McGlothlin v. State

in damage award punitive prem- sideration year’s payment as to vacate a rent opinion Alamo Nat’l Bank of and light ises.4 (Tex.1981). Kraus, Con- 616 S.W.2d event, appeals any court of reach the issue sequently, we do not damages on loss based its calculation a performed appeals the court whether regard, In this million sales contract. $4.4 regarding sufficiency review proper factual the causal no evidence exists establish damages. punitive the award Haynes & the actions of nexus between contract of this sale. The Boone and loss after the first sanctions entered into

was

order, Blockbuster, dispute into the well ultimate

and it was rescinded before Bouldin Again, suit. Boul-

ly lost the Blockbuster and complaint is that it lost Blockbuster

din’s not Capshaw could

then lost center. losing prevented from Block have Bouldin McGLOTHLIN, Appellant, Curtis regarding the lost sale buster. The evidence no than create a mere sur also does more legal Texas, Appellee. suspicion of its existence and mise The STATE Kindred, is no evidence. effect No. 022-94. Texas, Appeals of of Criminal Court Reviewing possi- the evidence the best En Banc. Bouldin, light no evidence

ble there is premis- vacating that Blockbuster’s Bouldin’s 8, 1995. March Capshaw’s. result of act of es was the law, Haynes & Boone was As matter producing cause of foreclosure. Be- Haynes & is no evidence that

cause there foreclosure,

Boone caused the we render

judgment Haynes Boone with favor & fore-

respect to the loss of investment and deficiency. judgment

closure We reform the appeals Bouldin court award

$3,727 Haynes paid & amounts expenses and for the Blockbus-

Boone as fees $100,000 attorney’s litigation, fees

ter and prosecution

for the this case.

III. damages, the

In addition to actual Haynes knowingly &

found that Boone acted in punitive million dam- $1.5

and awarded nearly actual dam-

ages. Because all appeal,

ages have been reversed awarded appeals for recon- remand the court 1990). Bynum’s (Tex.App. [1st Dist] part argument, that its Bouldin contends 4. As — Houston allegations proof established that at trial Henry Bynum, Miller Co. v. S. (Tex.1992), investment capital misrepresentations in induced establishes lost lost, establishing ultimately thereby was action. which be recovered a DTPA vestments investment, viola the DTPA relation between Bynum capital direct causal did recover his While damages Bouldin’s recovered. Here alleged tion Bynum is different. case but induced was not in the center into a lease investment at the outset enter induced Haynes & was hired well Boone deceptive representations. before occurred because of false Blockbuster suit. Henry Bynum, for the Miller Co. S.

185 I.

A. February appellant, the Meridian Chief, romantically involved Police became The year complainant. old with the twelve offense, contact, charged oc- first sexual 20, At 1988. curred on or about December re- complainant the sexual testified years oral two and involved lationship lasted or twice sexual intercourse once sex and/or were 50-60 further testified there week. She occurring in such encounters house, office, per- police his car and his his Robertson, Clifton, appellant. Phil for objections to ad- Appellant’s sonal car. were mission of extraneous offenses these Stool, McMullen, Andy Dist. J. Ben L. ap- relationship The ended with overruled. Huttash, Hamilton, Attys., Robert State’s February, in pellant’s arrest 1991. Austin, Atty., for the State. Appellant testify guilt/inno- at did However, of the trial. he did phase cence and, testify phase di- punishment at the on examination, charged of- rect admitted the OPINION ON APPELLANTS PETITION cross-examination, appellant ad- fense. On FOR DISCRETIONARY REVIEW mitted, objection, the of- without extraneous BAIRD, Judge. fenses. Appellant aggravated of was convicted sex B. years con

ual assault sentenced 20 $10,000 appeal, appellant finement and fine. On contended Tex.Penal Code direct by admitting § Appeals judge Ann. 22.021. The of af trial the extraneous Court erred State, during guilt/innocence firmed. McGlothlin v. 267 835 S.W.2d offense 1992). (Tex.App. original Appeals, The On sub of the trial. Court —Eastland State, mission, 164 relying we remanded the case to the on Boutwell v. 719 S.W.2d Court Appeals of- light (Tex.Cr.App.1985), for held the extraneous reconsideration State, (Tex.Cr.App. 407 Vernon v. 841 fenses admissible show the broad context S.W.2d 1992). charged 139 in occurred. McGlothlin 848 S.W.2d which the offense remand, McGlothlin, at n. 1. (Tex.Cr.App.1992). On the Court of 835 269-270 S.W.2d Vernon, However, Appeals judge erroneously held the trial ad we held such evidence 1) mitted extraneous offense evidence. was admissible two circumstances: (Tex. rele- “repetition 71 if the of unnatural acts” was McGlothlin 866 S.W.2d 1993). However, App. prove vant to an elemental fact of offense Court — Eastland (as Appeals, relying charged necessary Tex.R.Crim. on under 404(b)); 2) or, credibility (Tex.Cr.App.1985), appellant Evid. if the held admitting question, “unequivocally of the child victim called into waived the McGlothlin, prove guilt.” his 72 the evidence is relevant element S.W.2d 1993). Vernon, charged. granted re (Tex.App. We offense — Eastland pro- viability was decided after the view to determine the continued 411. Vernon 404(b) mulgation which will affirm. of Tex.R.Crim.Evid. the DeGarmo doctrine.1 We First, second, grounds appellant Appellant’s the error of review state: whether waived for during guilt/in- admitting admitting extraneous offenses whether waived the error phase by admitting during guilf/innocence his offenses nocence extraneous punishment phase by charged during acknowledging of- offense his testimo- those extraneous And, testimony. during ny. fenses general prohibited charged codified rule which and admitted the offense. Id., admission offenses. appeal, of extraneous Id. 474 S.W.2d at 219. On he chal- lenged sufficiency of the evidence. How- Appeals Court its Because the delivered ever, Richardson, affirmed, relying on we Vernon, opinion prior to opinion our we holding challenge the defendant could not Appeals remanded the ease to the Court of sufficiency Id., the evidence. in light further consideration Vernon. at 221. remand, On Appeals Court of held admitting court erred the extraneous (Tex. DeGarmo v. guilt/innocence offenses phase. again Cr.App.1985), addressed issue McGlothlin, However, S.W.2d at challenge whether defendant could Appeals, relying Court of on DeGarmo v. evidence, sufficiency appeal, after State, (Tex.Cr.App.1985), 691 S.W.2d 667 admitting guilt his to the for which crime he held waived the error he when has At been convicted.2 the time our committing charged admitted the offense. DeGarmo, parties consideration of the McGlothlin, 866 S.W.2d at 71-73. agreed testify that if a did not at defendant trial, guilt stage

the of the but at testified the trial, punishment stage of the and admitted II. had, legal guilt, purposes, his he for entered equivalent guilty. the The De- A. Court Garmo stated: years the developed Over we have doctrine of waiver akin to the doctrine of presently ... The law as it is exists clear admissibility. May curative generally, See such that a defendant not waives a State, (Tex.Cr.App. evidence, nard v. challenge sufficiency 686 S.W.2d 60 to the of the 1986); and, 9, doctrine, n. might Under this he also that but waives error infra. occurring at guilt/innocence phase guilt stage the have occurred of the deemed to be waived if the charged defendant admits his to the Id., 691 S.W.2d at 661.3 The Court reaffirm example, offense. For v. Richardson ed the doctrine of waiver and overruled De- State, (Tex.Cr.App.1970), 468 S.W.2d 665 challenge sufficiency Garmo’s voluntarily defendant punish testified at the also, State, evidence. Ibid. v. See Palmer trial, phase charged ment his admitted the 797, (Tex.Cr.App.1972); 475 S.W.2d 798 Sims rape, jury offense of and mer asked State, 730, (Tex.Cr.App. v. 502 731 S.W.2d cy. appeal, On defendant contended 1973) (The Court would not consider the denying court erred his motion to lawfulness a search where defendant ad suppress the in-court identification of the heroin.); possession mitted Sheridan v. prosecutrix challenged sufficiency and 920, State, (Tex.Cr.App.1972) 485 921 S.W.2d evidence to the conviction. We (“The appellant, having voluntarily taken the held question the defendant could not at penalty stage stand and ... admitted sufficiency of the or the in-court having possession, marihuana in his cannot voluntarily confessing. identification after question the lawfulness of the search wherein Id., 458 at S.W.2d seized.”); State, the marihuana was Jones v. (The later, State, years 745, Two 474 (Tex.Cr.App.1972) Boothe v. 484 S.W.2d 747 (Tex.Cr.App.1972), would defendant Court not consider the lawfulness of voluntarily punishment possession phase testified at the search where defendant admitted punishment phase capital jurors 2. At the murder ceived a He told the that it sentence. life told DeGarmo testified and happened, eventually he would cause each they by finding had made the decision him die, or, alive, juror juror longer if the was no guilty. He "I one there stated: was the that was family juror's would cause members So, and I was the one that did the crime. now DeGarmo, die. S.W.2d at 660. 691 you you sleep knowing can at least well picked right person thinking you and not emphasis supplied indi- All unless otherwise During testimony, not have....” cated. jurors also re- threatened the death if he

187 State, is to sift 1978), function of trial marihuana.); because “the v. 487 McKenzie contradictory State, a mass of out the truth from (Tex.Cr.App.1972); v. 65 Creel S.W.2d evidence_” Michael, 224, re U.S. (The 326 814, (Tex.Cr.App.1973) 493 819 S.W.2d (1945). 227, 78, 80, L.Ed. 90 30 66 S.Ct. constitute a waiver defendant’s admissions way, purpose basic another “The Stated and it immaterial whether the search render Tehan v. of truth.” trial is the determination cause.); upon probable Lasker v. was made 459, States, 406, U.S. 86 S.Ct. 15 United 382 539, State, (Tex.Cr.App.1978) 543 573 S.W.2d also, (1966). Duggan v. 453 L.Ed.2d See (The may not, appeal, challenge State, (Tex.Cr.App.1989); 778 S.W.2d sufficiency testify evidence after 127, Idaho, 500 U.S. ing admitting Lankford (1991); 1723, 1733, 114 L.Ed.2d 173 S.Ct. offense.); 811 S.W.2d Villareal (5th Wainwright, 537 F.2d 154 Brown v. 1991); (Tex.App. Dist.] [14th — Houston Cir.1976). When defendant testifies (Tex.Cr. Gordon v. offense, charged judicially confesses App.1983); Womble process has been purpose of the trial (Tex.Cr.App.1981); Brown v. truth has been determined served —the (“... (Tex.Cr.App.1981) [I]f guilt/innocence phase purpose testify pun the chooses to at the defendant No the has satisfied. reversible been trial, stage at but not ishment has error should occur where defendant state, guilt-innocence ... waive evi- necessity process.6 of the trial satisfied objections guilt- dentiary during made trial.”); and, Bodde innocence state of v. State, 344, (Tex.Cr.App. 568 348 S.W.2d B. 1978).4 This doctrine of waiver has also been four overrule Appellant offers reasons to Gordon, (Teag criticized. 651 at 794 S.W.2d We will application or limit the of DeGarmo. State,

ue, J., and, concurring); Herbert 827 v. pre- in the these contentions order address 507, (Tex.App. [1st 510 — Houston sented. 1992, (Cohen, J., pet.) concurring).5 no Dist.] ease, infamy Because 1. concept of has known waiver come be as See, 2, supra. the DeGarmo doctrine. n. Appellant first DeGar- contends the The DeGarmo doctrine has been described it mo doctrine is unconstitutional because and, procedure,” process, jeopardy as a “common-sense rule Bod- violates due double 344, case, present evi- (Tex.Cr.App. de v. 568 S.W.2d 348 any may have 4. dissent case be cause waiver of error which The contends this should treat- during stage the trial. differently appellant occurred ed than DeGarmo because challenging admissibility of the extraneous ****** challenged offenses while DeGarmo the sufficien- therefore, I, opinion concurring write this However, Post, cy of the evidence. 190. put defendants and their counsel proposition stand cases cited above they may expect if notice what never been limited to the DeGarmo doctrine has stage testify punishment at the decides cite, sufficiency challenges. dissent does not The trial, testimony makes the distinguish these cases. mention equivalent guilty offense for which he is on 5. dissent is the first condemn The explanation, Gordon, the dissent contends 6.Without In S.W.2d at DeGarmo doctrine. 651 and effi- threatens the fairness DeGarmo doctrine 793-94, Judge Teague stated: Post, process. adversary cacy 190. How- of our Let there be no mistake about the matter. ever, of an we fail to see how conviction [rule harsh [DeGarmo doctrine] is indeed a The admittedly guilty person Nor is an unfair result. law], prevent usually efficacy and will most defen- process do understand how dants, precluded kind of bifurcated criminal trial an individual is from threatened when testifying stage punishment challenging at the admitted was cor- from result that he by testifying may they will fear it rect. because 188 contention, appel In being

denee. of this with doc- consistent the DeGarmo argues lant conflicts DeGarmo doctrine trine. 1, States, Burks v. United 437 U.S. 98 2141, (1978) and, 57 1

S.Ct. L.Ed.2d Greene 19, 2151, Massey, 437 U.S. 57 S.Ct. Appellant next contends the DeGar- (1978). also, L.Ed.2d 15 Herbert v. See should our mo doctrine be harmonized with 507, (Tex.App 827 S.W.2d . —Hous holding in Jack (Cohen, J., pet.) [1st Dist.] ton no con Jack, In (Tex.Cr.App.1994). we held that However, curring). Burks and Greene are guilty nonjurisdictional plea waives all de readily distinguishable at from the ease bar. occurring prior plea. guilty fects Greene, Burks was whether issue Jack, holding at 743. Our jeopardy appellate barred a retrial after Jack is consistent with the doc finding court of insufficient evidence. The trine which does not waive error that occurs Supreme Court held that if at the of the trial. error, the case could be retried without violating prohibition against jeop double However, ardy. if court found Finally, we contends insufficient, jeopardy the evidence retrial was carefully should examine the elements of Burks, barred. U.S. at S.Ct. at judicial that a offense to ensure confession Greene, 18; and, and 2151 437 U.S. was, fact, given. disagree We have no 25-26, 98 S.Ct. at 2154-2155. indeed, proposition; al ment with this it is ready Smyth Texas. the law case, In the instant appellant does not However, (Tex.Cr.App.1982). sup- contend the evidence was insufficient disagree appellant’s suggestion with that he jury’s port the verdict or that his conviction charged the did not admit elements of the Instead, jeopardy appellant’s barred. direct appellant’s offense. On examination error, namely contentions deal with trial jury attorney you “And do asked: tell the improper admission of extraneous offense ev- did, fact, you in that have sexual intercourse Consequently, appel- idence. the error at young lady?” appellant with this And re require acquittal, lant’s would not “Yes, sponded, Clearly, sir.” a confession the error instead would at result in a most given. was intended and The is instant case trial. Consequently, new the affirmance distinguishable Smyth. from appellant’s conviction based DeGarmo on holdings not does conflict with Burks C. and Greene.

Finally, the doctrine of stare deci- against overruling sis our De- militates 2. Garmo doctrine. Stare that decisis dictates Appellant precedent next contends DeGar- we to and not a adhere disturb apply only guilt. mo doctrine should principle He settled of law. “The doctrine argues judicial requires we should review confessions stare that decisis we demonstrate 81(b)(2), Tex.R.App.Proe. with judicial consistent and the reluctance with which one a approach “if that review position reveals that the defendant a should line of decisions punishment at guilt, long standing setting testified with purpose and admitted down, then the court find aside therein the doctrines laid some grey antiquity, defendant waived in evidence or error with and the doctrine of stare procedure finding heavily retaining contributed to that decisis should bear on brief, guilt.” Appellant’s p. pre integrity This is of such decisions.” v.Wolfe 274, cisely applied; how (Tex.Cr.App.1944). the DeGarmo doctrine is judicial punishment provides certainty confession at waives Stare decisis struc guilt stage process. all that occurred error at the ture to the criminal “When DeGarmo, Consequently, deliberately adopted the trial. at once rule has been portion argument followed, appellant’s uniformly we read this declared and it should However, appellant admitted upon the most ur- when except be not abandoned con- doctrine charged offense Gearheart gent reasons.” committed waived all error (Tex.Cr.App.1917). As trolled S.W. 188-189 his part opinion, guilt/innocence noted in II.A of this the DeGar- over- ground for review is long part Appellant’s law second has mo doctrine been provide a “most ruled. Appellant in Texas. fails concept

urgent to overrule a of waiv- reason” through years.7 er which has endured III. reasons, foregoing For all of the we decline remaining ground for re In his appellant’s overrule the DeGar- invitation to view, testimony relat appellant his contends and hold that it is still a viable mo doctrine falls into the ing offenses extraneous doctrine of waiver. curative admissi exception the doctrine of bility Maynard established D. previously (Tex.Cr.App.1985).9 As determined Having the DeGarmo noted, were admitted the extraneous offenses valid, now turn to the doctrine is still La guilt/innocence phase of the trial. at the strategy employed The trial instant case. ter, phase of indistinguishable appellant from that is charged judicially appellant confessed Appellant initially nolo pled Richardson. cross-examination, and, admitted offense changed later to not contendré but the extraneous offenses. Because guilty. complainant After the testified and charged offense judicial confession appellant guilty, appellant tes found admitting the extraneous waived punishment phase tified at the for offenses, Ap for is ground review moot. application probation.8 for Had pellant’s ground for review dismissed. first testify, chosen he would not be faced judgment Appeals The issue of waiver. Munoz v. Court (Tex.Cr.App.1993). affirmed. n. place ting testimony Ibid. And such does 7. The dissent states stare decisis has no evidence. discretionary challenge disposition in the case where not act a waiver granted specifically purpose originally admissibility review was of the evidence admitted. Post, Ibid, State, (Tex. reconsidering (Citing, case law. 190. We re- Evers v. 576 S.W.2d 46 State, spectfully disagree. In cases the issue Cr.App.1978); all where 511 S.W.2d 493 Alvarez previously ad- under consideration has been (Tex.Cr.App.1973); Nicholas opinion, opinion 1973)). dressed be in an that should (Tex.Cr.App. urgent compelling there and followed unless are (Tex.Cr. S.W.2d 169 In Nicholas v. precedent. the reasons to overrule that This is explained App.1973), doctrine of curative the case, every approach of in not normal this Court admissibility: dealing viability just those of our continued improper of evidence over ... the admission See, George prior e.g., decisions. by unobject- objection the rendered harmless is (Court (Tex.Cr.App.1994) opted to not S.W.2d 73 ed-to of other evidence substan- admission precedent requiring jury century alter whereas, tially facts; the the introduction same charge jury the to consider extrane- instruct not meet, destroy, seeking explain of evidence or beyond a ous unless found reasonable offenses erroneously not doubt.). admitted evidence does error The rationale render harmless. equally proven clear: if a fact be should be Appeals appellant’s con- 8. As the Court of noted proof objection, ob- its over without erroneous guilt strategy ask to admit sistent trial error, although jection, still is harmless error sentencing. leniency in McGloth- for proven lin, without since the same facts have been at 71. hand, presentation objection. the other On prove not those other evidence which does admissibility Under doctrine curative 9. admitted, erroneously only but tends to facts same when defendant offers the meet, explain erroneously destroy, ad- or objected, position he earlier he is not in a which evidence, hardly can be mitted considered complain appeal. Maynard, at There on first within the rationale of the cure corollary effect is a to this rule that harmful by improperly rule.... admitted evidence is not cured Id., meet, (Opinion sought on rehear- de- 502 S.W.2d at 174-175 fact original). ing) (emphasis by in stroy, explain of rebut- it the introduction MEYERS, Judge, dissenting. guilt to the crime for which he has been has, guilty, legal found he purposes, for granted discretionary We in review equivalent guilty. entered the holding case to reexamine the of DeGarmo v. presently The law as it exists is clear that State, 691 (Tex.Crim.App.1993), S.W.2d 657 only such a defendant not waives a chal- or, it, majority as puts “to determine [its] evidence, lenge sufficiency but viability.” Instead, Slip Op. continued at 1. might he also waives error that have merely the Court meager summarizes the guilt phase occurred ease law in family group, DeGarmo’s dismiss- appellant’s es challenge to DeGarmo as if it added). (emphasis S.W.2d at 660-61 really ease, point missed the of that capital DeGarmo was convicted of murder homily concludes with a brief on the virtues sentenced to die. Unlike my of stare In opinion, decisis. this does not cause, alleged the instant appeal on count as a reexamination of DeGarmo. support evidence was not sufficient to In place, the first stare decisis has no conviction. This Court held that DeGarmo’s place in disposition of a case where dis- admissions phase “made at the cretionary granted specifically review was for challenge of trial constitute waiver of his purpose reconsidering case law. Sen- sufficiency Id. at evidence[.]” discretionary sible review courts do not The Court did not have occasion to hold that waste simply their limited resources to reit- DeGarmo also waived errors committed at erate old decisions without useful elabora- phase as no such errors Discretionary tion. review should be re- presented Thus, appeal. were for review served cases which the Court has emphasized language from this Court’s something important say, squandered DeGarmo, opinion upon which the lower straightforward on the application prece- majority ease, court and rely in this unexceptional dent to facts. See Arcila v. dicta. State, 834 (Tex.Crim.App.1992). course, That especially where, here, say, This is is not to true that there is precedent lower no for it. court did not err in DeGarmo cited Bodde v. its own application precedent (Tex.Crim.App. to the case. Invoca- 1978) context, tion of stare present proposition, decisis for the and there are a therefore, only poor underscores this number of Court’s other cases which also management view, however, my of its own In opinions caseload. rule. such as sufficiency points DeGarmo which hold that place, the second it seems to me that are pun waived admissions made at the majority misunderstands ar- ishment present exactly of trial do not guments. perfunctory, While his brief is I presented the same issue as the instant discerning have no trouble from it that he cause. Whether a new trial should be or rule, regards the DeGarmo ap- least as dered rendering because of errors the first case, plied in profound his as a threat to the substantially one unfair ques is a different efficacy adversary pro- fairness and of our judgment acquittal tion than whether a cess because it forces defendants to abandon should be ordered for insufficient evidence. legitimate strategies trial in order to obtain appellate way, In review. this it conditions place, sufficiency points the first are not upon to a fair trial willingness usually by considered this Court to be waiva- give of an up defending accused to himself as all, objection required ble at since no trial is soon judge as the trial commits reversible present to them review. In the error. judicial place, second confessions are normal- passage The from DeGarmo relevant to ly thought by justify sufficient themselves to the instant cause is as follows. Dinnery conviction. v. present

[T]he law in if (Tex.Crim.App.1979). Texas is that a Williams Cf. testify defendant guilt does not (Tex.Crim.App.1984) (plea 674 S.W.2d 315 trial, stage testify guilty jury but does at the before sufficient to establish stage alone, guilt). and admits proba- his For these reasons it is may charged, is he offense with which he language that the other ble himself, the stand admit holding judicial that a confession wish to take cases misconduct, explana- give an any sufficiency points appeal are extraneous waives or might egregious it less suspect puzzle I makes seem anomalous. that the tion which inadvertently many for the expresses fashioned sincere remorse have been which deny ago use of the if he cannot years by some nonstandard caused. Even harm he has offense, may word “waiver.” he still take charged hoping guilt, stand and admit his may, presented Be that as it situation voluntarily lenity if he jury will inclined to be quite Ap is in the instant cause different. his responsibility for acts. assumes pellant not claim he is innocent or does that the evidence adduced at trial was insuffi oversimplify problem. I do to not mean support alleges to He cient conviction. significant judicial a event A confession is unfairly, only that his trial was conducted it to an process amounts the criminal because law, contrary proof to of extrane because guilt before a neutral admission of made erroneously received in evi ous offenses was de- where the tribunal under circumstances objection. point, at Upon dence over his scrupulous- is right to remain silent fendant’s least, agrees hini. the Court with McGloth I hold ly Accordingly, would not honored. (Tex.Crim.App. lin 848 S.W.2d 139 is to con- that evidence insufficient 1992). evidently But the Court does not viction under circumstances where think he fair trial on the was entitled a voluntary made a confession be- defendant question culpability of his because he admit of its prior fore factfinder to rendition guilt it all I not ted after was over. do share judi- finding guilty. him But verdict when this view I do because not think that is from the cial confession exacted willingness of an accused later confess trial, no by depriving legitimate him of fair anything has at all to do with fair holding system served interest of the is ness of his trial beforehand. un- his confession somehow ratified States, v. United fairness. Harrison Imagine appellant’s position in the instant Cf. 2008, 20 U.S. 88 S.Ct. L.Ed.2d hopes jurors cause. He that the will not find (1968) (judicial at a admission former proof convincing the State’s so credible may against defendant at sub- not admitted persuade beyond his guilt them of a rea- testimony sequent prior if com- sonable The this con- doubt. State shares pelled by receipt of unconstitution- erroneous Therefore, probability cern. increase evidence). case, ally In such a new seized conviction, it offers evidence other always in trial is order. by appellant similar offenses committed past. permit Because our law does not ago years Ten this Court confronted past infer from misconduct alone curative problem similar context person that an accused committed the of- rule, admissibility upon court which lower charged, is fense which he the State’s appellant’s affirm in this ease also relied to proof not be over admitted Maynard conviction. objection prove unless it is relevant provides That rule (Tex.Crim.App.1985). charged element of the offense and offers generally that “when the defendant unfairly prejudicial. Tex.R.Crim.Evid. object- he the same evidence to which earlier 404(b). judge, mistakenly believing The trial ed, complain on position not in a relevant, to be receives it de- Although the rule was appeal.” Id. at spite demand that it be excluded. subject vague exception that “the harm- to a improperly ful admitted evidence Appellant is now to reevaluate his effect of forced by the strategy. cannot an not cured fact Because he take meet, by destroy, explain it sought or interlocutory appeal of trial court’s rul- evidence,” any attempt try rebutting at rebuttal ing, he must the remainder of case the truth just explanation if the of his or admitted as would extra- generally was still held proper- had admitted such evidence neous misconduct been Id. 65-66. honestly appellate complaint. ly. deny committing If he the waive can Recognizing the manifest jurisprudence, just promote unfairness of this the accu- rule, in Maynard the Court racy overruled cases factfinding but to ensure the fairness contrary to the and held that dispute resolution. Morrison when, no (Tex.Crim.App.1992). waiver occurs I after the admission S.W.2d 882 So far as objection tell, over of evidence an can extraneous DeGarmo and its cousins are the offense, only vestiges the defendant profoundly testifies to essential- of the anti-adver- ly the same facts to which he had sarial earlier attitude which forces an accused to objected. policy give up right This is sound appeal privilege because it is for the policy. fair An defending extraneous Abandoning offense is col- himself at trial. it lateral to the facts issue at trial and is would not restore fairness to the resolu- inherently prejudicial. actually disputes That it tion of litigation, criminal but place took promote does not affect legitimate the lack of rele- would also social inter- ests, require 44.02, vance. To underlying the defendant to sit similar to those article mute in the by encouraging face of such harmful evidence defendants to seek satisfac- preserve appellate tory disposition issue for spite review of the case at trial in unfairly errors, hamstring judicial is to thereby the defendant at avoid the time admitted, trial. Once the expense appellate evidence is cor- review. For the rectly incorrectly, above, given would, therefore, the defendant is com- reasons I pelled by exigencies mitigate of trial to overrule DeGarmo and remand the instant inherently prejudicial such proceedings evidence as cause for further consistent with best he or she can. opinion. this Id. at 66. MALONEY, JJ., join. CLINTON and

Shortly Maynard down, after was handed the Court analogous reached an result negotiated

context of guilty pleas, abandon-

ing judicial the rule that a confession over- right

comes appellate of a defendant to pretrial

review of Morgan errors. (Tex.Crim.App.1985).

688 S.W.2d 504 Ob-

serving 44.02, first that article Code of Crim- Procedure,

inal encourage was enacted to negotiated pleas guilty GARZA, by preserving Appellant, Ruben right appeal requiring without the formali- ty expensive of an time-consuming Texas, Appellee. The STATE of the Court noticed purpose that this had been practice thwarted the rule that errors No. 506-93. appeal need not guilty considered on if the Texas, Appeals Court of plea Criminal supported by judicial confession. En Banc. Finding practice “substantially viti- statute, prior ates” the the Court overruled March opinions contrary and held that made, [w]hen the confession or admission necessary

is a part and concomitant guilty plea

whole ritual of the Just longer

as the itself no waives the complain pretrial rulings appeal,

so the confession or admission will not bar reaching court from the mer-

its complaint.

Id. at 507. opinions

Both of these serve to effectuate policy

what should be the consistent of our

Case Details

Case Name: McGlothlin v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 8, 1995

Citation: 896 S.W.2d 183

Docket Number: 022-94

Court Abbreviation: Tex. Crim. App.