                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-08-00024-CR
        ______________________________


     CHARLES TERRELL MCCLURE, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 6th Judicial District Court
               Lamar County, Texas
               Trial Court No. 22195




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                             OPINION

         Charles Terrell McClure pleaded guilty to constructive delivery of methamphetamine

weighing more than four grams but less than 200 grams, a first degree felony. See TEX . HEALTH &

SAFETY CODE ANN . § 481.102(6) (Vernon Supp. 2008) (methamphetamine is penalty group 1

controlled substance), § 481.112(a), (c) (Vernon 2003) (criminalizing delivery of penalty group 1

controlled substance and assigning punishment range provided for first degree felonies). A jury

assessed his punishment at twenty years' imprisonment and a fine of $1,000.00. McClure now

appeals, raising two challenges to the trial court's decision to admit extraneous offense evidence at

this punishment trial. We overrule both issues and affirm the trial court's judgment.

I.       Did Sufficient Evidence Support Admission of the Extraneous Offenses?

         In his first point of error, McClure contends the trial court erred by admitting extraneous

misconduct evidence during the punishment phase of the trial when this extraneous offense evidence

was unsupported by sufficient evidence such that a rational trier of fact could find beyond a

reasonable doubt that McClure engaged in the alleged extraneous misconduct.

         A.     Standard of Review

         A court may admit any evidence relevant to the issue of punishment during that phase of a

trial:

         including but not limited to the prior criminal record of the defendant, his general
         reputation, his character, an opinion regarding his character, the circumstances of the
         offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas
         Rules of Evidence, any other evidence of an extraneous crime or bad act that is


                                                   2
       shown beyond a reasonable doubt by evidence to have been committed by the
       defendant or for which he could be held criminally responsible, regardless of whether
       he has previously been charged with or finally convicted of the crime or act.

TEX . CODE CRIM . PROC. ANN . art. 37.07, § 3(a)(1) (Vernon Supp. 2008). Thus, "[u]nless the

extraneous misconduct evidence is such that the sentencing entity (either judge or jury) can rationally

find the defendant criminally responsible for the extraneous misconduct, the trial court is not

permitted to admit it at a punishment hearing." Smith v. State, 227 S.W.3d 753, 759–60 & n.16

(Tex. Crim. App. 2007) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)

(plurality opinion)). Ultimately, a trial court's decision to admit or exclude evidence of an

extraneous offense will not be disturbed absent a showing that the trial court abused its discretion.

Mitchell, 931 S.W.2d at 953.

       B.      Evidence at Issue

       Before calling any witnesses, counsel from both sides had a short bench conference in which

the State made an offer of proof. The prosecutor explained to the trial court that the police

interviewed McClure post-arrest.         During the interview, McClure admitted to selling

methamphetamine in quarter-gram amounts on twenty to twenty-five different occasions during the

nine-month period immediately preceding his arrest. McClure contended the expected evidence

would be insufficient to show McClure engaged in this conduct beyond a reasonable doubt. The trial

court overruled the objection and permitted the State's witness to discuss that evidence.




                                                  3
         Leigh Foreman, a police officer for the City of Paris, testified that, during a post-arrest search

of McClure's vehicle, police found evidence suggesting McClure was a "very large-scale [drug]

trafficker." Foreman testified that police found an electronic scale, several spoons, and hundreds of

small-sized plastic bags commonly used by narcotics traffickers—some of which still contained

illegal drugs and were marked with prices that Foreman testified were consistent with the street

values of those drugs.

         Once Foreman had provided the jury with the background surrounding McClure's arrest, he

then proceeded to provide details about a custodial interrogation he conducted of McClure. It was

during this interrogation that McClure admitted he had been selling drugs during the previous nine-

month period.1 Shortly after his brother's death the previous year, McClure found a three- or four-

pound cache of methamphetamine in his brother's house. McClure then decided he would sell the

drugs so he could save money to buy a house.2 Foreman then said McClure had admitted completing

approximately twenty to twenty-five narcotics sales during the period from Christmas 2006 through

March 15, 2007. McClure reportedly further admitted that the majority of these sales were for

quarter-gram to half-gram amounts. And McClure also reportedly admitted to having sold drugs to




         1
             Foreman later stated he believed McClure had lied about only being a drug dealer for nine
months.
         2
             McClure reportedly admitted he had saved about $7,000.00 from these drug sales to buy a
house.

                                                     4
two City of Paris employees on the morning before the police arrested him for the charges that were

then on trial.

        With this background in mind, we turn to the merits of McClure's first issue.

        C.       Distinguishing Thomas and Bulington

        McClure cites Thomas v. State, 807 S.W.2d 803 (Tex. App.—Houston [1st Dist.] 1991, pet.

ref'd), and Bulington v. State, 179 S.W.3d 223 (Tex. App.—Texarkana 2005, no pet.), for the

proposition that the State's failure to provide evidence to corroborate a confession renders that

confession insufficient to establish commission of the crime. In Thomas, the appellant was

convicted of aggravated robbery; on appeal he argued, inter alia, that the evidence was insufficient

to support that conviction because the State failed to present any evidence corroborating his

extrajudicial confessions. 807 S.W.2d 803, 804–07. In Bulington, the appellant was convicted of

capital murder and sentenced to life; on appeal, he argued the evidence was legally insufficient to

corroborate the testimony of an accomplice witness. Both Thomas and Bulington addressed whether

there was sufficient evidence brought forth during guilt/innocence to corroborate the accused's

confession to the charges for which he was then on trial. Neither Thomas nor Bulington addressed

whether extraneous offense evidence was sufficiently corroborated during the punishment phase of

the trial. Accordingly, Thomas and Bulington provide no guidance for the issue now being raised

by McClure.




                                                 5
       D.      The Trial Court Did Not Err

       Article 37.07 of the Texas Code of Criminal Procedure is not a sufficiency of the evidence

rule; instead, that provision governs what kind of evidence may be introduced at law. York v. State,

258 S.W.3d 712 (Tex. App.—Waco 2008, pet. filed). Nor does Article 37.07 appear to expressly

require corroboration of confessions during the punishment phase of trial. Compare TEX . CODE

CRIM . PROC. ANN . art. 37.07 with TEX . CODE CRIM . PROC. ANN . art. 1.15 (Vernon 2005) (requiring

State to corroborate guilty plea by bringing forth sufficient evidence to substantiate guilt).

       We have not been directed by the parties to any appellate cases that have addressed whether

Article 37.07 of the Texas Code of Criminal Procedure requires corroboration of extrajudicial

confessions admitted during the punishment phase of a trial. Nevertheless, our independent research

has found two such Texas decisions. In Malpica v. State, 108 S.W.3d 374 (Tex. App.—Tyler 2003,

no pet.), the appellant challenged the sufficiency of the extraneous offense evidence admitted during

punishment. The court of appeals overruled his contention and expressly held that "[a]n extra-

judicial confession of the extraneous offense need not be corroborated." Id. at 378. The First Court

had previously reached the same conclusion in Padron v. State, 988 S.W.2d 344, 346 (Tex.

App.—Houston [1st Dist.] 1999, no pet.). The Padron court noted "there is no authority regarding

the need for corroboration of extrajudicial admissions to extraneous offenses." Id.

       In a somewhat similar case, the Texas Court of Criminal Appeals has held that the rule

requiring corroboration of accomplice witness testimony about extraneous offenses does not apply



                                                  6
during the punishment phase of a capital murder trial. In Bible v. State, the court held "the corpus

delicti doctrine does not apply to extraneous offenses offered at the punishment phase of a capital

murder trial." Bible v. State, 162 S.W.3d 234, 247 (Tex. Crim. App. 2005). Bible thus stands for

the proposition that the State need not provide evidence to corroborate an accomplice's testimony

about an extraneous offense committed by the accused when such evidence is brought forth during

the punishment phase of a capital murder trial. Id. In deciding Bible, this state's highest criminal

court reasoned that, at the point when a capital jury is considering the accused's punishment, the jury

is "not faced with the specter of a totally innocent defendant being convicted for a crime that never

occurred solely on the basis of a confession resulting from official coercion or the defendant's own

delusions." Id.

         While Bible concerned extraneous offense evidence admitted during the punishment phase

of a capital murder trial, we see no reason to judicially impose a higher burden of corroboration in

noncapital cases (such as this case) than that burden which the Texas Court of Criminal Appeals

expressly refused to extend to capital cases. Instead, we agree with our sister courts' conclusions in

Malpica and Padron, and we hold that extrajudicial confessions of extraneous offenses need not be

corroborated at the punishment phase of a jury trial; instead, the only limitation is whether the jury

independently believes such confessions prove the alleged extraneous offenses beyond a reasonable

doubt.




                                                  7
       In this case, McClure's custodial confession to Foreman about dealing drugs would, if

believed by the jury, be sufficient to support the conclusion that (beyond a reasonable doubt)

McClure had engaged in such conduct. Cf. Torres v. State, 92 S.W.3d 911, 916–17 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref'd) (jury free to rely on circumstantial evidence contained

in extrajudicial confession that Torres committed murder; evidence insufficient for conviction). The

prosecutor's initial proffer during the bench conference informed the trial court that the expected

testimony would show McClure admitted to selling methamphetamine in quarter-gram amounts

during twenty to twenty-five different transactions over a nine-month period. This summary of the

expected testimony provided the trial court with enough information to conclude the expected

evidence alone would (if believed by the jury beyond a reasonable doubt) support the conclusion that

McClure had committed these other crimes.3 Article 37.07 did not require the State to provide, nor

did Article 37.07 require the trial court to first hear, additional corroborating evidence before the

extrajudicial confession to these extraneous offenses could be admitted during the punishment phase

of the trial. No error has been shown.




       3
        The trial court in McClure's case instructed the jury that it was not to consider evidence of
"any crime or other bad act" that had been admitted at trial "unless [the jury] believe[d] beyond a
reasonable doubt that the Defendant in this case committed said offense or bad act."

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II.     Probative Value Versus Prejudicial Impact

        In his second point of error, McClure contends the probative value of the extrinsic offense

was substantially outweighed by its potential for prejudice. The record shows McClure preserved

this issue by first raising this objection during trial.

        Trial courts are afforded a wide range of discretion within which to admit or exclude

evidence. Wilder v. State, 111 S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref'd). As a

reviewing court, we will not reverse a trial court's decision to admit or exclude evidence absent a

showing that the lower court abused that discretion. If the trial court's decision falls within the zone

of reasonable disagreement, that decision will not be disturbed. Green v. State, 934 S.W.2d 92, 102

(Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.

on reh'g).

        The Texas Rules of Evidence favor the admission of all relevant evidence at trial. TEX . R.

EVID . 402. "Relevant evidence" is "evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable than it would be

without the evidence." TEX . R. EVID . 401. However, even relevant evidence may be excluded if the

probative value of that otherwise relevant evidence is "substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

or needless presentation of cumulative evidence." TEX . R. EVID . 403. "'[U]nfair prejudice' refers

to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily,



                                                    9
an emotional one." Erazo v. State, 144 S.W.3d 487, 501–02 (Tex. Crim. App. 2004) (quoting

Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)); accord Cohn v. State, 849 S.W.2d

817, 820 (Tex. Crim. App. 1993).

       The Texas Court of Criminal Appeals has offered the following explanation of the meaning

of Article 37.07 of the Texas Code of Criminal Procedure and its relevancy parameters with respect

to evidence admitted during a punishment trial:

       Article 37.07, § 3(a)(1) allows for admission of any evidence the trial court "deems
       relevant to sentencing." The Legislature has expressly provided that "relevant"
       punishment evidence includes, but is not limited to, both character evidence in the
       form of opinion testimony as well as extraneous-offense evidence. Because there are
       no discrete fact issues at the punishment phase of a non-capital trial, we have ruled
       that the definition of "relevant," as stated in Rule 401 of the Texas Rules of
       Evidence, does not readily apply to Article 37.07. What is "relevant" to the
       punishment determination is simply that which will assist the fact finder in deciding
       the appropriate sentence in a particular case. When the jury assesses punishment, it
       must be able to tailor the sentence to the particular defendant, and relevance is simply
       "a question of what is helpful to the jury in determining the appropriate sentence for
       a particular defendant in a particular case." Importantly, we have held that when a
       defendant applies for community supervision (as the appellant did), the trial court
       may reasonably deem any character trait that pertains to the defendant's suitability for
       community supervision to be a relevant matter for the sentencer to consider.

Sims v. State, No. PD-1575-07, 2008 Tex. Crim. App. LEXIS 820, at *8–9 (Tex. Crim. App. July 2,

2008) (footnotes omitted).4

       A person's history of violating the law is undoubtedly a relevant factor for a jury to consider

when assessing a sentence because it relates to the defendant's character. Fowler v. State, 126



       4
           McClure had filed an application for community supervision in this case.

                                                  10
S.W.3d 307, 310 (Tex. App.—Beaumont 2004, no pet.). Juries should also be able to consider a

person's criminal history. Lujan v. State, 626 S.W.2d 854, 864 (Tex. App.—San Antonio 1981, pet.

ref'd). When, as was the case here, the accused has filed an application for community supervision

in which he or she claims never to have been previously convicted of a felony offense, the issue of

whether or not that person has ever previously engaged in felony-level conduct is certainly relevant.

Does such evidence serve to prejudice the accused? Certainly. Anything that paints the defendant

in a bad light is hurtful and prejudicial to his or her case. But is that prejudice "unfair" or does that

prejudice substantially outweigh the evidence's probative value? Under our law, the answer to that

question is clearly "No," with respect to extraneous offense evidence that the jury believes to have

been proven beyond a reasonable doubt, because such evidence has such an empirically high

probative value with regard to a jury's ability to assess a sentence appropriate for both the facts of

that particular case and for that particular defendant.

Conclusion

        The trial court did not err by admitting testimony during McClure's punishment trial that

McClure had confessed to committing extraneous offenses, even though such testimony was not

accompanied by corroborating evidence. Article 37.07 of the Texas Code of Criminal Procedure

requires no such corroboration. Additionally, the probative value of this extraneous offense evidence

was not substantially outweighed by any unfair prejudice resulting from admission of this evidence.

The trial court did not abuse its discretion by admitting this disputed evidence.



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      We overrule McClure's points of error and affirm the trial court's judgment.




                                           Jack Carter
                                           Justice

Date Submitted:      September 12, 2008
Date Decided:        October 3, 2008

Publish




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