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.
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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.