                                 NO. 07-08-0210-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 MARCH 2, 2009
                         ______________________________

                                 TROY A. BOWLEY,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-418,423; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                                    Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Troy A. Bowley was convicted of felony DWI. He claims on appeal that his

conviction should be reversed because 1) he received ineffective assistance of counsel,

and 2) the trial court erred in not instructing the jury to disregard comments from the

prosecutor about plea negotiations or granting a mistrial. We reverse.
       Ineffective Assistance of Counsel

       DWI is elevated to a third degree felony if the defendant has two prior DWI

convictions. TEX . PEN . CODE ANN . §49.09(b) (Vernon Supp. 2008). Proof of the two prior

convictions is an element of the offense which must be proven by the State during the

guilt/innocence phase of the trial. Will v. State, 794 S.W.2d 948, 952-53 (Tex. App.–

Houston [1st Dist.] 1990, pet. ref’d). However, a defendant may stipulate to the two

predicate offenses which prevents the State from proving them during its case-in-chief.

Hernandez v. State, 109 S.W.3d 491, 494 (Tex. Crim. App. 2003). Whether to stipulate,

though, has been presumed to be a matter related to trial strategy. Tuton v. State, No. 02-

04-512-CR, 2005 Tex. App. LEXIS 10270 at *12 (Tex. App.–Fort Worth December 8, 2005,

no pet.) (not designated for publication); Stafford v. State, 758 S.W.2d 663, 673-74 (Tex.

App.–Houston [1st Dist.] 1988), rev’d on other grounds, 813 S.W.2d 503 (Tex. Crim. App.

1991). This is particularly so when the record is silent as to why counsel did what he did.

Id.

       Here, the record fails to disclose why counsel opted not to stipulate to the prior

convictions. Thus, we must presume that it was part of his trial strategy. Tuton v. State,

supra; Stafford v. State, supra.

       Moreover, appellant fails to illustrate how the decision affected the outcome. This

is important because he has the burden to prove not only error but also prejudice. Cannon

v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). Merely concluding that the

outcome was affected, without explaining how, is not enough. In those situations, we are




                                            2
effectively asked to perform appellant’s job, which we cannot. Consequently, the first four

issues are overruled.1

        Reference to Plea Negotiations

        Next, appellant contends that the trial court erred in failing to instruct the jury to

disregard the State’s reference to plea negotiations and grant a mistrial. We agree.

        The issue arose upon cross-examination of appellant.                                 During his direct

examination, he had testified about how he admitted to committing the acts underlying his

previous convictions; because he admitted that they occurred, he allegedly had decided

to plead guilty to them. However, he denied committing the current offense, and that was

why he had not pled guilty to it. In other words, appellant was trying to portray to the jury

how he took responsibility for his wrongs when he actually was wrong, and because he

was not taking such responsibility now, he must not have violated the law. In effort to

discredit him, the State interrogated him about those prior convictions and then asked

whether the reason he was not pleading guilty now was “because we couldn’t agree on a

plea agreement that you preferred.” To that appellant objected. The trial court sustained

appellant’s objection but denied his request for an instruction to disregard. It also denied

mistrial.

        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



        1
            W e note that the tenor of appellant’s argum ent regarding his claim of ineffectiveness is troublesom e.
He states within his brief that “[a]ppellate [c]ounsel believes the Appellate Court is well aware of the reputation
of [t]rial [c]ounsel” and that to “perm it [t]rial [c]ounsel to continue to go to trial without knowing the law is a
m istake.” These com m ents sm ack of som e personal anim osity held towards trial counsel. Allowing
anim osity, if any, to guide one’s writing and thought process is ill-advised and inappropriate when drafting an
appellate brief.

                                                         3
rejected, and that appellant’s desires presented the major obstacle to arriving at a bargain.

So too is it conceivable that mention of plea negotiations having occurred could mistakenly

lead a juror to conclude that appellant believed himself guilty since an innocent person

would not contemplate admitting guilt.2 See Lara v. State, No. 13-01-099-CR, 2002 Tex.

App. LEXIS 5654 at 8 (Tex. App.–Corpus Christi August 1, 2002, no pet.) (not designated

for publication) (stating that “[c]ommon sense tells us, and a juror, that a person who tries

to cut a deal is probably guilty”). As the court in Lara said, when the question is “‘did he

do it’” (as it was here), reference to plea negotiations “can only prejudice a defendant.” Id.

at *7-8. So, at the very least, it could be said that the prosecutor’s comment and its

inherent insinuation of appellant’s guilt was improper since it was irrelevant, see TEX . R.

EVID . 402 (stating that irrelevant evidence is inadmissible), or, if minimally relevant, highly

misleading and prejudicial.3 See TEX . R. EVID . 403 (stating that relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion, and misleading the jury, among other things); Prystash v. State, 3 S.W.3d 522,

527-28 (Tex. Crim. App. 1999) (reaffirming that evidence of plea negotiations is subject to

exclusion under Rule 403); Smith v. State, 898 S.W.2d 838, 843-44 (Tex. Crim. App. 1995)

(holding that reference to plea negotiations was subject to exclusion under Rule 403 since


        2
            W e treat this as an evidentiary m atter because that is how the litigants presented it to us. Yet, to
the extent that the question itself propounded by the State is not actually evidence, one could reasonably
address the issue within the fram ework of prosecutorial m isconduct and arrive at the sam e outcom e. This
is so because the public policy discussed in Prystash v. State, 3 S.W .3d 522 (Tex. Crim . App. 1999) and
Smith v. State, 898 S.W .2d 838 (Tex. Crim . App. 1995) is no less applicable. Sim ply put, disclosing to the
jury that plea negotiations occurred can be deem ed im proper irrespective of whether the disclosure em anated
from the prosecutor’s question or the witness’ answer to the question.

        3
          This potentiality is heightened here because the extent of the plea negotiations and whether they
actually occurred was truly conjectural since appellant did not answer the question. Nor did anyone develop
the m atter. So, what we have here is an invitation from the State to the jury to invoke its collective im agination
about a highly prejudicial topic while assessing appellant’s guilt.

                                                         4
any minimal relevance it may have had in that case was substantially outweighed by the

danger of both unfair prejudice and of misleading the jury).4

        Next, the grave risk of undue prejudice and deception went unabated when the trial

court withheld its instruction to disregard the comment. This is troubling because the

comment struck at one of the major themes of appellant’s defense. At the time, he

endeavored to convince the jury of his innocence by establishing that he took responsibility

for his actions, and he sought to do this by illustrating that, in the past, he pled guilty when

he was actually guilty.5 Given the “common sense” inference that those engaged in plea

negotiations have probably committed the crime, Lara v. State, supra, the prosecutor’s

mention of plea negotiations was a quick, improper way to negate appellant’s defense.

And, counsel possessed sufficient legitimate evidence to rebut the strategy and establish

appellant’s guilt, as illustrated by the reporter’s record.

        To this we add another consideration. While sustaining an objection alone may be

enough to stop a litigant from further alluding to the objectionable matter, it does not inform

the jurors that they are prohibited from considering what they heard. Additionally, it seems

to be the policy of this State that unless instructed otherwise, jurors are free to consider

what they heard in the courtroom for all purposes. See Hammock v. State, 46 S.W.3d 889,

895 (Tex. Crim. App. 2001) (recognizing that unless a limiting instruction is sought, the



        4
          Because the trial court sustained the objection and the applicable standard of review is one of
abused discretion, we m ay use any ground to justify the trial court’s decision. See Prystash v. State, 3 S.W .3d
522, 527 (Tex. Crim . App. 1999) (holding that any ground m ay be used to justify a decision, irrespective of
whether it was propounded at trial, when the standard of review is one of abused discretion). So, we are free
of the State’s attem pt to restrict our review to the application of Texas Rule of Evidence 410, which rule
involves the disclosure of “statem ents” m ade during plea negotiations.

        5
            This was purportedly why he pled guilty to the accusations underlying his prior convictions.

                                                        5
evidence is deemed admitted for all purposes). So, it could be said that withholding the

instruction to disregard the prosecutor’s reference to plea negotiations in fact left the jurors

free to consider them.

       Another matter of policy must also be broached. It encompasses that which favors

the occurrence of plea and settlement negotiations.             Disclosing to a jury that such

negotiations occurred “militates against [that] policy,” according to the Court of Criminal

Appeals. Prystash v. State, 3 S.W.3d at 528. Moreover, the policy is well-settled, should

affect our decision-making processes, and should have been known to the State’s trial

counsel.

       Finally, there exists legitimate question as to whether affirming the judgment by

holding the error harmless would invite the State to repeat this wrong and others. Again,

despite the aforementioned and long-established policy, it nevertheless sojourned into the

prohibited area. So too has it strived, via its appellate brief, to illustrate the legitimacy of its

conduct, despite the dictates by our Court of Criminal Appeals in Prystash and Smith.

Those circumstances hardly suggest that the harmless error rule will not be used as (or

has not become) a means of slipping before the jury things that should be excluded.

       In short, the State interjected highly prejudicial information into the guilt/innocence

phase of the trial. The trial court held as much. However, effort to ameliorate the situation

did not occur.     That constituted harmful error under the circumstances before us.

Consequently, we sustain issues five and six, reverse the judgment of the trial court, and

remand the cause.

                                                     Brian Quinn
                                                     Chief Justice

Publish.

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