Leday v. State

• Decision Date: 16 December 1998
• Docket Number: No. 1125-97,1125-97
• Parties: Tyrone Keith LEDAY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 713

983 S.W.2d 713

Tyrone Keith LEDAY, Appellant, v. The STATE of Texas.

No. 1125-97

Court of Criminal Appeals of Texas,

En Banc.

Dec. 16, 1998.

Donald W. Rogers, Jr., Houston, for appellant.

Gail Kikawa McConnell, Asst. Dist. Atty., Conroe, Matthew Paul, State's Atty., Austin, for State.

OPINION

WOMACK, J., delivered the opinion of the Court, in which OVERSTREET, MEYERS, MANSFIELD, PRICE, and HOLLAND, JJ., joined.

This case calls for us to reconsider the effect of a defendant's admissions of guilt at the guilt stage and at the punishment stage of a bifurcated trial--the so-called "curative admissibility" and "DeGarmo " doctrines.

I.

The appellant was indicted for possession of 28 grams or more of cocaine, a felony which at the time of the offense (November 24, 1993) was punishable by confinement for life or a term of 5 to 99 years and a fine not to exceed $50,000. ¹ His motion to suppress the cocaine and testimony about it, on grounds of unlawful search and seizure, was denied. The appellant pleaded not guilty, and the case was tried before a jury.

The State presented the evidence that the appellant had sought to suppress: The appellant was the passenger in a vehicle which a deputy constable stopped for speeding. The officer's dog, which was trained to detect narcotics, began barking in the officer's car. The driver asked if the dog would bite someone who had cocaine on their person. The officer said no. The driver asked the officer to take a bag out of her coat pocket in such a way that the appellant could see that she was not giving it willfully. The bag contained about 124 grams of "crack" cocaine. The driver and the appellant were arrested and taken to the constable's office. After talking to the driver, the officer searched the appellant's shoes and found about 28 more grams of "crack" cocaine.

After the State rested, the appellant testified that a long-time acquaintance in Dubach, Louisiana had given him $800 to go with the driver on a "drug run" to Houston. They went to a McDonald's where he gave a woman $9,800 and obtained the cocaine. The appellant was aware that he had the packages of cocaine in his shoes, but not that the driver had cocaine. He agreed with the prosecutor that he was not telling the jury that he was not guilty, but that he took issue with how the evidence was recovered. His testimony about the stop of the vehicle and the searches and arrests was different from that of the officers.

The jury was charged to disregard the evidence found in the search of the appellant if they had a reasonable doubt that the vehicle was properly stopped or that the officer had probable cause to arrest the appellant. See Code of Criminal Procedure article 38.23. The verdict was "guilty."

At the punishment stage of the trial, the appellant testified that he agreed to do the "drug run" for money he could use to repay a student loan. The jury assessed a punishment of 20 years' confinement and a $20,000 fine.

On appeal the appellant argued in two points that the trial court erred in admitting the cocaine over his motion to suppress. In a supplemental brief, filed after the State's brief, the appellant argued that his testimony was impelled by the illegal action of the State. The court of appeals said:

The record before us indicates appellant took the witness stand during both the guilt/innocence phase and the punishment phase. At both phases, appellant admitted to being in intentional and knowing possession of the contraband in question. Under the DeGarmo doctrine, which was reaffirmed in McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Crim.App.), cert. denied, 516 U.S. 882, 116 S.Ct. 219, 133 L.Ed.2d 150 (1995), any error occurring at the guilt/ innocence phase of the trial is deemed to be waived if the defendant admits his guilt to the charged offense during the punishment phase of the trial. We carried the DeGarmo doctrine a step further in McWhorter v. State, 911 S.W.2d 538, 540 (Tex.App.--Beaumont 1995, no pet.), holding that a defendant's admission to the offense during the guilt/innocence phase of the trial also waives any error occurring during that portion of the trial. In the instant case, having admitted to knowing possession of the cocaine in question during both phases of the trial, any error that occurred during the guilt/ innocence phase was waived. Points of error one and two are overruled.

Leday v. State, No. 09-95-361-CR, 1997 WL 354770 (Tex.App.--Beaumont, June 25, 1997) (unpublished) (footnotes omitted).

We granted the appellant's petition for discretionary review to consider whether the appellant "waived error" under the "DeGarmo doctrine." See DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.), cert. denied, 474 U.S. 973, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985).

II.

One question is common to the issues before us: how is the review of appellate points that complain of the admission of evidence affected by other evidence that was received without objection? Analysis of these issues is made more difficult by the terminology we have used; we have used the same term to refer to different situations, and different terms to refer to identical situations. We are not unique in these failings, which affect even academic writers.

Once the objector has made a timely, specific objection of record in compliance with [Federal] Rule [of Evidence] 103(a)(1), he has done all the Rules require to preserve the point for review. There are, however, a number of doctrines that an opponent may dredge up from the books to defeat review, despite compliance with the Rule. In considering the vitality of these doctrines, analysis must be quite tentative for there is little agreement among commentators on the nomenclature, much less the substantive effect of these doctrines. They are variously referred to as "waiver," "estoppel," "opening the door," "fighting fire with fire," and "curative admissibility."

21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 (1977).

We have gone the commentators one better (or worse) by using "waiver" not only to refer to doctrines that defeat review of a ruling on a timely, specific objection, but also to refer to the failure to make a timely, specific objection. See, e.g., Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Cr.App.1997); McCain v. State, 139 Tex.Crim. 539, 141 S.W.2d 613, 616 (1940). As we shall explain below, "waiver" is not the best term to use in this area, although it has its academic defenders.

We also have muddied the waters by misusing the term "curative admissibility." See Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, 1 Texas Practice--Guide to the Texas Rules of Evidence, Civil and Criminal § 103.1 (2d ed.1993). In the common law of evidence, the doctrine of curative admissibility allows one party to introduce evidence that might otherwise be excluded, to counter the unfair prejudicial use of the same evidence by the opposing party. 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n. 4 (1977). In his Treatise on Evidence § 15 (3d ed.1940), Wigmore stated the issue that underlies the doctrine of curative admissibility:

Does one inadmissibility justify or excuse another? If the one party offers an inadmissible fact which is received, may the opponent afterwards offer similar facts whose only claim to admission is that they negative or explain or counter-balance the prior inadmissible fact?

In such a situation, the admissibility of the opponent's evidence is based on the need to cure the earlier error in receiving evidence--literally, "curative admissibility." McCormick used the homelier terms, "fighting fire with fire" and "opening the door." See McCormick on Evidence § 57 (3d ed.1972).

Thus, the doctrine of curative admissibility, correctly identified, is closely related to the doctrine of optional completeness codified in Texas [Rule of Evidence] 107. Curative admissibility, as the term itself suggests, is a doctrine of admissibility, not of harmless error. In the cases where the Court of Criminal Appeals misuses the term, admissibility of the defendant's responsive evidence is not challenged. If it were, the true doctrine of curative admissibility would apply and provide admissibility. The issue in these cases is whether the evidence presented by the defendant in response to inadmissible evidence improperly admitted over his objection has the effect of rendering the error harmless, or of "waiving" it. This is a matter quite distinct from curative admissibility.

Steven Goode et al., supra, at 12. Since the rule of harmless error (or "waiver") in admitting evidence is quite different from the common law doctrine of curative admissibility, how is it that we gave the former rule the latter name?

So far as we can tell, the first use by a Texas appellate court of the term "curative admissibility" was in Thomas v. State, 572 S.W.2d 507, 513 (Tex.Cr.App.1978):

It has long been the rule of this state that the admission of improper evidence cannot be urged as grounds for reversal where the defendant gives testimony on direct examination which establishes the same facts as those objected to. [Citations omitted.] This principle is sometimes referred to as the doctrine of curative admissibility. 5A C.J.S. Appeal and Error § 1724[ (c) ](3)(b) at 954 (1958).

At the cited page of Corpus Juris Secundum is a black-letter statement of law which supports the rule stated in the Thomas opinion: "The conduct of parties or counsel may be such as to render error in admitting evidence harmless, as where the party complaining introduces, or fails to object to the admission of, improper evidence." And just under that black-letter statement, the words "curative admissibility" do appear as a boldface catchline in a long footnote. But the footnote is to a preceding section of the article, not to the section that contains the relevant rule. It therefore seems likely that the misuse of the term ...