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Fighting the Prosecutor on Just Punishment: Evidence on Sentencing and Probation After a Conviction in Texas

For many people, maybe because it seems like it in so many TV shows, criminal trials are one big event.  It’s exciting and fast-paced, where the attorneys roam the courtrooms, there’s very little paperwork, and there are lots of people going up to the witness stand for short stints.

In reality, things are different.

Two Step of Texas Criminal Trials: First, Guilt or Innocence – Then Sentencing and Punishment

For instance, in Texas criminal courts, the attorneys don’t prowl the floor like they do on Law and Order. We’re required to stay at our positions at the party tables, prosecution and defense, and if we want to discuss something with the judge, we formally ask to “approach the bench.”

Additionally, while witness testimony is a big thing both on TV and in real life, documents that are authenticated and admissible as evidence are used much more often in real criminal trials than on television. Documents aren’t dramatic, of course, but they are often much more reliable and respected by the fact-finder than the faulty recollections of people (see our earlier post on the unreliability of eyewitness testimony, for instance).


Some people assume that a judge sentences the defendant after a jury comes back with a verdict; that’s fine for TV but it’s not the real world procedure in Texas.


First the Guilt Phase, Then The Sentencing

In criminal trials, there are two sections or parts. First, there is the guilt or innocent phase. The prosecution puts on its evidence to try and prove the defendant is guilty of the charges beyond a reasonable doubt. If the fact-finder (judge or jury) agrees, then we all continue to the sentencing part. Here, the determination is made on what punishment should be assessed against the person who has been found guilty.

The harshest sentence, of course, is the death penalty. Recent media coverage of the Boston Bomber Trial provided lots of information on how complicated the sentencing phase can get in a capital punishment case: there are all sorts of aggravating factors presented by the prosecution and mitigating factors argued by the defense.

The prosecution put on evidence regarding sentencing in more than just death penalty cases, of course. And that evidence can be challenged just like the stuff that it uses to try and get a conviction.

Example of Patterson v. State of Texas

As an example, let’s take the case of Patterson v. Texas. Back in January 2012, a man named Steve Patterson stood before Judge Janelle Haverkamp in a Cooke County criminal court and pled guilty to an indictment alleging Second Degree Felony Intoxication Manslaughter.

Three months later, there came the sentencing part of his case.  In March 2012, he pled guilty in front of a jury selected the previous day and the day after that, the jury sentenced Mr. Patterson to 20 years incarceration in a Texas prison.

There was no argument regarding whether or not Steve Patterson was taking responsibility for the death of his brother David. In June 2010, Steve Patterson had been driving drunk with his brother in the passenger seat of his Corvette and there was a one-car crash where David died. He wasn’t going to fight the intoxication manslaughter charge.

However, Mr. Patterson did want to go before a jury for sentencing and he filed a sworn application for community supervision electing to be sentenced by a jury before trial. Before that jury, he testified that he had never before been convicted of a felony and he pled guilty to the charge.

Judge Haverkamp then instructed the jury to find Steve Patterson guilty, referencing his plea of guilt, and then instructed the jury that they were to impose a sentence (1) anywhere from 2 to 20 years with an optional fine up to $10,000 or (2) community supervision.

After hearing the evidence presented, the jury went for the maximum of 20 years behind bars, and the case was appealled. The Court of Appeals has reversed that decision and Mr. Patterson will go back for a second sentencing trial.

Criminal Defense in Sentencing at Trial

In this case, the defendant pled guilty to the crime – there was no trial on whether or not he should be convicted of the charges. He pled guilty to killing his brother in the drunk driving crash. However, the sentencing phase still went forward and the District Attorney’s Office had to present evidence to support its argument that this man should receive the maximum sentence of imprisonment provided under the Texas Penal Code.

The state offered testimony that should never have been admitted; it was an error of discretion by the trial court judge that the Court of Appeals recognized and corrected. .

Punishment Hearing in Patterson v. Texas

Steve Patterson’s defense lawyer argued at trial that community supervision was the appropriate punishment and evidence was presented to the jury to support this argument.

The prosecution, attorneys working for the Cooke County District Attorney’s Office, put DPS Trooper Hellinger on the witness stand to give his opinion on the suitability of community supervision as a punishment for Steve Patterson and even though the defense lawyer objected to the Trooper as having no qualifications to give this kind of expert testimony, his objection was overruled by Judge Haverkamp and Hellinger was allowed to testify.

Same thing with prosecution witness, Cooke County Sheriff Compton.

On the witness stand, Hellinger told the jury that there was a “good chance” the defendant would kill again. The Sheriff instructed the jury to “send him to jail,” and gave his opinion that Patterson was unsuitable for community supervision.

Point of the defense objections: there was nothing in the evidence to show that these witnesses personally knew the man, or that they had any special training or experience regarding community supervision as a form of punishment.

For details, read the Appellant’s Brief with record references:

Probation Suitability Precedent to Help Serve Justice in the Future

I took this case on appeal and recently, the Court of Appeals agreed with my arguments and the objections made by defense counsel at trial. Steve Patterson returns for sentencing and probation will be reconsidered in his case.  See, SUCCESS IN INTOXICATION MANSLAUGHTER CASE BEFORE FORT WORTH COURT OF APPEALS: PATTERSON V. STATE OF TEXAS.

Two Reasons I’m Sharing The Details of Patterson v. Texas

I’m sharing the details here for two reasons:

First, to help educate the public on how criminal defense trials really work — they aren’t like we see on television or in movies. Things are different in criminal courtrooms and too often, not only clients and their family members but friends and readers are confused that things don’t work like they do on TV. It’s frustrating sometimes!

Second, to help in the service of justice in future sentencing cases where probation is being considered. I want to share this with other defense attorneys who may find it helpful.

Why? This case serves to help criminal defendants in the future by reining in the state attorneys on what they can offer regarding suitability for probation. This doesn’t happen everyday and I’m encouraged to think that this result will serve others well in the future who are seeking justice for their clients.

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