Darrel Wayne Washington v. State

IN THE
TENTH COURT OF APPEALS
No. 10-13-00361-CR
No. 10-13-00365-CR
DARREL WAYNE WASHINGTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court Nos. 2012-1809-C1 and 2011-1691-C1
OPINION
Darrel Wayne Washington pled guilty in one trial court case to the offense of
possession of cocaine with the intent to deliver, see TEX. HEALTH & SAFETY CODE ANN. §
481.112 (West 2010), which has been assigned the appellate case number 10-13-00361-
CR; and he also pled guilty in another trial court case to two offenses, possession of
cocaine with the intent to deliver and possession of ecstasy with the intent to deliver, see
id., which has been assigned the appellate case number of 10-13-00365-CR. Punishment
for all three offenses was tried in one proceeding to a jury, and Washington was
sentenced to 55 years in prison for each offense. Because the trial court erred in
admitting evidence but the error was not harmful, the trial court’s judgments are
affirmed.
EXPERT RECOMMENDATION OF PUNISHMENT
In his sole issue for each appeal, Washington contends the trial court erred in
admitting the opinion testimony of an expert witness that a sentence at the low end of
the punishment range would not be appropriate for Washington.1 Specifically,
Washington contends the admission was error because that type of testimony has been
expressly disallowed by the Court of Criminal Appeals.
We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The
trial court abuses its discretion only when the decision lies outside the zone of
reasonable disagreement. Id.
The Court of Criminal Appeals has held that "the argument that a witness may
recommend a particular punishment to the trier of fact has been soundly rejected" and
concluded that such testimony would escalate into a "battle of the experts." Sattiewhite
1 The parties have briefed the issue as the opinion testimony of an expert witness and we will address it
as such. The witness was a police officer whose expertise was in the area of the illegal drug trade in
Waco, Texas. There was nothing specific to show his expertise on the penalogical, psychological, or
sociological impact of prison sentences beyond what a lay person would attribute to sentences of various
lengths. In fact, the witness was cross-examined by Washington’s counsel regarding his lack of
psychological expertise generally.
Washington v. State Page 2
v. State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989). The State argues that Sattiewhite
does not apply in this case because the expert did not recommend a specific
punishment, but testified only that punishment at the lower end of the range would not
be appropriate. However, the Court in Sattiewhite cited Schulz v. State which affirmed
the trial court's refusal to permit a psychiatrist to give opinion testimony that it would
be better for the appellant to be placed on probation than to serve time in prison,
because, it held, permitting such testimony would invade the province of the jury.
Schulz v. State, 446 S.W.2d 872, 874 (Tex. Crim. App. 1969). Further, in Assay v. State,
another case cited by Sattiewhite, the Court of Criminal Appeals held that it was proper
for the trial court to exclude expert testimony that a short term of imprisonment would
be more likely to affect the reform of the defendant rather than a long term of
imprisonment. Assay v. State, 456 S.W.2d 903, 905 (Tex. Crim. App. 1970).
We recognize that Schulz and Assay both affirmed the decision of the trial court
to exclude evidence rather than, as in this case, the decision to admit the evidence. We
believe the policy decision announced by the Court of Criminal Appeals, that a battle of
experts regarding appropriate punishment is improper, is the core holding which we
will apply in this case. Based on each of these cases, Schulz, Assay, and Sattiewhite, we
conclude that even though the expert did not recommend a particular term of years,
this type of testimony, that is, recommending a range within which to punish or not
Washington v. State Page 3
punish the defendant, is also impermissible. Thus, the trial court abused its discretion
in overruling Washington’s objections to the expert’s testimony.
HARM ANALYSIS
Having concluded that the trial court abused its discretion, we must now
consider whether Washington was harmed as the result of this error. Generally, errors
concerning the admission of the State's evidence over a defendant's objections are non-
constitutional errors. See Easley v. State, 424 S.W.3d 535, 539 (Tex. Crim. App. 2014).
Thus, the trial court's error in admitting the expert’s testimony should be disregarded
unless the error affected Washington's substantial rights. See TEX. R. APP. P. 44.2(b); see
also Reyes v. State, No. 03-10-00082-CR, 2011 Tex. App. LEXIS 4811, *17 (Tex. App.—
Austin June 24, 2011, no pet.) (not designated for publication). "[S]ubstantial rights are
not affected by the erroneous admission of evidence 'if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence the
jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
Washington was 23 years old at the time of his trial. He pled guilty to three drug
offenses: possession with the intent to deliver cocaine (two offenses) and possession
with the intent to deliver ecstasy. He had another charge of possession of cocaine
pending and a conviction for possession of marijuana in Falls County. He had access to
a loaded handgun in each of these offenses.
Washington v. State Page 4
Washington was also found to have engaged in delinquent conduct by
committing four felony offenses as a juvenile; those being, aggravated sexual assault of
a child, indecency with a child, and two offenses of burglary of a habitation. He was
also found to have engaged in delinquent conduct by committing the offense of cruelty
to animals. In that offense, he was accused of throwing a dog he helped steal out of a
window of a moving vehicle. He was placed on juvenile probation for all of these
offenses. Washington’s juvenile probation was revoked when he committed a burglary
of a building in which he stole a purse out of his school when the school was closed. He
was sent to the Texas Youth Commission for two years.
A chart was introduced into evidence showing all of Washington’s offenses.
Washington testified at the punishment hearing and attempted to downplay his
involvement in and the severity of the offenses for which he had been charged, both as
a juvenile and an adult. He wrote a letter to the Falls County District Attorney asking
for probation in his Falls County possession of cocaine case and claiming he wanted to
be a productive part of society. After he bonded out of jail pending the disposition of
that case, he committed the three offenses for which he was on trial. While in jail for
these offenses, he wrote to his former teacher and asked him to request probation from
the judge, again claiming he wanted to be a productive part of society. The teacher
testified at the punishment hearing that Washington should be sentenced to only 15
Washington v. State Page 5
years in prison. Washington’s girlfriend also testified that Washington should be
sentenced to the low end of the punishment range.2
Although the State argued to the jury that it did not want to send a message to
drug dealers that a 20 to 35 year sentence was all someone with Washington’s history
would receive in McLennan County, and although four out of the 12 jurors had stated
in voir dire that deterrence was the type of punishment the juror identified with, we
cannot say, after examining the record as a whole, that the error in the admission of the
expert’s testimony influenced the jury or had more than a slight effect on the jury.
CONCLUSION
Accordingly, Washington’s sole issue is overruled, and the trial court’s
judgments are affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 19, 2015
Publish
[CRPM]
2 We remind the reader that this is the harm analysis and we consider for harm analysis purposes that
Washington was allowed to introduce the same type of punishment range testimony from his witnesses
that the State was allowed to introduce. Such evidence even from Washington’s witnesses would have
been inadmissible if properly objected to by the State. This is the very type of “battle” that the Court of
Criminal Appeals was trying to otherwise prevent by Sattiewhite.
Washington v. State Page 6