1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00394-CR

__________________

WALTER HENRY PATERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 21-06-08377-CR

__________________________________________________________________

MEMORANDUM OPINION 

Walter Henry Paterson appeals from a judgment in which he was 

convicted of assaulting Joan, a member of his family, by intentionally, 

knowingly, or recklessly impeding her normal breathing or the 

circulation of her blood by applying pressure to her throat or neck or by 
2

blocking her nose or mouth.1 In the punishment phase of the trial, the 

jury found Paterson guilty, answered “True” to the enhancement counts 

in Paterson’s indictment, and decided that Paterson should serve a fortyyear sentence.

2 The trial court accepted the jury’s verdict, pronounced 

sentence, and signed a judgment consistent with the verdict. 

Paterson raises three issues in his appeal. Paterson’s first two 

issues claim the trial court erred in admitting evidence in the guiltinnocence phase of his trial. In Paterson’s first issue, he argues the trial 

court abused its discretion when it excluded evidence that he argues 

would have shown why Joan chose to testify against him and testified for 

the State. According to Paterson, the evidence the trial court excluded 

“related to [Joan’s] motive” to testify against him and for the State. 

1See Tex. Penal Code Ann. § 22.01(b)(2)(B). To protect the victim’s 

privacy, we have used pseudonyms for the victim’s name and the names 

of some of the witnesses. See Tex. Const. art. I, § 30 (granting a crime 

victim “the right to be treated with fairness and with respect for the 

victim’s dignity and privacy throughout the criminal justice process”).

2Tex. Penal Code Ann. § 12.42(d)(allowing the factfinder to consider

sentencing the defendant to “any term of not more than 99 years or less 

than 25 years” should the factfinder determine the defendant is guilty of 

committing a felony other than a state jail felony and find the defendant 

incurred two or more prior sequenced felony convictions before 

committing the offense at issue in his trial, the primary offense). 
3

In Paterson’s second issue, he argues the trial court abused its 

discretion by allowing one of the State’s witnesses, a witness with a Ph.D.

in counseling,to remain in the courtroom when Joan testified during the 

trial. According to Paterson, the trial court allowed Dr. David Lawson, a 

professor who testified he teaches classes in psychology at Sam Houston 

State University, to remain in the courtroom over his objection after he 

invoked “The Rule” that requires witnesses in the case to be excluded 

from the courtroom.3

In Paterson’s third issue, he contends the trial court erred in 

allowing the jury through the court’s charge to consider convicting him of 

assault by finding that he blocked Joan’s nose or mouth. According to 

Paterson, no evidence supported the instruction in the charge that 

allowed the jury to convict him on a theory that he blocked Joan’s nose or 

mouth as a manner or means of committing the assault.

3See Tex. R. Evid. 614 (“At a party’s request, the court must order 

witnesses excluded so that they cannot hear other witnesses’ 

testimony.”).
4

We conclude that Paterson’s issues, for the reasons explained 

below, were either unpreserved or lack merit. We affirm the trial court’s 

judgment. 

Background

Since Paterson didn’t argue the evidence admitted in his trial was

insufficient to support his conviction, we limit our discussion of the 

background in Paterson’s case to the information needed to explain why 

the Court is overruling the issues Paterson has raised in his appeal.4

The testimony in the trial shows that Joan and Paterson were 

married when the alleged assault involving Joan occurred. On June 17, 

2021, police arrested Paterson based on the allegations in an

Information, which alleges that on or about April 9, 2021, he assaulted 

Joan a member of his family by intentionally, knowingly, or recklessly 

impeding the normal breathing or circulation of her blood by applying 

pressure to her throat or neck or by blocking her nose or mouth.5 In this 

opinion, we will refer to the offense as assault-family violence, by 

4Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 

520 S.W.3d 616, 622 (Tex. Crim. App. 2017).

5See Tex. Penal Code Ann. § 22.01(b)(2)(B).
5

strangulation.6 On the day that Paterson was arrested, Joan sued 

Paterson for divorce. 

In August 2021, a Montgomery County grand jury indicted 

Paterson for assault-family violence, by strangulation.7 Paterson’s 

indictment contains two enhancement counts, each of which alleges that 

Paterson had been convicted of committing another felony that became 

final before he assaulted Joan.8

Paterson’s trial began on December 7, 2021. Six witnesses were 

called by the State to testify over the two days of the guilt-innocence 

phase of Paterson’s trial: (1) Joan, (2) Cade, Joan’s fourteen-year-old son; 

(3) Tori, Joan’s friend; (4) Jessie Minchew, a detective with the Conroe 

Police Department; (5) Brookley Torres, a forensic nurse examiner; and 

6Id. 7Id. 8The assault-family violence by strangulation part of Paterson’s 

indictment alleges that Paterson “knowingly or recklessly cause[d] bodily 

injury to [Joan], a member of the defendant’s family or a member of the 

defendant’s household or a person with whom the defendant has or has 

had a dating relationship, as described by Section 71.003 or 71.005 or 

71.0021(b), Family Code, by intentionally, knowingly, or recklessly 

impeding the normal breathing or circulation of the blood of [Joan] by 

applying pressure to [Joan’s]throat or neck or by blocking [Joan’s] nose 

or mouth[.]” See id. 
6

(6) David Lawson, a university professor who holds a doctorate in 

counseling. 

Only two witnesses testified on the first day of the trial: Detective 

Minchew and Brookley Torres. Before Detective Minchew testified, 

Paterson’s attorney asked the trial court to “invoke the rule[,]” which the 

trial court understood as a request to exclude the witnesses from the 

courtroom except for those subject to exceptions in Rule of Evidence 614.9

After Paterson’s attorney asked the trial court to invoke the rule, the 

judge asked,“were there any other potential witnesses [in addition to the 

first witness who was called to the stand] in the courtroom at this time?” 

The prosecutor told the judge: “No, Judge, not from us.” The judge 

instructed one of the defendant’s potential witnesses (who ultimately 

didn’t testify in the guilt-innocence phase of the trial) to “step outside in 

the hall[.]” 

9Tex. R. Evid. 614 (listing four exceptions to Rule 614: (a) a party; 

(b) a party’s designated representative; (c) “a person whose presence a 

party shows to be essential to presenting a party’s claim or defense;” and 

(d) “the victim in a criminal case, unless the court determines the victim’s 

testimony would be materially affected by hearing other testimony at the 

trial”). 
7

On appeal, Paterson doesn’t claim that Dr. Lawson was in the 

courtroom on the first day of Paterson’s trial. Instead, he claims Dr. 

Lawson entered the courtroom and heard the testimony of Joan and Cade 

on December 8, the second day of the trial even though the trial court, on 

December 7th, had instructed the witnesses in the courtroom to wait 

outside in the hall. 

On the second day of the trial, Joan told the jury about the 

argument that she had with Paterson on April 9th that, by her account, 

was the trigger that led to Paterson’s assault. Joan explained that on 

April 9th, she confronted Paterson about the way he was disciplining 

Cade. By Joan’s account, an argument ensued, Paterson pushed her into 

their bedroom, locked the door, and “put his hand on [her] throat” with 

“his thumb [ ] right on [her] vocal cord[.]” Joan testified that Paterson 

used his hand and put pressure on her neck. When the prosecutor asked 

Joan whether she had trouble breathing, Joan answered: “Yes.” Joan said 

that at one point while she and Paterson were arguing, Paterson had her 

on the floor with his left hand around her neck. When the prosecutor 

asked Joan how long she couldn’t breathe as Paterson was choking her
8

with his hand, Joan answered: “Not long, probably just a few seconds. I 

don’t know.” 

On April 10, Joan reported the altercation that occurred the day 

before to the Conroe Police Department. On April 14th, Joan met with 

Detective Jessie Minchew. During Joan’s interview with Detective

Minchew, police photographed Joan’s injuries and obtained an audio 

recording of the altercation on April 9th, which Joan had captured on her 

cell phone.10 The photographs and the recording were admitted into 

evidence in Paterson’s trial. 

When the prosecutor asked Joan if there was a point where 

Paterson had his hand over her mouth, Joan answered: “Possibly. I don’t 

remember everything.” Joan went on to explain that the events had 

happened fast. Later, Joan testified that she didn’t think Paterson used 

his left hand to cover her nose or mouth and that while she didn’t 

10The recording of the altercation between Joan and Paterson is a 

video recording. However, because the camera on Joan’s cell phone was 

facing the ceiling, we refer to the exhibit as an audio recording since the 

audible part of the recording is the only part of the recording relevant to 

our resolution of the issues in Paterson’s appeal. 
9

remember for sure, she also didn’t think that he had used his right hand 

to cover her nose or mouth. 

At trial, Joan testified that during the altercation, she told Paterson 

that he was choking her. Joan testified that when Paterson denied that 

he was choking her, he then said to her that if she “wanted to see what 

choking looked like, he’d show me.” Then, the prosecutor asked Joan: 

“Then what did he do?” Joan answered: “He proceeded to choke me.” The 

jury also heard the audio recording from Joan’s cell phone. In it, you can 

hear some muffled breathing, some screams, and periods where no 

screams are heard.The audio recording corroborates Joan’s account that 

she told Paterson he was choking her, that he denied it, and that he said 

if she wanted to see what choking looked like, he would show her.

Joan testified that her altercation on April 9th with Paterson 

wasn’t the first time that she and Paterson had been in arguments in 

which she had been injured. Joan said two reasons explained why she

decided not to report those incidents. First, Joan said that after those 

incidents occurred, she thought that were they to occur only every year 

or two, she could take it “for our family.” Second, Joan said she chose not 
10

to report the incidents to the police because she “didn’t want him to get 

in trouble.”

When Dr. Lawson testified, he told the jury that he has a license as 

a professional counselor and a Ph.D. in counseling, which he obtained 

from the University of North Texas. Dr. Lawson said he is working as a 

professor in the Department of Counseling at Sam Houston State 

University, where he directs the University’s Center for Research and 

Clinical Training In Trauma. Dr. Lawson explained that he also teaches 

courses at Sam Houston State on domestic violence, and that along with

teaching, he testifies in court cases that involve claims of domestic 

violence. Dr. Lawson also told the jury that he has a “private practice

basically working with people with trauma backgrounds.” 

It appears the purpose for calling Dr. Lawson was to present 

testimony that explained that it’s not uncommon for victims of domestic 

violence not to leave those who injure them, for victims of domestic 

violence not to report incidents of domestic violence to police, and for 

victims of domestic violence not to always have accurate memories about 

what occurred. According to Dr. Lawson, the victim of an incident of 
11

domestic violence usually doesn’t report the first incident, and “it usually 

takes several times before it gets reported.” He also testified that victims

of traumatic events often block the events from their minds, so it didn’t 

surprise him “at all” that Joan testified that she didn’t remember some 

of the things that had occurred. 

After the State rested in the guilt-innocence phase of the trial, 

Paterson rested too. During the conference on the charge, Paterson

objected to the proposed jury charge because it allowed the jury to 

consider whether Paterson committed the offense by blocking Joan’s nose 

or mouth. Paterson argues the evidence admitted in Paterson’s trial 

doesn’t support a finding that he committed the primary offense, assaultfamily violence, by strangulation, based on the allegation that he 

impeded Joan’s breathing or circulation by blocking her nose or mouth. 

The trial court, however, overruled his objection and concluded that 

because the audio recording raised “a scintilla of evidence to support the 

possibility that that’s what was going on during that episode[,]” the trial 

court had to “leave that in the [] charge.” 
12

In closing argument, Paterson’s attorney argued Paterson was 

innocent, and his attorney suggested that Joan had “created this as a 

mechanism to gain custody of her children.” The jury found Paterson 

guilty of “Assault Against a Family Member by Impeding Breath or Blood 

Circulation, as charged in the Indictment.” In the punishment phase of 

Paterson’s trial, the jury answered “True” to the two enhancement counts 

in the indictment. Based on its finding of guilt and a punishment range 

of 25-99 years’ imprisonment, the jury decided that Paterson should be 

confined in the Institutional Division of the Texas Department of 

Criminal Justice for 40 years.11 After the jury returned with its 

punishment verdict, the trial court signed a judgment consistent with the 

verdict. Paterson subsequently filed an appeal.

Analysis

I. Did the trial court err by excluding Joan’s testimony that,

according to Paterson, was relevant to Joan’s motive for 

 providing “false statements . . . as a witness for the State[?]”

11See Tex. Penal Code Ann. § 12.42(d) (enhancing punishment for 

defendant who has previously been convicted of two felony offenses to life 

in prison, or for any term of not more than 99 years or less than 25 years).
13

On appeal, Paterson argues there are two reasons the trial court 

erred in excluding Joan’s testimony about an investigation conducted by 

the Department of Family and Protective Services five or six years before 

he was charged with assaulting Joan. The CPS investigation concerned 

allegations of child abuse and involved the couple’s children, but it did 

not involve allegations of abuse of the children by Joan or Paterson.

Instead, the CPS investigation addressed allegations of abuse of the 

children by a man who was then living with Joan’s mother. 

First, Paterson argues the trial court’s ruling that prevented him 

from questioning Joan about the CPS investigation kept him from 

presenting the jury with a complete defense, a defense he claims would 

have explained why Joan willingly assisted the State in having him 

prosecuted for assault-family violence, by strangulation. Second, he 

argues the evidence was both relevant to Joan’s credibility and more 

probative than prejudicial. 

When Paterson’s attorney presented his bill to show the trial court 

what he would prove if allowed to question witnesses about the CPS 

investigation, he didn’t ask the trial court to mark any reports from the 
14

five or six-year-old CPS investigation as evidence. Thus, no CPS reports

or records of the years-old CPS investigation are included in the appellate 

record. The sole evidence in the appellate record addressing the CPS 

investigation consists of Joan’s testimony in Paterson’s bill of review. 

Paterson’s bill is less than 2 1/2 pages long. In the bill, Joan agreed that 

five or six years ago, CPS investigated reports about her children being 

abused. According to Joan, the abuse that CPS investigated occurred 

when her children were in her mother’s home, the abuse occurred about 

seven years ago, and when she and Paterson found out about the abuse, 

which was about “five or six years ago,” they reported it to CPS. 

Based on Joan’s testimony, we conclude nothing in it raises a 

reasonable inference that when the abuse occurred, Joan or Paterson 

knew their children were being abused. Joan also denied that she left the 

children at her mother’s home “in a situation where they could be 

abused[,]” and nothing in the record shows her sworn testimony isn’t 

true. Joan acknowledged that after she and Paterson learned of the 

alleged abuse, there were occasions during their marriage when the 

allegations about the fact their children had been abused caused friction 
15

in their marriage. But when asked, Joan denied that Paterson had ever 

threatened to bring up the allegations about the abuse should the two of 

them divorce. Moreover, before Paterson made his bill of review, the 

evidence already before the trial court shows that Joan sued Paterson for 

divorce on June 16, 2021—more than a month after police formally 

interviewed her about the assault of April 9th, an assault Joan reported 

to police on April 10th. Paterson’s attorney never questioned Joan about 

whether she was contemplating a divorce in the weeks or months before 

the assault in April 2021 occurred. 

So, we turn first to Paterson’s argument that excluding Joan’s 

testimony about the CPS investigation violated his constitutional right 

to present a meaningful defense.12 At trial, however, Paterson’s attorney 

told the trial court that he wanted to offer the evidence to show that Joan 

“left the kids unattended with a - - and they were molested[,]” not for the 

12See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) 

(explaining that the federal constitution “guarantees criminal defendants 

a meaningful opportunity to present a complete defense”); U.S. v. Nixon, 

418 U.S. 683, 711 (1974) (explaining that a criminal defendant’s right to

present evidence “has constitutional dimensions,”drawing from the Sixth 

Amendment rights to confrontation and compulsory process). 
16

“truth of the matter asserted[.]” After the trial court heard the CPS 

investigation occurred years before April 9, 2021, and didn’t involve a 

claim that either of the parents abused the children, the trial court said: 

“I don’t see what the relevance of that would be.” In response, Paterson’s 

attorney argued evidence about the CPS investigation was relevant to 

showingwhy Joan had a motive to lie about “what occurred” so that she 

could maintain custody of their children. That said, Paterson’s attorney 

never told the trial court that a ruling that prevented him from 

examining Joan about the CPS investigation into claims of abuse that 

allegedly occurred at Joan’s mother’s home years before Paterson was 

charged with assault would prevent Paterson from presenting the jury 

with a meaningful defense. 

To preserve claims of error under Texas law, a party must generally 

bring the claim to the trial court’s attention to avoid forfeiting the right 

to complain about the alleged error on appeal.13 Almost every right—

whether constitutional or statutory—is waivable when the party fails to 

object or request relief in the trial court before a complaint about the 

13See Tex. R. App. P. 33.1.
17

matter may be considered on appeal.14 Moreover, the issue the appellant 

raises in an appeal “must comport with the objection made at trial.”15

Consequently, “[a]n objection stating one legal theory [at trial] may not 

be used to support a different legal theory on appeal.”16

Here, Paterson attempts to rely on a legal theory that differs from

the one he relied on at trial. At trial, Paterson’s attorney never argued 

that a ruling excluding Joan’s testimony about the CPS investigation 

would prevent Paterson from presenting a meaningful defense. The right 

that Paterson claims he lost—the right to present a complete defense—

is forfeitable if not preserved.17

We conclude the argument Paterson presents for the first time on 

appeal—that he had a constitutional right to present a complete defense 

by examining Joan about the CPS investigation—doesn’t comport with 

the objection that he raised in his trial: that Joan’s testimony about the 

14Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). 

15Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

16Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) 

(quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).

17Anderson v. State, 301 S.W.3d 276, 277 (Tex. Crim. App. 2009).
18

CPS investigation was relevant and more probative than prejudicial to 

the reason Joan was testifying against him in the trial.18

Next, also as part of the argument Paterson presents in his first 

issue, he claims the trial court erred when it found that Joan’s testimony 

about the CPS investigation was not relevant to his defense. We review 

a ruling excluding evidence for abuse of discretion.19 An abuse of 

discretion does not occur unless the trial court acts “arbitrarily or 

unreasonably” or “without reference to any guiding rules and 

principles.”20 We will reverse a trial court’s ruling excluding testimony 

only if the record shows the ruling “falls outside the zone of reasonable 

disagreement.”21

Evidence is relevant when “it has any tendency to make a fact more 

or less probable than it would be without the evidence,” and “the fact is 

of consequence in determining the action.”22 Relevant evidence must be 

18See id. 19Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); 

Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016).

20State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (cleaned 

up). 

21Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

22Tex. R. Evid. 401.
19

both material and probative.23 Relevant evidence need not, by itself, 

prove or disprove a particular fact if it provides at least a “small nudge”

toward proving or disproving a material fact.24 When determining 

relevance, courts examine what the party claiming the evidence was 

relevant told the trial court the purpose of the evidence would be if the 

court allowed the evidence to be introduced in the trial.25 In deciding 

whether to admit evidence, a trial court must consider the purpose of the 

evidence a party wants before the jury because “[i]t is critical that there 

is a direct or logical connection between the actual evidence and the 

proposition sought to be proved.”26

In our record, the only evidence addressing the substance of the 

years-old CPS investigation is Paterson’s bill of review. But after 

examining Joan’s testimony in the bill, we can’t say the trial court abused 

its discretion by concluding that Paterson never established a direct 

logical connection between the CPS investigation (the actual evidence 

23Henley v. State, 493 S.W.3d at 83. 24Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).

25Reyna v. State, 168 S.W.3d 173, 177-79 (Tex. Crim. App. 2005).

26Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).
20

Paterson sought to have the trial court admit) and Joan’s motives for 

testifying for the State, which is the proposition that he argues he had a 

right to prove. First, the evidence before the trial court shows that no 

divorce proceeding had been filed as of April 10th, 2021, the day Joan

reported the assault to the police. Second, in the hearing the trial court 

conducted on Paterson’s bill of review, Paterson’s attorney never 

identified whether any disputed custody issues existed in Joan’s and 

Paterson’s divorce (1) on April 10, 2021, when Joan reported the assault; 

(2) on April 14, 2021, when Joan met with and was interviewed by 

Detective Minchew; (3) on June 16, 2021, when Joan filed for divorce; or 

(4) on December 8, 2021, when Joan testified in Paterson’s trial.27 Third, 

none of the evidence presented in the bill of review hearing shows that

either Joan or Paterson relied on a claim of fault in the proceedings in 

their divorce or that there were disputes related the custody of their 

children.

27For example, neither Joan’s petition for divorce nor Paterson’s 

answer (if he filed one) are among the exhibits in the appellate record. 
21

We conclude the trial court didn’t abuse its discretion in finding no 

logical connection existed between Joan’s testimony about the CPS 

investigation and Paterson’s theory that the evidence was relevant to 

Joan’s credibility or her motive in testifying or assisting the State in his 

prosecution.28 We overrule Paterson’s first issue.

II. Did the trial court err by allowing Dr. Lawson to stay in the 

courtroom while two other witnesses, Joan and Cade, testified?

Rule 614 of the Texas Rules of Evidence provides: 

At a party’s request, the court must order witnesses excluded 

so that they cannot hear other witnesses’ testimony. Or the 

court may do so on its own. But this rule does not authorize 

excluding: 

(a) a party who is a natural person and, in civil cases, that 

person’s spouse; 

(b) after being designated as the party’s representative by its 

attorney:

(1) in a civil case, an officer or employee of a party that is 

not a natural person; or 

(2) in a criminal case, a defendant that is not a natural 

person;

(c) a person whose presence a party shows to be essential to 

presenting the party’s claim or defense; or 

28Id.
22

(d) the victim in a criminal case, unless the court determines 

that the victim’s testimony would be materially affected by 

hearing other testimony at the trial. 

In his second issue, Paterson argues the judgment should be 

reversed because the trial court violated Rule 614 when it allowed Dr. 

Lawson to remain in the courtroom when Joan and Cade testified. When 

the trial began, the trial court placed all the witnesses under the “Rule,” 

excluding the witnesses who were in the courtroom that day from the 

courtroom so they couldn’t hear each other’s testimony. 

On the second day of the trial, the record doesn’t show that anyone 

asked the trial court to invoke the rule or to ask if any witnesses were in 

the courtroom that day. Joan was the first witness the State called to the 

stand that day. At some point, although it isn’t clear from the record, Dr. 

Lawson entered the courtroom. In any event, no one notified the trial 

court that Dr. Lawson was there until shortly after the court took a 

recess. At that point, the prosecutor said that she wanted to “bring it to 

the Court’s attention that Dr. Lawson, our expert, is in the courtroom. 

We ask if he could be exempt from the rule.” When the trial court asked 

what “kind of expert,” the prosecutor answered, “[d]omestic violence.” 
23

“He’s a professor at Sam Houston.” Even though Paterson’s attorney 

objected “on state and federal constitution[al] grounds,” the trial court 

overruled the objection and granted the State’s request. 

Although Paterson’s attorney objected, he didn’t identify any

specific constitutional provisions on which he relied. When Paterson’s 

attorney was objecting, the trial court interrupted and declared “[y]our 

objection is overruled.” No clarification of the basis for the objection was 

offered.

The purpose of Rule 614—referred to by attorneys as “the Rule”—

is to prevent the testimony of one witness from influencing the testimony 

of others who may testify in a trial.29 Once Rule 614 is invoked, the judge 

typically instructs the witnesses in the courtroom that they cannot 

discuss their testimony without the trial court’s permission.30 The trial 

judge then usually makes the witnesses who are not subject to an 

exception in Rule 614 leave the courtroom. Sometimes the judge 

presiding over the case warns the attorneys to advise the trial court if 

29Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). 

30See Tex. Code Crim. Proc. Ann. art. 36.06.
24

any witnesses enter the courtroom after the court has invoked the Rule. 

But in this case the trial court never instructed the attorneys to tell the 

court that a witness had entered the courtroom after the Rule was 

invoked. 

After the trial court overruled Paterson’s objections “state and 

federal constitutional objections,” Paterson’s attorney didn’t tell the trial 

court that he was also objecting to Dr. Lawson remaining in the 

courtroom based on an argument that none of the exceptions in Rule 614

applied to him. Had that occurred, the prosecutor would have had the 

opportunity to explain why, from the State’s perspective, allowing Dr. 

Lawson to remain in the courtroom was permissible under one or more 

of the exceptions in Rule 614. 

To sum it up, the complaintPaterson raises in his appeal—that by 

allowing Dr. Lawson to remain in the courtroom the trial court violated 

Rule 614—doesn’t comport with the objections Paterson made during the 

trial, objections that he based “on state and federal constitutional 

grounds.” We conclude Paterson failed to make the trial court aware that 

he wanted the trial court to decide whether one of the exceptions in Rule 
25

614 allowed Dr. Lawson to remain in the courtroom while the other 

witnesses testified in Paterson’s case.31 Because the error wasn’t properly 

preserved, Paterson’s second issue is overruled.32

III. Did the trial court err by submitting a charge that allowed the jury 

to consider whether Paterson blocked Joan’s nose or mouth as a manner 

or means of committing the assault, and if so, was the error harmful?

In Paterson’s third issue, he argues the trial court allowed the jury 

to consider whether he committed the assault by blocking Joan’s nose or 

mouth when that theory was “wholly unsupported by the evidence” 

presented to the jury in his trial. We use a two-step process to review a 

claim of charge error.33 First, we determine whether an error occurred.34

If an error occurred and if it was properly preserved by and made a proper 

and timely objection, the error will result in a reversal if the record on 

appeal shows the defendant suffered “some harm.”35

31See Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex. Crim. App. 

2004) (concluding the defendant failed to preserve error by objecting on 

one ground in his trial but then arguing a different legal basis to support 

his claim addressing the disputed evidentiary matter in the appeal);Tex. 

R. App. P. 33.1. 32Id. 33Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015).

34Id. 35Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020).
26

Generally, the instructions the trial court includes in the charge 

must conform to allegations in the defendant’s indictment.36 And because 

by statute the charge must set forth “the law applicable to the case[,]” the 

Court of Criminal Appeals has held that “[a] trial court is required to 

fully instruct the jury on the law applicable to the case and to apply that 

law to the facts presented.”37 Therefore, when an indictment permits a 

defendant’s conviction under four alternative theories, the State may 

obtain a conviction “if any of the alternatives were proven.”38 But when 

the evidence in the trial doesn’t support some of those alternatives, the 

trial court’s instructions should be reduced to “the specified manner and

means” that were supported by the evidence in the trial.39

In Paterson’s trial, the charge the trial court submitted to the jury 

tracks the indictment. It allowed the jury to consider four alternative 

theories as to Paterson’s guilt: whether Paterson impeded Joan’s normal 

breathing or circulation of her blood by (1) applying pressure to her 

36Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012).

37Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004)(cleaned 

up); Tex. Code Crim. Proc. Ann. art. 36.14. 38Sanchez, 376 S.W.3d at 774.

39Id. 
27

throat, (2) to her neck, or if he impeded her normal breathing or 

circulation by (3) blocking her nose or (4) her mouth. In the charge 

conference, Paterson’s attorney argued the evidence didn’t support the 

indictment’s allegations that Paterson committed the assault “by

blocking [Joan’s] nose or mouth,” and Paterson’s attorney asked the trial 

court to remove these two alternative theories from the charge. 

The prosecutor opposed Paterson’s request. She argued the 

evidence admitted in the trial—the audiotape in which you can hear 

“muffled breathing” and Joan screaming and her screaming stop—

supported submitting all four theories, that is the theories that included 

the theories that Paterson committed the assault by blocking Joan’s nose 

or mouth. According to the prosecutor, despite Joan’s testimony that she 

couldn’t remember whether Paterson had covered her nose or mouth, the 

jury could have reasonably concluded that Joan’s nose and mouth had 

been covered based on the sounds in the audio recording, specifically the 

sounds of her muffled breathing after she started screaming. 

To explain Joan’s testimony that she couldn’t recall whether her 

nose or mouth were blocked, and that she didn’t think so, the State points 
28

this Court to Dr. Lawson’s general testimony about victims of domestic 

violence blocking out their memories of abuse. The State also points to 

the audio recording, captured on Joan’s cellphone, in which you can hear 

Joan’s muffled breathing and Joan screaming intermittently during the 

assault. 

In deciding whether to submit an alternative theory of guilt, the 

trial court’s job is to determine whether the evidence is sufficient to 

instruct the jury on the alternative theory.40 That said, a jury may not 

“draw conclusions based on speculation because doing so is not 

sufficiently based on facts or evidence to support a finding beyond a 

reasonable doubt.”41

When deciding whether the evidence supports submitting one or 

more alternative theories of guilt, the trial court must rely on its own 

judgment, formed in the light of its “common sense and experience to 

determine whether the evidence and rational inferences that can be 

40Tex. Code Crim. Proc. Ann. art. 36.14.

41Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
29

drawn therefrom justify the submission[.]”42 In the charge conference, 

the prosecutor argued that one of the ways the jury could find Paterson 

guilty would be to infer from the recording that Joan’s nose and mouth 

were blocked. According to the prosecutor, the sounds in the recording

show that Paterson used something to cover Joan’s mouth to interrupt 

her screams. The trial court accepted that argument, overruled 

Paterson’s objection, and instructed the jury to consider the alternative 

theories of whether Paterson impeded Joan’s normal breathing or 

circulation by blocking Joan’s nose or mouth.43

On appeal, the State argues that the evidence supported the trial 

court’s ruling to include all the theories of guilt alleged in the indictment. 

According to the State, the audio recording of the assault shows “the jury 

heard the sound of [Joan] screaming, followed by muffled breathing and 

the sound of something covering her mouth.” 

42Chavez v. State, 666 S.W.3d 772, 778 (Tex. Crim. App. 2023) 

(cleaned up). 

43Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017) (“An 

instruction is required if more than a scintilla of evidence establishes [the 

alternative means of committing] the charged offense.”). 
30

We agree that the recording captured Joan screaming. We also 

agree that when considered in the light most favorable to the evidence

the recording captured sounds of Joan’s muffled breathing. Yet we 

disagree the recording captured sounds from which a rational jury could 

conclude by a standard of beyond reasonable doubt that the muffled 

breathing based on Joan’s screams resulted from Paterson’s blocking 

Joan’s nose or mouth. Paterson’s choking Joan, which is what Joan 

testified he did to her, fully accounts for those sounds when coupled with 

Joan’s testimony that she didn’t recall Paterson blocking her nose or 

mouth during the assault.44

On appeal, the State never explains why Joan’s testimony that she 

was choked by the neck doesn’t explain everything heard in the recording 

that Joan captured on her phone.Based on our review of the record, the 

record does no more than raise a suspicion that Joan’s nose or mouth 

might have been covered during the assault, and a suspicion of guilt is 

legally insufficient to support a conviction for assault by strangulation 

44Hooper, 214 S.W.3d at 16.
31

beyond a reasonable doubt.45 On this record, we conclude the trial court 

erred in overruling Paterson’s objection to the charge. 

Since Paterson objected to including the nose and mouth 

alternatives in the charge, we must review the record to determine 

whether the trial court’s error caused Paterson “some harm.”46 “‘Some 

harm’ means actual harm and not merely a theoretical complaint.”47 We 

will reverse if “the error was calculated to injure the rights of the 

defendant.”48 “To assess harm, we must evaluate the whole record, 

including the jury charge, contested issues, weight of the probative 

evidence, arguments of counsel, and other relevant information.”49

When a charge alleges alternative theories of guilt, harm must be 

measured “at least in part, against the likelihood that the jury’s verdict 

was actually based upon an alternative available theory of [guilt] not 

45See Winfrey v. State, 323 S.W.3d 875, 883-84 (explaining that 

evidence that merely raises suspicion of guilt “is legally insufficient to 

support a conviction”). 46Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en 

banc).

47Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020). 48Id. 49Id. 
32

affected by erroneous portions of the charge.”50 In Paterson’s case, the 

jury found Paterson guilty “as charged by the Indictment.” So,the jury’s 

general verdict in Paterson’s case must stand if the evidence in his trial 

is sufficient to support one of the alternative theories of guilt submitted 

in the charge. In this case, one of the alternative theories supported by 

the evidence is that Paterson impeded Joan’s normal breathing or 

circulation of her blood by applying pressure to her throat or neck.51

Here, the trial court’s instructions in the trial court’s charge about 

the presumption of innocence aren’t affected by the erroneous portion of 

the charge. In the charge, the trial court advised the jury that, 

the law does not require a defendant to prove his innocence or 

produce any evidence at all. The presumption of innocence 

alone is sufficient to acquit the Defendant, unless the jurors 

are satisfied beyond a reasonable doubt of the defendant’s 

guilt after careful and impartial consideration of all the 

evidence in the case. 

The charge also instructed the jury that if it had “a reasonable doubt as 

to the defendant’s guiltafter considering all the evidence before you, and 

these instructions, you will acquit him and say by your verdict “Not

50Sanchez, 376 S.W.3d at 775. 51See id.
33

Guilty.” On appeal, a reviewing court presumes that the jurors followed 

the trial court’s instructions when they deliberated on a verdict.52

Consequently, we must presume that if the jurors discussed the claim in 

the indictment that Paterson impeded Joan’s breathing or circulation by 

blocking her nose or mouth, the jury rejected those theories based on 

Joan’s testimony that she did not think Paterson covered her nose or 

mouth during the assault or that she did not remember him doing so. 

Second, we consider the arguments the parties relied on when they 

presented their closing arguments. But even before the attorneys made 

their closing arguments, the trial court instructed the jury that the 

“arguments of counsel are not evidence. They are their interpretation of 

how the evidence in the trial went.” In closing argument, the prosecutor 

told the jury that she could “count four times that [Joan] told you that 

this defendant put his hands around her neck and applied pressure.” 

According to the prosecutor, the evidence showed that “two of those times 

[Joan] said she couldn’t breathe at all.” To be fair (and even though 

52See Miles v. State, 204 S.W.3d 822, 827-28 (Tex. Crim. App. 2006) 

(absent evidence to the contrary, the usual presumption is that the jury 

followed the trial court’s written instructions). 
34

Paterson doesn’t mention it in his brief), we note that the prosecutor told 

the jury to listen to the audio recording when deliberating on its verdict

and to listen to Joan’s screams and the sounds of her muffled voice when 

deciding whether Paterson blocked Joan’s nose or mouth. After telling 

the jury to listen to the recording, the prosecutor told the jury that 

“there’s some inconsistent testimony as it relates to that.” 

In other words, the prosecutor told the jury to listen to the recording 

to decide whether from only the sounds on the recording from Joan’s 

phone the jury could find that Paterson, beyond reasonable doubt, had 

blocked Joan’s nose or mouth.The prosecutoralso argued that “it doesn’t 

matter which way that you believe, which way you believe he impeded 

her breath[ing], whether it’s covering her nose or mouth or whether it’s 

applying pressure to her neck. He did it at least four times.” Yet the four 

times the prosecutor mentioned Paterson “did it” referred to her earlier 

argument in which she discussed Joan’s testimony that Paterson had 

choked Joan four times “to the point her windpipe [was] cut off.” 

Despite the fact the prosecutor discussed the audio recording and 

tried to tie it to the State’s nose-and-mouth theory more than once, we 
35

doubt the jury would have found the argument persuasive. In closing 

argument, the prosecutor conceded that the evidence about whether 

Paterson had blocked Joan’s nose or mouth was “inconsistent.” Our 

conclusion that the jury wouldn’t have been persuaded by the 

prosecutor’s attempt to tie the State’s nose-or-mouth theory to the 

recording is reinforced by the fact that the instructions in the charge 

required the State to prove Paterson’s guilt beyond a reasonable doubt. 

And when Paterson’s attorney presented Paterson’s closing argument, we 

note that he didn’t take any of his time to respond to the State’s noseand-mouth theory of guilt. Instead, Paterson’s attorney argued that Joan 

was lying about the altercation and made an audio recording of the 

incident rather than a video so that she could “concoct a recording[.]” 

Third, the State’s evidentiary case against Paterson was strong. In 

the audio recording ofthe altercation, Joan is heard telling Paterson that 

he’s choking her. Paterson denies that claim, but he responds by telling 

Joan that he will show her what it’s like to be choked. The jury could have 

reasonably inferred that Paterson carried out his threat. Photographs of 

Joan, taken the next day, reflect that Joan had injuries to her body, 
36

injuries that included bruising to her neck. The photographs supportthe 

jury’s conclusion that Joan was choked. Other direct and circumstantial 

evidence supports Joan’s testimony that Paterson used his hand to apply

pressure to Joan’s throat and neck. For example, Joan testified that after

the incident, her throat “really hurt.” She also testified she had pain in 

her throat when she swallowed. Nurse Brookley Torres testified that the 

signs and symptoms of strangulation include throat pain and a raspy or 

hoarse voice. Nurse Torres also described strangulation as “any external 

pressure placed on your neck that could impede your blood flow or air 

flow.” The symptoms Torres described fit the symptoms Joan said she 

suffered after Paterson choked her on April 9th. 

A few days after Joan reported the incident to police, Joan met with 

Detective Minchew. The jury was entitled to view Detective Minchew’s 

report as showing that Joan had been in a recent altercation with her 

husband. Detective Minchew testified that when she met with Joan, Joan 

appeared “overwhelmed[,]” had visible injuries, and was “very scared of 

[Paterson,] as she “didn’t want him to know” that she had reported the 

incident to the police. 
37

Fourth, the defense Paterson offered at trial to the State’s case was 

relatively weak. Paterson argues that he suffered “some harm” because 

Cade Paterson, his son, testified that while he saw his parents arguing, 

Cade never testified that he saw Paterson assault Joan by choking her or 

by covering her nose or mouth with one of his hands. Even so, by Cade’s 

account, he didn’t observe the entire altercation between his parents. 

Cade testified that when his parents began arguing, he was standing at 

the door of their bedroom and the door was open. Cade explained that he 

screamed while standing at the door. When Paterson heard Cade scream, 

he had Joan down on the floor, as Cade told it, and he jumped up and 

“ran to shut the door.” Cade explained that after Paterson shut the door, 

he could no longer see what was going on. According to Joan, when 

Paterson closed the bedroom door, Paterson choked her again. 

Paterson’s defensive theory in the trial was that Joan fabricated the 

assault to obtain custody of their children in their divorce. But as we 

explained, the evidence shows that Joan sued for divorce after the assault

occurred, no evidence shows that Joan had impending plans to divorce 

Paterson in the months before April 9, 2021, and no evidence shows that 
38

when Joan sued for divorce, a disputed custody issue involving their 

children was involved in the proceeding.

To sum it up, we conclude that, beyond a reasonable doubt, the trial 

court’s error did not materially affect the jury’s deliberations to 

Paterson’s detriment and did not contribute to the jury’s verdict. 

Accordingly, balancing the factors in Sanchez, we conclude the trial 

court’s error in submitting alternative theories of guilt that were 

unsupported by evidence was harmless.53 Paterson’s third issue is 

overruled. 

Conclusion

We affirm the trial court’s judgment. 

AFFIRMED.

HOLLIS HORTON

Justice

Submitted on August 21, 2023

Opinion Delivered January 17, 2024

Do Not Publish

Before Horton, Johnson and Wright, JJ.

53Sanchez, 376 S.W.3d at 775-76.