Houston v. State, 03-04-00725-CR.

• Decision Date: 13 April 2006
• Docket Number: No. 03-04-00725-CR.,03-04-00725-CR.
• Citation: 208 S.W.3d 585
• Parties: Sherman Lee HOUSTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

208 S.W.3d 585

Sherman Lee HOUSTON, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00725-CR.

Court of Appeals of Texas, Austin.

April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Teresa A. Duffin, Law Office of Teresa Duffin, Round Rock, for appellant.

John M. Bradley, District Attorney, Doug Arnold, Assistant District Attorney, Georgetown, for appellee.

Before Justices B.A. SMITH, PATTERSON and PURYEAR.

OPINION

BEA ANN SMITH, Justice.

A jury convicted Sherman Houston of the offense of delivery of a controlled substance in the amount of four grams but less than two hundred grams and assessed punishment at forty-five years in prison. See Tex. Health & Safety Code Ann. § 481.112 (West 2003). In his first issue, Houston contends that the trial court abused its discretion by admitting extraneous evidence of two later delivery offenses. In his second and third issues, Houston challenges both his conviction and sentence, contending that he was denied the effective assistance of counsel. We affirm the district court's judgment.

BACKGROUND

Over a period of approximately six months in 2003, the U.S. Drug Enforcement Administration ran an undercover drug operation in Taylor. Detective Gary Haston, an officer from the Williamson County Sheriff's Department, participated in the investigation as an undercover purchaser of controlled substances. In his undercover role, Detective Haston began purchasing crack cocaine from Joyce Harris. Detective Haston first met Sherman Houston through Harris on May 29, 2003. On that day, Harris used Houston's cellular phone to inform Detective Haston that she could procure an ounce of crack cocaine for him to purchase. Detective Haston agreed to meet Harris in Taylor to complete the transaction.

While en route to Taylor, Detective Haston noticed that Houston and Harris were following him in Houston's car. They followed him to a gas station in Taylor, where they all met to discuss the details of the planned crack cocaine purchase. Detective Haston testified that Houston was actively involved in these initial negotiations. Harris and Houston informed Detective Haston that the delivery would occur at another location in Taylor. When Detective Haston expressed some reservations about going to a second location, Houston persisted in trying to convince him to go through with the deal. In urging him, Houston told Detective Haston "all you've got to do is just follow me and give me the money," and "they've been buying them [crack cocaine] all day."

Harris accompanied Detective Haston in his car, and Houston followed them to the delivery location. Once they arrived, Houston pulled his car behind a parked vehicle that Detective Haston identified as belonging to the supplier of the crack cocaine. Detective Haston parked in front of the supplier's car. The car had the hood up, obscuring Detective Haston's view of the occupants. Houston entered the supplier's vehicle to confer with the supplier for a few moments. Then he approached Detective Haston, saying that the source wanted the money up front. Detective Haston refused to give Houston any money until he saw the cocaine. Houston tried to talk Detective Haston into giving him the money, going back and forth between the supplier's vehicle and Detective Haston's vehicle as he tried to broker the deal.

When it became clear that the negotiations had reached a stalemate, Harris became actively involved in the transaction. She persuaded Detective Haston to give her $200. Harris took the money to the supplier's car and returned with a "cookie" of crack cocaine. Detective Haston was reluctant to pay $500, the previously negotiated price for the cookie, because he thought that it weighed less than an ounce. Houston again tried to convince Detective Haston to buy the cookie, saying that he thought it was worth $450. Ultimately, Harris negotiated a lower price of $400 for the cookie. Detective Haston gave Harris another $200, which she delivered to the supplier in his car. Upon completion of the deal, Detective Haston paid Houston and Harris $20 and $40, respectively, for their roles in the transaction.

Over Houston's objection, evidence was introduced regarding Houston's participation in two subsequent drug transactions on June 11, 2003. Detective Haston testified that he twice purchased crack cocaine from Houston and Harris on that date. Although Houston's participation in these transactions was minimal, Detective Haston testified that Houston and Harris acted as partners in the two transactions on June 11, 2003. Detective Haston testified that he paid Houston for helping to facilitate the two deals.

A jury found Houston guilty of the offense of delivery of a controlled substance. At the punishment phase of trial, Houston testified that he was guilty of the crime for which he had been convicted. In his testimony regarding his role in the May 29th delivery, Houston characterized himself as "just a runner." The jury assessed his punishment at forty-five years in prison.

DISCUSSION

Extraneous Offense Evidence

In his first issue, Houston contends that the district court erred in admitting extraneous evidence of multiple drug deliveries on June 11, 2003. See Tex.R. Evid. 403, 404(b). The State responds that Houston is estopped from challenging the admission of extraneous offense evidence on appeal because he admitted that he was guilty of the current offense at the punishment phase of the trial. See Leday v. State, 983 S.W.2d 713, 715 (Tex.Crim.App. 1998); McGlothlin v. State, 896 S.W.2d 183, 189 (Tex.Crim.App.1995); DeGarmo v. State, 691 S.W.2d. 657, 660-61 (Tex. Crim.App.1985). In DeGarmo, the court of criminal appeals held that a defendant may not complain on appeal of an error occurring at the guilt phase of the trial when the defendant admits his guilt at the punishment phase of trial. 691 S.W.2d at 661.

In McGlothlin, the court of criminal appeals reaffirmed the DeGarmo doctrine. 896 S.W.2d at 189. The McGlothlin court held that under the DeGarmo doctrine, erroneous admission of extraneous offense evidence in the guilt phase was waived by the defendant's admission of guilt in the punishment phase. Id. In McGlothlin, the court noted the truth-seeking purpose behind the DeGarmo doctrine:

When the defendant testifies and judicially confesses to the charged offense, the purpose of the trial process has been served—the truth has been determined and the purpose of the guilt/innocence phase of the trial has been satisfied. No reversible error should occur where the defendant has satisfied the necessity of the trial process.

Id. at 187.

However, later decisions have blurred the seemingly bright-line rule that a defendant who admits guilt at the punishment phase waives a challenge to any error that might have occurred during the guilt stage of the trial. In Leday, the court of criminal appeals significantly restricted the De-Garmo doctrine, recognizing that "[w]e as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial." 983 S.W.2d. at 724. The court explained that the need to protect some fundamental rights outweighs the truth-seeking function of a criminal trial. Id. at 724-25; see also Morrison v. State, 845 S.W.2d 882, 884 (Tex.Crim.App.1992) ("Due Process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.").¹

Leday did not specifically address erroneous admission of extraneous offense evidence. However, in determining whether an error falls within an exception under Leday, we look to the distinction between the truth-seeking function and the fundamental rights of the accused. In Gutierrez v. State, this Court explained, "Leday requires us to determine if appellant asserts fundamental rights or guaranties, or whether the truth-finding function prevails to estop appellant from raising them." Gutierrez v. State, 8 S.W.3d 739, 745 (Tex. App.-Austin 1999, no pet.).

This inquiry requires us to examine the nature and purpose of rules of evidence 403 and 404(b). "Cases and commentaries interpreting the Federal Rules of Evidence are instructive in our construction of similarly worded phrases in our own rules." Coffin v. State, 885 S.W.2d 140, 148 n. 4 (Tex.Crim.App.1994). Texas Rules of Evidence 403 and 404(b) are virtually identical to Federal Rules of Evidence 403 and 404(b). See 1 Steven Goode et al., Guide to the Texas Rules of Evidence §§ 403.1, 404.1 (3d ed.2003). In the context of Federal Rule of Evidence 404(b), the United States Supreme Court examined the history and purpose of the rule:

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character . . . but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (footnotes omitted and emphasis added); see also Old Chief v. United States, 519 U.S. 172, 181-82, 117 S.Ct. 644, 136...