In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00394-CR __________________
WALTER HENRY PATERSON, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 21-06-08377-CR __________________________________________________________________
MEMORANDUM OPINION
Walter Henry Paterson appeals from a judgment in which he was
convicted of assaulting Joan, a member of his family, by intentionally,
knowingly, or recklessly impeding her normal breathing or the
circulation of her blood by applying pressure to her throat or neck or by
1 blocking her nose or mouth. 1 In the punishment phase of the trial, the
jury found Paterson guilty, answered “True” to the enhancement counts
in Paterson’s indictment, and decided that Paterson should serve a forty-
year sentence.2 The trial court accepted the jury’s verdict, pronounced
sentence, and signed a judgment consistent with the verdict.
Paterson raises three issues in his appeal. Paterson’s first two
issues claim the trial court erred in admitting evidence in the guilt-
innocence phase of his trial. In Paterson’s first issue, he argues the trial
court abused its discretion when it excluded evidence that he argues
would have shown why Joan chose to testify against him and testified for
the State. According to Paterson, the evidence the trial court excluded
“related to [Joan’s] motive” to testify against him and for the State.
1See Tex. Penal Code Ann. § 22.01(b)(2)(B). To protect the victim’s
privacy, we have used pseudonyms for the victim’s name and the names of some of the witnesses. See Tex. Const. art. I, § 30 (granting a crime victim “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2Tex. Penal Code Ann. § 12.42(d) (allowing the factfinder to consider
sentencing the defendant to “any term of not more than 99 years or less than 25 years” should the factfinder determine the defendant is guilty of committing a felony other than a state jail felony and find the defendant incurred two or more prior sequenced felony convictions before committing the offense at issue in his trial, the primary offense). 2 In Paterson’s second issue, he argues the trial court abused its
discretion by allowing one of the State’s witnesses, a witness with a Ph.D.
in counseling, to remain in the courtroom when Joan testified during the
trial. According to Paterson, the trial court allowed Dr. David Lawson, a
professor who testified he teaches classes in psychology at Sam Houston
State University, to remain in the courtroom over his objection after he
invoked “The Rule” that requires witnesses in the case to be excluded
from the courtroom. 3
In Paterson’s third issue, he contends the trial court erred in
allowing the jury through the court’s charge to consider convicting him of
assault by finding that he blocked Joan’s nose or mouth. According to
Paterson, no evidence supported the instruction in the charge that
allowed the jury to convict him on a theory that he blocked Joan’s nose or
mouth as a manner or means of committing the assault.
3See Tex. R. Evid. 614 (“At a party’s request, the court must order
witnesses excluded so that they cannot hear other witnesses’ testimony.”). 3 We conclude that Paterson’s issues, for the reasons explained
below, were either unpreserved or lack merit. We affirm the trial court’s
judgment.
Background
Since Paterson didn’t argue the evidence admitted in his trial was
insufficient to support his conviction, we limit our discussion of the
background in Paterson’s case to the information needed to explain why
the Court is overruling the issues Paterson has raised in his appeal. 4
The testimony in the trial shows that Joan and Paterson were
married when the alleged assault involving Joan occurred. On June 17,
2021, police arrested Paterson based on the allegations in an
Information, which alleges that on or about April 9, 2021, he assaulted
Joan a member of his family by intentionally, knowingly, or recklessly
impeding the normal breathing or circulation of her blood by applying
pressure to her throat or neck or by blocking her nose or mouth. 5 In this
opinion, we will refer to the offense as assault-family violence, by
4Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State,
520 S.W.3d 616, 622 (Tex. Crim. App. 2017). 5See Tex. Penal Code Ann. § 22.01(b)(2)(B).
4 strangulation.6 On the day that Paterson was arrested, Joan sued
Paterson for divorce.
In August 2021, a Montgomery County grand jury indicted
Paterson for assault-family violence, by strangulation. 7 Paterson’s
indictment contains two enhancement counts, each of which alleges that
Paterson had been convicted of committing another felony that became
final before he assaulted Joan. 8
Paterson’s trial began on December 7, 2021. Six witnesses were
called by the State to testify over the two days of the guilt-innocence
phase of Paterson’s trial: (1) Joan, (2) Cade, Joan’s fourteen-year-old son;
(3) Tori, Joan’s friend; (4) Jessie Minchew, a detective with the Conroe
Police Department; (5) Brookley Torres, a forensic nurse examiner; and
6Id. 7Id. 8The assault-family violence by strangulation part of Paterson’s indictment alleges that Paterson “knowingly or recklessly cause[d] bodily injury to [Joan], a member of the defendant’s family or a member of the defendant’s household or a person with whom the defendant has or has had a dating relationship, as described by Section 71.003 or 71.005 or 71.0021(b), Family Code, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of [Joan] by applying pressure to [Joan’s] throat or neck or by blocking [Joan’s] nose or mouth[.]” See id. 5 (6) David Lawson, a university professor who holds a doctorate in
counseling.
Only two witnesses testified on the first day of the trial: Detective
Minchew and Brookley Torres. Before Detective Minchew testified,
Paterson’s attorney asked the trial court to “invoke the rule[,]” which the
trial court understood as a request to exclude the witnesses from the
courtroom except for those subject to exceptions in Rule of Evidence 614.9
After Paterson’s attorney asked the trial court to invoke the rule, the
judge asked, “were there any other potential witnesses [in addition to the
first witness who was called to the stand] in the courtroom at this time?”
The prosecutor told the judge: “No, Judge, not from us.” The judge
instructed one of the defendant’s potential witnesses (who ultimately
didn’t testify in the guilt-innocence phase of the trial) to “step outside in
the hall[.]”
9Tex. R. Evid. 614 (listing four exceptions to Rule 614: (a) a party;
(b) a party’s designated representative; (c) “a person whose presence a party shows to be essential to presenting a party’s claim or defense;” and (d) “the victim in a criminal case, unless the court determines the victim’s testimony would be materially affected by hearing other testimony at the trial”). 6 On appeal, Paterson doesn’t claim that Dr. Lawson was in the
courtroom on the first day of Paterson’s trial. Instead, he claims Dr.
Lawson entered the courtroom and heard the testimony of Joan and Cade
on December 8, the second day of the trial even though the trial court, on
December 7th, had instructed the witnesses in the courtroom to wait
outside in the hall.
On the second day of the trial, Joan told the jury about the
argument that she had with Paterson on April 9th that, by her account,
was the trigger that led to Paterson’s assault. Joan explained that on
April 9th, she confronted Paterson about the way he was disciplining
Cade. By Joan’s account, an argument ensued, Paterson pushed her into
their bedroom, locked the door, and “put his hand on [her] throat” with
“his thumb [ ] right on [her] vocal cord[.]” Joan testified that Paterson
used his hand and put pressure on her neck. When the prosecutor asked
Joan whether she had trouble breathing, Joan answered: “Yes.” Joan said
that at one point while she and Paterson were arguing, Paterson had her
on the floor with his left hand around her neck. When the prosecutor
asked Joan how long she couldn’t breathe as Paterson was choking her
7 with his hand, Joan answered: “Not long, probably just a few seconds. I
don’t know.”
On April 10, Joan reported the altercation that occurred the day
before to the Conroe Police Department. On April 14th, Joan met with
Detective Jessie Minchew. During Joan’s interview with Detective
Minchew, police photographed Joan’s injuries and obtained an audio
recording of the altercation on April 9th, which Joan had captured on her
cell phone. 10 The photographs and the recording were admitted into
evidence in Paterson’s trial.
When the prosecutor asked Joan if there was a point where
Paterson had his hand over her mouth, Joan answered: “Possibly. I don’t
remember everything.” Joan went on to explain that the events had
happened fast. Later, Joan testified that she didn’t think Paterson used
his left hand to cover her nose or mouth and that while she didn’t
10The recording of the altercation between Joan and Paterson is a
video recording. However, because the camera on Joan’s cell phone was facing the ceiling, we refer to the exhibit as an audio recording since the audible part of the recording is the only part of the recording relevant to our resolution of the issues in Paterson’s appeal. 8 remember for sure, she also didn’t think that he had used his right hand
to cover her nose or mouth.
At trial, Joan testified that during the altercation, she told Paterson
that he was choking her. Joan testified that when Paterson denied that
he was choking her, he then said to her that if she “wanted to see what
choking looked like, he’d show me.” Then, the prosecutor asked Joan:
“Then what did he do?” Joan answered: “He proceeded to choke me.” The
jury also heard the audio recording from Joan’s cell phone. In it, you can
hear some muffled breathing, some screams, and periods where no
screams are heard. The audio recording corroborates Joan’s account that
she told Paterson he was choking her, that he denied it, and that he said
if she wanted to see what choking looked like, he would show her.
Joan testified that her altercation on April 9th with Paterson
wasn’t the first time that she and Paterson had been in arguments in
which she had been injured. Joan said two reasons explained why she
decided not to report those incidents. First, Joan said that after those
incidents occurred, she thought that were they to occur only every year
or two, she could take it “for our family.” Second, Joan said she chose not
9 to report the incidents to the police because she “didn’t want him to get
in trouble.”
When Dr. Lawson testified, he told the jury that he has a license as
a professional counselor and a Ph.D. in counseling, which he obtained
from the University of North Texas. Dr. Lawson said he is working as a
professor in the Department of Counseling at Sam Houston State
University, where he directs the University’s Center for Research and
Clinical Training In Trauma. Dr. Lawson explained that he also teaches
courses at Sam Houston State on domestic violence, and that along with
teaching, he testifies in court cases that involve claims of domestic
violence. Dr. Lawson also told the jury that he has a “private practice
basically working with people with trauma backgrounds.”
It appears the purpose for calling Dr. Lawson was to present
testimony that explained that it’s not uncommon for victims of domestic
violence not to leave those who injure them, for victims of domestic
violence not to report incidents of domestic violence to police, and for
victims of domestic violence not to always have accurate memories about
what occurred. According to Dr. Lawson, the victim of an incident of
10 domestic violence usually doesn’t report the first incident, and “it usually
takes several times before it gets reported.” He also testified that victims
of traumatic events often block the events from their minds, so it didn’t
surprise him “at all” that Joan testified that she didn’t remember some
of the things that had occurred.
After the State rested in the guilt-innocence phase of the trial,
Paterson rested too. During the conference on the charge, Paterson
objected to the proposed jury charge because it allowed the jury to
consider whether Paterson committed the offense by blocking Joan’s nose
or mouth. Paterson argues the evidence admitted in Paterson’s trial
doesn’t support a finding that he committed the primary offense, assault-
family violence, by strangulation, based on the allegation that he
impeded Joan’s breathing or circulation by blocking her nose or mouth.
The trial court, however, overruled his objection and concluded that
because the audio recording raised “a scintilla of evidence to support the
possibility that that’s what was going on during that episode[,]” the trial
court had to “leave that in the [] charge.”
11 In closing argument, Paterson’s attorney argued Paterson was
innocent, and his attorney suggested that Joan had “created this as a
mechanism to gain custody of her children.” The jury found Paterson
guilty of “Assault Against a Family Member by Impeding Breath or Blood
Circulation, as charged in the Indictment.” In the punishment phase of
Paterson’s trial, the jury answered “True” to the two enhancement counts
in the indictment. Based on its finding of guilt and a punishment range
of 25-99 years’ imprisonment, the jury decided that Paterson should be
confined in the Institutional Division of the Texas Department of
Criminal Justice for 40 years. 11 After the jury returned with its
punishment verdict, the trial court signed a judgment consistent with the
verdict. Paterson subsequently filed an appeal.
Analysis
I. Did the trial court err by excluding Joan’s testimony that, according to Paterson, was relevant to Joan’s motive for providing “false statements . . . as a witness for the State[?]”
11See Tex. Penal Code Ann. § 12.42(d) (enhancing punishment for
defendant who has previously been convicted of two felony offenses to life in prison, or for any term of not more than 99 years or less than 25 years). 12 On appeal, Paterson argues there are two reasons the trial court
erred in excluding Joan’s testimony about an investigation conducted by
the Department of Family and Protective Services five or six years before
he was charged with assaulting Joan. The CPS investigation concerned
allegations of child abuse and involved the couple’s children, but it did
not involve allegations of abuse of the children by Joan or Paterson.
Instead, the CPS investigation addressed allegations of abuse of the
children by a man who was then living with Joan’s mother.
First, Paterson argues the trial court’s ruling that prevented him
from questioning Joan about the CPS investigation kept him from
presenting the jury with a complete defense, a defense he claims would
have explained why Joan willingly assisted the State in having him
prosecuted for assault-family violence, by strangulation. Second, he
argues the evidence was both relevant to Joan’s credibility and more
probative than prejudicial.
When Paterson’s attorney presented his bill to show the trial court
what he would prove if allowed to question witnesses about the CPS
investigation, he didn’t ask the trial court to mark any reports from the
13 five or six-year-old CPS investigation as evidence. Thus, no CPS reports
or records of the years-old CPS investigation are included in the appellate
record. The sole evidence in the appellate record addressing the CPS
investigation consists of Joan’s testimony in Paterson’s bill of review.
Paterson’s bill is less than 2 1/2 pages long. In the bill, Joan agreed that
five or six years ago, CPS investigated reports about her children being
abused. According to Joan, the abuse that CPS investigated occurred
when her children were in her mother’s home, the abuse occurred about
seven years ago, and when she and Paterson found out about the abuse,
which was about “five or six years ago,” they reported it to CPS.
Based on Joan’s testimony, we conclude nothing in it raises a
reasonable inference that when the abuse occurred, Joan or Paterson
knew their children were being abused. Joan also denied that she left the
children at her mother’s home “in a situation where they could be
abused[,]” and nothing in the record shows her sworn testimony isn’t
true. Joan acknowledged that after she and Paterson learned of the
alleged abuse, there were occasions during their marriage when the
allegations about the fact their children had been abused caused friction
14 in their marriage. But when asked, Joan denied that Paterson had ever
threatened to bring up the allegations about the abuse should the two of
them divorce. Moreover, before Paterson made his bill of review, the
evidence already before the trial court shows that Joan sued Paterson for
divorce on June 16, 2021—more than a month after police formally
interviewed her about the assault of April 9th, an assault Joan reported
to police on April 10th. Paterson’s attorney never questioned Joan about
whether she was contemplating a divorce in the weeks or months before
the assault in April 2021 occurred.
So, we turn first to Paterson’s argument that excluding Joan’s
testimony about the CPS investigation violated his constitutional right
to present a meaningful defense. 12 At trial, however, Paterson’s attorney
told the trial court that he wanted to offer the evidence to show that Joan
“left the kids unattended with a - - and they were molested[,]” not for the
12See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (explaining that the federal constitution “guarantees criminal defendants a meaningful opportunity to present a complete defense”); U.S. v. Nixon, 418 U.S. 683, 711 (1974) (explaining that a criminal defendant’s right to present evidence “has constitutional dimensions,” drawing from the Sixth Amendment rights to confrontation and compulsory process). 15 “truth of the matter asserted[.]” After the trial court heard the CPS
investigation occurred years before April 9, 2021, and didn’t involve a
claim that either of the parents abused the children, the trial court said:
“I don’t see what the relevance of that would be.” In response, Paterson’s
attorney argued evidence about the CPS investigation was relevant to
showing why Joan had a motive to lie about “what occurred” so that she
could maintain custody of their children. That said, Paterson’s attorney
never told the trial court that a ruling that prevented him from
examining Joan about the CPS investigation into claims of abuse that
allegedly occurred at Joan’s mother’s home years before Paterson was
charged with assault would prevent Paterson from presenting the jury
with a meaningful defense.
To preserve claims of error under Texas law, a party must generally
bring the claim to the trial court’s attention to avoid forfeiting the right
to complain about the alleged error on appeal. 13 Almost every right—
whether constitutional or statutory—is waivable when the party fails to
object or request relief in the trial court before a complaint about the
13See Tex. R. App. P. 33.1.
16 matter may be considered on appeal. 14 Moreover, the issue the appellant
raises in an appeal “must comport with the objection made at trial.”15
Consequently, “[a]n objection stating one legal theory [at trial] may not
be used to support a different legal theory on appeal.” 16
Here, Paterson attempts to rely on a legal theory that differs from
the one he relied on at trial. At trial, Paterson’s attorney never argued
that a ruling excluding Joan’s testimony about the CPS investigation
would prevent Paterson from presenting a meaningful defense. The right
that Paterson claims he lost—the right to present a complete defense—
is forfeitable if not preserved. 17
We conclude the argument Paterson presents for the first time on
appeal—that he had a constitutional right to present a complete defense
by examining Joan about the CPS investigation—doesn’t comport with
the objection that he raised in his trial: that Joan’s testimony about the
14Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). 15Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). 16Broxton v.State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). 17Anderson v. State, 301 S.W.3d 276, 277 (Tex. Crim. App. 2009).
17 CPS investigation was relevant and more probative than prejudicial to
the reason Joan was testifying against him in the trial. 18
Next, also as part of the argument Paterson presents in his first
issue, he claims the trial court erred when it found that Joan’s testimony
about the CPS investigation was not relevant to his defense. We review
a ruling excluding evidence for abuse of discretion. 19 An abuse of
discretion does not occur unless the trial court acts “arbitrarily or
unreasonably” or “without reference to any guiding rules and
principles.” 20 We will reverse a trial court’s ruling excluding testimony
only if the record shows the ruling “falls outside the zone of reasonable
disagreement.” 21
Evidence is relevant when “it has any tendency to make a fact more
or less probable than it would be without the evidence,” and “the fact is
of consequence in determining the action.” 22 Relevant evidence must be
18See id. 19Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). 20State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (cleaned
up). 21Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). 22Tex. R. Evid. 401.
18 both material and probative. 23 Relevant evidence need not, by itself,
prove or disprove a particular fact if it provides at least a “small nudge”
toward proving or disproving a material fact. 24 When determining
relevance, courts examine what the party claiming the evidence was
relevant told the trial court the purpose of the evidence would be if the
court allowed the evidence to be introduced in the trial. 25 In deciding
whether to admit evidence, a trial court must consider the purpose of the
evidence a party wants before the jury because “[i]t is critical that there
is a direct or logical connection between the actual evidence and the
proposition sought to be proved.” 26
In our record, the only evidence addressing the substance of the
years-old CPS investigation is Paterson’s bill of review. But after
examining Joan’s testimony in the bill, we can’t say the trial court abused
its discretion by concluding that Paterson never established a direct
logical connection between the CPS investigation (the actual evidence
23Henley v. State, 493 S.W.3d at 83. 24Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). 25Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005). 26Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).
19 Paterson sought to have the trial court admit) and Joan’s motives for
testifying for the State, which is the proposition that he argues he had a
right to prove. First, the evidence before the trial court shows that no
divorce proceeding had been filed as of April 10th, 2021, the day Joan
reported the assault to the police. Second, in the hearing the trial court
conducted on Paterson’s bill of review, Paterson’s attorney never
identified whether any disputed custody issues existed in Joan’s and
Paterson’s divorce (1) on April 10, 2021, when Joan reported the assault;
(2) on April 14, 2021, when Joan met with and was interviewed by
Detective Minchew; (3) on June 16, 2021, when Joan filed for divorce; or
(4) on December 8, 2021, when Joan testified in Paterson’s trial. 27 Third,
none of the evidence presented in the bill of review hearing shows that
either Joan or Paterson relied on a claim of fault in the proceedings in
their divorce or that there were disputes related the custody of their
children.
27For example, neither Joan’s petition for divorce nor Paterson’s answer (if he filed one) are among the exhibits in the appellate record. 20 We conclude the trial court didn’t abuse its discretion in finding no
logical connection existed between Joan’s testimony about the CPS
investigation and Paterson’s theory that the evidence was relevant to
Joan’s credibility or her motive in testifying or assisting the State in his
prosecution. 28 We overrule Paterson’s first issue.
II. Did the trial court err by allowing Dr. Lawson to stay in the courtroom while two other witnesses, Joan and Cade, testified?
Rule 614 of the Texas Rules of Evidence provides:
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person and, in civil cases, that person’s spouse;
(b) after being designated as the party’s representative by its attorney:
(1) in a civil case, an officer or employee of a party that is not a natural person; or
(2) in a criminal case, a defendant that is not a natural person;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
28Id.
21 (d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.
In his second issue, Paterson argues the judgment should be
reversed because the trial court violated Rule 614 when it allowed Dr.
Lawson to remain in the courtroom when Joan and Cade testified. When
the trial began, the trial court placed all the witnesses under the “Rule,”
excluding the witnesses who were in the courtroom that day from the
courtroom so they couldn’t hear each other’s testimony.
On the second day of the trial, the record doesn’t show that anyone
asked the trial court to invoke the rule or to ask if any witnesses were in
the courtroom that day. Joan was the first witness the State called to the
stand that day. At some point, although it isn’t clear from the record, Dr.
Lawson entered the courtroom. In any event, no one notified the trial
court that Dr. Lawson was there until shortly after the court took a
recess. At that point, the prosecutor said that she wanted to “bring it to
the Court’s attention that Dr. Lawson, our expert, is in the courtroom.
We ask if he could be exempt from the rule.” When the trial court asked
what “kind of expert,” the prosecutor answered, “[d]omestic violence.”
22 “He’s a professor at Sam Houston.” Even though Paterson’s attorney
objected “on state and federal constitution[al] grounds,” the trial court
overruled the objection and granted the State’s request.
Although Paterson’s attorney objected, he didn’t identify any
specific constitutional provisions on which he relied. When Paterson’s
attorney was objecting, the trial court interrupted and declared “[y]our
objection is overruled.” No clarification of the basis for the objection was
offered.
The purpose of Rule 614—referred to by attorneys as “the Rule”—
is to prevent the testimony of one witness from influencing the testimony
of others who may testify in a trial. 29 Once Rule 614 is invoked, the judge
typically instructs the witnesses in the courtroom that they cannot
discuss their testimony without the trial court’s permission. 30 The trial
judge then usually makes the witnesses who are not subject to an
exception in Rule 614 leave the courtroom. Sometimes the judge
presiding over the case warns the attorneys to advise the trial court if
29Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). 30See Tex. Code Crim. Proc. Ann. art. 36.06.
23 any witnesses enter the courtroom after the court has invoked the Rule.
But in this case the trial court never instructed the attorneys to tell the
court that a witness had entered the courtroom after the Rule was
invoked.
After the trial court overruled Paterson’s objections “state and
federal constitutional objections,” Paterson’s attorney didn’t tell the trial
court that he was also objecting to Dr. Lawson remaining in the
courtroom based on an argument that none of the exceptions in Rule 614
applied to him. Had that occurred, the prosecutor would have had the
opportunity to explain why, from the State’s perspective, allowing Dr.
Lawson to remain in the courtroom was permissible under one or more
of the exceptions in Rule 614.
To sum it up, the complaint Paterson raises in his appeal—that by
allowing Dr. Lawson to remain in the courtroom the trial court violated
Rule 614—doesn’t comport with the objections Paterson made during the
trial, objections that he based “on state and federal constitutional
grounds.” We conclude Paterson failed to make the trial court aware that
he wanted the trial court to decide whether one of the exceptions in Rule
24 614 allowed Dr. Lawson to remain in the courtroom while the other
witnesses testified in Paterson’s case. 31 Because the error wasn’t properly
preserved, Paterson’s second issue is overruled. 32
III. Did the trial court err by submitting a charge that allowed the jury to consider whether Paterson blocked Joan’s nose or mouth as a manner or means of committing the assault, and if so, was the error harmful?
In Paterson’s third issue, he argues the trial court allowed the jury
to consider whether he committed the assault by blocking Joan’s nose or
mouth when that theory was “wholly unsupported by the evidence”
presented to the jury in his trial. We use a two-step process to review a
claim of charge error. 33 First, we determine whether an error occurred.34
If an error occurred and if it was properly preserved by and made a proper
and timely objection, the error will result in a reversal if the record on
appeal shows the defendant suffered “some harm.” 35
31See Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex. Crim. App.
2004) (concluding the defendant failed to preserve error by objecting on one ground in his trial but then arguing a different legal basis to support his claim addressing the disputed evidentiary matter in the appeal); Tex. R. App. P. 33.1. 32Id. 33Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). 34Id. 35Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020).
25 Generally, the instructions the trial court includes in the charge
must conform to allegations in the defendant’s indictment. 36 And because
by statute the charge must set forth “the law applicable to the case[,]” the
Court of Criminal Appeals has held that “[a] trial court is required to
fully instruct the jury on the law applicable to the case and to apply that
law to the facts presented.” 37 Therefore, when an indictment permits a
defendant’s conviction under four alternative theories, the State may
obtain a conviction “if any of the alternatives were proven.” 38 But when
the evidence in the trial doesn’t support some of those alternatives, the
trial court’s instructions should be reduced to “the specified manner and
means” that were supported by the evidence in the trial. 39
In Paterson’s trial, the charge the trial court submitted to the jury
tracks the indictment. It allowed the jury to consider four alternative
theories as to Paterson’s guilt: whether Paterson impeded Joan’s normal
breathing or circulation of her blood by (1) applying pressure to her
36Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012). 37Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004) (cleaned
up); Tex. Code Crim. Proc. Ann. art. 36.14. 38Sanchez, 376 S.W.3d at 774. 39Id.
26 throat, (2) to her neck, or if he impeded her normal breathing or
circulation by (3) blocking her nose or (4) her mouth. In the charge
conference, Paterson’s attorney argued the evidence didn’t support the
indictment’s allegations that Paterson committed the assault “by
blocking [Joan’s] nose or mouth,” and Paterson’s attorney asked the trial
court to remove these two alternative theories from the charge.
The prosecutor opposed Paterson’s request. She argued the
evidence admitted in the trial—the audiotape in which you can hear
“muffled breathing” and Joan screaming and her screaming stop—
supported submitting all four theories, that is the theories that included
the theories that Paterson committed the assault by blocking Joan’s nose
or mouth. According to the prosecutor, despite Joan’s testimony that she
couldn’t remember whether Paterson had covered her nose or mouth, the
jury could have reasonably concluded that Joan’s nose and mouth had
been covered based on the sounds in the audio recording, specifically the
sounds of her muffled breathing after she started screaming.
To explain Joan’s testimony that she couldn’t recall whether her
nose or mouth were blocked, and that she didn’t think so, the State points
27 this Court to Dr. Lawson’s general testimony about victims of domestic
violence blocking out their memories of abuse. The State also points to
the audio recording, captured on Joan’s cellphone, in which you can hear
Joan’s muffled breathing and Joan screaming intermittently during the
assault.
In deciding whether to submit an alternative theory of guilt, the
trial court’s job is to determine whether the evidence is sufficient to
instruct the jury on the alternative theory. 40 That said, a jury may not
“draw conclusions based on speculation because doing so is not
sufficiently based on facts or evidence to support a finding beyond a
reasonable doubt.” 41
When deciding whether the evidence supports submitting one or
more alternative theories of guilt, the trial court must rely on its own
judgment, formed in the light of its “common sense and experience to
determine whether the evidence and rational inferences that can be
40Tex. Code Crim. Proc. Ann. art. 36.14. 41Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
28 drawn therefrom justify the submission[.]” 42 In the charge conference,
the prosecutor argued that one of the ways the jury could find Paterson
guilty would be to infer from the recording that Joan’s nose and mouth
were blocked. According to the prosecutor, the sounds in the recording
show that Paterson used something to cover Joan’s mouth to interrupt
her screams. The trial court accepted that argument, overruled
Paterson’s objection, and instructed the jury to consider the alternative
theories of whether Paterson impeded Joan’s normal breathing or
circulation by blocking Joan’s nose or mouth. 43
On appeal, the State argues that the evidence supported the trial
court’s ruling to include all the theories of guilt alleged in the indictment.
According to the State, the audio recording of the assault shows “the jury
heard the sound of [Joan] screaming, followed by muffled breathing and
the sound of something covering her mouth.”
42Chavez v. State, 666 S.W.3d 772, 778 (Tex. Crim. App. 2023) (cleaned up). 43Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017) (“An
instruction is required if more than a scintilla of evidence establishes [the alternative means of committing] the charged offense.”). 29 We agree that the recording captured Joan screaming. We also
agree that when considered in the light most favorable to the evidence
the recording captured sounds of Joan’s muffled breathing. Yet we
disagree the recording captured sounds from which a rational jury could
conclude by a standard of beyond reasonable doubt that the muffled
breathing based on Joan’s screams resulted from Paterson’s blocking
Joan’s nose or mouth. Paterson’s choking Joan, which is what Joan
testified he did to her, fully accounts for those sounds when coupled with
Joan’s testimony that she didn’t recall Paterson blocking her nose or
mouth during the assault. 44
On appeal, the State never explains why Joan’s testimony that she
was choked by the neck doesn’t explain everything heard in the recording
that Joan captured on her phone. Based on our review of the record, the
record does no more than raise a suspicion that Joan’s nose or mouth
might have been covered during the assault, and a suspicion of guilt is
legally insufficient to support a conviction for assault by strangulation
44Hooper, 214 S.W.3d at 16.
30 beyond a reasonable doubt. 45 On this record, we conclude the trial court
erred in overruling Paterson’s objection to the charge.
Since Paterson objected to including the nose and mouth
alternatives in the charge, we must review the record to determine
whether the trial court’s error caused Paterson “some harm.” 46 “‘Some
harm’ means actual harm and not merely a theoretical complaint.”47 We
will reverse if “the error was calculated to injure the rights of the
defendant.” 48 “To assess harm, we must evaluate the whole record,
including the jury charge, contested issues, weight of the probative
evidence, arguments of counsel, and other relevant information.” 49
When a charge alleges alternative theories of guilt, harm must be
measured “at least in part, against the likelihood that the jury’s verdict
was actually based upon an alternative available theory of [guilt] not
45See Winfrey v. State, 323 S.W.3d 875, 883-84 (explaining that evidence that merely raises suspicion of guilt “is legally insufficient to support a conviction”). 46Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en
banc). 47Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020). 48Id. 49Id.
31 affected by erroneous portions of the charge.” 50 In Paterson’s case, the
jury found Paterson guilty “as charged by the Indictment.” So, the jury’s
general verdict in Paterson’s case must stand if the evidence in his trial
is sufficient to support one of the alternative theories of guilt submitted
in the charge. In this case, one of the alternative theories supported by
the evidence is that Paterson impeded Joan’s normal breathing or
circulation of her blood by applying pressure to her throat or neck. 51
Here, the trial court’s instructions in the trial court’s charge about
the presumption of innocence aren’t affected by the erroneous portion of
the charge. In the charge, the trial court advised the jury that,
the law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the Defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.
The charge also instructed the jury that if it had “a reasonable doubt as
to the defendant’s guilt after considering all the evidence before you, and
these instructions, you will acquit him and say by your verdict “Not
50Sanchez, 376 S.W.3d at 775. 51See id.
32 Guilty.” On appeal, a reviewing court presumes that the jurors followed
the trial court’s instructions when they deliberated on a verdict.52
Consequently, we must presume that if the jurors discussed the claim in
the indictment that Paterson impeded Joan’s breathing or circulation by
blocking her nose or mouth, the jury rejected those theories based on
Joan’s testimony that she did not think Paterson covered her nose or
mouth during the assault or that she did not remember him doing so.
Second, we consider the arguments the parties relied on when they
presented their closing arguments. But even before the attorneys made
their closing arguments, the trial court instructed the jury that the
“arguments of counsel are not evidence. They are their interpretation of
how the evidence in the trial went.” In closing argument, the prosecutor
told the jury that she could “count four times that [Joan] told you that
this defendant put his hands around her neck and applied pressure.”
According to the prosecutor, the evidence showed that “two of those times
[Joan] said she couldn’t breathe at all.” To be fair (and even though
52See Miles v. State, 204 S.W.3d 822, 827-28 (Tex. Crim. App. 2006)
(absent evidence to the contrary, the usual presumption is that the jury followed the trial court’s written instructions). 33 Paterson doesn’t mention it in his brief), we note that the prosecutor told
the jury to listen to the audio recording when deliberating on its verdict
and to listen to Joan’s screams and the sounds of her muffled voice when
deciding whether Paterson blocked Joan’s nose or mouth. After telling
the jury to listen to the recording, the prosecutor told the jury that
“there’s some inconsistent testimony as it relates to that.”
In other words, the prosecutor told the jury to listen to the recording
to decide whether from only the sounds on the recording from Joan’s
phone the jury could find that Paterson, beyond reasonable doubt, had
blocked Joan’s nose or mouth. The prosecutor also argued that “it doesn’t
matter which way that you believe, which way you believe he impeded
her breath[ing], whether it’s covering her nose or mouth or whether it’s
applying pressure to her neck. He did it at least four times.” Yet the four
times the prosecutor mentioned Paterson “did it” referred to her earlier
argument in which she discussed Joan’s testimony that Paterson had
choked Joan four times “to the point her windpipe [was] cut off.”
Despite the fact the prosecutor discussed the audio recording and
tried to tie it to the State’s nose-and-mouth theory more than once, we
34 doubt the jury would have found the argument persuasive. In closing
argument, the prosecutor conceded that the evidence about whether
Paterson had blocked Joan’s nose or mouth was “inconsistent.” Our
conclusion that the jury wouldn’t have been persuaded by the
prosecutor’s attempt to tie the State’s nose-or-mouth theory to the
recording is reinforced by the fact that the instructions in the charge
required the State to prove Paterson’s guilt beyond a reasonable doubt.
And when Paterson’s attorney presented Paterson’s closing argument, we
note that he didn’t take any of his time to respond to the State’s nose-
and-mouth theory of guilt. Instead, Paterson’s attorney argued that Joan
was lying about the altercation and made an audio recording of the
incident rather than a video so that she could “concoct a recording[.]”
Third, the State’s evidentiary case against Paterson was strong. In
the audio recording of the altercation, Joan is heard telling Paterson that
he’s choking her. Paterson denies that claim, but he responds by telling
Joan that he will show her what it’s like to be choked. The jury could have
reasonably inferred that Paterson carried out his threat. Photographs of
Joan, taken the next day, reflect that Joan had injuries to her body,
35 injuries that included bruising to her neck. The photographs support the
jury’s conclusion that Joan was choked. Other direct and circumstantial
evidence supports Joan’s testimony that Paterson used his hand to apply
pressure to Joan’s throat and neck. For example, Joan testified that after
the incident, her throat “really hurt.” She also testified she had pain in
her throat when she swallowed. Nurse Brookley Torres testified that the
signs and symptoms of strangulation include throat pain and a raspy or
hoarse voice. Nurse Torres also described strangulation as “any external
pressure placed on your neck that could impede your blood flow or air
flow.” The symptoms Torres described fit the symptoms Joan said she
suffered after Paterson choked her on April 9th.
A few days after Joan reported the incident to police, Joan met with
Detective Minchew. The jury was entitled to view Detective Minchew’s
report as showing that Joan had been in a recent altercation with her
husband. Detective Minchew testified that when she met with Joan, Joan
appeared “overwhelmed[,]” had visible injuries, and was “very scared of
[Paterson,] as she “didn’t want him to know” that she had reported the
incident to the police.
36 Fourth, the defense Paterson offered at trial to the State’s case was
relatively weak. Paterson argues that he suffered “some harm” because
Cade Paterson, his son, testified that while he saw his parents arguing,
Cade never testified that he saw Paterson assault Joan by choking her or
by covering her nose or mouth with one of his hands. Even so, by Cade’s
account, he didn’t observe the entire altercation between his parents.
Cade testified that when his parents began arguing, he was standing at
the door of their bedroom and the door was open. Cade explained that he
screamed while standing at the door. When Paterson heard Cade scream,
he had Joan down on the floor, as Cade told it, and he jumped up and
“ran to shut the door.” Cade explained that after Paterson shut the door,
he could no longer see what was going on. According to Joan, when
Paterson closed the bedroom door, Paterson choked her again.
Paterson’s defensive theory in the trial was that Joan fabricated the
assault to obtain custody of their children in their divorce. But as we
explained, the evidence shows that Joan sued for divorce after the assault
occurred, no evidence shows that Joan had impending plans to divorce
Paterson in the months before April 9, 2021, and no evidence shows that
37 when Joan sued for divorce, a disputed custody issue involving their
children was involved in the proceeding.
To sum it up, we conclude that, beyond a reasonable doubt, the trial
court’s error did not materially affect the jury’s deliberations to
Paterson’s detriment and did not contribute to the jury’s verdict.
Accordingly, balancing the factors in Sanchez, we conclude the trial
court’s error in submitting alternative theories of guilt that were
unsupported by evidence was harmless. 53 Paterson’s third issue is
overruled.
Conclusion
We affirm the trial court’s judgment.
AFFIRMED.
HOLLIS HORTON Justice
Submitted on August 21, 2023 Opinion Delivered January 17, 2024 Do Not Publish
Before Horton, Johnson and Wright, JJ.
53Sanchez, 376 S.W.3d at 775-76.