COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00212-CR

BRODERICK DEON PATTERSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Broderick Deon Patterson pleaded guilty to murder, and after a 

trial on punishment, the jury assessed his punishment at confinement for life. 

The trial court sentenced him accordingly. In three issues, Patterson complains 

 

1 See Tex. R. App. P. 47.4.
2

of the admissibility of two 911 calls during the punishment trial and the denial of 

his motion for mistrial. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Eric Forrester was a senior at Southwest High School in Fort Worth. The 

school allowed its students to leave campus each day for lunch. Eric left campus 

at lunchtime one day to go pick up his sister, twenty-one-year-old Kali Forrester. 

Kali worked near Eric‘s school, and she needed a ride from work because her car 

would not start. Eric drove Kali to the family‘s home. 

When they got home, Eric and Kali heard noises coming from upstairs. 

Eric called out to see if anyone was there. A voice responded, and Kali ran to 

the neighbor‘s house and called 911. Eric called 911 too, but he did not speak to 

the operator; he put his phone in his pocket and went upstairs. He found two 

men—Patterson and his accomplice, Clifton Elliott—burglarizing the home. One 

of the two men shot Eric in the head, killing him. Kali, who remained on the 

phone with the 911 operator, saw two men leave her house so she returned to 

her family‘s home. She found Eric lying on the floor and attempted to perform 

CPR on him. Investigators were unable to determine whether Patterson or Elliott 

shot Eric. 

III. ADMISSIBILITY OF 911 RECORDINGS UNDER RULE 403

In his first two issues, Patterson complains that the trial court abused its 

discretion by admitting, as State‘s Exhibits 104, 104A, 104B, and 105, the
3

recordings of both Eric‘s and Kali‘s 911 calls during the punishment trial.

2

 

Patterson objected that the 911 recordings were substantially more prejudicial 

than probative. See Tex. R. Evid. 403. After conducting a rule 403 balancing 

test, the trial court overruled Patterson‘s objections and allowed the State to play

the recordings for the jury. 

A. Admissibility of Evidence in Punishment Phase and Standard of Review

In the punishment phase of a non-capital trial, article 37.07 governs the 

admissibility of evidence: ―Regardless of the plea . . . , evidence may be offered 

by the state and the defendant as to any matter the court deems relevant to 

sentencing, including . . . the circumstances of the offense for which [the 

defendant] is being tried . . . .‖ Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)

(West Supp. 2012). Evidence is relevant within the meaning of article 37.07 if it 

is helpful to the jury in tailoring an appropriate punishment. Erazo v. State, 144 

S.W.3d 487, 491 (Tex. Crim. App. 2004) (citing Mendiola v. State, 21 S.W.3d 

282, 285 (Tex. Crim. App. 2000)). Generally, the jury is entitled to have before it 

all relevant information about the crime for which it is assessing punishment. 

 

2State‘s Exhibit 104 is Eric‘s 911 call in real-time, and State‘s Exhibit 104A 

is the 911 call at a reduced speed. The entire recording of Eric‘s 911 call also 

includes Kali‘s reaction after returning to find Eric, but the State stopped playing 

State‘s Exhibit 104 before the portion in which Kali returned to the home. The 

State later redacted State‘s Exhibit 104 and replaced it with State‘s Exhibit 104B, 

which does not include Kali‘s reaction. Her reaction was recorded on her own 

911 call (State‘s Exhibit 105). 
4

Cooks v. State, 844 S.W.2d 697, 735 (Tex. Crim. App. 1992), cert. denied, 509 

U.S. 972 (1993).

Although evidence may be relevant in assessing punishment, a trial court 

may exclude the evidence under rule 403 ―if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury.‖ Tex. R. Evid. 403; see Rogers v. State, 991 S.W.2d 263, 

266–67 (Tex. Crim. App. 1999). ―[V]irtually all evidence proffered by a party to a 

lawsuit will be prejudicial to the opposing party. . . . [O]nly  ̳unfair‘ prejudice 

provides the basis for exclusion of relevant evidence.‖ Montgomery v. State, 810 

S.W.2d 372, 378 (Tex. Crim. App. 1990) (op. on original subm‘n). In other 

words, evidence ―is inadmissible [under rule 403] only if the emotional and 

prejudicial aspects substantially outweigh the helpful aspects.‖ Erazo, 144 

S.W.3d at 491–92; see also Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—

Fort Worth 2008, pet. ref‘d) (―Unfair prejudice arises from evidence that has an 

undue tendency to suggest that a decision be made on an improper basis, 

commonly an emotional one.‖). 

In conducting a rule 403 balancing test, several factors are significant: (1) 

the inherent probative force of the proffered evidence; (2) the proponent‘s need 

for that evidence; (3) any tendency of the evidence to promote a decision on an 

improper basis; (4) any tendency of the evidence to confuse or distract the jury 

from the main issues; (5) any tendency of the evidence to be given undue weight 

by a jury that has not been equipped to evaluate the probative force of the 
5

evidence; and (6) the likelihood that presentation of the evidence will consume 

an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 

403 favors admission of relevant evidence and carries a presumption that 

relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d

642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).

In reviewing the admissibility of evidence under rule 403, we will reverse 

the trial court only upon a clear abuse of discretion. Rachal v. State, 917 S.W.2d 

799, 808 (Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996); Montgomery, 

810 S.W.2d at 391–92 (op. on reh‘g). A trial court does not abuse its discretion 

so long as its decision to admit or exclude evidence is, in view of all relevant 

facts, within the zone of reasonable disagreement. Rachal, 917 S.W.2d at 808; 

Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992), cert. denied, 507 

U.S. 975 (1993); Montgomery, 810 S.W.2d at 391–92 (op. on reh‘g).

B. No Abuse of Discretion by Admitting Eric’s and Kali’s 911 Calls

The recording of Eric‘s 911 call includes four voices: Eric‘s, Patterson‘s, 

Elliott‘s, and the 911 operator‘s. The voices of Patterson and Elliott are

indistinguishable from one another. The recording begins with Patterson, Elliott, 

or both of them demanding a bag from Eric to carry the items they were stealing. 

Eric first replied that he did not have a bag, but after the two men pressed him 

further, he said that he had a bag in his bedroom. A gunshot went off. Either 

Patterson or Elliott then yelled, ―Oh, what the f[---]!‖ Both State‘s Exhibits 104A
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(Eric‘s 911 call at a reduced speed) and 104B (Eric‘s 911 call in real time) are

less than a minute long. 

The recording of Kali‘s 911 call begins with her telling the 911 operator that 

she saw two men carrying laptops walk out of her house. While still on the 

phone, she returned to find Eric lying on the kitchen floor with a gunshot wound. 

Kali began screaming and crying. She told the 911 operator that Eric had been 

shot. A MedStar operator got on the line, and Kali explained Eric‘s condition to 

the operator. Kali attempted to give Eric CPR. State‘s Exhibit 105 (Kali‘s 911 

call) was just under five minutes in length. 

Although, as Patterson asserts, the recordings are emotionally charged 

and disturbing, they depict no more than the actual crime itself and the 

circumstances surrounding the crime. See Chamberlain v. State, 998 S.W.2d 

230, 237 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000); cf. Sonnier 

v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (―[W]hen the power of the 

visible evidence emanates from nothing more than what the defendant has 

himself done we cannot hold that the trial court has abused its discretion merely 

because it admitted the evidence.‖); see also Tex. Code Crim. Proc. Ann. art. 

37.07, § 3(a)(1). The recordings provided an illustration of the crime for which 

the jury was assessing punishment and informed the jury of the nature of the 

underlying incident so that it could tailor an appropriate punishment. See Erazo, 

144 S.W.3d at 491–92; Chamberlain, 998 S.W.2d at 237; see also York v. State, 

566 S.W.2d 936, 938 (Tex. Crim. App. [Panel Op.] 1978) (explaining that when 
7

defendant enters guilty plea, testimony concerning circumstances of offense is 

admissible during punishment to ―enable the jury to intelligently exercise the 

discretion which the law vests in them to assess the penalty‖). 

Although the recordings may have an emotional impact on the listener and 

they were certainly prejudicial to Patterson, they were not unfairly prejudicial. 

See Montgomery, 810 S.W.2d at 378. Compare Estrada v. State, 313 S.W.3d 

274, 300 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 905 (2011) (holding that 

911 recording, in which emotional family members discovered victim‘s body, 

played during both guilt and punishment phases of trial was admissible because 

it provided a framework), with Salazar v. State, 90 S.W.3d 330, 338–39 (Tex. 

Crim. App. 2002) (holding that trial court abused its discretion by admitting a 

video montage during punishment phase that depicted adult victim as a youth 

and added background music that ―greatly amplifie[d] the prejudicial effect‖). The 

recordings were probative of the circumstances of the crime and of Patterson‘s 

personal responsibility and moral guilt, and their probative value was not 

outweighed by any emotional and prejudicial aspects. See Tex. R. Evid. 403;

Erazo, 144 S.W.3d at 491–92; see also Payne v. Tennessee, 501 U.S. 808, 825, 

111 S. Ct. 2597, 2608 (1991) (―[F]or the jury to assess meaningfully the 

defendant‘s moral culpability and blameworthiness, it should have before it at the 

sentencing phase evidence of the specific harm caused by the defendant.‖). We 

hold that the trial court did not abuse its discretion by admitting State‘s Exhibits 
8

104A, 104B, and 105, and we overrule Patterson‘s first and second issues. See 

Rachal, 917 S.W.2d at 808; Montgomery, 810 S.W.2d at 391–92.

IV. PATTERSON’S MOTION FOR MISTRIAL

In his third issue, Patterson complains that the trial court abused its 

discretion by denying his motion for mistrial after the State asked a witness a 

question that allegedly called for inadmissible hearsay shortly after the trial court 

had sustained an objection to that same line of questioning. 

Allison Bass, a former classmate of Patterson‘s, testified for the State

about a fight she had witnessed involving Patterson and a special education 

student, Brandon, at Southwest High School. Allison had previously given a 

statement about the fight to authorities. She explained at trial that Patterson hit 

Brandon, knocking him to the floor. Allison also testified that she did not want to 

testify in Patterson‘s trial and that Patterson had threatened to ―kick [her] ass for 

snitching.‖ 

The State then called Allison‘s mother, Pam Bass, to testify. The State 

asked Pam if Allison had received threats after she provided her statement to 

authorities. Patterson‘s counsel objected to hearsay, which the trial court 

sustained. Moments later, the State returned to a similar line of questioning:

Q. You were worried about retaliation for [Allison]?

A. I was.

Q. Okay. And, in fact, when your daughter was subpoenaed to come and 

testify, it‘s fair to say[—]was she reluctant?
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A. Yes.

Q. And was she fearful of coming in here and testifying?

A. She was.

Q. Okay. And outside of the courtroom, did she begin crying before she 

came in here?

A. Yes.

Q. And has your daughter—is your daughter worried about retaliation at 

school?

Patterson‘s counsel objected, stating that the court had just ruled on this line of 

questioning. The trial court sustained the objection and instructed the jury ―to 

disregard the answer from the last question.‖ Patterson‘s counsel then moved 

for a mistrial, arguing that the prosecutor intentionally violated the trial court‘s 

ruling. The trial court denied the motion. The State passed the witness without 

any further questioning. 

A. Law on Mistrials and Standard of Review

A mistrial is an extreme remedy for events occurring during the trial that 

are so prejudicial that expenditure of further time and expense would be wasteful. 

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 

1070 (2000). The asking of an improper question will seldom require a mistrial 

because any harm can be cured by an instruction to disregard. Grotti v. State, 

209 S.W.3d 747, 776 (Tex. App.—Fort Worth 2006) (citing Ladd, 3 S.W.3d at 

567), aff’d, 273 S.W.3d 273 (Tex. Crim. App. 2008). Only when it is apparent 

that an objectionable event is so emotionally inflammatory that curative 
10

instructions are not likely to prevent the jury from being unfairly prejudiced 

against the defendant is a trial court required to grant a mistrial. Id. (citing 

Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 

U.S. 905 (2004)); West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 

2003, pet. ref‘d).

We review the denial of a motion for mistrial under an abuse of discretion 

standard and must uphold the trial court‘s ruling if it is within the zone of 

reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 

2010), cert. denied, 131 S. Ct. 3030 (2011); Marchbanks v. State, 341 S.W.3d 

559, 561 (Tex. App.—Fort Worth 2011, no pet.). The determination of whether a 

given error necessitates a mistrial must be made by examining the complete 

record. Ladd, 3 S.W.3d at 567.

B. No Abuse of Discretion by Denying Patterson’s Motion for Mistrial

Allison testified, without objection, that she was hesitant to testify at trial 

because she thought Patterson might retaliate against her. Thus, when the State 

asked Pam whether Allison had been worried about retaliation as a consequence 

of her testimony, the question, at most, reinforced Allison‘s earlier testimony. 

Furthermore, Patterson‘s counsel made a timely objection before Pam answered 

the question, thereby limiting the ability of the State‘s question to unfairly impress 

the jury. See Grotti, 209 S.W.3d at 777 (categorizing the impact of the State‘s 

questioning as minimal when witness ―did not have an opportunity to respond to 

the question, [defendant‘s] counsel objected immediately, and no further 
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questions . . . were asked in the presence of the jury‖). Pam did not have an 

opportunity to respond to the State‘s question, and the trial court instructed the 

jury to disregard.3 

We cannot say that the State‘s question to Pam was so emotionally 

inflammatory that it undermined the trial court‘s curative instruction and unfairly 

prejudiced Patterson. See Grotti, 209 S.W.3d at 777; West, 121 S.W.3d at 107; 

see also Ladd, 3 S.W.3d at 567. We hold that the trial court did not abuse its 

discretion by denying Patterson‘s motion for mistrial, and we overrule his third 

issue. See Coble, 330 S.W.3d at 292; Marchbanks, 341 S.W.3d at 561. 

V. CONCLUSION

Having overruled Patterson‘s three issues, we affirm the trial court‘s 

judgment.

PER CURIAM

PANEL: WALKER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J. 

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 13, 2013

 

3Patterson argues that the trial court‘s instruction to disregard was 

ineffective because it referred the jury to Pam‘s ―answer,‖ not the State‘s 

question. Nevertheless, the jury charge instructed the jury to consider only 

matters in evidence, and we presume the jury followed those instructions without 

evidence to the contrary. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. 

Crim. App. 2009).