in a hearing outside of the

jury’s presence to all of the threat evidence. Thus, he was required to object every time a witness

testified about the threat to preserve error. Having failed to do so, Appellant waived the

complaint raised on appeal.

Same Transaction Contextual Evidence

Even if Appellant preserved error, his argument is without merit. Rule 404(b) provides

that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. TEX.R.EVID. 404(b). Evidence of extraneous

acts may, however, be admissible for other purposes, provided that upon timely request by the

accused, “reasonable notice is given in advance of trial of intent to introduce in the State’s case-

in-chief such evidence other than that arising in the same transaction.” Id. Evidence of another

crime, wrong, or act may be admissible as same transaction contextual evidence when several

crimes are intermixed, blended with one another, or connected so that they form an indivisible

criminal transaction, and full proof by testimony of any one of them cannot be given without

showing the others. Devoe v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011). Same

transaction contextual evidence is admissible as an exception under Rule 404(b) only when the

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offense would make little or no sense without also bringing in that evidence, and only to the

extent it is necessary to the jury’s understanding of the offense. Devoe, 354 S.W.3d at 469. The

purpose of this type of evidence is to assist the factfinder in understanding the nature and context

of the charged offense. See Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).

Events do not occur in a vacuum and the jury should be permitted to hear what occurred

immediately prior to and subsequent to the commission of that act so that it may realistically

evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000).

The trial court could have reasonably found that Appellant’s threat to kill J.H. and her

family if she called the police was intermixed with and indivisibly connected to the charged

offense given that the threat was made during the course of the aggravated sexual assault and it

explained J.H.’s resistance to her sister calling the police. In other words, the evidence put the

charged offense into context and was necessary to the jury’s understanding of the offense. The

trial court did not abuse its discretion by admitting the threat evidence. See Brown v. State, 657

S.W.2d 117, 119 (Tex.Crim.App. 1983)(holding that evidence defendant threatened to kill the

sexual-assault victim’s family was admissible to show reason for delayed outcry). Given that the

evidence was properly admitted as same transaction contextual evidence, the State was not

required to give notice under Rule 404(b). Even so, the record reflects that the State twice gave

Appellant written notice of its intent to use the evidence at trial. For all of these reasons, Issue

One is overruled.

STATE’S EXHIBIT 8

In Issue Two, Appellant argues that the trial court abused its discretion by admitting

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State’s Exhibit 8, the child victim’s underwear, without first establishing a proper chain of

custody. Appellant refers to both “chain of custody” and “authentication” in his brief and he

argues that the trial court should not have admitted the exhibit through the victim’s mother, G.H.,

before the State elicited testimony from the detective who collected the evidence and from the

DPS forensic examiner who performed the DNA analysis.

The victim’s mother, G.H., testified that J.H. was wearing a pink and black shirt and

black shorts on the day she was assaulted. G.H. removed her daughter’s clothing, including her

underwear, on the day of the assault. She later gave the clothing to a detective who put the items

of clothing in a bag and took them. G.H. identified the underwear, marked as State’s Exhibit 8,

as the same underwear J.H. had been wearing that day. She specifically testified that she had not

washed the underwear. The State offered the underwear into evidence and Appellant objected

that there had not been a “proper authentication.” The prosecutor responded that G.H. had

identified the evidence as the same underwear J.H. had been wearing that day. The trial court

stated, “For that purpose, they’re admitted.”

Detective Oscar Morales testified that he was assigned the case on June 15, 2011. That

same day, he went to the apartment where the victim lived and collected her clothing, including

the underwear. Detective Morales identified State’s Exhibit 8 as the same underwear he

collected on June 15, 2011 because he had written his initials, ID number, and the case number

on the evidence bag. He placed the evidence bag into “evidence” so that it could held pending

biological processing with DPS.

Christine Ceniceros, the DNA analyst, identified State’s Exhibit 8 as the same underwear

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she had tested because she had placed her case number, initials, and date on the band of the

underwear. Ceniceros testified that the underwear did not appear to have been altered or

changed since she had conducted the testing. The State then offered State’s Exhibit 8 into

evidence and Appellant’s counsel replied, “No objection.”

Preservation of Error

The first issue we must determine is whether Appellant preserved the claimed error. To

raise a complaint on appeal, a party is required to preserve error by making a timely and specific

objection. TEX.R.APP.P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App. 2009). A

complaint raised on appeal is not preserved if the legal basis of the argument varies from the

objection made at trial. Lovill, 319 S.W.3d at 691-92. In other words, the complaint raised on

appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339

(Tex.Crim.App. 2012).

When the State offered the underwear into evidence during G.H.’s testimony, Appellant

objected that there had not been a “proper authentication.” On appeal, he argues that the State

failed to establish a proper chain of custody. Having read the testimony of G.H. and the trial

court’s ruling, we conclude that Appellant’s objection that the State had not properly

authenticated State’s Exhibit 8 was sufficient to apprise the trial court and the State that he was

objecting to the chain of custody. Establishing chain of custody is part of identification and

authentication of certain types of physical evidence, or in other words, showing that the matter in

question is what it proponent claims. See Druery v. State, 225 S.W.3d 491, 503 (Tex.Crim.App.

2007)(observing that “although the evidentiary rules do not specifically address proper chain of

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custody, they do state that identification for admissibility purposes is satisfied if the evidence is

sufficient to support a finding that the matter in question is what its proponent claims.”).

Our inquiry into preservation is not complete because the State proceeded to re-offer

State’s Exhibit 8 after it had shown the chain of custody through subsequent witnesses. At that

point, Appellant stated he had “no objection” to the admission of the evidence. By doing so,

Appellant abandoned, and therefore, waived his earlier complaint regarding the admission of

State’s Exhibit 8. See Thomas v. State, 408 S.W.3d 877, 885-86 (Tex.Crim.App. 2013).

Chain of Custody

Even if Appellant preserved the issue raised on appeal, we conclude that the State

sufficiently established chain of custody. We review the trial court’s decision to admit or

exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736

(Tex.Crim.App. 2010). The trial court does not abuse its discretion unless its decision to admit

or exclude the evidence lies outside the zone of reasonable disagreement. See Martinez, 327

S.W.3d at 736.

Rule 901 provides that the requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what the proponent claims. TEX.R.EVID. 901(a). Authentication can be

accomplished by testimony from a witness with knowledge that an item is what it is claimed to

be. TEX.R.EVID. 901(b)(1). The authentication requirement for admissibility is met once the

State has shown the beginning and the end of the chain of custody, particularly when the chain

ends at a laboratory. Martinez v. State, 186 S.W.3d 59, 62 (Tex.App.--Houston [1st Dist.] 2005,

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pet. ref’d). Absent proof of tampering, most problems with the chain of custody do not affect the

admissibility of evidence, but rather go to the weight of the evidence. Lagrone v. State, 942

S.W.2d 602, 617 (Tex.Crim.App. 1997); Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App.

1981). Tagging an item of physical evidence at the time of its seizure and then identifying it at

trial based upon the tag is sufficient for admission barring any showing by the defendant of

tampering or alteration. See Garcia v. State, 537 S.W.2d 930, 934 (Tex.Crim.App. 1976).

The evidence at trial showed the beginning and end of the chain of custody. While

Appellant objected to the evidence when it was offered through G.H., who was the beginning of

the chain of custody, the State subsequently authenticated State’s Exhibit 8 and established the

continuation and end of the chain of the custody. Detective Morales identified the evidence bag

containing State’s Exhibit 8 by the markings he placed on the bag. Likewise, DNA analyst

Ceniceros identified State’s Exhibit 8 by the markings she placed on the band of the underwear.

The State re-offered the evidence through Ceniceros and Appellant did not renew his chain of

custody objection. The trial court did not abuse its discretion by determining that the State had

sufficiently authenticated State’s Exhibit 8. Issue Two is overruled. Having overruled both

issues presented on appeal, we affirm the judgment of the trial court.

April 22, 2015
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, J., and Barajas, C.J., (Senior Judge)
(Barajas, C.J., Senior Judge, sitting by assignment)

(Do Not Publish)

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