Resendez v. State

• Decision Date: 03 March 2005
• Docket Number: No. 13-01-183-CR.,13-01-183-CR.
• Citation: 160 S.W.3d 181
• Parties: Xavier Rolando RESENDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

Page 181

160 S.W.3d 181

Xavier Rolando RESENDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-01-183-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 3, 2005.

COPYRIGHT MATERIAL OMITTED

Arnoldo R. Pena, Brownsville, for appellant.

Armando R. Villalobos, Dist. Atty., Cynthia L. Garza, Court Reporter, Brownsville, for appellee.

Before the Court En Banc.

OPINION

Opinion by Justice GARZA.

On the Court's motion, Resendez v. State, No. 13-01-183-CR, 2004 WL 1795270 (Corpus Christi, August 12, 2004, no pet. h.) is withdrawn and this en banc opinion is issued. See TEX.R.APP. P. 49.7.

Appellant, Xavier Rolando Resendez, was convicted of bribery with enhancement after a jury trial and was sentenced to fifteen years' imprisonment and a fine of $5,000. Appellant appeals his conviction to this Court in three issues. We conclude appellant was not entrapped, the trial court did not make improper comments and remarks, and appellant's counsel provided effective representation. We affirm the judgment of the trial court.

I. Background

In July of 2000, Michael Garza, a bail bondsman in Cameron County, Texas, contacted the district attorney's office and informed Rebecca Rubane, an assistant district attorney, that his client, Xavier Resendez, had asked Garza if there was any way to dispose of charges against him for cocaine possession "under the table" (i.e., by bribing someone at the district attorney's office). Garza agreed to record a telephone conversation between himself and appellant and to provide appellant the name and telephone number of an undercover agent posing as Rubane's boyfriend in order to facilitate a sting operation. Upon receiving the undercover agent's name and number from Garza, appellant immediately contacted the agent and discussed the price for getting his charge dismissed. Appellant then called Garza one more time, complaining about the high price being demanded. These calls were all recorded and transcribed.

Appellant and the undercover agent then had a series of telephone conversations and personal meetings where appellant provided cash payments for the bribe. Appellant also requested that the agent pass bribes to Rubane on behalf of his brother and his friend and negotiated the price for each additional bribe. A total of $7,800 in cash was delivered to the undercover agent by appellant for these bribes. All phone calls and personal meetings involving appellant were recorded by the agent. Appellant was then arrested and indicted for bribery.

Appellant pled not guilty at trial, claiming that he was entrapped by the actions of Garza, his bail bondsman and initial contact. While on the stand during the punishment phase of the trial, appellant admitted to committing bribery. On appeal, appellant argues: (1) the evidence was legally insufficient to support his conviction for the offense of bribery, as evidence of entrapment provided a defense to prosecution; (2) the trial court erred by making improper comments and remarks regarding evidence presented at trial; and (3) appellant's trial counsel provided ineffective assistance of counsel. We address each issue in turn.

II. Legal Sufficiency

Appellant argues by his first issue that the evidence is legally insufficient to support his conviction for bribery. He claims that his defense of entrapment was successfully raised and thus constitutes a bar to prosecution. The State argues that appellant waived his right to challenge the sufficiency of the evidence when he admitted his guilt at the punishment phase of trial and that, in any event, the evidence is sufficient to support his conviction.

A. The De Garmo Doctrine

We first address the question of waiver: does the De Garmo doctrine bar appellant from challenging the legal sufficiency of the evidence? The State argues that because appellant admitted guilt during the punishment phase of trial, the De Garmo doctrine prevents him from challenging the legal sufficiency of the evidence. See De Garmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.1985). After reviewing the parties' briefs and the case law, we conclude that appellant is not barred from challenging the legal sufficiency of the evidence on appeal.

The De Garmo doctrine is a doctrine of waiver: a defendant's admission of guilt at the punishment phase of trial waives all non-jurisdictional errors that may have occurred at the guilt phase of trial. See Reyes v. State, 971 S.W.2d 737, 737 (Tex. App.-Houston [14th Dist.] 1998) (citing De Garmo, 691 S.W.2d at 660-61), rev'd, 994 S.W.2d 151, 152 (Tex.Crim.App.1999). Despite the widespread attention given to the De Garmo doctrine, its potency is far weaker—at least against legal-sufficiency challenges—than its reputation has led some to believe.

We begin with Leday v. State, 983 S.W.2d 713, 720-26 (Tex.Crim.App.1998). In Leday, the court of criminal appeals abandoned the De Garmo doctrine as applied to certain constitutional, legal, and social guarantees—what the court described as "due process and those individual rights that are fundamental to our quality of life." Id. at 725. One of these "guarantees" is that the judgment in a criminal trial must be supported by proof beyond a reasonable doubt. Id. Thus, under a literal reading of Leday, a legal-sufficiency challenge is not waived by a defendant's admission of guilt at the punishment phase. See id. at 725-26.

Unfortunately, the holding in Leday is not as broad as it appears. Leday did not involve a challenge to the sufficiency of the evidence; the issue was whether the trial court erred by admitting evidence over the defendant's objection. Id. at 715. Thus, the holding in Leday is limited to the court's resolution of the issue presented: a defendant's admission of guilt does not waive a court's erroneous admission of evidence. See id. at 724-26.

In reaching this holding, the Leday court addressed and refuted the numerous justifications offered for the De Garmo doctrine, including, among other things, waiver, estoppel, harmless error, characterization of the doctrine as a "common-sense rule of procedure," and any "analogy to the guilty plea." See id. at 720-26. Although the court's analysis was strongly worded, the Leday decision did not overrule the De Garmo doctrine completely. Leday involved only one issue: the admissibility of evidence. See id. at 724-26. To the extent Leday overruled the De Garmo doctrine, it did so only on that issue.

We are thus back where we started: does the De Garmo doctrine preclude appellant from challenging the legal sufficiency of the evidence? We find the answer in the holding of the De Garmo opinion itself. In De Garmo, the defendant admitted guilt at the punishment phase of trial. De Garmo, 691 S.W.2d at 660. He then challenged the legal sufficiency of the evidence on appeal. Id. at 660-61. After submission of the case, the court of criminal appeals "carefully reviewed the evidence" and found it "more than sufficient to sustain the verdict of the jury...." Id. at 661. According to the court, the evidence "would permit a rational trier of fact to find guilt beyond a reasonable doubt." Id.

At this point, the holding of the De Garmo case ends and "the De Garmo doctrine" begins. Despite its conclusion that the evidence was sufficient, the court stated that a defendant such as De Garmo, who admits guilt at the punishment stage of trial, "not only waives a challenge to the sufficiency of the evidence ... but ... also waives any error that might have occurred during the guilt stage of the trial." De Garmo, 691 S.W.2d at 661. This "breathtaking" statement—now called the De Garmo doctrine—is not the actual holding of the De Garmo case: the De Garmo doctrine was not applied in the De Garmo case. Leday, 983 S.W.2d at 722-23 ("Having made, without citation of authority, this sweeping statement, De Garmo has a justifiable claim to its eponymous status in this area of the law."). As the Leday court later explained, "the De Garmo doctrine portion of the De Garmo opinion is dictum, since the Court proceeded to consider and overrule the sufficiency of the evidence point that De Garmo raised." Id. at 723 n. 14.

The State's brief cites no post-De Garmo precedent from the court of criminal appeals in which a legal sufficiency issue was held to be waived by a defendant's admission of guilt during the punishment phase of trial.¹ This Court has also failed to uncover any such precedent. We are thus faced with a choice between the "ill-written dictum" of De Garmo and De Garmo's actual holding. See Reyes, 994 S.W.2d at 153 (describing the De Garmo doctrine as "ill-written dictum"). For the reasons articulated in Leday, which are excerpted below,² we decline to follow the De Garmo doctrine. See id. at 720-26. We hold that a defendant's admission of guilt during the punishment phase of trial does not waive errors related to the legal sufficiency of the evidence.

In reaching this conclusion, we note, as did the court in Leday, that the De Garmo doctrine is consequential only when an admittedly guilty person has been convicted. Id. at 724. But "the ascertainment of truth is not the only objective of our law of criminal procedure." Id. "We as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial." Id. "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." Id. at 725 (quoting Morrison v. State, 845 S.W.2d 882, 884 (Tex.Crim.App.1992)). Among these is the fundamental right that the judgment in a criminal trial be supported by proof beyond a reasonable doubt. Id. This right is not waived by a defendant's admission of guilt after the jury has returned its verdict. See Leday, 983 S.W.2d at 726 ("Insofar as the De Garmo doctrine estops a defendant from raising on appeal a violation of any of these guaranties, it cannot be justified on the ground that the...