       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00337-CR



                                     Sara Hardin, Appellant

                                                v.

                                  The State of Texas, Appellee



  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
     NO. A-99-0501-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                Sara Hardin appeals from her conviction for possession with intent to deliver

between four and two hundred grams of cocaine. Texas Health & Safety Code Ann. § 481.112

(d) (West Supp. 2001). After a jury found appellant guilty, the court sentenced her to twenty-five

years confinement. In one point of error, appellant contends that the court erred in admitting

evidence of statements that she made during plea discussions. We will affirm the conviction.

                Appellant testified in her own defense. During the State’s cross-examination, she

testified that she did not know where her co-defendant, Willie Lloyd, 1 obtained the crack cocaine

which was seized. In rebuttal, the State elicited testimony from San Angelo police detective Greg

Keeling about a meeting he attended in January 2000 along with an assistant district attorney and

another San Angelo detective, at which appellant said that she and her co-defendant had traveled

to Austin and made arrangements for the cocaine to be brought back to San Angelo. Appellant


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       Willie Lloyd was tried separately.
objected that the information the State received from Keeling was not admissible because it had

been obtained during plea negotiations. The court overruled the objection.

              In general, statements made during unsuccessful plea discussions cannot be admitted

in evidence against the defendant who made them:


       Except as otherwise provided in this rule, evidence of the following is not
       admissible against the defendant who made the plea or was a participant in the plea
       discussions

                                               ....

       any statement made in the course of plea discussions with an attorney for the
       prosecuting authority . . . that do not result in a plea of guilty . . . or that result
       in a plea later withdrawn . . . .


Tex. R. Evid. 410(4).

              The State argues that it did not admit evidence that the information was obtained

during plea negotiations; it used only the substance of the information for impeachment. The

State relies on Dennis v. State, 925 S.W. 2d 32, 41 (Tex. App.—
                                                              Tyler 1995, pet. ref’d). In

Dennis, the State impeached the defendant with statements that he had made during a guilty plea

in federal court. Dennis complained that admission of the evidence violated Rule 410. The court

noted that although Dennis had not been sentenced in the federal proceeding, at the time of the

state proceeding there was no evidence that he had ever withdrawn his federal plea. Id. The court

further stated that the jury only knew that the defendant made the statements under oath, to a

United States attorney, but did not know the statement was made as part of a guilty plea. Id. The

court held there was no error in allowing the impeachment in the form and context in which the


                                                 2
questions were asked. Id. at 40-41. Given that Dennis is distinguishable because it did not

involve an unsuccessful plea, we assume the State is relying on the language that the jury did not

know the information came during plea negotiations as authorizing the admission in this case.

               Appellant contends that the only exception to Rule 410 arises if the defendant

introduces a part of the plea discussion and introduction of other parts is necessary to prevent the

jury from getting a distorted view of the discussion. He contends no exception exists allowing use

of the evidence for impeachment. This view comports with that of several cases.

               Taylor v. State, 19 S.W.3d 858, 862 (Tex. App.—
                                                             Eastland 2000, pet. ref’d)

involved an interpretation of Rule 410. The prosecutor impeached the defendant with a statement

that had been made to the prosecutor during plea negotiations. Id. at 862-63. The prosecutor’s

question did not reveal that the statement was made during plea negotiations; only the substance

of the information was used to impeach. Id. at 863. The court noted that rule 410 prohibits

evidence of plea discussions and related statements, unless parts of the plea discussions already

had been introduced. The court noted that there were no such discussions already in evidence at

the time the prosecutor used what had been said during the plea negotiations, which was “clearly

error.” Id. The court then went on to perform a reversible error analysis under Tex. R. App.

P. 44.2(b). The court in Taylor cited Abdel-Sater v. State, 852 S.W.2d 671 (Tex. App.—
                                                                                     Houston

[14th Dist. ] 1993, pet. ref’d) and Neugebauer v. State, 974 S.W. 2d 274 (Tex. App.—
                                                                                   Amarillo

1998, pet. ref’d) for the proposition that statements made in the course of plea discussions are

generally not admissible unless another statement made in the course of plea discussions has been

admitted. Id. at 863-64.


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               We need not decide the parameters of Rule 410 in this case. Even assuming the

admission was erroneous, error, if any, in admitting the statement was harmless. Tex. R. App.

P. 44.2(b). The evidence at trial showed that appellant and Lloyd had been under surveillance

for several days. They were stopped and arrested while driving from a local park, a known place

for drug sales, back to the motel room where the cocaine was seized. They were driving a rental

car. The rental agreement showed that appellant was listed as an alternate driver. Officers

observed her driving the car alone and entering the motel room alone. The room was registered

in her name. When arrested, appellant was a passenger in the car and was holding a cigarette

purse containing the motel room key. A lockbox containing cocaine was in the motel room. The

key to the box was on the automobile keyring. Officers searching the car found a lockbox with

$3700 in it, separated into three $1000 bundles with $700 left over. There was testimony that

drug dealers often bundled their money in $1000 units. Taped to the bottom of that lockbox was

a medallion; “Sara H.” was written across the tape. Perhaps most damaging, appellant wrote two

letters, one to her counsel and one to her co-defendant’s counsel, in which she claimed sole

responsibility for the drugs. The amount of cocaine found, apparently one of the largest amounts

in San Angelo’s history, had a street value of approximately $39, 000 dollars. Against that

context, the testimony that she drove with her co-defendant to Austin to make arrangements for

transporting the cocaine is not particularly significant or inflammatory. The fact that appellant

was seen driving the car alone and entering the motel room alone could have led to the inference

that she was traveling back and forth, re-supplying Lloyd while he was selling cocaine in the park.

The amount of cocaine found, the fact that she admitted to being a drug user, and the evidence


                                                4
about her exercise of some degree of control over the premises and the car, could have caused the

jury to disbelieve the idea that she was unaware of the cocaine. Appellant has not presented any

error requiring reversal. Tex. R. App. P. 44.2(b). We overrule appellant’s single point of error

and affirm the judgment of conviction.


                                            _____________________________________________

                                            Marilyn Aboussie, Chief Justice


Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: April 5, 2001

Do Not Publish




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