      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00725-CR




                                Sherman Lee Houston, Appellant


                                                  v.


                                   The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 04-033-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                                           OPINION


               A jury convicted Sherman Houston of the offense of delivery of a controlled

substance in the amount of four grams but less than two hundred grams and assessed punishment at

forty-five years in prison. See Tex. Health & Safety Code Ann. § 481.112 (West 2003). In his first

issue, Houston contends that the trial court abused its discretion by admitting extraneous evidence

of two later delivery offenses. In his second and third issues, Houston challenges both his conviction

and sentence, contending that he was denied the effective assistance of counsel. We affirm the

district court’s judgment.
                                         BACKGROUND

               Over a period of approximately six months in 2003, the U.S. Drug Enforcement

Administration ran an undercover drug operation in Taylor. Detective Gary Haston, an officer from

the Williamson County Sheriff’s Department, participated in the investigation as an undercover

purchaser of controlled substances. In his undercover role, Detective Haston began purchasing crack

cocaine from Joyce Harris. Detective Haston first met Sherman Houston through Harris on May 29,

2003. On that day, Harris used Houston’s cellular phone to inform Detective Haston that she could

procure an ounce of crack cocaine for him to purchase. Detective Haston agreed to meet Harris in

Taylor to complete the transaction.

               While en route to Taylor, Detective Haston noticed that Houston and Harris were

following him in Houston’s car. They followed him to a gas station in Taylor, where they all met

to discuss the details of the planned crack cocaine purchase. Detective Haston testified that Houston

was actively involved in these initial negotiations. Harris and Houston informed Detective Haston

that the delivery would occur at another location in Taylor. When Detective Haston expressed some

reservations about going to a second location, Houston persisted in trying to convince him to go

through with the deal. In urging him, Houston told Detective Haston “all you’ve got to do is just

follow me and give me the money,” and “they’ve been buying them [crack cocaine] all day.”

               Harris accompanied Detective Haston in his car, and Houston followed them to the

delivery location. Once they arrived, Houston pulled his car behind a parked vehicle that Detective

Haston identified as belonging to the supplier of the crack cocaine. Detective Haston parked in front

of the supplier’s car. The car had the hood up, obscuring Detective Haston’s view of the occupants.

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Houston entered the supplier’s vehicle to confer with the supplier for a few moments. Then he

approached Detective Haston, saying that the source wanted the money up front. Detective Haston

refused to give Houston any money until he saw the cocaine. Houston tried to talk Detective Haston

into giving him the money, going back and forth between the supplier’s vehicle and Detective

Haston’s vehicle as he tried to broker the deal.

                When it became clear that the negotiations had reached a stalemate, Harris became

actively involved in the transaction. She persuaded Detective Haston to give her $200. Harris took

the money to the supplier’s car and returned with a “cookie” of crack cocaine. Detective Haston was

reluctant to pay $500, the previously negotiated price for the cookie, because he thought that it

weighed less than an ounce. Houston again tried to convince Detective Haston to buy the cookie,

saying that he thought it was worth $450. Ultimately, Harris negotiated a lower price of $400 for

the cookie. Detective Haston gave Harris another $200, which she delivered to the supplier in his

car. Upon completion of the deal, Detective Haston paid Houston and Harris $20 and $40,

respectively, for their roles in the transaction.

                Over Houston’s objection, evidence was introduced regarding Houston’s participation

in two subsequent drug transactions on June 11, 2003. Detective Haston testified that he twice

purchased crack cocaine from Houston and Harris on that date. Although Houston’s participation

in these transactions was minimal, Detective Haston testified that Houston and Harris acted as

partners in the two transactions on June 11, 2003. Detective Haston testified that he paid Houston

for helping to facilitate the two deals.




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               A jury found Houston guilty of the offense of delivery of a controlled substance. At

the punishment phase of trial, Houston testified that he was guilty of the crime for which he had been

convicted. In his testimony regarding his role in the May 29th delivery, Houston characterized

himself as “just a runner.” The jury assessed his punishment at forty-five years in prison.


                                          DISCUSSION

Extraneous Offense Evidence

               In his first issue, Houston contends that the district court erred in admitting

extraneous evidence of multiple drug deliveries on June 11, 2003. See Tex. R. Evid. 403, 404(b).

The State responds that Houston is estopped from challenging the admission of extraneous offense

evidence on appeal because he admitted that he was guilty of the current offense at the punishment

phase of the trial. See Leday v. State, 983 S.W.2d 713, 715 (Tex. Crim. App. 1998); McGlothlin v.

State, 896 S.W.2d 183, 189 (Tex. Crim. App. 1995); DeGarmo v. State, 691 S.W.2d. 657, 660-61

(Tex. Crim. App. 1985). In DeGarmo, the court of criminal appeals held that a defendant may not

complain on appeal of an error occurring at the guilt phase of the trial when the defendant admits

his guilt at the punishment phase of trial. 691 S.W.2d at 661.

               In McGlothlin, the court of criminal appeals reaffirmed the DeGarmo doctrine. 896

S.W.2d at 189. The McGlothlin court held that under the DeGarmo doctrine, erroneous admission

of extraneous offense evidence in the guilt phase was waived by the defendant’s admission of guilt

in the punishment phase. Id. In McGlothlin, the court noted the truth-seeking purpose behind the

DeGarmo doctrine:



                                                  4
        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.


Id. at 187.

                However, later decisions have blurred the seemingly bright-line rule that a defendant

who admits guilt at the punishment phase waives a challenge to any error that might have occurred

during the guilt stage of the trial. In Leday, the court of criminal appeals significantly restricted the

DeGarmo doctrine, recognizing that “[w]e as a people have deliberately chosen to adopt laws which

interfere with the truth-seeking function of the criminal trial.” 983 S.W.2d. at 724. The court

explained that the need to protect some fundamental rights outweighs the truth-seeking function of

a criminal trial. Id. at 724-25; see also Morrison v. State, 845 S.W.2d 882, 884 (Tex. Crim. App.

1992) (“Due Process and those individual rights that are fundamental to our quality of life co-exist

with, and at times override, the truth-finding function.”).1


        1
           The Leday court laid out a non-exhaustive list of errors that a defendant is not estopped
from raising on appeal: (1) errors violating the Due Process Clauses of the Fifth and Fourteenth
Amendments regarding the right to have guilt proved beyond a reasonable doubt; (2) errors violating
the right in the Double Jeopardy Clause of the Fifth Amendment to not be subjected to a second trial
even when there is clear evidence of guilt; (3) errors violating the right to refuse to testify found in
the Self-Incrimination Clause of the Fifth Amendment; (4) errors violating the right found in the Due
Process Clause of the Fourteenth Amendment to exclude coerced confessions; (5) errors violating
the Fourth Amendment prohibition against unlawful search and seizure and illegally obtained
evidence; (6) errors violating Article 5 of the Rules of Evidence regarding exclusion of privileged
evidence; (7) errors violating the right to have excluded custodial interrogation statements not
conforming to the requirements of the Code of Criminal Procedure art. 38.22; (8) errors violating
the right to have jurors prevented from asking witnesses questions. Leday v. State, 983 S.W.2d 713,
725 (Tex. Crim. App. 1998). Later decisions have examined specific errors not enumerated in
Leday, but in doing so, they have preserved the distinction between errors which relate to

                                                   5
               Leday did not specifically address erroneous admission of extraneous offense

evidence. However, in determining whether an error falls within an exception under Leday, we look

to the distinction between the truth-seeking function and the fundamental rights of the accused. In

Gutierrez v. State, this Court explained, “Leday requires us to determine if appellant asserts

fundamental rights or guaranties, or whether the truth-finding function prevails to estop appellant

from raising them.” Gutierrez v. State, 8 S.W.3d 739, 745 (Tex. App.—Austin 1999, no pet.).

               This inquiry requires us to examine the nature and purpose of rules of evidence 403

and 404(b). “Cases and commentaries interpreting the Federal Rules of Evidence are instructive in

our construction of similarly worded phrases in our own rules.” Coffin v. State, 885 S.W.2d 140,

148 n.4 (Tex. Crim. App. 1994). Texas Rules of Evidence 403 and 404(b) are virtually identical to

Federal Rules of Evidence 403 and 404(b). See 1 Steven Goode et al., Guide to the Texas Rules of

Evidence §§ 403.1, 404.1 (3d ed. 2003). In the context of Federal Rule of Evidence 404(b), the

United States Supreme Court examined the history and purpose of the rule:


       Courts that follow the common-law tradition almost unanimously have come to
       disallow resort by the prosecution to any kind of evidence of a defendant’s evil
       character to establish a probability of his guilt. Not that the law invests the defendant
       with a presumption of good character . . . but it simply closes the whole matter of
       character, disposition and reputation on the prosecution’s case-in-chief. The state



fundamental rights and guaranties and errors that only interfere with the truth-seeking function of
the trial. See, e.g., Gutierrez v. State, 8 S.W.3d 739, 745 (Tex. App.—Austin 1999, no pet.) (by
confessing guilt at punishment phase of trial, defendant was estopped from challenging propriety of
jury note-taking during trial); Kelley v. State, 22 S.W.3d 628, 631 (Tex. App.—Fort Worth 2000,
pet. ref’d) (alleged jury charge error did not implicate defendant’s fundamental rights; thus having
admitted guilt at punishment phase, defendant was estopped from raising jury charge error on
appeal).

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       may not show defendant’s prior trouble with the law, specific criminal acts, or ill
       name among his neighbors, even though such facts might logically be persuasive that
       he is by propensity a probable perpetrator of the crime. The inquiry is not rejected
       because character is irrelevant; on the contrary, it is said to weigh too much with the
       jury and to so overpersuade them as to prejudge one with a bad general record and
       deny him a fair opportunity to defend against a particular charge. The overriding
       policy of excluding such evidence, despite its admitted probative value, is the
       practical experience that its disallowance tends to prevent confusion of issues, unfair
       surprise and undue prejudice.


Michelson v. United States, 335 U.S. 469, 475-76 (1948) (footnotes omitted and emphasis added);

see also Old Chief v. United States, 519 U.S. 172, 181-82 (1997). Similarly, rule 403 excludes

evidence that carries “a danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Tex. R. Evid. 403; see also Old Chief, 519 U.S. at 182 (noting that rule 403 prejudice may occur

when “evidence of convictions for prior, unrelated crimes may lead a juror to think that since the

defendant already has a criminal record, an erroneous conviction would not be quite as serious as

would otherwise be the case”) (quoting 1 J. Strong, McCormick on Evidence 780 (4th ed. 1992)).

               Our review of the rules and the case law interpreting them leads us to the conclusion

that the purpose of rules 403 and 404(b) is to achieve a verdict based on relevant facts rather than

through confusion of the issues, unfair prejudice, misleading the jury, or any improper inferences.

At their heart, these rules serve as safeguards of the truth-seeking function.2 Under Leday, a

violation of these rules is the type of error that a defendant is estopped from raising on appeal if he

has made a judicial confession. See Leday, 983 S.W.2d at 725; Gutierrez, 8 S.W.3d at 745.


       2
         See also Swidler & Berlin v. United States, 524 U.S. 399, 411 (1998) (O’Connor, J.,
dissenting) (“We have long recognized that ‘[t]he fundamental basis upon which all rules of
evidence must rest—if they are to rest upon reason—is their adaptation to the successful
development of the truth.’” (quoting Funk v. United States, 290 U.S. 371, 381 (1933)).

                                                  7
               Furthermore, even if Houston was not estopped from raising his evidentiary issue,

the admission of evidence of the June 11 drug transactions was not erroneous. “Extraneous

unadjudicated offenses may be admissible if the accused opens the door to admission of such

evidence.” Beasley v. State, 838 S.W.2d 695, 706-7 (Tex. App.—Dallas 1992, pet. ref’d). A

defendant opens the door by asking a question which creates a false impression that the admission

of extraneous offense evidence would correct. See Monkhouse v. State, 861 S.W.2d 473, 476 (Tex.

App.—Texarkana 1993, no pet.). When a party opens the door, opposing counsel is permitted to

present evidence to correct the mistaken impression. Beasley, 838 S.W.2d at 707; see also Ortiz v.

State, 834 S.W.2d 343, 346 (Tex. Crim. App. 1992). In cross-examining Detective Haston,

Houston’s counsel elicited evidence that Houston dressed shabbily, drove an old car, and did not

make a lot of money in the drug business. Other questioning clearly implied that Houston was only

a marginal participant in the drug trade and that the May 29 transaction constituted his sole

involvement in the drug business.3

               In response, the State presented evidence that a partnership existed between Houston

and Harris and that the two conspired to sell Detective Haston two ounces of crack cocaine several

weeks after the initial transaction. This evidence was appropriately admitted to correct the false

impression left by the defendant. See Beasley, 838 S.W.2d at 707. Because the evidence was

properly admitted and he is estopped from challenging its admission, we overrule Houston’s first

issue.


         3
           Over Houston’s objection, the court permitted the State to correct the false impression: “I
think it all hinges on the impression that’s been created by the cross-examination. And I do think
the impression was that this was his only involvement in the investigation.”

                                                  8
Ineffective Assistance of Counsel

               In his second and third issues, Houston contends that he was denied the effective

assistance of counsel during both the guilt/innocence and punishment phases of trial. Specifically,

Houston contends that his counsel was ineffective because he:


       •    conceded guilt for the offense of delivery of a controlled substance in his closing
            argument;

       •    did not file his requests for notice of extraneous offenses in a timely manner;

       •    failed to obtain a ruling on his request for notice;

       •    failed to object, pursuant to Rule of Evidence 403, to Detective Haston’s
            testimony regarding Houston’s statement that he had facilitated a delivery of
            cocaine earlier in the day before he met with Haston;

       •    failed to adequately prepare Houston to testify at the punishment phase; and

       •    failed to properly advise Houston by allowing him to plead not true to the
            penalty paragraphs alleged in the indictment.


               We evaluate claims of ineffective assistance of counsel at both phases of a criminal

trial against the standard set forth in Strickland v. Washington. See 466 U.S. 668, 687 (1984);

Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999) (applying Strickland standard).

In deciding a claim of ineffective assistance of counsel, we must determine whether an attorney’s

performance was deficient, and if so, whether that deficiency prejudiced the defense. Strickland, 466

U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An attorney’s

performance is deficient if it falls below an objective standard of reasonableness. Strickland, 466

U.S. at 688; Thompson, 9 S.W.3d at 812.



                                                  9
                 Deficient performance is prejudicial when, but for the attorney’s unprofessional

conduct, there is a reasonable probability that the outcome of the proceeding would have been

different. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694;

Thompson, 9 S.W.3d at 812. Absent both showings, we cannot conclude that there has been a

breakdown in the adversarial process that renders the result of a trial unreliable. Thompson, 9

S.W.3d at 813.

                 In determining whether an attorney’s performance was deficient, we apply a strong

presumption that the attorney’s conduct was within the range of reasonable professional assistance.

Id. at 814. We do not speculate about an attorney’s strategy. Blevins v. State, 18 S.W.3d 266, 271

(Tex. App.—Austin 2000, no pet.); see also Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999)

(courts not “required to condone unreasonable decisions parading under the umbrella of strategy, or

to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that

counsel made no strategic decision at all”). We review the effectiveness of counsel in light of the

totality of the representation and particular circumstances of each case. Thompson, 9 S.W.3d at 813.

                 “[A]ny allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. at 814 (citing McFarland

v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). The appellant bears the burden of

overcoming the presumption of reasonable attorney performance and is required to prove by a

preponderance of the evidence that his counsel was ineffective. Blevins, 18 S.W.3d at 271; Mayhue

v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998, no pet.). Therefore, the appellant must



                                                 10
produce a record from which we may discern that his attorney’s performance was not based on sound

trial strategy. Blevins, 18 S.W.3d at 271. We recognize that this burden is difficult to meet on direct

appeal. In the majority of cases, the record on direct appeal is simply underdeveloped and cannot

adequately reflect the failing of trial counsel. Thompson, 9 S.W.3d at 813-14.4

                The record before us contains no evidence of the strategy behind trial counsel’s

actions or omissions. Although Houston filed a motion for new trial, the motion did not allege that

his counsel was ineffective in representing him at trial. Because Houston did not obtain a hearing

on the motion for new trial, there was no opportunity to develop the record to include information

regarding counsel’s strategy at trial. Houston has failed to present an adequate record for evaluating

his claims of ineffective assistance of counsel. Based on this record, Houston cannot overcome the

strong presumption that trial counsel’s performance was reasonable, and we therefore overrule his

second and third issues.5




        4
           The court of criminal appeals has said that the record on direct appeal is in almost all cases
inadequate to show that counsel’s conduct fell below an objectively reasonable standard of
performance. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Ineffective
assistance of counsel claims may be reviewed on direct appeal only when “no reasonable trial
strategy could justify the trial counsel’s conduct, [thus] counsel’s performance falls below an
objective standard of reasonableness as a matter of law, regardless of whether the record adequately
reflects the trial counsel’s subjective reasons for acting as she did.” Id.
        5
         Houston’s claims of ineffective assistance of counsel are not completely foreclosed by our
decision. The general rule forbidding an application for a writ of habeas corpus based on issues
raised on direct appeal does not apply where the appellate court denies a claim of ineffective
assistance of counsel based on the inadequacy of the record on direct appeal. See Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Blevins v. State, 18 S.W.3d 266, 272 n.8 (Tex.
App.—Austin 2000, no pet.).

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                                       CONCLUSION

              Having overruled all of Houston’s issues, we affirm the district court’s judgment.




                                            ___________________________________________

                                            Bea Ann Smith, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: April 13, 2006

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