Wilkerson v. State, 684-86

• Citation: 736 S.W.2d 656
• Decision Date: 01 July 1987
• Docket Number: No. 684-86,684-86
• Parties: Diane WILKERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 656

736 S.W.2d 656

Diane WILKERSON, Appellant, v. The STATE of Texas, Appellee.

No. 684-86.

Court of Criminal Appeals of Texas,

En Banc.

July 1, 1987.

George Trimber, Richard Alley, Fort Worth, for appellant.

Tim Curry, Dist.Atty. and C. Chris Marshall, Delonia A. Watson, Charles Brandenberg & Richard Roper, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was indicted in a two count indictment for possession of phenmetrazine of more than 400 grams and possession of hydromorphone of less than 28 grams. The controlled substances were alleged to have been possessed on or about September 23, 1983.

After the State waived the second count of the indictment, the appellant entered a plea of guilty before a jury to the first count, possession of phenmetrazine of more than 400 grams. See Article 4476-15, § 4.042, V.T.C.S. The jury assessed punishment at 11 years' imprisonment.

On appeal in a sole point of error appellant urged that the "trial court erred in allowing prejudicial testimony regarding value and use of pills which was irrelevant to a plea of guilty to possession of a controlled substance as a result of which appellant was denied a fair trial on the punishment." (Emphasis supplied.)

Under this point of error appellant calls attention only to Officer Ansley's testimony "regarding the price of phenmetrazine (preludin) and hydromorphone (dilaudid) as being irrelevant and prejudicial to the issue of possesion of phenmetrazine." In argument under said point of error passing reference only is made as to testimony as to "use." This portion of the contention was not briefed. ¹

Rejecting appellant's contention, a divided Court of Appeals affirmed the conviction. Wilkerson v. State, 707 S.W.2d 756 (Tex.App.-Ft. Worth 1986).

In his petition for discretionary review, appellant's sole ground of review stated:

"The majority of the Court of Appeals erred in finding no reversible error from the trial court having admitted testimony offered by the State as to the value and effects of hydromorphone. At the punishment phase of the prosecution for possession of phenmetrazine where punishment was the sole punishment issue before the jury."

We granted appellant's petition to determine the correctness of the Court of Appeals' decision to affirm the judgment of conviction.

At the outset we observe after further examination that appellant not only narrowed the contention urged before the Court of Appeals, but shifted his complaint about the admission of testimony concerning the "value and use of pills " to "value and effects of hydromorphone."

The record shows that on September 23, 1983, Estella Sanchez, a pre-board screener for American Airlines at Dallas-Ft. Worth Airport, spotted a large number of "pills" in the duffel bag belonging to appellant. Sanchez called Department of Public Safety Officer Frank Guerra who examined the "pills" in the bag in which he also found $1,429.00 in cash. Appellant was arrested. Other officers, including DPS Officer Deel, testified as to the chain of custody of the "pills." There were stipulations that the pills were 1,560 tablets of phenmetrazine and 285 tablets of hydromorphone, and the amount of phenmetrazine was 883.5 grams.

Officer Larry Ansley, a narcotics agent with the Ft. Worth Police Department, testified as to his education and training in the field of narcotics. He related that phenmetrazine was also known as preludin and "speed." He testified the value of both the phenmetrazine and the hydromorphone found in appellant's duffel bag would be $37,775.00. He further testified how such drugs were normally used, the number of tablets utilized in a "fix," the method of preparation and that the drugs were usually injected into the veins. In another part of his testimony he was asked and related the effects of phenmetrazine upon a human, but he did not testify as to the effects of hydromorphone.

Dr. Angela Coretta Springfield, Chief Toxicologist with the Tarrant County Medical Examiner's office, testified as to the effects of both phenmetrazine and hydromorphone on the human body.

Appellant recalled Officer Guerra, who testified the money found in a side pocket of the duffel bag was counted in the appellant's presence, but not the pills. Appellant's sister testified appellant had a good reputation for being a peaceful and law-abiding citizen. Appellant, 34, testified she had never been convicted of a felony; that she did not use drugs nor know anything about them. She related she and her three children lived with her father in Lubbock and she took care of him and paid his bills, etc. She testified that she had been employed at the Pizza Inn in Lubbock and there had met a woman customer named Shirley whose last name and her address were unknown. She stated Shirley offered her $500.00 to go to Ft. Worth and bring back some diet pills, that she would be paid upon her return to Lubbock and be reimbursed for the round trip airline ticket. Appellant testified she wanted the "quick money" and upon arriving at the airport she went by taxi to the Greentree Motel where according to instructions she sat at a table and an unknown blonde-haired woman (who had been described to her) came and picked up her duffel bag and took it to the restroom, and then returned the bag. Appellant then went to the waiting taxi and returned to the Dallas-Ft. Worth airport where she was stopped while going through a security check. She admitted she lied when she told the officers she had a prescription for the pills. She claimed that $700.00 of the money in her bag was hers or her father's and was in the bag when the blonde woman took the bag, and she didn't know the origin of the balance of the funds found. On cross-examination appellant stated she thought the motel was the Greentree, but it could have been the Doubletree Motel. She denied she had called the Doubletree Motel after the arrest because she didn't know anyone there. Later it was shown that she was permitted a phone call after her arrest and her first call was to Room 209 at the Doubletree Motel.

A plea of guilty to a felony offense before a jury, Article 26.14, V.A.C.C.P., is a unitary trial, not a bifurcated one. Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981); Arismendez v. State, 595 S.W.2d 535 (Tex.Cr.App.1981). A plea of guilty to a felony before a jury admits the existence of all incriminating facts necessary to establish guilt. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968), and cases there cited; Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Alexander v. State, 479 S.W.2d 44 (Tex.Cr.App.1972); Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978). And where such guilty plea is before the jury the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Article 26.14, supra, Darden v. State, supra; Reyna v. State, supra.

Introduction of evidence by the State in a felony case involving a plea of guilty before the jury is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, supra; York v. State, 566 S.W.2d 936 (Tex.Cr.App.1978). Thus the issue before the jury on the guilty plea in a felony case is that of punishment. West v. State, 480 S.W.2d 640 (Tex.Cr.App.1972). It should be noted, however, that the State's right to introduce evidence is not restricted by the entry of a plea of guilty, or by his admission of facts sought to be proved; relevant facts admissible under a plea of not guilty are also admissible under a plea of guilty. Hoffert v. State, 623 S.W.2d 141 (Tex.Cr.App.1981); York v. State, supra; Brookens v. State, 438 S.W.2d 577 (Tex.Cr.App.1969). See also Morgan v. State, 557 S.W.2d 512, 513 (Tex.Cr.App.1977); Asay v. State, 456 S.W.2d 903 (Tex.Cr.App.1970); Beard v. State, 171 S.W.2d 869 (Tex.Cr.App.1943). Cf. Fairfield v. State, 610 S.W.2d 771 (Tex.Cr.App.1981). An application for probation does not limit the State's right to offer evidence. "Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible." Allaben v. State, 418 S.W.2d 517, 519 (Tex.Cr.App.1967). See also Article 37.07, § 3(a), V.A.C.C.P., as to evidence as to the prior criminal record of the defendant, his general reputation and his character.

An accused, of course, is entitled to be tried on the accusations made in the State's pleading and he should not be tried for some collateral crime or for being a criminal generally. Young v. State, 261 S.W.2d 836 (Tex.Cr.App.1953); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972), and cases there cited. See also Templin v. State, 711 S.W.2d 30, 32 (Tex.Cr.App.1986); Rubio v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980). In some cases circumstances exist which justify the admission of an extraneous offense as an exception to the general rule. Some of these exceptions are noted in Albrecht, supra, and discussed. The general standard or test for the admission of an extraneous offense is whether the prosecution can show (1) that the offense or transaction is relevant to a material issue in the case, and (2) that the probative value of the evidence to the trier of fact outweighs its prejudicial or inflammatory nature. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983); Murphy v. State, 587 S.W.2d 718 (Tex.Cr.App.1979); Templin, supra, at 33.

One of the recognized exceptions to the general rule in Texas is that evidence of an "extraneous" or "extrinsic" offense may be admissible to show the context in which the criminal act occurred. Albrecht, supra, at 101. See Williams v. State, 662 S.W.2d 344, 345-346 (Tex.Cr.App.1983); Woolls v....