                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00023-CR
                                No. 10-10-00024-CR

CHRISTOPHER LEAVELE PATT,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                        From the 85th District Court
                           Brazos County, Texas
           Trial Court Nos. 09-02307-CRF-85 and 09-02308-CRF-85


                          MEMORANDUM OPINION


      Christopher Leavele Patt appeals from his convictions for three counts of

aggravated robbery and one count of evading arrest in a motor vehicle. TEX. PEN. CODE

ANN. §§ 29.03 & 38.04 (Vernon Supp. 2009). Patt was convicted by a jury but the trial

court determined his punishment. Patt was sentenced to imprisonment for fifty (50)

years on each of the aggravated robbery counts and ten (10) years on the evading arrest

charge. Patt complains that the trial court erred in the admission of expert testimony

regarding dog tracking, there was jury charge error, and the evidence is insufficient to
sustain his conviction absent the accomplice testimony. Because we find no reversible

error, we affirm the judgments of the trial court.

Admission of Evidence

        Patt complains that the trial court erred in admitting expert testimony regarding

the dog tracking procedure that was used during his apprehension for the instant

offenses. Specifically, Patt complains that the trial court erred by refusing to consider

the qualifications or reliability of the dog before ruling on the admissibility of the

testimony of the dog’s handler and the dog and handler’s trainer.

        We review the admission of evidence under an abuse of discretion standard. We

will only find that the trial court abused its discretion if the trial court acted without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1990).

        The dog in question, Kohn, was new to the police department at the time of the

offenses. Kohn is a Belgian Malinois, which is a common police dog breed known for

its sense of smell. Kohn and his handler, Hanks, had completed a 640 hour training

course together, and Kohn became certified as a dog tracker in fresh ground

disturbance. During that training, Kohn had completed 58 training tracks and had

proven reliable in those tracks. The tracking procedure was the dog’s third attempt at

an actual track. The dog’s two prior tracking attempts were unsuccessful, likely due to

human error. At least two subsequent tracking incidents were unsuccessful. Kohn was

taken to a spot near to where a jacket had previously been located. Kohn found a track

of fresh ground disturbance and followed it, with Hanks and Swartzlander, the canine

Patt v. State                                                                       Page 2
supervisor for the police department, behind him. While following Kohn, Swartzlander

spotted Patt attempting to hide approximately thirty yards from the jacket, lying on the

ground with his feet sticking out from underneath a building. At the time Patt was

located, Kohn was approximately ten yards away, ostensibly still following a track.

When he was apprehended, Patt did not have on a shirt, but had on dark pants and

other items of clothing that were later connected by a videotape of the robbery to Patt.

         Assuming without deciding that the expert testimony relating to the tracking

procedures was erroneously admitted, we determine if the error is harmless. When

determining harm from a non-constitutional error, we must disregard the error unless it

affects Patt’s substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the

jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial

rights are not affected by the erroneous admission of evidence “if the appellate court,

after examining the record as a whole, has fair assurance that the error did not influence

the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002).

         The testimony was given to assist the jury in understanding the process of using

a dog to track fresh ground disturbance; however, Patt was located within a reasonably

short distance of where the jacket was located. A hat and cell phone displaying the

words “C#r!$” and “@k@ cp” were located with the jacket. No expert opinion was

given as to anything other than the reliability of the track itself. The type of tracking

employed is not used to determine human scent and no attempt was made to connect

Patt v. State                                                                         Page 3
Patt with the tracking by scent. Patt’s accomplice had been arrested after they had

attempted to evade arrest, and he named Patt as his accomplice. We have “a fair

assurance that the error did not influence the jury, or had but a slight effect.” Motilla, 78

S.W.3d at 355. We overrule issue one.

Jury Charge Error

        Patt complains that the trial court erred in failing to submit an instruction that

his accomplice, Ryan Bisor, was an accomplice as a matter of law. The trial court

submitted an instruction that sought a jury finding as to whether Bisor was an

accomplice. Patt did not object to the charge on this basis.

        Because there was no objection made to the charge by Patt, we must first

determine whether the charge as submitted to the jury was erroneous and if so, we

must then analyze this complaint utilizing the standard of Almanza v. State. Allen v.

State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137,

143-44 (Tex. Crim. App. 2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim. App. 1985)).

Under Almanza, unobjected-to jury charge error will not result in reversal of a

conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at 171.

        In examining the record for egregious harm, we consider the entire jury charge,

the state of the evidence, the final arguments of the parties, and any other relevant

information revealed by the record of the trial as a whole.      Olivas, 202 S.W.3d at 144.

Jury charge error is egregiously harmful if it affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State,



Patt v. State                                                                          Page 4
218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex.

Crim. App. 2006).

Accomplice Testimony

        A conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the offense

committed. TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). An accomplice is a

person who participates before, during, or after the commission of the crime and can be

prosecuted for the same offense as the defendant or for a lesser-included offense.

Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1998). A defendant is entitled to an

accomplice witness instruction if and only if “there is sufficient evidence in the record

to support a charge against the witness alleged to be an accomplice.” Id. (quoting Blake

v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)). Here, Bisor was also charged with

aggravated robbery and evading arrest and, therefore, was an accomplice as a matter of

law. See Kerns v. State, 550 S.W.2d 91, 94 (Tex. Crim. App. 1977).

        The record before us shows the trial court failed to instruct the jury that as a

matter of law Bisor’s testimony had to be corroborated by other evidence tending to

connect Patt to the crime.    The instruction as worded gave the jury the ability to

determine if they believed that Bisor was an accomplice beyond a reasonable doubt and

if so, only then was the jury required to find that other evidence in the case outside of

Bisor’s testimony tended to connect Patt to the offense in order to find Patt guilty of the

offenses.



Patt v. State                                                                        Page 5
        The instruction as given was erroneous. Because no objection to this erroneous

instruction was made at trial, we will reverse the judgment only if Patt suffered

egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Under

the egregious harm standard, the complete omission of an accomplice witness

instruction is generally harmless unless the corroborating (non-accomplice) evidence is

“so unconvincing in fact as to render the State’s overall case for conviction clearly and

significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)

(quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). But we are not

confronted with a situation where an accomplice witness instruction was entirely

omitted. Rather, the accomplice witness instruction given was improperly worded by

giving the jury the ability to determine whether or not they believed Bisor was an

accomplice. Patt does not complain about the portion of the instruction that required

corroboration of Bisor to convict Patt.

        However, by removing Bisor’s testimony from consideration, the evidence was

not “so unconvincing in fact as to render the State’s overall case for conviction clearly

and significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.

2002). Patt was seen driving a vehicle with the lights off coming from the direction of

the robbery within a very short time after the robbery was reported. Patt fled from the

police in the vehicle, and then on foot. An officer observed Patt walking down the

street, and Patt disappeared before the officer could talk to him. Patt was located

hiding in a field close to a jacket that was identified as belonging to one of the robbers

on a videotape recording of the robbery. With the jacket was a cell phone that was

Patt v. State                                                                       Page 6
linked to Patt. The shotgun used in the robbery was also located behind the apartment

complex where the vehicle was abandoned. A roll of quarters was found in the front

passenger floorboard that appeared to be similar to those stored in the cash register at

the store that had been robbed. The store’s employee had testified that the robbers only

got away with quarters from the register. Having reviewed the evidence without

Bisor’s testimony, we find that Patt was not egregiously harmed by the erroneous

instruction. We overrule issue two.

Insufficient Corroboration

        Patt complains that the evidence was insufficient to corroborate the testimony of

Bisor. As stated above, Patt’s convictions cannot stand on the accomplice testimony of

Bisor unless that testimony is corroborated by other evidence tending to connect Patt

with the offenses. TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). To corroborate

accomplice testimony, we eliminate “all of the accomplice testimony from consideration

and then examine the remaining portions of the record to see if there is any evidence

that tends to connect the accused with the commission of the crime.” Castillo v. State,

221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361

(Tex. Crim. App. 2001)). “The corroborating evidence need not be sufficient by itself to

establish guilt; there simply needs to be ‘other’ evidence ‘tending to connect’ the

defendant to the offense.” Id. In other words, “[t]he non-accomplice evidence does not

have to directly link appellant to the crime, nor does it alone have to establish his guilt

beyond a reasonable doubt.” McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.

1997). “There must simply be some non-accomplice evidence which tends to connect

Patt v. State                                                                        Page 7
appellant to the commission of the offense alleged in the indictment.” Castillo, 221

S.W.3d at 691.

         Although the standards are slightly different, we have previously determined

that the evidence considered without Bisor’s testimony established that Patt was not

egregiously harmed by the erroneous instruction. We also find that the evidence as

described above more than “tends to connect” Patt with the offenses. We overrule issue

three.

Conclusion

         We find that the admission of the testimony regarding the dog tracking evidence,

if erroneous, was harmless. We find that Patt was not egregiously harmed by an

erroneous jury instruction in the charge, and that the evidence was sufficient to

corroborate Bisor’s accomplice testimony. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed September 1, 2010
Do not publish
[CRPM]




Patt v. State                                                                      Page 8
