Patrick Edward Winchester v. The State of Texas

Fort Worth, Texas - Criminal defense atty represented defendant Patrick Edward Winchester with an Aggravated Sexual Assault charge.

In 2008, Appellant married a woman who had two biological daughters; at the

time, her daughters––whom we refer to respectively as Complainant A and

Complainant B––were approximately five and eight years old. In 2014, Appellant and

his wife were divorced after a lengthy separation. In September 2017, Complainant A

typed a message on a computer stating that Appellant had been inappropriate with her

and showed her mother the message. But Complainant A refused to speak to her

mother about the inappropriate behavior. In December 2017, Complainant B told

her boyfriend in an Instagram message that she had been molested as a child.

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Complainant B’s stepmother was on the same Instagram account and saw the

message. She asked Complainant B about her molestation claim, called the police to

report it, and called Complainant B’s mother to tell her about the claim. The girls’

mother questioned Complainant A again, and she learned that Complainant A had

been sexually abused.

Later, at Appellant’s trial, Complainants A and B testified that he had

compelled them to put his penis in their mouths. Complainant A testified the abuse

occurred once; Complainant B testified it occurred three or four times. The

complainants’ mother and stepmother also testified.

Appellant does not challenge the sufficiency of the evidence to support his

conviction, challenging instead the jury charges, the trial court’s ruling on an objection

to the State’s closing argument, and the court costs imposed.

Reasonable Doubt Instruction to the Jury

In his first point on appeal, Appellant argues that the trial court reversibly erred

by including a part of the Geesa v. State1 “beyond a reasonable doubt” instruction in

the guilt–innocence jury charge. The trial court instructed the jury as follows:

The prosecution has the burden of proving the Defendant guilty, and it

must do so by proving each and every element of the charge beyond a

reasonable doubt, and if it fails to do so, you must acquit the Defendant.

It is not required that the prosecution prove guilt beyond all possible

1820 S.W.2d 154 (Tex. Crim. App. 1991), overruled in part by Paulson v. State, 28

S.W.3d 570 (Tex. Crim. App. 2000).

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doubt; it is required that the prosecution’s proof excludes [sic] all

reasonable doubt concerning the Defendant’s guilt.

Although Appellant did not object to the complained-of charge, we review all jurycharge complaints, regardless of preservation at trial.

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After first mandating a reasonable-doubt instruction that includes the

complained-of language, the Texas Court of Criminal Appeals later held that the

instruction is “redundant, confusing, and logically flawed.”

3

But that court has also

held that a trial court does not err by giving such an instruction even though “it is ‘the

better practice’ not to define that term.”

4 Appellant acknowledges this precedent of

the Texas Court of Criminal Appeals but explains that he presents this complaint to

advocate for a change or reversal in the law and to preserve it for further review.

Because the Court of Criminal Appeals has held that a trial court does not err

by including this exact instruction in a jury charge on guilt–innocence even though it

has repeatedly stated it is better practice not to define that term, we therefore comply

with the controlling authority of the Texas Court of Criminal Appeals as we

understand it, and overrule Appellant’s first point on appeal.

2Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

3Colbert v. State, 108 S.W.3d 316, 318 (Tex. Crim. App. 2003) (citing Paulson, 28

S.W.3d at 573; Geesa, 820 S.W.2d at 162).

4Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010).

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State’s Jury Argument

In his second point, Appellant argues that the trial court reversibly erred by

overruling his objection to the State’s jury argument because the prosecutor was

expressing her personal opinion of the veracity of the complaining witnesses.

Appellant complains of the following rebuttal argument by the State:

[Prosecutor]: . . . I want to talk about why would the girls say this

happened if it didn’t happen? Maybe they didn’t realize that this would

ultimately wind up in a trial setting. But shortly after December 4, 2017,

they were both contacted by law enforcement.

Well, let’s start. They were both contacted by their parents. If [it]

didn’t happen, well, that’s getting a little rough. Maybe I don’t want to

continue with the story.

They were contacted by law enforcement, and they had to say

what happened. If they’re lying, that would be a good time to back out.

[Defense counsel]: Objection as to comment on veracity of the evidence

as presented at the witness stand, Judge.

THE COURT: . . . Overruled.

. . . .

[Prosecutor]: If they’re lying --

[Defense counsel]: Object, again, Judge. Renew my objection as to

improper argument, comment on the veracity of any witness that may

have testified.

THE COURT: Overruled.

. . . .

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[Prosecutor]: If they’re lying, they’re going to have to make up this

story. And they have to tell it to men like Investigator Pitman. That

would be a good time to back out of the story if it didn’t happen.

If they’re lying --

[Defense counsel]: Judge, could I have a running objection for this

Close? I’m going to keep interrupting [the prosecutor]. I don’t want to,

but this is all improper argument, commenting on the veracity of any

witness who may have testified in this case.

THE COURT: And the Court will give you that running objection on

that . . . that issue.

[Prosecutor]: If they’re lying and they don’t want to have to keep telling

the story, maybe they back out before they have to meet with the

Prosecutors. If they’re lying, maybe they back out before Monday when

they know the trial is coming. If they’re lying, maybe they back out

before each of those girls has to get on that witness stand to tell you 12

complete and utter strangers as well as anybody else in the courtroom

about the sexual experience that that Defendant did to them.

What motive do they have to lie? Their motive is to tell the truth.

They’re not getting paid for this. There’s no pomp and circumstance for

this. They’re not getting bragging rights at school for this. They don’t

have a motive to lie. They have the ability to tell the truth.

And I will submit to you that their credibility was not tested.

Neither one of them faltered, not one single step. . . . I believe [they] were

beyond credible.

[Emphasis added.]

We review a trial court’s ruling on an objection to improper jury argument for

an abuse of discretion.5 A trial court does not abuse its discretion when its decision is

5See Milton v. State, 572 S.W.3d 234, 241 (Tex. Crim. App. 2019); Ramos Pabon v.

State, No. 02-18-00517-CR, 2019 WL 4122611, at *5 (Tex. App.—Fort Worth Aug.

29, 2019, no pet.) (mem. op., not designated for publication).

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within the zone of reasonable disagreement.6

In determining whether a prosecutor’s

statements were improper, the reviewing court considers the remark in the context in

which it appears, examining the entire argument and not merely isolated statements.7

But even if a jury argument exceeds the permissible bounds, we will not reverse a trial

court’s erroneously overruling a defense objection unless the error affected the

defendant’s substantial rights.8



To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable deduction

from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law

enforcement.9

A prosecutor may not argue that the jury should believe a witness

simply because the prosecutor does.10 Such an argument is improper because it

attempts to bolster the credibility of a witness through unsworn testimony by the

prosecutor.11 But a prosecutor may argue that a witness is credible if making a

6Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

7See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Robbins v. State,

145 S.W.3d 306, 314-15 (Tex. App.—El Paso 2004, pet. ref’d).

8Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim.

App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g).

9Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Felder v. State, 848

S.W.2d 85, 94–95 (Tex. Crim. App. 1992).

10See Gardner v. State, 730 S.W.2d 675, 698 (Tex. Crim. App. 1987).

11See Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981) (op. on reh’g).

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reasonable deduction from the evidence or if the argument was invited by and is

responsive to the defendant’s argument; if properly argued, these deductions do not

constitute unsworn testimony.12

Applying the appropriate standard of review to this case, we conclude the

prosecutor was primarily answering the argument of opposing counsel as to the

credibility of the complainants. In doing so, she relied on the record and reasonable

deductions from the evidence.13

She did not suggest she had additional evidence that

had not been revealed to the jury. But the prosecutor stepped over the line of

permissible argument at least once when she argued, “Their motive is to tell the truth.

. . . I believe [Complainant A] and [Complainant B] were beyond credible.” These

statements were an impermissible expression of the prosecutor’s personal opinion of

Complainant A’s and Complainant B’s credibility.14

Therefore, the trial court abused

its discretion by allowing this part of the argument.

12See Wolfe v. State, 917 S.W.2d 270, 281 (Tex. Crim. App. 1996); McKay v. State,

707 S.W.2d 23, 37 (Tex. Crim. App. 1985); Chapman v. State, 503 S.W.2d 237, 238

(Tex. Crim .App. 1974); Thomas v. State, 445 S.W.3d 201, 211 (Tex. App.––Houston

[1st Dist.] 2013, pet. ref’d).

13See Hinojosa v. State, 433 S.W.3d 742, 763–64 (Tex. App.––San Antonio 2014,

pet. ref’d) (holding that prosecutor’s argument that witnesses had no motive to lie was

a reasonable deduction from the lack of evidence in the record rather than a statement

of the prosecutor’s personal opinion of the witnesses’ credibility).

14See, e.g., Menefee, 614 S.W.2d at 168; Perry v. State, 977 S.W.2d 847, 851 (Tex.

App.––Houston [14th Dist.] 1998, no pet.) (explaining difference between proper jury

argument regarding witness credibility and improper jury arguments in which

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Nevertheless, we conclude that any improper argument was harmless. In

determining harm from improper jury argument, we consider (1) the severity of the

misconduct (that is, the prejudicial effect of the prosecutor’s remarks), (2) curative

measures, and (3) the certainty of conviction absent the misconduct.15

Because the

trial court overruled Appellant’s objections, there was no instruction by the court to

disregard the argument and, thus, no curative measures. But the prosecutor’s

remarks, in context, were in the same vein as her immediately prior argument

summarizing the points at which the complainants had the opportunity to change

their minds and tell the truth if they had been lying and the import of the

circumstances in which they continued to maintain their version of events. The

complainants both testified unequivocally to Appellant’s sexual acts. And from the

beginning of trial, the jury was told that the evidence consisted largely of the

complainants’ statements. Based on the context of the argument and the record as a

whole, we hold that the trial court did not reversibly err by allowing the complainedof argument.

Consequently, we overrule Appellant’s second point on appeal.

prosecutors “personally vouched for the truthfulness of a state’s witness or witnesses

or indicated that some third party did”).

15Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259.

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Jury Charge on Good-Time Credit and Parole

In his third point, Appellant argues that the trial court reversibly erred in

including a good-conduct-time instruction in the jury charge at the punishment phase

of the trial because no person serving a sentence for aggravated sexual assault is

eligible to accumulate good-conduct-time credits for parole release; therefore,

Appellant argues that the instruction misled the jury to his detriment.

16 He concedes,

nevertheless, that the instruction given is not only authorized by statute, but was

required by statute,

17 and that his due process and due course of law arguments have

been rejected by the Court of Criminal Appeals18 and by this court.19 As the State

reminds us, this court is bound to follow the precedent of the Texas Court of

Criminal Appeals.20

Appellant has presented no new arguments to show that these

holdings are erroneous and should be reconsidered. We therefore overrule

Appellant’s third point on appeal.

16See Tex. Gov’t Code Ann. § 508.145(d)(1)(A); Tex. Code Crim. Proc. Ann. art.

42A.054(a)(9).

17See Tex. Code Crim. Proc. Ann. art. 37.07(4)(a).

18See Luquis v. State, 72 S.W.3d 355, 365–68 (Tex. Crim. App. 2002).

19See Knight v. State, 504 S.W.3d 524, 532 (Tex. App.—Fort Worth 2016, pet.

ref’d).

20Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet. ref’d).

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Court Costs

In his fourth point on appeal, Appellant contends that the court costs assessed

in the judgment should be deleted because the clerk’s record at the time his brief was

filed did not contain a bill of costs; therefore, the record did not support the costs

assessed in the judgment. After Appellant filed his appellate brief, the clerk’s record

was supplemented to include a bill of costs itemizing the $804.00 in court costs

assessed against Appellant. Not only is such supplementation proper, we must

consider a supplemental record containing a bill of costs.

21 Because the supplemented

record supports the costs assessed against Appellant and because Appellant’s point is

a blanket complaint about the absence of a bill of costs, we overrule Appellant’s

fourth point on appeal.

Because we have overruled Appellant’s four points on appeal, we affirm the

trial court’s judgment.