Duggan v. State

778 S.W.2d 465, 1989 Tex. Crim. App. LEXIS 190, 1989 WL 122610
CourtCourt of Criminal Appeals of Texas
DecidedOctober 18, 1989
Docket222-87
StatusPublished
Cited by63 cases

This text of 778 S.W.2d 465 (Duggan v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duggan v. State, 778 S.W.2d 465, 1989 Tex. Crim. App. LEXIS 190, 1989 WL 122610 (Tex. 1989).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of aggravated possession of amphetamine and sentenced to fifty years confinement and a $50,000 fine. On appeal to the Eleventh Court of Appeals, appellant urged that the State’s failure to correct the misleading testimony of two accomplice witnesses, who denied they exchanged their testimony for leniency in their cases, denied him due process and due course of law. In an unpublished opinion, the court of appeals affirmed the conviction, concluding without authority that because the record showed that no “formal” arrangement existed between the State and the accomplices, appellant was not entitled to show the jury that any agreement existed. Duggan v. State, No. 11-86-032-CR (Tex.App. — Eastland 1987). We granted petition for discretionary review to consider the question whether an agreement for leniency must be formalized before its introduction to the jury as evidence is proper. Tex.R.App.Pro., Rule 200(e)(2).

In a second ground for review, appellant urges that the court of appeals erred in concluding that the accomplice testimony was sufficiently corroborated. In a third ground for review, appellant argues that the statutorily required parole charge was unconstitutional and constituted reversible error. We granted these as well. Rule 200(c)(3), supra.

[467]*467Appellant was arrested a few hours after his pickup truck was found at the scene of a drug lab which had been raided by law enforcement officers from two counties. Michael Payne and Michael Reynolds were arrested at the scene and told officers that appellant was involved in the drug operation. When appellant was arrested, the arresting deputy, and later a sheriff, noticed that he emitted a malodorous scent identical to the aroma they had detected at the drug lab. Except for the presence of appellant’s pickup truck at the scene and the distinctive smell of the lab, the testimony of accomplices Payne and Reynolds was the only evidence connecting appellant himself to the possession of the amphetamine recovered during the raid.

During trial, the State introduced the testimony of Payne and Reynolds, both of whom claimed that appellant was the supervisor of the drug operation. In an effort to impeach their credibility, the defense sought to show the jury that their testimony was exchanged for the State’s promise of leniency on their own cases. During cross examination of these two accomplice witnesses, the jury heard the following exchanges:

“Q: Mr. Payne, have you made some arrangements with the District Attorney’s office for you to testify in this case?
A: No, sir.
Q: You have not?
A: No, sir.
Q: You have not, you don’t have any kind of arrangement to receive some light punishment to come in here and testify today?
A: No, sir.
Q: You don’t have anything in writing with the District Attorney’s office?
A: No, sir.
Q: Is your attorney here present in the courtroom?
A: Yes, sir.
Q: Is that Mr. Inglesby?
A: Yes, sir.
Q: And your testimony under oath today is that you have no prearranged agreement, plea bargaining with the District Attorney to come in here and testify today?
A: That’s right.
******
Q: Mr. Reynolds, I will ask you whether or not you had any arrangement with the District Attorney’s office concerning the disposition of a case you may have involved, arising out of this 15th of March drug bust?
A: I have not made any kind of — we have not talked about any kind of leniency or anything toward this case in any way.”

Later, the defense called Payne’s neighbor in an effort to demonstrate to the jury that some sort of agreement did indeed exist. According to the neighbor, Payne told her that his own lawyer and Sheriff Cain, who had helped lead the raid, offered him probation in exchange for his testimony against appellant. In a brief cross examination, the State challenged the neighbor’s testimony.

At a hearing on appellant’s unsuccessful motion for new trial, however, the district attorney admitted that he agreed to give some consideration for the accomplices’ cases in exchange for their testimony against Appellant. During the motion for new trial, the defense counsel elicited the following testimony from the prosecutor:

“Q: And, did you indicate to Mr. Payne and his lawyer that there would be some consideration for his testimony, if he testified for the State?
A: If he testified like he told us he would, yes sir.
******
Q: During the course of that conversation, did you indicate to [Reynolds] that in exchange for his testimony you contemplated taking less than harsh action with regard to his case?
A: My conversation with him was, I would take it into consideration if he testified.”

Overruling appellant’s challenge to the accomplices’ testimony, the Court of Appeals scanned the record for a “formal [468]*468agreement” or an agreement “for any specific recommendation by the district attorney in exchange for their testimony.” Finding no such precise or formal agreement, the court of appeals simply overruled appellant’s due process and due course of law claims, citing no authority.

This court rejected this very approach in Burkhalter v. State, 493 S.W.2d 214, 216-17 (Tex.Cr.App.1973). There we decided that it was judicially imprudent to attempt to distinguish express agreements between the State and a testifying accomplice from those agreements which are merely implied, suggested, insinuated or inferred. Instead, we adopted, albeit implicitly, the standard articulated in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), to determine whether such an agreement exists, viz: whether the evidence, newly discovered or otherwise, “tends to confirm rather than refute the existence of some understanding for leniency.” Burkhalter v. State, supra, at 217, n. 1. It makes no difference whether the understanding is consummated by a wink, a nod and a handshake, or by a signed and notarized formal document ceremoniously impressed with a wax seal. A deal is a deal.

The prosecutor himself in the present case confirmed the existence of an understanding between the accomplices and the State when he admitted telling the accomplices that he would consider leniency in exchange for their testimony. Because some sort of understanding between the State and the accomplices did indeed exist, the accomplices’ firm, sweeping assertions that no such agreements existed lent a false impression to the court.

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Cite This Page — Counsel Stack

Bluebook (online)
778 S.W.2d 465, 1989 Tex. Crim. App. LEXIS 190, 1989 WL 122610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duggan-v-state-texcrimapp-1989.