McGlothlin v. State

OPINION ON APPELLANTS 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 *186codified 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 ease 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 667 (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, 686 S.W.2d 60 (Tex.Cr.App.1986); 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, 468 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 De-Garmo 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 De-Garmo’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 *187of 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 ... evi-dentiary 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 ease, 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,” Bod-de 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 DeGar-mo doctrine is unconstitutional because it violates due process, double jeopardy and, in appellant’s case, his right to present evi-*188denee. 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 ease 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 found the evidence insufficient, retrial was jeopardy barred. Burks, 437 U.S. at 15, 98 S.Ct. at 2149 and 2151 and 18; and, Greene, 437 U.S. at 25-26, 98 S.Ct. at 2154-2155.

In the instant case, appellant does not contend the evidence was insufficient to support the jury’s verdict or that his conviction was jeopardy barred. Instead, appellant’s contentions deal with trial error, namely the improper admission of extraneous offense evidence. Consequently, the error at appellant’s trial would not require an acquittal, instead the error would at most result in a new trial. Consequently, the affirmance of appellant’s conviction based on DeGarmo does not conflict with the holdings in Burks and Greene.

2.

Appellant next contends the DeGar-mo doctrine should apply only to guilt. He argues we should review judicial confessions consistent with Tex.R.App.Proe. 81(b)(2), and “if that review reveals that the defendant testified at punishment and admitted guilt, then the appellate court may find that the defendant waived any error in evidence or procedure that contributed to that finding of guilt.” Appellant’s brief, p. 11. This is precisely how the DeGarmo doctrine is applied; the judicial confession at punishment waives all error that occurred at the guilt stage of the trial. DeGarmo, at 661. Consequently, we read this portion of appellant’s argument as being consistent with the DeGarmo doctrine.

3.

Appellant next contends the DeGar-mo doctrine should be harmonized with our holding in Jack v. State, 871 S.W.2d 741 (Tex.Cr.App.1994). In Jack, we held that a guilty plea waives all nonjurisdictional defects occurring prior to the guilty plea. Jack, 871 S.W.2d at 743. Our holding in Jack is consistent with the DeGarmo doctrine which does not waive error that occurs at the punishment phase of the trial.

4.

Finally, appellant contends we should carefully examine the elements of the offense to ensure that a judicial confession was, in fact, given. We have no disagreement with this proposition; indeed, it is already the law in Texas. Smyth v. State, 634 S.W.2d 721 (Tex.Cr.App.1982). However, we disagree with appellant’s suggestion that he did not admit the elements of the charged offense. On direct examination appellant’s attorney asked: “And do you tell the jury that you did, in fact, have sexual intercourse with this young lady?” And appellant responded, “Yes, sir.” Clearly, a confession was intended and given. The instant case is distinguishable from Smyth.

C.

Finally, the doctrine of stare deci-sis militates against our overruling the De-Garmo doctrine. Stare decisis dictates that we adhere to precedent and not disturb a settled principle of law. “The doctrine of stare decisis requires that we demonstrate the reluctance with which one in a judicial position should approach a line of decisions of long standing with the purpose of setting aside the doctrines therein laid down, some grey with antiquity, and the doctrine of stare decisis should bear heavily on retaining the integrity of such decisions.” Wolfe v. State, 178 S.W.2d 274, 281 (Tex.Cr.App.1944). Stare decisis provides certainty and structure to the criminal trial process. “When a rule has been once deliberately adopted and declared and uniformly followed, it should *189not be abandoned except upon the most urgent of reasons.” Gearheart v. State, 197 S.W. 187, 188-189 (Tex.Cr.App.1917). As noted in part II.A of this opinion, the DeGar-mo doctrine has long been a part of the law in Texas. Appellant fails to provide a “most urgent reason” to overrule a concept of waiver which has endured through the years.7

For all of the foregoing reasons, we decline appellant’s invitation to overrule the DeGar-mo doctrine and hold that it is still a viable doctrine of waiver.

D.

Having determined the DeGarmo doctrine is still valid, we now turn to the instant case. The trial strategy employed by appellant is indistinguishable from that in Richardson. Appellant initially pled nolo contendré but later changed his plea to not guilty. After the complainant testified and the jury found appellant guilty, appellant testified at the punishment phase in support for his application for probation.8 Had appellant chosen to not testify, he would not be faced with the issue of waiver. Munoz v. State, 853 S.W.2d 558, 560 n. 3 (Tex.Cr.App.1993). However, when appellant admitted the charged offense the DeGarmo doctrine controlled and he waived all error committed during the guilt/innocence phase of his trial. Appellant’s second ground for review is overruled.

III.

In his remaining ground for review, appellant contends his testimony relating to the extraneous offenses falls into the exception to the doctrine of curative admissibility established in Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985).9 As previously noted, the extraneous offenses were admitted at the guilt/innocence phase of the trial. Later, at the punishment phase of the trial, appellant judicially confessed to the charged offense and, on cross-examination, admitted the extraneous offenses. Because appellant’s judicial confession to the charged offense waived the error of admitting the extraneous offenses, this ground for review is moot. Appellant’s first ground for review is dismissed.

The judgment of the Court of Appeals is affirmed.

. Appellant’s grounds for review state: First, whether appellant waived the error of admitting extraneous offenses during the guilf/innocence phase by acknowledging those extraneous offenses during his punishment testimony. And, second, whether appellant waived the error of admitting extraneous offenses during the guilt/innocence phase by admitting his guilt of the charged offense during his punishment testimony.

. At the punishment phase of his capital murder trial, DeGarmo testified and told the jury that they had made the right decision by finding him guilty. He stated: "I was the one that was there and I was the one that did the crime. So, now you can at least sleep well knowing that you picked the right person and not thinking you may not have....” During his testimony, DeGarmo also threatened the jurors with death if he received a life sentence. He told the jurors that it that happened, he would eventually cause each juror to die, or, if the juror was no longer alive, he would cause members of the juror's family to die. DeGarmo, 691 S.W.2d at 660.

. All emphasis is supplied unless otherwise indicated.

. The dissent contends this case should be treated differently than DeGarmo because appellant is challenging the admissibility of the extraneous offenses while DeGarmo challenged the sufficiency of the evidence. Post, 190. However, the cases cited above stand for the proposition that the DeGarmo doctrine has never been limited to sufficiency challenges. The dissent does not cite, mention or distinguish these cases.

. The dissent is not the first to condemn the DeGarmo doctrine. In Gordon, 651 S.W.2d at 793-94, Judge Teague stated:

Let there be no mistake about the matter. The [DeGarmo doctrine] is indeed a harsh [rule of law], and will usually prevent most defendants, in any kind of bifurcated criminal trial from testifying at the punishment stage of trial, because they will fear that by testifying it may cause waiver of any error which may have occurred during the guilt stage of the trial. ******

I, therefore, write this concurring opinion only to put defendants and their counsel on notice of what they may expect if the defendant decides to testify at the punishment stage of the trial, and during his testimony makes the equivalent of a plea of guilty to the offense for which he is on trial.

.Without explanation, the dissent contends the DeGarmo doctrine threatens the fairness and efficacy of our adversary process. Post, 190. However, we fail to see how a conviction of an admittedly guilty person is an unfair result. Nor do understand how the efficacy of process is threatened when an individual is precluded from challenging a result that he admitted was correct.

. The dissent states that stare decisis has no place in the disposition of a case where discretionary review was granted specifically for the purpose of reconsidering case law. Post, 190. We respectfully disagree. In all cases where the issue under consideration has been previously addressed in an opinion, that opinion should be followed unless there are urgent and compelling reasons to overrule that precedent. This is the normal approach of this Court in every case, not just those dealing with continued viability of our prior decisions. See, e.g., George v. State, 890 S.W.2d 73 (Tex.Cr.App.1994) (Court opted not to alter century of precedent requiring that jury charge instruct the jury not to consider extraneous offenses unless found beyond a reasonable doubt.).

. As the Court of Appeals noted appellant’s consistent trial strategy was to admit guilt and ask the jury for leniency in his sentencing. McGloth-lin, 866 S.W.2d at 71.

. Under the doctrine of curative admissibility when a defendant offers the same evidence to which he earlier objected, he is not in a position to complain on appeal. Maynard, at 65. There is a corollary to this rule that the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by the introduction of rebutting evidence. Ibid. And such testimony does not act as a waiver of the right to challenge the admissibility of the evidence originally admitted. Ibid, (Citing, Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973)).

In Nicholas v. State, 502 S.W.2d 169 (Tex.Cr. App.1973), we explained the doctrine of curative admissibility:

... the improper admission of evidence over objection is rendered harmless by the unobject-ed-to admission of other evidence of substantially the same facts; whereas, the introduction of evidence seeking to meet, destroy, or explain the erroneously admitted evidence does not render the error harmless. The rationale should be equally clear: if a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proven without objection. On the other hand, presentation of other evidence which does not prove those facts erroneously admitted, but only tends to meet, destroy, or explain the erroneously admitted evidence, can hardly be considered to cure the error within the rationale of the first rule....

Id., 502 S.W.2d at 174-175 (Opinion on rehearing) (emphasis in original).