
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
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in a plea later withdrawn .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
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.
	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
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
1.        Willie Lloyd was tried separately.

ing the impeachment in the form and context in which the
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 comport