Deel, Damon Bryan v. The State of Texas--Appeal from 21st District Court of Washington County

Affirmed and Memorandum Opinion filed November 18, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01106-CR

NO. 14-02-01107-CR

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DAMON BRYAN DEEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington  County, Texas

Trial Court Cause Nos. 13,587 and 13,630

M E M O R A N D U M O P I N I O N

Appellant pleaded guilty to three counts of delivery of a controlled substance and one count of possession of a controlled substance with intent to deliver. The trial court sentenced appellant to seventeen years= confinement in the Texas Department of Corrections, Institutional Division, for one of the counts of delivery of a controlled substance, and ten years= confinement in the Texas Department of Corrections, Institutional Division, for each of the remaining counts, with the sentences to run concurrently. In a single point of error, appellant contends the trial court erred in admitting evidence of alleged extraneous offenses and bad acts in the punishment phase of the trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 25, 2002, a confidential informant purchased approximately 1.5 grams of methamphetamine and 2 grams of cocaine from appellant. On February 5, 2002, the informant purchased approximately 27 grams of cocaine from appellant. After the latter purchase, officers from the Brenham Police Department drew up a search warrant for the hotel room that appellant occupied.

While the search warrant was being drawn up, the officers kept appellant under surveillance. They observed a purchase being made by Terri Wilson. The officers arrested Wilson after she left the room and she confessed that she had purchased cocaine from appellant.

Based on information that appellant had two handguns in the room, the SWAT team used a battering ram to break down the door. Appellant did not resist the arrest. Both appellant and his girlfriend, who was in the room with him, appeared to be under the influence of cocaine. The officers located two handguns and approximately 16.6 grams of cocaine in the room.

At trial, appellant pleaded guilty to each of four charges against him. After hearing evidence, the trial court sentenced appellant to seventeen years= confinement for one of the offenses and ten years= confinement for each of the remaining three offenses, with the sentences to run concurrently.

ANALYSIS

In a single point of error, appellant contends the trial court erred in admitting evidence of alleged extraneous offenses and bad acts during the punishment phase of the trial. Appellant complains of three specific instances: (1) testimony that his girlfriend was under the influence of cocaine at the time of the arrest; (2) testimony that Wilson had purchased cocaine from appellant on the same night; and (3) testimony that two pistols were found in appellant=s hotel room.

Evidence as to any matter may be offered during the punishment phase of a trial if the trial court deems it relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2003). The Court of Criminal Appeals has explained that, in non-capital felony cases, whether evidence should be admitted in the punishment phase is a question of policy rather than logical relevance. Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002). Because the Afactfinder@ does not determine discrete facts when assessing punishment, the Arelevancy of proffered evidence cannot be determined by deductive processes.@ Id. (quoting Murphy v. State, 77 S.W.2d 44, 63 (Tex. Crim. App. 1989) (plurality op. on reh=g)).

When punishment is assessed by the trial court, it may determine that evidence of an extraneous offense or bad act is relevant to sentencing and admit it, but the trial court must find that the evidence was proven beyond a reasonable doubt before considering that evidence in assessing punishment. Williams v. State, 958 S.W.2d 844, 845 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); see also Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996).

The State presented testimony that appellant=s girlfriend was under the influence of cocaine and in the same room as appellant when he was arrested. The State also presented testimony that Wilson was arrested for possession of cocaine after leaving that room. Appellant himself testified that he traded narcotics for the first gun and that he was holding the second gun as collateral for a second narcotics deal. The trial court did not err in determining that this evidence was relevant to sentencing appellant for delivery of narcotics and possession of narcotics with intent to deliver them.

We further find that there is no indication that the trial court considered this evidence without determining it had been proven beyond a reasonable doubt. The judge did not state whether he had found that the extraneous offenses or bad acts were proven beyond a reasonable doubt or whether he had considered the extraneous offenses or bad acts in assessing punishment. There is thus no indication the judge considered any improper evidence in assessing punishment. We overrule appellant=s sole point of error.

The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed November 18, 2003.

Panel consists of Justices Yates, Fowler, and Frost.

Do Not Publish C Tex. R. App. P.47.2(b).