
 









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



 Price, J., filed a dissenting opinion in which Meyers, Johnson and
Holcomb, 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
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
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)
	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
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
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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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.
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.
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.").
7. 	 Montgomery v. State, 810 S.W.3d 372, 391 (Tex. Crim. App. 1991) (opinion on reh'g).
