Walter Henry Paterson v. the State of Texas

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.

38