            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

           P RICE, J., filed a dissenting opinion in which M EYERS, J OHNSON and
H OLCOMB, JJ., joined.

                                 DISSENTING OPINION

       This case comes to us in such an odd posture that it is difficult for us to say anything

of great jurisprudential significance. The trial judge sustained the appellant’s general

objection without indicating upon what legal basis he understood the appellant to be

objecting. In his appellate brief, the appellant proceeded on the assumption that his objection

had been predicated upon Rule 410(4) of the Texas Rules of Evidence, which prohibits the

use by the State against a defendant of evidence of any “statement” the defendant might have
                                                                                           Bowley — 2


made in the course of unfruitful plea negotiations.1 Professors Goode, Wellborn and Sharlot

tell us that the rule’s prohibition is meant to extend even to a statement that would be relevant

as impeachment evidence.2          The rule represents a policy judgment that even relevant

evidence should be excluded in the interest of promoting “frank and free” plea negotiations.3

Therefore, assuming the rule applies here, the prosecutor’s question was objectionable even

if the appellant’s line of questioning otherwise “opened the door” to admission of any other

relevant impeachment evidence.

        In its reply brief on direct appeal, however, the State argued that the prosecutor’s

question was not designed necessarily to elicit evidence of any specific “statement” that the

appellant may have made during plea negotiations. It is true that the prosecutor’s question

(“Could it be that [your not guilty plea in this case occurred] because we couldn’t agree on

a plea agreement that you preferred?”) did not focus on any particular statement the



        1

        See TEX . R. EVID . 410(4) (“Except as otherwise provided in this rule, evidence of the
following is not admissible against the defendant who made the plea or was a participant in the plea
discussions: . . . (4) any statement made in the course of plea discussions with an attorney for the
prosecuting authority, . . . in a criminal case, that do not result in a plea of guilty or a plea or nolo
contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.”).
        2

        See Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 TEXAS PRACTICE : GUIDE
TO THE TEXAS RULES OF EVIDENCE    § 410.2 (3rd ed. 2002), at 348 (“the pleas and related statements
mentioned in Rule 410 are inadmissible in subsequent . . . criminal litigation, whether offered either
as substantive evidence against the defendant who made the plea or participated in the plea
discussions or to impeach him.”).
        3

        Id., § 410.3, at 352.
                                                                                         Bowley — 3


appellant may have made during plea discussions. From this the State argued on appeal that

the limitations of Rule 410(4) on its ability to develop otherwise relevant impeachment

testimony against the appellant ought not to apply.

       I am dubious. By focusing on what the parties could not agree to, the prosecutor’s

question does indeed steer clear of any express elicitation of a unilateral statement on the

appellant’s part. But because a plea agreement ordinarily entails an offer by the prosecutor

and an acceptance by the defendant, any evidence of a failure to mutually agree on a plea

bargain necessarily implies a communication of some kind on the defendant’s part—a

“statement,” if you will—that he did not accept the State’s offer. Certainly it communicates

that the appellant entertained the option of entering a guilty plea. To allow the prosecutor’s

question here hardly serves to foster the “frank and free discussions between the parties” that

Rule 410's near-absolute prohibition is designed to preserve.4



       4

         The majority proceeds upon a theory that the appellant “opened the door” to the use of his
plea proceedings to impeach him in this case, to rectify the misapprehension he implanted with the
jury that he always pleads guilty when he is guilty (and, by implication, not guilty when he is not).
I am not unmindful of the perceived unfairness to the State here. But, for policy reasons, Rule 410
does not permit such impeachment. Rule 410 does contain an exception that would allow for the
admission against a defendant of a statement made during unsuccessful plea proceedings in the
interest of “fairness,” to complete the picture when the defendant himself has already introduced
evidence of “another statement” made during those plea proceedings. But this optional-
completeness exception is expressly limited to statements made during “the same plea or plea
discussions[.]” The appellant’s testimony about his prior guilty pleas cannot serve under this
specific provision of Rule 410 to “open the door” to admission of statements he might have made
during plea negotiations pertaining to the instant offense. Perhaps in “fairness” it should, but if the
Court believes this represents a lamentable gap in the rule and a windfall for the appellant, we should
entrust that perception to our Rules Committee.
                                                                                       Bowley — 4


       In any event, the court of appeals managed to avoid addressing this issue altogether.5

Instead, the court of appeals held that the trial judge’s ruling might properly have been

predicated upon Rule 403's authorization of trial courts to exclude even relevant evidence “if

its probative value is substantially outweighed by the danger of unfair prejudice,” etc., and

held that the appellant’s objection was properly sustained on that basis.6 For my part, I

seriously doubt that this was the rule that either the appellant or the trial judge had in

mind—although on the present record it is, of course, impossible to know. The court of

appeals’s diversion has nevertheless embroiled this Court in a dispute over the proper

application of what is probably not even the relevant evidentiary rule—certainly not the rule

the parties briefed below.

       Weighing in on this diversionary issue nevertheless (since it is, after all, the issue the

court of appeals decided), I must reject the majority’s conclusion that the trial court would

have abused its discretion had it actually predicated its ruling on Rule 403. Reviewing courts

afford trial courts wide latitude in their exercise of discretion in this context. A reviewing

court should not second guess a trial court’s ruling under Rule 403 and call it an abuse of

discretion as long as it can be said that the ruling was within the so-called zone of reasonable



       5

        Bowley v. State, 280 S.W.3d 530, 533 n.4 (Tex. App.—Amarillo 2009).
       6

         See TEX . R. EVID . 403 (“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”).
                                                                                       Bowley — 5


disagreement.7 When a trial court properly exercises its broad discretion to rule that a

particular item of evidence, while perhaps relevant as impeachment, is nevertheless

substantially more prejudicial than probative, and excludes it for that reason, it invariably

abuses its discretion if it then fails to give a requested instruction to the jury to disregard that

evidence if the jury has inadvertently been exposed to it before it could be excluded. This

will always be the case when the question itself is objectionable. For reasons expressed in

Judge Holcomb’s dissenting opinion, I agree that the trial court’s Rule 403 ruling in this case

(if that is what it was, which I strongly doubt) was not outside the zone of reasonable

disagreement, and therefore not an abuse of discretion. That being the case, the trial court

had no discretion, and therefore plainly erred, to refuse the appellant’s request to instruct the

jury to disregard the prosecutor’s question.

       But even if the majority were right with respect to the Rule 403 issue, it grievously

errs simply to affirm the judgment of the trial court without further ado. If the court of

appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the

question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was

within its discretion. Because the court of appeals has never resolved this issue, the correct

disposition at this juncture would be to remand the cause to the court of appeals so that it may

do so. I must therefore dissent on the additional basis that the Court does not remand the



       7

        Montgomery v. State, 810 S.W.3d 372, 391 (Tex. Crim. App. 1991) (opinion on reh’g).
                                                                                  Bowley — 6


cause for further proceedings in the court of appeals.

       Ultimately, I rue that we ever, in our capacity as a discretionary review court, should

have allowed ourselves to get embroiled in a case like this in the first place.


Filed:        May 5, 2010
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