McGlothlin v. State

*190 MEYERS, Judge,

dissenting.

We granted discretionary review in this case to reexamine the holding of DeGarmo v. State, 691 S.W.2d 657 (Tex.Crim.App.1993), or, as the majority puts it, “to determine [its] continued viability.” Slip Op. at 1. Instead, the Court merely summarizes the meager ease law in DeGarmo’s family group, dismisses appellant’s challenge to DeGarmo as if it really missed the point of that ease, and concludes with a brief homily on the virtues of stare decisis. In my opinion, this does not count as a reexamination of DeGarmo .

In the first place, stare decisis has no place in the disposition of a case where discretionary review was granted specifically for the purpose of reconsidering case law. Sensible discretionary review courts do not waste their limited resources simply to reiterate old decisions without useful elaboration. Discretionary review should be reserved only for cases in which the Court has something important to say, not squandered on the straightforward application of precedent to unexceptional facts. See Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992). This is especially true where, as here, the lower appellate court did not err in its own application of precedent to the case. Invocation of stare decisis in the present context, therefore, only underscores this Court’s poor management of its own caseload.

In the second place, it seems to me that the majority misunderstands appellant’s arguments. While his brief is perfunctory, I have no trouble discerning from it that he regards the DeGarmo rule, at least as applied in his case, as a profound threat to the fairness and efficacy of our adversary process because it forces defendants to abandon legitimate trial strategies in order to obtain appellate review. In this way, it conditions the right to a fair trial upon the willingness of an accused to give up defending himself as soon as the trial judge commits reversible error.

The passage from DeGarmo relevant to the instant cause is as follows.

[T]he present law in Texas is that if a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of trial, and admits his guilt to the crime for which he has been found guilty, he has, for legal purposes, entered the equivalent of a plea of guilty. 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 phase of trial.

691 S.W.2d at 660-61 (emphasis added).

DeGarmo was convicted of capital murder and sentenced to die. Unlike appellant in the instant cause, he alleged on appeal that the evidence was not sufficient to support his conviction. This Court held that DeGarmo’s admissions “made at the punishment phase of trial constitute waiver of his challenge to the sufficiency of the evidence[.]” Id. at 661 . The Court did not have occasion to hold that DeGarmo also waived errors committed at the guilt phase of trial, as no such errors were presented for review on appeal. Thus, the emphasized language from this Court’s opinion in DeGarmo , upon which the lower court and the majority rely in this ease, is dicta.

That is not to say, of course, that there is no precedent for it. DeGarmo cited Bodde v. State, 568 S.W.2d 344, 348 (Tex.Crim.App.1978) for the proposition, and there are a number of other cases which also support the rule. In my view, however, opinions such as DeGarmo which hold that sufficiency points are waived by admissions made at the punishment phase of trial do not present exactly the same issue as is presented in the instant cause. Whether a new trial should be ordered because of errors rendering the first one unfair is a substantially different question than whether a judgment of acquittal should be ordered for insufficient evidence.

In the first place, sufficiency points are not usually considered by this Court to be waiva-ble at all, since no trial objection is required to present them for appellate review. In the second place, judicial confessions are normally thought sufficient by themselves to justify conviction. Dinnery v. State, 592 S.W.2d 343 (Tex.Crim.App.1979). Cf. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984) (plea of guilty before jury sufficient to establish guilt). For these reasons alone, it is proba *191 ble that the language of DeGarmo and other cases holding that a judicial confession waives any sufficiency points on appeal are anomalous. I suspect that the puzzle might have been fashioned inadvertently many years ago by some nonstandard use of the word “waiver.”

Be that as it may, the situation presented in the instant cause is quite different. Appellant does not claim that he is innocent or that the evidence adduced at trial was insufficient to support his conviction. He alleges only that his trial was conducted unfairly, contrary to the law, because proof of extraneous offenses was erroneously received in evidence over his objection. Upon this point, at least, the Court agrees with hini. McGlothlin v. State, 848 S.W.2d 139 (Tex.Crim.App.1992). But the Court evidently does not think he was entitled to a fair trial on the question of his culpability because he admitted guilt after it was all over. I do not share this view because I do not think that the willingness of an accused later to confess his guilt has anything at all to do with the fairness of his trial beforehand.

Imagine appellant’s position in the instant cause. He hopes that the jurors will not find the State’s proof so credible or convincing as to persuade them of his guilt beyond a reasonable doubt. The State shares this concern. Therefore, to increase the probability of a conviction, it offers evidence of other similar offenses committed by appellant in the past. Because our law does not permit the jury to infer from past misconduct alone that an accused person committed the offense with which he is charged, the State’s proof may not be admitted over appellant’s objection unless it is relevant to prove an element of the charged offense and is not unfairly prejudicial. Tex.R.Crim.Evid. 403, 404(b). The trial judge, mistakenly believing the evidence to be relevant, receives it despite appellant’s demand that it be excluded.

Appellant is now forced to reevaluate his trial strategy. Because he cannot take an interlocutory appeal of the trial court’s ruling, he must try the remainder of his case just as he would if the evidence of his extraneous misconduct had been admitted properly. If he can honestly deny committing the offense with which he is charged, he may wish to take the stand himself, admit the extraneous misconduct, and give an explanation which makes it seem less egregious or which expresses sincere remorse for the harm he has caused. Even if he cannot deny the charged offense, he may still take the stand and admit his guilt, hoping that the jury will be inclined to lenity if he voluntarily assumes responsibility for his acts.

I do not mean to oversimplify the problem. A judicial confession is a significant event in the criminal process because it amounts to an admission of guilt made before a neutral tribunal under circumstances where the defendant’s right to remain silent is scrupulously honored. Accordingly, I would not hold that evidence is insufficient to support conviction under any circumstances where the defendant made a voluntary confession before the factfinder prior to rendition of its verdict finding him guilty. But when a judicial confession is exacted from the defendant by depriving him of a fair trial, no legitimate interest of the system is served by holding that his confession somehow ratified the unfairness. Cf. Harrison v. United States, 392 U.S. 219 , 88 S.Ct. 2008 , 20 L.Ed.2d 1047 (1968) (judicial admission at a former trial may not admitted against defendant at subsequent trial if prior testimony was compelled by erroneous receipt of unconstitutionally seized evidence). In such case, a new trial is always in order.

Ten years ago this Court confronted a similar problem in context of the curative admissibility rule, upon which the lower court in this ease also relied to affirm appellant’s conviction. Maynard v. State, 685 S.W.2d 60 (Tex.Crim.App.1985). That rule provides generally that “when the defendant offers the same evidence to which he earlier objected, he is not in a position to complain on appeal.” Id. at 65 . Although the rule was subject to a vague exception 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 rebutting evidence,” any attempt at rebuttal or explanation that admitted the truth of such evidence was still generally held to waive appellate complaint. Id. at 65-66 . *192 Recognizing the manifest unfairness of this rule, the Court in Maynard overruled cases to the contrary and held that

no waiver occurs when, after the admission over objection of evidence of an extraneous offense, the defendant testifies to essentially the same facts to which he had earlier objected. This is sound policy because it is fair policy. An extraneous offense is collateral to the facts in issue at trial and is inherently prejudicial. That it actually took place does not affect the lack of relevance. To require the defendant to sit mute in the face of such harmful evidence to preserve the issue for appellate review is to unfairly hamstring the defendant at trial. Once the evidence is admitted, correctly or incorrectly, the defendant is compelled by the exigencies of trial to mitigate such inherently prejudicial evidence as best he or she can.

Id. at 66 .

Shortly after Maynard was handed down, the Court reached an analogous result in context of negotiated guilty pleas, abandoning the rule that a judicial confession overcomes the right of a defendant to appellate review of pretrial errors. Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App.1985). Observing first that article 44.02, Code of Criminal Procedure, was enacted to encourage negotiated pleas of guilty by preserving the right to appeal without requiring the formality of an expensive and time-consuming trial, the Court noticed that this purpose had been thwarted in practice by the rule that errors need not considered on appeal if the guilty plea is supported by a judicial confession. Finding that this practice “substantially vitiates” the statute, the Court overruled prior opinions to the contrary and held that

[w]hen made, the confession or admission is a necessary and concomitant part of the whole ritual of the guilty plea trial. Just as the plea itself no longer waives the right to complain of pretrial rulings on appeal, so the confession or admission will not bar an appellate court from reaching the merits of the complaint.

Id. at 507 .

Both of these opinions serve to effectuate what should be the consistent policy of our jurisprudence, not just to promote the accuracy of factfinding but to ensure the fairness of dispute resolution. Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App.1992). So far as I can tell, DeGarmo and its cousins are the only vestiges of the profoundly anti-adversarial attitude which forces an accused to give up his right to appeal for the privilege of defending himself at trial. Abandoning it would not only restore fairness to the resolution of disputes in criminal litigation, but would also promote legitimate social interests, similar to those underlying article 44.02, by encouraging defendants to seek a satisfactory disposition of the case at trial in spite of judicial errors, and thereby avoid the time and expense of appellate review. For the reasons given above, I would, therefore, overrule DeGarmo and remand the instant cause for further proceedings consistent with this opinion.

CLINTON and MALONEY, JJ., join.