McGlothlin v. State

• Decision Date: 08 March 1995
• Docket Number: No. 022-94,022-94
• Citation: 896 S.W.2d 183
• Parties: Curtis McGLOTHLIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 183

896 S.W.2d 183

Curtis McGLOTHLIN, Appellant, v. The STATE of Texas, Appellee.

No. 022-94.

Court of Criminal Appeals of Texas,

En Banc.

March 8, 1995.

Phil Robertson, Clifton, for appellant.

Andy J. McMullen, Ben L. Stool, Dist. Attys., Hamilton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of aggravated sexual assault and sentenced to 20 years confinement and a $10,000 fine. Tex.Penal Code Ann. § 22.021. The Court of Appeals affirmed. McGlothlin v. State, 835 S.W.2d 267 (Tex.App.--Eastland 1992). On original submission, we remanded the case to the Court of Appeals for reconsideration in light of Vernon v. State, 841 S.W.2d 407 (Tex.Cr.App.1992). McGlothlin v. State, 848 S.W.2d 139 (Tex.Cr.App.1992). On remand, the Court of Appeals held the trial judge erroneously admitted extraneous offense evidence. McGlothlin v. State, 866 S.W.2d 70, 71 (Tex.App.--Eastland 1993). However, the Court of Appeals, relying on DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985), held appellant waived the error by "unequivocally admitting his guilt." McGlothlin, 866 S.W.2d 70, 72 (Tex.App.--Eastland 1993). We granted review to determine the continued viability of the DeGarmo doctrine. ¹ We will affirm.

I.

A.

In February 1988, appellant, the Meridian Police Chief, became romantically involved with the twelve year old complainant. The first sexual contact, the charged offense, occurred on or about December 20, 1988. At trial, the complainant testified the sexual relationship lasted two years and involved oral sex and/or sexual intercourse once or twice a week. She further testified there were 50-60 such encounters occurring in appellant's house, his office, his police car and his personal car. Appellant's objections to the admission of these extraneous offenses were overruled. The relationship ended with appellant's arrest in February, 1991.

Appellant did not testify at the guilt/innocence phase of the trial. However, he did testify at the punishment phase and, on direct examination, admitted the charged offense. On cross-examination, appellant admitted, without objection, the extraneous offenses.

B.

On direct appeal, appellant contended the trial judge erred by admitting the extraneous offense evidence during the guilt/innocence phase of the trial. The Court of Appeals, relying on Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985), held the extraneous offenses admissible to show the broad context in which the charged offense occurred. McGlothlin, 835 S.W.2d at 269-270 n. 1. However, in Vernon, we held such evidence was admissible in only two circumstances: 1) if the "repetition of unnatural acts" was relevant to prove an elemental fact of the offense charged (as is necessary under Tex.R.Crim.Evid. 402 and 404(b)); or, 2) if the credibility of the child victim is called into question, and the evidence is relevant to prove an element of the offense charged. Vernon, 841 S.W.2d at 411. Vernon was decided after the promulgation of Tex.R.Crim.Evid. 404(b) which codified the general rule which prohibited the admission of extraneous offenses. Id.

Because the Court of Appeals delivered its opinion prior to our opinion in Vernon, we remanded the case to the Court of Appeals for further consideration in light of Vernon. On remand, the Court of Appeals held the trial court erred in admitting the extraneous offenses during the guilt/innocence phase. McGlothlin, 866 S.W.2d at 71. However, the Court of Appeals, relying on DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985), held appellant waived the error when he admitted committing the charged offense. McGlothlin, 866 S.W.2d at 71-73.

II.

A.

Over the years we have developed a doctrine of waiver akin to the doctrine of curative admissibility. See generally, Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985); and, n. 9, infra. Under this doctrine, 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. For example, in Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970), the defendant voluntarily testified at the punishment phase of his trial, admitted the charged offense of rape, and asked the jury for mercy. On appeal, the defendant contended the trial court erred in denying his motion to suppress the in-court identification of the prosecutrix and challenged the sufficiency of the evidence to support the conviction. We held the defendant could not question the sufficiency of the evidence or the in-court identification after voluntarily confessing. Id., 458 S.W.2d at 666.

Two years later, in Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1972), the defendant voluntarily testified at the punishment phase of his trial and admitted the charged offense. Id., 474 S.W.2d at 219. On appeal, he challenged the sufficiency of the evidence. However, relying on Richardson, we affirmed, holding the defendant could not challenge the sufficiency of the evidence. Id., 474 S.W.2d at 221.

In DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985), we again addressed the issue of whether a defendant could challenge the sufficiency of the evidence, on appeal, after admitting his guilt to the crime for which he has been convicted. ² At the time of our consideration of DeGarmo, the parties agreed that if a defendant did not testify at the guilt stage of the trial, but testified at the punishment stage of the trial, and admitted his guilt, he had, for legal purposes, entered the equivalent of a plea of guilty. The DeGarmo Court stated:

... The law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial.

Id., 691 S.W.2d at 661. ³ The Court reaffirmed the doctrine of waiver and overruled DeGarmo's challenge to the sufficiency of the evidence. Ibid. See also, Palmer v. State, 475 S.W.2d 797, 798 (Tex.Cr.App.1972); Sims v. State, 502 S.W.2d 730, 731 (Tex.Cr.App.1973) (The Court would not consider the lawfulness of a search where defendant admitted possession of heroin.); Sheridan v. State, 485 S.W.2d 920, 921 (Tex.Cr.App.1972) ("The appellant, having voluntarily taken the stand at the penalty stage and ... admitted having marihuana in his possession, cannot question the lawfulness of the search wherein the marihuana was seized."); Jones v. State, 484 S.W.2d 745, 747 (Tex.Cr.App.1972) (The Court would not consider the lawfulness of search where defendant admitted possession of marihuana.); McKenzie v. State, 487 S.W.2d 65 (Tex.Cr.App.1972); Creel v. State, 493 S.W.2d 814, 819 (Tex.Cr.App.1973) (The defendant's admissions constitute a waiver and render it immaterial whether the search was made upon probable cause.); Lasker v. State, 573 S.W.2d 539, 543 (Tex.Cr.App.1978) (The defendant may not, on appeal, challenge the sufficiency of the evidence after testifying at the punishment phase and admitting the offense.); Villareal v. State, 811 S.W.2d 212 (Tex.App.--Houston [14th Dist.] 1991); Gordon v. State, 651 S.W.2d 793 (Tex.Cr.App.1983); Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981); Brown v. State, 617 S.W.2d 234, 236 (Tex.Cr.App.1981) ("... [I]f the defendant chooses to testify at the punishment stage of the trial, but not at the guilt-innocence state, he may waive ... evidentiary objections made during the guilt-innocence state of the trial."); and, Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978). ⁴ This doctrine of waiver has also been criticized. Gordon, 651 S.W.2d at 794 (Teague, J., concurring); and, Herbert v. State, 827 S.W.2d 507, 510 (Tex.App.--Houston [1st Dist.] 1992, no pet.) (Cohen, J., concurring). ⁵

Because of the infamy of the case, this concept of waiver has come to be known as the DeGarmo doctrine. See, n. 2, supra. The DeGarmo doctrine has been described as a "common-sense rule of procedure," Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978), because "the function of trial is to sift out the truth from a mass of contradictory evidence...." In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 80, 90 L.Ed. 30 (1945). Stated another way, "The basic purpose of a trial is the determination of truth." Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). See also, Duggan v. State, 778 S.W.2d 465 (Tex.Cr.App.1989); Lankford v. Idaho, 500 U.S. 110, 127, 111 S.Ct. 1723, 1733, 114 L.Ed.2d 173 (1991); Brown v. Wainwright, 537 F.2d 154 (5th Cir.1976). 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. ⁶

B.

Appellant offers four reasons to overrule or limit the application of DeGarmo. We will address these contentions in the order presented.

1.

Appellant first contends the DeGarmo doctrine is unconstitutional because it violates due process, double jeopardy and, in appellant's case, his right to present evidence. In support of this contention, appellant argues the DeGarmo doctrine conflicts with Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). See also, Herbert v. State, 827 S.W.2d 507, 510 (Tex.App.--Houston [1st Dist.] 1992, no pet.) (Cohen, J., concurring). However, Burks and Greene are readily distinguishable from the case at bar. In Burks and Greene, the issue was whether jeopardy barred a retrial after an appellate court finding of insufficient evidence. The Supreme Court held that if the error was trial error, the case could be retried without violating the prohibition against double jeopardy. However, if the appellate court...