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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, May 11, 2010

Defendant Held to Have Opened the Door for State’s Plea-Bargain-Discussion Question

The Texas Court of Criminal Appeals overturned a decision of Amarillo's Seventh Court of Appeals. Amarillo reversed and remanded defendant Troy A. Bowley's felony Driving While Intoxicated conviction. Amarillo did it because trial judge Cecil G. Puryear did not grant Bowley's motion for a jury instruction to disregard a State's question about plea-bargain-discussions.

Bowley admitted that he was guilty in his prior cases. He said that he had pleaded not guilty in the case he was being tried for because he was, in fact, not guilty. The State asked on cross-examination: "Could it be that it's because we couldn't agree on a plea agreement that you preferred?" The defense objected. The court sustained. The defense then asked for a jury instruction to disregard the improper question. The trial court denied.

Amarillo disagreed. The CCA held that any harm was Bowley's fault. He'd opened the door about why he'd made the prior pleas.

Judge Michael E. Keasler wrote the majority opinion. Other majority judges were Presiding Judge Sharon Keller and Judges Paul Womack, Barbara Parker Hervey and Cathy Cochran.

Judge Tom Price wrote a dissent that Judges Laurence E. Meyers, Cheryl Johnson and Charles R. Holcombe joined. It said that the trial judge sustained Bowley's general objection without indicating what his legal basis was. Bowley's brief assumed that his objection was on Texas Rule of Evidence 410(4). Even though the objectionable question would not have elicited a particular statement of his, it would have told the jury that he had been involved in plea negotiations. Amarillo didn't consider this issue. It had said that the question might have been proper under TRE 403. Price didn't think that was the right issue, though he couldn't tell from the record. If the issue had been 403, and that ruling was right, 410(4) would have required reversal and remand to Amarillo instead of rendition.

Judge Holcombe filed a dissent joined by Judges Meyers, Price and Johnson. It said the State's question was objectionable even if Bowley had opened the door. Rule 410 would have trumped Rule 403.

Additionally, Judge Johnson wrote an additional lone dissent. She would have held that the State's use of prior DWIs here conflicted with
Phifer v. State
, 787 S.W.2d 395 (Tex. Crim. App. 1990). She said Penal Code § 49.09(g) "may be a validation of Phifer (emphasis mine)." Furthermore, Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999) "did not overrule Phifer." Judge Johnson is the only lawyer I know or have heard of who does not believe that § 49.09(g) is the legislature's overruling of Phifer. And that Phillips proves that.

    Bowley's lawyer preserved this point properly. (From time to time the CCA has required defense counsel to make very detailed objections so as to put appeals courts on notice of the exact objection. If Bowley's lawyer had said, "Your honor, objection, statement made in the course of plea discussions," Bowley would have been no better off.) To preserve an evidence issue, one must:

  • object to the evidence.
  • If the trial judge sustains your objection, then ask for an instruction for the jury to disregard.
  • If that instruction is given, move for a mistrial.

Ambitious defense lawyers will likely use Judge Johnson's dissent as the basis for a motion to quash, arguing that the only reason it didn't fly in Bowley was that Bowley had not properly preserved the error. Careful trial judges will learn from Judge Puryear to grant defendants their motions to disregard to save the system from a world of headaches even though they will likely be vindicated in the end. Were I prosecuting such a case, I would be inclined to:

  • ask a group of questions confirming that there was one bad piece of evidence after another in the oldest case,
  • then confirming that the defendant took a plea in the case,
  • confirm the punishment, and
  • repeat for each prior case.
  • Lastly, I would go through each of the damning pieces of evidence in the trial case, then ask, "You've decided to go for a jury in this case, huh?"


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