Patterson v. State

509 S.W.2d 857, 1974 Tex. Crim. App. LEXIS 1713
CourtCourt of Criminal Appeals of Texas
DecidedMay 22, 1974
Docket47750
StatusPublished
Cited by58 cases

This text of 509 S.W.2d 857 (Patterson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patterson v. State, 509 S.W.2d 857, 1974 Tex. Crim. App. LEXIS 1713 (Tex. 1974).

Opinions

OPINION

MORRISON, Judge.

Conviction is for murder; the punishment, life.

Appellant’s first contention is that the trial court erred in refusing to grant a mistrial upon admission of an oral confession not taken in compliance with Art. 38.-22, Vernon’s Ann.C.C.P.

Appellant introduced the following testimony on cross-examination of the State’s witness Officer Burks, to-wit:

“Q You just came in and said T want the truth, nothing but the truth,’ right?
“A Yes, sir.
“Q All right. When you said this to Mr. Patterson [appellant], what, if anything, did he say to you ?
“A He told me that he understood that I was like his father. His father had been a policeman and that’s all his father ever wanted was the truth.”

On re-direct examination, the State elicited the following testimony from this witness, to-wit:

"Q Now, this comment he [appellant] made about his father, could you tell the jury what he said ?
[860]*860“A He told me that he understood, that I was like his father; his father was a policeman and that’s all he ever wanted was the truth.
“Q Did he then tell you that he had killed this woman? [Emphasis Added]
“A Yes, sir, he did.”

Appellant then objected to this testimony as being a violation of Art. 38.22, supra. The court instructed the jury to disregard this testimony, but denied appellant’s motion for a mistrial.

Appellant, having inquired of the witness what it was the appellant told him, is in no position to complain. It appears that the oral confession immediately followed the statement elicited by the appellant.

Appellant relies on Roman v. State, Tex.Cr.App, 503 S.W.2d 252. In that case, defendant’s attorney asked the witness on cross examination if an informer had told him that J. C. might be in the defendant’s apartment when the informer arrived. Thereafter, over defendant’s hearsay objection,' on redirect the witness was allowed to testify that the informer told him on another occasion he had been to the defendant’s apartment and had seen a large quantity of marihuana and had seen defendant and J. C. rolling, smoking and packaging it.

The Court there held that the rationale of Art. 38.24, V.A.C.C.P., would not permit the introduction of hearsay information of the defendant’s criminal activities since they involved a different subject than was covered by the portion of the conversation brought out by the defendant.

In the instant case, however, the appellant introduced testimony on cross examination that the appellant had told Officer Burks that all he wanted was to tell the truth about the offense under investigation. The offense under investigation was a murder' case for which appellant had previously been charged, and anything further said by appellant relating to the same subject matter became admissible by virtue of appellant’s counsel’s question. Appellant’s attorney, having introduced the self serving statement that appellant was motivated to tell the truth, is in no position to object when the balance of the conversation as to appellant’s version of the truth, as related to Officer Burks, is introduced by the State. Appellant’s broad question on cross examination would even have authorized the witness to relate the oral confession. Appellant asked the witness to relate what the appellant said to him. The appellant is in no position to complain when the State asks the witness in effect to complete the answer to a question that appellant had previously posed.

Furthermore, the appellant failed to object prior to the witness’ answer. If there had been a timely objection, there would have been only the question but no evidence on the oral confession. Appellant cannot wait to see if the answer will be favorable before he objects. The record is silent as to good cause for the failure to timely object. It is incumbent upon appellant to show good reason for the failure to timely object if he desires to avoid a waiver of the matter. We note also that the court instructed the jury to disregard the oral confession.

Appellant next complains that the State engaged in improper jury argument. The argument in question is as follows:

“MR. ORMESHER: . . . And he’s progressed to the point of no return. If you look at the facts of this case, you can see one thing and that’s that Kenneth Patterson is degenerated to the point where he’s almost to the worst of the sadistic killers, those that would eat human flesh.
“MR. ATWOOD: Your Honor, for Heaven’s sake—
“MR. ORMESHER: I base that on the evidence here when he—
[861]*861“MR. ATWOOD: Your Honor, may I have an objection to the remark of counsel ?
“THE COURT: Yes, sir.
“MR. ATWOOD: I ask the jury to disregard it.
“THE COURT: Overrule objection.
“MR. ORMESHER: I have based that comment on what you saw here in these photographs today, the biting of human flesh. It’s just that far away from what I was talking about, the worst of sadistic killers.”

Dr. Hoffman had testified that the breasts of the deceased had been severed from the body and that a bite mark was on the severed left breast. He further testified that he placed a mold of appellant’s teeth on the wound and the mold fit the wound.

The appellant made only a general objection, which is not sufficient. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. Also, as noted by the quoted argument hereinabove, the State repeated in essence the same argument with no objection. We have, however, reviewed the evidence of Dr. Hoffman, who described the condition of the deceased, and find that the murder was of such a brutal nature that the argument complained of, if error, is not such as to call for a reversal of this conviction.

Appellant next complains of the following closing argument of the State:

“Did you have a doctor come down and tell you from jail and don’t think we’re not covered with nurses and doctors up there that can come examine people.

The court overruled appellant’s objection that the argument was outside the record.

Appellant argues that such argument was prejudicial to him on the issue of the coercion of the written confession and that it was outside the record. The first line of the above argument is a fair comment on the failure of appellant to produce a doctor to verify his claims of physical abuse. The following two lines do appear to be outside the record, but do not call for reversal. Appellant states in his brief that there were no symptoms of physical abuse and a doctor or nurse could add nothing to the evidence. The fact then of whether appellant produced a doctor or of how many doctors or nurses were available to appellant was irrelevant to any issue in this case. The statement of facts in this case runs in excess of two thousand four hundred pages. Some forty-five witnesses were called.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kody Austin Lott v. State
Court of Appeals of Texas, 2019
Pham, Con Mahn
Texas Supreme Court, 2015
Con Mahn Pham v. State
463 S.W.3d 660 (Court of Appeals of Texas, 2015)
Pena v. State
226 S.W.3d 634 (Court of Appeals of Texas, 2007)
Brewer v. State
725 So. 2d 106 (Mississippi Supreme Court, 1998)
Kennedy Brewer v. State of Mississippi
Mississippi Supreme Court, 1995
Terrell v. State
801 S.W.2d 544 (Court of Appeals of Texas, 1991)
Spence v. State
795 S.W.2d 743 (Court of Criminal Appeals of Texas, 1990)
State v. Armstrong
369 S.E.2d 870 (West Virginia Supreme Court, 1988)
Powell v. State
742 S.W.2d 353 (Court of Criminal Appeals of Texas, 1987)
Marquez v. State
725 S.W.2d 217 (Court of Criminal Appeals of Texas, 1987)
State v. Stinson
397 N.W.2d 136 (Court of Appeals of Wisconsin, 1986)
Austin v. State
712 S.W.2d 591 (Court of Appeals of Texas, 1986)
Cisneros v. State
692 S.W.2d 78 (Court of Criminal Appeals of Texas, 1985)
Tapley v. State
673 S.W.2d 284 (Court of Appeals of Texas, 1984)
Johnson v. State
662 S.W.2d 368 (Court of Criminal Appeals of Texas, 1984)
State v. Sapsford
488 N.E.2d 218 (Ohio Court of Appeals, 1983)
Hendricks v. State
640 S.W.2d 932 (Court of Criminal Appeals of Texas, 1982)
Meek v. State
628 S.W.2d 543 (Court of Appeals of Texas, 1982)
Kennedy v. State
1982 OK CR 11 (Court of Criminal Appeals of Oklahoma, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
509 S.W.2d 857, 1974 Tex. Crim. App. LEXIS 1713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-state-texcrimapp-1974.