             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-0914-09



                             TROY A. BOWLEY, Appellant

                                              v.

                                 THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                            LUBBOCK COUNTY

      K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., W OMACK,
H ERVEY, and C OCHRAN, JJ., joined. P RICE, J., filed a dissenting opinion in which
M EYERS, J OHNSON, and H OLCOMB, JJ. joined. J OHNSON, J., filed a dissenting opinion.
H OLCOMB, J., filed a dissenting opinion in which M EYERS, P RICE, and J OHNSON , JJ.,
joined.

                                       OPINION

       At trial, the judge refused to give an instruction to disregard after sustaining Bowley’s

objection to the prosecutor’s question about plea negotiations. The Seventh Court of Appeals

concluded that the judge erred by not giving the instruction and reversed.1 We hold that no



       1
           Bowley v. State, 280 S.W.3d 530, 534 (Tex. App.—Amarillo 2009).
                                                                                BOWLEY—2

instruction was required because Bowley’s testimony opened the door to the prosecutor’s

question. We therefore reverse the court of appeals’s judgment.

                                              Facts

       A jury convicted Bowley of DWI, enhanced by two prior DWI convictions to a third-

degree felony.2 Bowley qualified as an habitual felony offender,3 and the jury sentenced him

to thirty years’ imprisonment.

       At the guilt phase of Bowley’s trial, the prosecutor called Jimmy Isbell, an investigator

with the Lubbock County District Attorney’s Office, to testify about Bowley’s two prior DWI

convictions that the State used to enhance the current DWI charge to a felony. Testifying as

a fingerprint expert, Isbell positively identified Bowley as the individual previously convicted

of those offenses. On cross-examination by Bowley’s counsel, Isbell testified that Bowley

pled guilty to the previous offenses.

       When Bowley testified in his own defense, his attorney questioned him about the

judgments from his two prior DWI convictions. The following colloquy transpired:

       Q:       . . . I’m going to show you State’s Exhibit No. 4. And that’s you; is that
                correct? This is one of your DWIs out of Terry County; is that fair to say?

       A:       Yes, sir.

                                               ...

       Q:       Okay. And . . . did you plead to that or take that to trial?

       2
           T EX. P ENAL C ODE A NN. §§ 49.04(a), 49.09(b)(2) (Vernon 2003).
       3
           T EX. P ENAL C ODE A NN. § 12.42(d) (Vernon 2003).
                                                                      BOWLEY—3

A:    I pled to that.

Q:    Okay. Why did you plead to State’s Exhibit No. 4?

A:    Because I was guilty of it.

Q:    Okay. Let’s do it again with the State’s Exhibit No. 5. This is a DWI and this
      is you, out of Hockley County; is that fair to say?

A:    Yes, sir.

                                     ...

Q:    Did you take this case to trial or not?

A:    No, sir, I didn’t.

Q:    Okay. Why did you plead?

A:    Because I was guilty, sir.

The prosecutor then questioned Bowley about his record:

Q:    Okay. [Defense counsel] said that you pled guilty to all those up there because
      you were; is that right?

A:    Yes, sir, that is correct.

Q:    You’re not pleading guilty here today because you’re not guilty; is that right?

A:    Right. That is correct.

Q:    Could it be that it’s because we couldn’t agree on a plea agreement that you
      preferred?

[DEFENSE COUNSEL]: Judge, I guess I will have to object on that. That’s –

THE COURT:              Sustained.

[DEFENSE COUNSEL]: Judge, as well, let me go ahead and ask that this Court
                                                                                  BOWLEY—4

                                     instruct the jury not to consider that in any type of
                                     deliberation, that it’s simply just not a proper area for a
                                     trial, Judge.

       THE COURT:             No instruction will be given.

       [DEFENSE COUNSEL]:            Judge, I guess to finish that and perfect my objection, I
                                     will ask for a mistrial.

       THE COURT:             Denied.

       On redirect, Bowley’s counsel again questioned him about his prior guilty pleas.

Bowley explained that he pled guilty in the prior cases because he knew he was intoxicated.

Bowley’s counsel did not question him about his reasons for pleading not guilty to the charge

in this case.

                                        Court of Appeals

       Bowley appealed, claiming that the trial judge abused his discretion by refusing his

request for an instruction to disregard the prosecutor’s reference to plea negotiations.4 Citing

the principle that a court of appeals is free to uphold a trial judge’s ruling under any theory

of law applicable to the case, 5 the court of appeals stated that it was not restricted to State’s

reliance on Texas Rule of Evidence 410,6 which involves the disclosure of “statements”




       4
           Bowley, 280 S.W.3d at 532.
       5
           Id. at 533 n.4 (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.
1999)).
       6
           Id.
                                                                               BOWLEY—5

made during plea negotiations. 7 The court of appeals then analyzed the issue under Rules

402 and 403, though it ultimately reversed the trial judge’s ruling.8         It held that the

prosecutor’s question “was improper because it was irrelevant, or, if minimally relevant,

highly misleading and prejudicial.”9 The court of appeals observed, “Given the manner in

which the question was posed, one could reasonably interpret it as disclosing that plea

negotiations had occurred, that potential offers were made and rejected, and that [Bowley]’s

desires presented the major obstacle to arriving at a bargain.” 10 The court of appeals further

noted that the “grave risk of undue prejudice and deception went unabated when the trial

court withheld its instruction to disregard,” and it opined that there is a “common sense”

inference that those engaged in plea negotiations are guilty of the offense.11         It thus

concluded that the mention of plea negotiations was “a quick, improper way to negate

appellant’s defense.” 12 Because of this concern, combined with the public policy favoring

plea bargains and a danger that “holding the error harmless would invite the State to repeat




       7
           T EX. R. E VID. 410(4).
       8
            Bowley, 280 S.W.3d at 534.
       9
            Id. at 532-33.
       10
            Id. at 532.
       11
            Id. at 533.
       12
            Id.
                                                                                BOWLEY—6

this wrong and others,” the court of appeals found harm and reversed the conviction.13

                                           Analysis

            A trial judge’s evidentiary rulings are reviewed under an abuse-of-discretion

standard.14 If the trial judge was correct under any theory of law applicable to the case, we

will uphold the judge’s decision.15 We do this even if the trial judge failed to give any reason

or used the wrong reason for the ruling.16

       By choosing to testify, a defendant puts his or her character for veracity (as opposed

to moral character) in issue.17 We have held that “[a] defendant who takes the witness stand

may be cross-examined and impeached in the same manner as any other witness.” 18 A

defendant may be “contradicted, impeached, discredited, attacked, sustained, bolstered, made

to give evidence against himself, cross-examined as to new matters, and treated in every

respect as any other witness . . . .” 19 And we have observed that a party who “opens the

door” to otherwise inadmissible evidence risks the adverse effect of having that evidence


       13
         Id. (citing Prystash, 3 S.W.3d at 527-28; Smith v. State, 898 S.W.2d 838, 843-
44 (Tex. Crim. App. 1995)).
       14
            Id.
       15
            Prystash, 3 S.W.3d at 527.
       16
            Id.
       17
            Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986).
       18
          Feldman v. State, 71 S.W.3d 738, 755 (Tex. Crim. App. 2002); Cisneros v.
State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985).
       19
            Feldman, 71 S.W.3d at 755; Cisneros, 692 S.W.2d at 83.
                                                                               BOWLEY—7

admitted.20

       We hold that the court of appeals erred in holding that the prosecutor’s question to

Bowley referencing plea negotiations was improper. Bowley opened the door to the

prosecutor’s question on cross-examination by creating a circumstance in which the jury

could infer that his not guilty plea was truthful. He did so on direct examination when he

stated that he pled guilty in the previous cases “because [he] was guilty.” Although Bowley’s

counsel did not take the ultimate logical step, the prosecutor clarified the underlying purpose

of defense counsel’s inquiry by asking, “You’re not pleading guilty here today because

you’re not guilty, is that right?” 21 Bowley answered in the affirmative. By testifying that he

pled guilty in the previous cases because he was guilty, then that he pled not guilty in this

case because he was not guilty, Bowley invited the jury to consider his prior guilty pleas as

evidence that he was innocent of the offense for which he was on trial.

       As noted above, a party who opens the door to otherwise inadmissible evidence risks

the adverse consequences of having it admitted. Evidence of plea negotiations is generally

not relevant to proving the elements of an offense, and it might be prejudicial to a defendant.

As stated in Prystash v. State and Smith v. State, allowing such evidence could chill plea




       20
            Feldman, 71 S.W.3d at 755-56.
       21
          See, e.g., id. at 756 (holding that the State’s question asking appellant to explain
his previous statement about being in trouble did not exceed the scope of the invitation
appellant initially gave).
                                                                              BOWLEY—8

negotiations between the parties.22 But it was permissible for the prosecutor to cross-

examine Bowley by questioning the circumstances surrounding his plea in this case to

establish an alternate motive for pleading not guilty—that it was the result of failed plea

negotiations.23 To hold otherwise would allow a party to create a favorable inference while

depriving the other party of the truth-finding mechanism of cross-examination. Thus, in this

instance, even under the highly deferential abuse-of-discretion standard of review, no trial

judge should have sustained Bowley’s objection.

       The court of appeals’s conclusion that the question was subject to exclusion under

Rule 403 because it was “highly misleading and prejudicial” and that there was a “grave risk”

that the jury would make the “common sense” inference that because Bowley had negotiated

for a plea, he had committed the crime, misses the mark.24 The prosecutor’s question sought

to elicit an alternate motive for Bowley’s plea. The court of appeals commented that the



       22
          See Prystash, 3 S.W.3d at 527-28 (reaffirming that the defendant’s introduction
of a plea offer by the State as evidence of defendant’s future dangerousness is excludable
under Rule 403 and observing that public policy militated in favor of excluding plea
offers); Smith, 898 S.W.2d at 843-44 (holding that evidence of a plea offer by the State
may be relevant, but is substantially outweighed by the danger of both unfair prejudice
and of misleading the jury).
       23
          Cf. Ochoa v. State, 481 S.W.2d 847, 849-50 (Tex. Crim. App. 1972) (observing
that where a witness makes blanket statements concerning his or her exemplary conduct
such as having never been arrested, charged or convicted of any offense, or having never
been “in trouble,” or purports to detail his convictions leaving the impression there are no
others, the State may refute such testimony despite the nature of the conviction used or its
remoteness).
       24
            See Bowley, 280 S.W.3d at 533.
                                                                                BOWLEY—9

question was “troubling” because it “struck at one of the major themes of [Bowley’s]

defense.” 25 We disagree about the troublesome nature of the question. If the inference

established by Bowley was a “major theme” of his defense, that fact militates in favor of

allowing the State to challenge its soundness through cross-examination. The court of

appeals further opined that the prosecutor should not have asked the question because he

“possessed sufficient legitimate evidence to rebut the strategy and establish [Bowley’s] guilt

. . . .” 26 And the dissent also focuses on the strength of the State’s case. However, the focus

here is the particular need to rebut the inference established by Bowley, as opposed to the

sufficiency of the State’s evidence.     Second, an assessment of the State’s case is pure

speculation. Finally, even assuming that there was sufficient evidence for the State to

establish Bowley’s guilt without challenging this theme of his defense does not mean the

State had to refrain from doing so. And, as stated above, it was permissible for the State to

establish an alternate inference than Bowley’s. We conclude that the court of appeals erred

in holding that the question asked by the prosecutor was substantially more prejudicial than

probative under the particular facts of this case.

       For the foregoing reasons, the trial judge was not required to sustain Bowley’s

objection. Accordingly, no instruction to disregard was necessary.

                                         Conclusion



       25
            Id.
       26
            Id.
                                                                            BOWLEY—10

       The court of appeals erred in concluding that the trial judge was required to give an

instruction to disregard. We reverse the judgment of the court of appeals and affirm the

judgment of the trial court.




DATE DELIVERED: May 5, 2010
PUBLISH
