On Oct. 26 the Corpus Christi-based 13th Court of Appeals denied for the second time the appeal of Frederick Patterson, who was convicted in 2004 on three counts of dealing minor amounts of crack cocaine. Patterson was one of 29 black residents in Edna who were rounded up and charged with dealing crack in connection with a 2002 undercover sting dubbed “Operation Crackdown.” Patterson (along with his wife, Jocelyn, who was also charged as a result of the sting operation) vociferously asserts his innocence and says that he was wrongly convicted based on the testimony of a crack-addict-turned-police confidential informant named Santos Castro Castañeda. (For more on the story, see “Crackpot Crackdown,” Oct. 21, 2005.)
Indeed, Patterson was tried, convicted, and sentenced to 10 years in prison without the benefit of any physical evidence connecting him to the alleged crime – like, say, a cache of drugs, or a stash of money, or any other tangible item police should have been able to find if they had the right person and if they had ever sought to search Patterson’s home or car, which they didn’t, Jackson Co. District Attorney Bobby Bell told the Chronicle last year, because they lacked probable cause to do so. Instead, the police and Bell relied on Castañeda’s decidedly weak testimony, corroborated only by the testimony of three persons, also arrested as part of the sting, who had already cut plea deals with Bell. Patterson’s attorneys – Joseph Willie from Houston and Jeff Blackburn from Amarillo – have argued that under the revised 2001 law concerning corroborative evidence (crafted in the wake of the 1999 Tulia debacle) the state could not use the testimony of those three because their guilty pleas, in essence, made them “accomplice witnesses.” As such, Willie argued to the 13th Court that allowing a single drug-addict informant to bolster three convicted “accomplices” – or, vice versa – in no way provided enough evidence to prove Patterson guilty.
Last October, a three-judge panel of the 13th Court denied Patterson’s appeal but noted that no Texas court had ever addressed the question of whether an informant may corroborate an accomplice (or vice versa). “We are aware of the absence of guiding case precedent in this area of law,” Justice Dori Contreras Garza wrote for the court, “but we are confident that the legislature would have combined the informant and accomplice corroboration provisions if it had intended to prohibit” a testimonial combination such as happened in this case.
Patterson’s defenders were stunned by the court’s decision, and in May the court granted Patterson’s request that the court reconsider its decision. Late last month, the court again denied Patterson’s appeal. This time, Garza wrote that a confidential informant’s testimony could be corroborated solely by the testimony of an accomplice witness (or vice versa). “In this circular fashion, a defendant could be convicted on nothing more than the testimony of an accomplice and an informant,” she wrote. “This result would be absurd in light of the legislature’s clear action to disfavor such evidence and to hold it insufficient for conviction as a matter of law.”
Nonetheless, the court voted to uphold Patterson’s conviction because the majority concluded that there remained “other evidence tending to connect the defendant” to the alleged drug deals. Amazingly, Garza wrote that because Castañeda – who made audio recordings of her alleged crack buys on a recorder provided by police, who failed to maintain any visual contact with her as she trolled Edna’s streets for crack – returned from her crack hunts with minor amounts of the drug, and because each of the three accomplices allegedly made statements on tape about buying crack for her, there was enough “independent” evidence to connect Patterson to the crime. “Although there is nothing we would call a ‘smoking gun’ … the [Court of Criminal Appeals, Texas’ highest criminal appellate court] has stated that sufficient tends-to-connect evidence may sometimes be comprised of seemingly ‘insignificant circumstances,'” Garza concluded.
In her dissent, however, Judge Linda Reyna Yanez strongly disagreed with the court’s decision, arguing that the supposedly “independent” evidence connecting Patterson to the drugs was neither independent nor connective. Yanez wrote that neither of the police witnesses could corroborate the audio recordings because they failed to remain in visual contact with Castañeda – indeed, Yanez noted that the police weren’t even able to verify Castañeda’s contention that Patterson’s voice could be heard in one recording. “Significantly, [Edna Police Officer Kurt] Gabrysch did not specifically testify that he was able to independently identify appellant’s voice on the audiotape,” she wrote. In short, Yanez wrote that the supposedly independent evidence was, at best, “weak.” “The officers could not even verify that [Castañeda] was at or near [Patterson’s] house,” when she purchased crack cocaine, she wrote. “I conclude that without the testimony of [Castañeda] and the accomplice witnesses, the officers’ testimony and the audiotapes are insufficient to tend to connect the appellant to the offense.”
At press time, Patterson’s attorneys could not be reached for comment, but Patterson’s daughter La’Trinda says her father will appeal to the CCA.
This article appears in November 10 • 2006.