*1 THE REMEDY Court, contrary to the lan- “plain”
The scheme,
guage applicable statutory the two “[without
further decides that timely
statutory findings, made after giving to the inmate process
due notice materials, a opportunity
him an to submit in-
parole eligible an panel must release This is mandatory supervision.”
mate to extreme, potentially dangerous remedy any due general public,
process violation that have occurred risk putting public Instead of
here. early prison release from of dan- inmates
gerous parole panel’s because of orders, comply
failure to with our responsible should incarcerate the
Court powers
Board officials its contempt they comply
until with the Court’s orders.
This, dangerous and not inmates putting they
back on streets before have sentences,
served their is the usual method enforcing our orders.
I respectfully dissent. BOWIE, Dewayne Appellant,
Kelvin
v. STATE Texas. 639-03, 773-03,
Nos. 774-03. Criminal of Texas.
May year. statutory even entitled receive under state law when least once scheme early parole release requires panel these denied him inmates’ release unless findings required by necessary findings that the statuto- Board makes the based process Though ry Arguably, this is "the prevent applicable scheme. all would this. it, statutory require parole applicant. due” See does not that is scheme Jimenez (Tex.Cr.App.2000) panel provides with an S.W.3d 244-A5 also these inmates P.J., (due (McCormick, concurring) process opportunity to each time submit materials what state early requires that a defendant receive they are reviewed for release. In this provides). applicant everything that he law case received *2 Weaver, West, Dallas, Royce
R.K. Kris Appellant. Jr., enters a Skeen, DA, trial and the defendant Tyler, jury Matthew Jack Austin, understanding Paul, for State. both Attorney, State’s withdraw allow the defendant to court will *3 ex- punishment if the assessed the OPINION defendant would ceeds that to HOLCOMB, J., opinion of delivered the supporting evidence agree. After PRICE, Court, MEYERS, in which and hears evidence presented, WOMACK, JOHNSON, JJ., joined. and and punishment the issue argument on presented in these com- question deci- punishment and announces a makes testi- panion cases whether defen- gives The trial court then sion. in the course mony by offered that sentence option accepting dant the “timely pass plea” proceeding receiving for withdrawing his and by Texas Rule of Evidence protected If the not ask jury trial. defendant does hold that is. therefore affirm We We enters to withdraw judgment Ap- of the Dallas Court plea. judgment 1 and reverse peals Judge Appellant pled to murder. Appeals2. his accepted Kent written judicial confession sufficient evidence I. The Relevant Facts plea, acknowledged supporting 29, 2000, Mi- appellant On October shot presen- received and she had reviewed at a chael Wideman fast-food restaurant argu- report, and heard tence evidence 10, 2001, County. May appel- On Smith issue of punishment. ment on the County lant testified to a Grand Smith witnesses, three and then the called State 1) Jury defending that: his sister was witnesses, including ap- two defense called 2) Wideman, when he shot he did pellant. to gun Appel- look for shoot Wideman. Amendment Appellant waived his Fifth lant was indicted for murder. Wideman’s being to remain silent after advised make court that such would waiver “Timely A. The for Plea” Pro- Pass by the subject him to cross-examination ceeding oath, testified, under Appellant State. 4, 2001, appellant appeared On October not, as he the Grand that he did had told in a Cynthia before the Honorable S. Kent Jury, go go sleep, home to but rather County Smith district court for and that gun, find a he shot Wideman plea.” Judge for Kent does not en- his sister but defending he was because bargain im- agreements. tertain She “[bjecause on picking I was tired of him plea” pro- for plemented “timely pass just kept taking things me and defendants, encourage cedure to who up just got I fed it.” me. plead guilty not otherwise without would and the agreement, their cases After testified resolve Judge “timely pass punishment arguments, trial. Under their gave short of her punishment announced assess- plea” procedure Judge Kent’s Kent $5,000 fifty years confinement and a consents the defendant’s waiver ment: Bowie, 05-02-00527-CR, 2. State v. 137 No. 12-02- 1. Bowie 2003 S.W.3d No. (Tex. 00182/83-CR, Tex.App. WL LEXIS Tex. 2003 WL 2003)(not App.-Dallas designated publica 2003). App. (Tex.App.-Tyler LEXIS tion). fine. Appellant decided he grand jury wanted to and plea-proceeding state- withdraw his Judge Kent Appellant allowed ments. filed a pre-trial motion appellant to withdraw and set the to suppress the plea-proceeding state- 410(3). case for trial the following Judge based, week. again, ments once on Rule Kent, granting appellant’s motion to trans- Judge Kent hearing granted held a fer, transferred his case 363rd Dis- appellant’s ruling motion. Her was based trict County. Court Dallas on her conclusions plea” proceeding to a County B. The Dallas Murder Trial proceeding under Federal Rule 11 and sought appellant’s The State *4 pretrial ruling from statements made in were the Dallas County proceeding. District Court the course of that The State admissibility appellant’s “timely appealed. plea” punishment testimony. Concluding Tyler The Court of Appeals, with one 410(3) that Rule protected only the actual justice that, dissenting, purposes held County the Dallas District Court ad- 410(3), of Texas Judge Rule of Evidence mitted, presented and the jury State to the “timely pass Kent’s for plea” procedure is at guilt/innocence trial, phase of the procedure comparable not a state statements appellant during plea agreement proceedings under Federal County Smith plea proceeding on the issue compromise Rule 11 no because there was punishment. jury The appel- convicted between the State and and the lant of murder and punishment, assessed judge was orchestrating pro- entire enhanced, thirty years at imprisonment. cess.4 Tyler Appeals, stating The Court appeal, On Appeals Dallas Court of that the proceedings trial viewed the that, held based on the plain language of placed a trial and the defendant under 410(3), Rule the trial court had abused its oath, said that no one is allowed to lie discretion in concluding that the Rule pro- judicial under proceeding.5 oath tected the actual Concluding Tyler Appeals Court of held that ap- harmful, the error was the Dallas pellant’s testimony by protected was not Court of Appeals reversed and remanded Rule and was admissible as evi-
for a new trial.3
in a
perjury charges.6
dence
trial on the
Perjury Charges
C. The
in Smith
granted
petition
We
in the
State’s
County
appellant’s petition
Dallas case and
in the
Meanwhile, in
County,
Smith
ap-
cases
courts of
to resolve the
filed
aggravated
two
perjury charges
peals’
on the same
conflicting decisions
against appellant based on his inconsistent
issue on the
facts.7
same
05-02-00527-CR,
(1)
3.
by
Bowie
No.
erred
[Dallas]
568905,
*1,
WL
at
at *9.
holding,
enters a
after a defendant
evidence,
stipulates
and
Bowie,
99,
4. State v.
This first This Texas case of in a interpreted has never inadmissible Texas 410(B). subsequent “any statement proceeding We must determine Evidence proce- any proceedings made in the course of whether Rules of County District Rule 11 of the Federal dure utilized the Smith *5 case, Appeals' Tyler granted we on of the Court of Criminal In the review exercise appellant's grounds: six power supervision. of (1) Tyler Appeals’ The of decision in Court (Tex. State, Dyar this cause conflicts with another court of S.W.3d 462 v. 125 appeals’ on the decision same issue Crim.App.2003). concerning person the same and the same statements, State, Bowie v. 05- to-wit: No. Evidence, 410 the Texas Rules of 9. Rule of 02-00527-CR. Pleas, "Inadmissibility Discus- of Plea entitled (2) Tyler Appeals The an Court of has decided Statements,” provides: sions Related important question of state law that has rule, been, provided be, Except as in this otherwise but should settled Court of following Appeals, plea admissible Criminal to-wit: evidence of the is not whether proceedings plea in Texas must be uniform and or who made plea proceedings be identical the Federal participant plea was a in the discussions: prohibition of Tex.R.Crim. Evid. (1) plea guilty a that with- of was later 410(3) applies; drawn; (3) Tyler Appeals Court of has decision contendere, cases, (2) plea in civil a of nolo important question decided of state law cases, plea in a of nolo con- criminal way applicable in a conflicts with that withdrawn; later tendere that was Appeals, of decisions the Court of Criminal (3) any course statement in the of to-wit: Court has reversed the any proceedings the Fed- under Rule 11 of judge's evidence determination exclude compa- Rules Procedure or eral of Criminal theory legal presented on a based never regarding, procedure state in civil rable judge, contrary to the trial Martinez case, plea guilty of was later either a (Tex.Crim.App.2002), S.W.3d contendere, or plea withdrawn of nolo or preservation well as a of error host of case, guilty either a of in a criminal cases; plea of nolo that was later withdrawn or a (4) Tyler Appeals patently has withdrawn; was later or contendere that rule, misconstrued a to-wit: Tex.R.Crim. (4) any statement made the course of 410(3); Evid. attorney with an for the discussions (5) Tyler Justices of Court have of case, authority, prosecuting in a civil question disagreed of law on a material guilty in a of or that do not result decision; necessary to court’s withdrawn, guilty later or result in (6) ap- permitting to prevail In the State on case, that do not result criminal peal legal theory never advanced guilty or a of nolo contendere has so far withdrawn, plea, or that results in a later departed accepted court from the and usual proceedings guilty judicial call for an or nolo contendere. Criminal Procedure10 or procedure regarding state ... a plea agreement Federal Rule type specified 11 was amended in 2002. It is of the in subdi- was the rule (e)(1)(A) (C), as amended in was in may accept vision or court appellant's effect at the time of trial. Howev- reject agreement, or or defer its er, it was the rule as amended in 1989 that acceptance rejection decision as was in effect the time Texas Rule of Evi- opportunity until there has been an to con- effective, dence 410 became in 1998. Rule presentence report. agree- sider the If the does not indicate whether it is intended type specified ment is of the in subdivision to refer to the version of Federal Rule 11 (e)(1)(B), the court shall advise the defen- in effect in 1998 or if it was intended to dant accept that if the court does not incorporate subsequent amendments to the request recommendation or the defendant Federal Rule. The 1999 amendments to Rule nevertheless has no to withdraw the 11 do not effect the outcome of this case. opinion, in this Rule 11 will refer to (3) Acceptance Agreement. of a Plea If the the version in effect in Federal Rule 11 accepts plea agreement, court the court as effective December unless otherwise shall inform the defendant that it will em- specified. body in the and sentence the dis- position provided plea agreement. for in the 11, Pleas, Federal Rule of Criminal Procedure (4) Rejection Agreement. of a Plea If the 1, 1989, eff. Dec. part: read in relevant rejects plea agreement, the court (a) Alternatives. shall, record, inform the (1)In may plead General. A defendant fact, personally advise the defendant guilty, guilty, or nolo contendere.... open court ... that the court is not bound (c) accepting Advice to Defendant. Before plea agreement, afford the defendant contendere, or nolo the court opportunity to then withdraw the personally must address the defendant *6 and advise the defendant that if the defen- of, open court and inform the defendant and persists guilty plea disposi- dant in a ... the determine that the defendant understands the may tion of the case be less favorable to the following: ... contemplated by defendant than that the (d) Insuring Voluntary That the Plea is ... plea agreement. (e) Agreement Plea Procedure (5) Agreement Time of Plea Procedure ... (1) attorney gov- In General. The for the (6) Pleas, Inadmissibility of Plea Discus- attorney ernment and the for the defendant sions, Except and Related Statements. may engage ... in discussions with a view provided paragraph, otherwise evi- in this that, reaching agreement upon toward an not, following any dence of or the is in civil entering plea guilty the of or nolo proceeding, criminal the admissible offense, charged contendere to a or to a plea a defendant who made the or was offense, lesser or related attorney the participant plea in the discussions: government any the will do of the follow- (A) plea guilty a of which was later with- ing: drawn; (A) charges; move for dismissal of other (B) contendere; plea a of nolo or (C) any statement made in the course of (B) recommendation, agree make a or any proceedings regarding under this rule oppose request, not to the defendant's for a foregoing pleas; either of the or sentence, particular understanding with the (D) any made in the of statement course request that such recommendation or shall plea attorney court; with the discussions an binding upon not be the or government plea (C) which do not result in a agree of specific that a sentence is the plea guilty or which result in a of appropriate disposition of the case.... plea agreement later withdrawn. binding Such a on the (i) a accepted by such statement is admissible court once it is the court. any proceeding in participate The court shall not wherein another state- such plea discussions. ment made in the course of the same (2) Agreement. plea Notice of Such a or discussions has been If introduced agreement parties, ought has been the reached the statement in fairness be con- shall, record, it, (ii) require contemporaneously the court the sidered or agreement.... proceeding disclosure of the the perjury If criminal or false 11(e)(1) provides that Rule Specifically, This exclu- that was later withdrawn....” agree the State and defendant necessary protect the withdrawal sion is for dismissal of the State will move It defeat the itself. would of recommendation, or charges; make 410 to exclude evidence of purpose Rule re- agree oppose not to the defendant’s admit all of the defendant’s but sentence; agree or particular quest, for and concessions made statements the appropriate that a sentence is specific plea proceeding formal when 11(e)(2) pro- Rule disposition of the case. withdrawn.11 later may defer its decision vides that the court 11, to Rule Federal Rule which op- it has agreement until had refers, provides is entitled “Pleas” and report. portunity presentence to consider a proce- pleas may and the what be entered 11(e)(3) court provides Rule required guilty plea dures is en- accepts agreement, i.e., defendant, tered; advising the deter- embody disposition shall sentence accuracy mining voluntariness and provided plea agreement. for in the recording proceedings. whole, Rule Rule refers to plea agreement sets out a also plea proceedings which encompassing practice procedure, bringing common to the court plea agreement presented plea bargaining open into court.12 It those there is no as well as any bargain must be provides that dis- Texas agreement presented. does in open types closed forth what sets analog single statutory have a to Federal made, bargains provides could be addi- there several articles but are provide tional must advice court Procedure that cor- Code Criminal regarding ability of the defendant respond provisions to the various reject accept bargain, court to or re- 27.13, “Plea of Article entitled quires trial court inform defen- felony” provides nolo contendere consequences dant of its and the decision felony ... in a ‘guilty’ that: “A thereof, requires trial court by the open case must be made in *7 permit plea to the proceedings defendant withdraw person; and the defendant rejects 26.13, bargain. if the trial court 26.14 provided in Articles shall be as permit plea a court is free not to If the is before the 27.02. alone, may made the same parties present plea to same be agreements.13 agree- acceptance rejection plea by made statement if the statement was oath, record, as Exclud- fall within the rule well. under and in ment” defendant necessary statements is to effectu- presence these of counsel. (f) rejection Were or later withdrawal. Determining Accuracy Plea. Notwith- ate the admissible, the standing acceptance guilty, the statements defendant’s words, incriminating inseparably judgment upon own the court should enter regarded nullity, making inquiry linked to a now such without such many operate convict cases would to satisfy that there a factual basis for shall him, thereby rendering meaningless the re- plea. jection Proceedings or withdrawal. (g) Record of ... omitted). (citations at 684 Id. Davis, 11.See, e.g., 617 F.2d United States (D.C.Cir.1979), ap- the court of advisory committee's 12. See Fed.R.Crim.P. 11 purpose explained exclusionary peals note 1974. 410(3): Fed.R.Evid. advisory "during proceed- 13. See Fed.R.Crim.P. 11 committee’s Other statements made 32(e). also ings note 1975. See R.Crim. P. in connection with the disclosure and Fed manner as is provided by 410(3) Articles 1.13 al Rule 11. language in Rule and 1.15.” regarding “comparable procedures” state protection allows the of Rule to
Article 26.13 sets out the admonish- extend to statements made the course of ments defendant must receive before he procedures similar other states. enters a plea, including both the defendant’s right to withdraw a reject
should the court plea bargain “Timely and B. proce- Pass for Plea” and the defendant’s right appeal, limited to dures under comparable Rule 11 or without the trial permission, only court’s procedures those by matters raised written motions recognize that We trial, prior filed to unless the trial court for plea” procedure is distinct from an accepts plea agreement, but assesses open guilt, a conditional or a punishment in excess of that recommended plea bargain agreement between the State by prosecutor agreed by to regarding dismissal of other defendant. Article 26.13 requires also actions, punishment recommendations, or a knowing, must be free and volun- punishment maximum subject which is to tary. Article 26.14 requires a defendant approval. However, court’s persists who in pleading guilty to have a require does not that procedures be jury impaneled to hear evidence and as- identical pursuant those followed sess unless the defendant has Federal Rule they compa be waived to trial jury. Article rable. The “timely pass proceed 27.02, entitled “Defendant’s pleadings” ing, governed while not by Federal Rule provides that may a defendant enter a procedures guilty. Articles 1.13 to 1.15 set out the Federal Rule 11 procedures as well as procedures waiving jury trial and under the corresponding provisions of the rights constitutional entering Texas Code of Criminal Procedure. In a felony they case require the State to introduce sufficient evidence to procedure incorporates the safe- support guilt and allow for guards provided by both Rule 11 and com- stipulated evidence if the defendant con- parable state procedure, ensures the vol- sents in writing. plea by untariness of the ensuring it is not pursuant promises made
The Texas Code of Criminal Proce State that have not been introduced to the specify dure does not types what of bar and encourages gains the State and defendant enter *8 resolve the case short of trial. present into and to the court. Nor does it court, require that upon accepting the trial court, The trial required by as Rule plea agreement, embody judgment the 11(e)(1), did not participate any discus- and sentence the punishment agreed by to parties sions between the concerning any parties. the trial may The court assess a of the plea agreement options outlined. lower sentence than that agreed by to the The trial court did not ask for notice of State. any such agreement reached between the
Regardless differences, parties, required 11(e)(2), as by these Rule but Texas governing explicitly statutes did procedures notify parties the the that she involved pleads guilty rejected any when a defendant agreement, required such as 11(e)(4). are Instead, intended to be included in Rule Rule the trial court comparable as procedures to under Feder- ensured that both defendant and State un- consenting appel- to procedure “timely plea” plea” for for pass proce- derstood the jury trial waiver. lant’s waiving right to the to agreed dure and jury proce- trial under the terms that not a “timely pass plea” the for While court the advice provided dure. The trial the provides bargain, procedure the 11(c), Rule the required by insured plea bargaining as does. net effect same voluntary required by as plea was the receive the State and defendant Both 11(d), accuracy the determined the resolving potential benefit of the the 11(f) appel- required by as based on Although trial. benefit case short of pro- case, stipulations, lant’s and recorded the in this particular not realized was effective, ceedings required 11(g). quite under Rule procedure apparently as State, right waiving its to a thus and procedure with The also consistent trial, the risk that the case jury accepted provisions of the Texas corresponding through not resolved would be Defendant Code Criminal Procedure. employing a just as it does when process, provided by as 27.02. pleaded guilty Article trial procedure where the plea agreement 27.13, the Pursuant to Article may accept agreement. Un- court not by jury right to trial waived the plea agreement, like a the State did and approval consent and of both court aby to offer to be bound lower have to attorney stipulated for legally enti- than the was sentence against him and waived the the evidence prosecution on forego tled to seek or to right to and cross-examina- confrontation charges for the benefit of potential provided as Articles to 1.15. tion 1.13 resolving ease short of trial. Likewise, ap- admonished to a just as the State was not bound pellant, appellant open informed the defendant. compromise, neither was making finding before on provided by trial This is the trade off reject plea agreement, she would procedure. “timely pass plea” for court’s appellant competent was determined provided as a middle procedure plead required by to Article 26.13. Be- encourages defendants ground: one that to cause had waived the appellant them guilty yet plead protects a jury impaneled pun- have to assess the potential based pleading ishment, the trial court heard evidence re- the defendant believes benefit on which the would assessed prosecutor’s willingness ceive based on based, as- be and announced the court’s compromise. sessment, pursuant to Article 26.14. Athough plea” pro- then, pursuant procedures is not identical to cedure procedure agreed, to which the had 11, it is those Federal appel- entering upon with, insofar procedures consistent lant’s her discretion request, exercised with, plea proce- it does conflict state allow to withdraw his We Therefore, any statement made dures. object note that the State did not any procedures under a course of withdrawal, exer- request the court’s *9 withdrawn, allowing protected by in to will
cise of discretion later be is 410(3). judge’s plea, his nor the trial Rule withdraw announcement, prior to entrance of Testimony Punishment C. to her plea, that she intended exercise to Conversely, argument that in this manner. statements discretion punishment to are the court assess agreed “timely pass of the enable use 64 only protection protects
somehow excluded from the of statements made regarding 410(3) itself, Rule relies on a distinction does words, plea statements 410(3). exist not Rule Because the supplying plea. the factual of basis plea” procedure compa- is purposes statements made for of 11, procedures to rable under Rule Rule punishment may to assessing relate 410(3) protects any statement made of the charged circumstances offense of that procedure. course support or undermine the factual basis At the judgment time is ren- contention,
Contrary to the State’s dered, there must be a factual for the basis 410(3) protect only Rule does not the en plea plea.16 guilty A of is not final until try plea of the or If stipulations. written 410(3) is judgment guilty plea entered.17 In a to only were limited the de judgment or entry guilty, proceeding, of of entered after fendant’s it meaningless, would be imposition punish- because simultaneous to the guilty already protected under Rule ment.18
410(1). Likewise, support evidence to plea may
guilty be introduced the form Furthermore, may a trial court ex stipulations, may of written but also be and allow a defendant ercise its discretion Furthermore, orally.14 presented if the guilty time withdraw defendant does not con appearance, waive Although judgment is entered.19 frontation, and cross-examination wit purposes for Rule 410 is to one of the nesses, presented may evidence be way to encourage bargaining as a through testimony under oath wit promote to resolve cases pleas nesses, including the defendant.15 There trial,20 predicated the Rule is short of fore, Rule protect only does not understanding pleas do not such stipulations written and does exclude always judgment, that some will end protection its statements made un withdrawn, be and that give effect subject der oath and to cross-examination. withdrawal, in the statements made plea proceeding should not thereafter be The State also contends that used The fact excludes made on defendant.21 statements the issue because the rule 410 is not restricted to 14. Tx.Crim. Proc.Code art. 1.15. discretion to court’s allow a defendant guilty plea except withdraw is not restricted 15. Id. where Texas Code of Criminal Procedure allowing 26.13 makes withdrawal mandato Ventura-Cruel, 11(d) ry.); (2003)(pro 16. United States v. 356 also Fed.R.Crim.P. See See 55, (1st Cir.2003)(finding viding and under F.3d 60 that the what circumstances predicate withdraw guilty plea "factual for a must exist court). initially at the time that federal the court accepts imposes but also when Therefore, any acceptance advisory 20. See Fed.R.Evid. 410 sentence.” committee’s ("[e]xclusion prior necessarily prelimi- plead guilty note of offers to purpose nary.). promotion as its nolo has compro- disposition of criminal cases mise.”) 17. See Id. States, See, e.g., Id. 21. Kercheval v. United See 220, 224, U.S. S.Ct. 71 L.Ed. Davis, (1927); States v. 617 F.2d See 108 S.W.3d United Gutierrez (D.C.Cir.1979). (Tex.Crim.App.2003)(recognizing that the trial *10 contemplated advisory committee bargain guilty of that are later with- pleas —that inadmissible under statements otherwise this intent. drawn is evidence of additional are Rule 11 and Federal Federal find be We the State’s distinction perjury.22 for prosecution in a admissible regarding tween statements not in- of Evidence 410 does Texas Rule to be a regarding statements reasons for exception. clude an such under Rule distinction without relevance Regardless clear.23 are not omission 410(3). “[RJegarding plea guilty of later policy issues opinion of this Court’s ...,” the circum withdrawn describes involved, an cannot read into rule we 410(3) state protect stance in which will perjury prosecutions. We for exception plea proceedings, ments made also that not even Federal Rule note subcategory of state does not define a for of provides exception an use otherwise the plea ments made the course of impeachment statements for inadmissible interpret proceeding. plain We mean purposes. that ing of Rule to be statement for made in the course of Furthermore, for hav- appellant but of plea” proceeding where plea, of we know ing withdrawn his withdrawn, is later will be inadmissible to impediment prosecution no legal against the defendant who made facts of this case. The perjury under the subject optional completeness excep 410 applies under Rule protection afforded 410. tion to Rule subsequently with- Therefore, appellant’s it was drawn. Exception Perjury D. Prosecu- No State’s, interest, for appel- well as the as Impeachment tion or testify truthfully at the lant to Both proceeding they were to be policy suggest and the also without dispose to of this case able protecting involved statements uncertainty necessity, expense, and far should not extend so the victim If the shot trial. oath allow a defendant to lie under with sister, he testified protecting his while impunity. jury, this could constitute grand person Advisory protecting The Federal Rule 11 Commit- a third defense “voluntary prevent ac- recognized might tee statements which record, Therefore, an re- guilty. accused made court on his cepting veracity, it became gardless possible connection with a and determined of its prior his in- necessary a court to be reliable should be admissi- for him to retract testimony in though subsequently grand jury order ble even consistent withdrawn,” “a particularly going defen- his case without attempt where resolve previ- dant would be able to contradict to trial. thereby impu-
ous statements and lie nity.” Federal Rule Federal Rule IV. Conclusion similar Texas Rule Evidence exception we conclude that state- Because provide both Evidence on the issue than the defendant made more limited the ments is somewhat 11(e)(6); and Criminal Rules of Evidence: Civil the Texas Fed.R.Evid. Fed.R.Crim.P. ed.2002). (3d § 410.4, at Guy 23. See 1 Steven Goode, Wellborn, III, Olin Sharlot, Texas Practice: Guide M. Michael *11 punishment of the “timely porting lengthy course sentence. After the plea” for pass procedure protected were rested, appellant explicitly waived 410(3), judgment under Rule we affirm his Fifth right Amendment si- remain Appeals. Dallas Court of We also lent, and under oath that killed testified he the judgment Tyler reverse of the up Michael Wideman because he was “fed Appeals and judgment affirming render explained with him.” Appellant that when court’s plea-pro- order he him growing up, was Wideman bullied ceeding statements are inadmissible. him, and took things including his bicycle and a necklace. KELLER, P.J., joined part and that, Appellant night testified part dissented with note. murder, he “Club Ice” with his was COCHRAN, J., a dissenting filed cousin. Wideman was there with some opinion, in which KEASLER and gang his slapped ap- members. Wideman HERVEY, JJ., joined. pellant on the back the head and took KELLER, P.J., joins the Court’s glasses. his he Appellant admitted that judgment insofar as it affirms the club, left go go home to judgment of Appeals the Dallas Court of sleep he had testified under oath to —as but dissents to judgment the Court’s grand jury gun. Appel- to find a —but as it insofar reverses the lant got gun his and confronted Wideman Tyler Court of perjury at the Whataburger: cases. Q: Whataburger? toup You went COCHRAN, J., a dissenting filed A: Yes. opinion, HERVEY, which & KEASLER Q: Judge actually Tell what oc- JJ., joined. you got curred Whata- respectfully I I dissent. conclude that burger? appellant’s testimony in the A: pulled up When I at Whataburger, phase pass plea” proceed- bending in my over sister’s (in ing had an absolute car, just and I I jumped out. withdraw his he did not like jumped of the car and sentence) out walked did not constitute statements up to him and shot him. I a Rule didn’t 11-type proceeding. Therefore, testimony protected just was not I even think. reacted. 410(3). by Texas Rule of Evidence I Appellant also admitted he lied to would affirm the decision grand jury why about he killed Wideman: Appeals1 reverse the conflict- Q: Now, Jury, you before Grand decision Ap- the Dallas Court of falsely, you? testified didn’t peals.2 Yes, A: sir. I. Q: Now, Jury, the Grand you you testified that reason that punishment stage At the of this “timely shot Michael Wideman was because proceeding, State called testify you several witnesses to to facts sup- protecting your were sister? Bowie, 2003) (not App.-Dallas designated State v. publica 137 S.W.3d No. 12-02- 00182/83-CR, 2003 WL tion). Tex. 2003). App. (Tex.App.-Tyler LEXIS 1902 05-02-00527-CR, Bowie v. No. (Tex. Tex.App. WL LEXIS 1811 *12 prosecutions) Yes, perjury suppress A: sir. on whether conflicting results reached Q: the truth? Is that punish- protected appellant’s Rule No, A: sir. testimony when he was allowed stage ment Q: Judge you why Tell the the reason plea. his guilty to withdraw shot Michael Wideman? testimony during a If defendant’s picking A: I of him Because was tired pass for stage “timely of this punishment just taking kept on me falls Rule proceeding” under things just up I got from me. fed rejects unilaterally later with it. sentence, judge’s then proposed Q: Kelvin is that the truth? absolutely protected and cannot be used Yes, sir, A: and I couldn’t take it no a trial on the merits against him either more. perjury prosecu- the case or in a later of Q: How on? long going has that been by That the conclusion the Dal- tion. was my A: All of life. If the Appeals. las Court Q: Kelvin, you life? took man’s “timely pass phase proceeding” for A: I know. to a Rule proceeding, is not After testified and the then defendant’s sworn statements gave punishment arguments, their trial hearing are admissible future judge announced her proposed sentence: perjury prosecution, such as proceeding, fifty $5,000 years and a fine. confinement That against the was declarant-defendant. Appellant privately visited law- with his Ap- by Tyler the conclusion Court yers he to ac- to decide whether wanted granted discretionary review to peals. We cept the court’s sentence withdraw his conflict. resolve this He chose his withdraw which, trial judge’s II. plea” procedure, for had abso- “timely pass plea” proceeding A. A for lute right and unilateral to do. “comparable” to a Federal jury The case then for trial in set plea proceeding. trial, During the murder Dallas. Although question is a close in an appellant’s was allowed to offer self-in- situation, agree I Tyler unusual with the criminatory punishment stage testimony held Appeals’ majority which into judge evidence after the Dallas trial plea” pro- the trial court’s testimony protected held that this was not procedure comparable cedure is not state 410(3). by Appellant was also indict- under Rule 11 the Fed- proceedings perjury County ed his Smith for pur- Procedure eral Rules Criminal sworn inconsistent statements before 410(3). of Tex.R. Evid The court of poses grand jury sentencing appeals explained: hearing. pretrial hearing, In a trial process by sentencing bargaining held that Plea appellant’s in a case the defendant criminal relin- hearing protected statements were 410(3); in ex- quishes go ruling gutted the State’s majority, charge for a reduction perjury change case. As noted and/or proce- (reviewing plea agreement the Dallas Court of sentence.... conviction) system is de- dure used in our federal murder Rules Appeals (reviewing pretrial scribed in Rule of the Federal motion rejects agreement Rule 11 Criminal Procedure.... has between the interpreted prohibi- been as an absolute 11-type State and is a Rule hear- defense judicial tion on all forms of participation ing. hearing So too is an article 1.15 *13 plea or negotia- interference with the which a enters a after plea defendant waiv- tion process.... policy The underlying ing by jury, of trial the Rule 11 tois allow a criminal defendant into introduces evidence the record show- freely negotiate fear that any without defendant, guilt the the and the during these nego- statements makes accepted by evidence trial court is the tiations will be used him.... the its judgment. basis for “timely pass procedure 11 The aim of both Federal Rule hear- used the court in Bowie’s murder ings comparable proceed- and the Texas plea agree- case is not ings integrity is ensure the “to the procedure ment outlined in Rule 11.... system prevent In prosecutorial the and over- plea” procedure, give-and-take no there is between reaching corruption by bringing plea or government’s attorney one side and bargaining open providing out into the attorney defendant and his on the judicial supervision.”5 part As a of that Rather, judge other side. is who judicial appropriate supervision, a trial interacts judge with defendant. The judge federal or state —must satis- —either orchestrating procedure entire fy that a is pleading himself defendant open The judge record. guilty voluntarily knowingly.6 Under proceedings views these a trial law, a judge both federal Texas places personally the defendant under satisfy must also himself that there is a liberty oath. one at No to lie under 11 guilty plea.7 factual basis for the Rule judicial during proceeding.3 oath are a inquiries admonishments and neces- I, like Appeals, do sary prerequisite when “the trial not punishment stage believe that the or to accept determines whether plea” proceeding is a proposed plea bargain.”8 purpose Rule A 11 11-type proceeding. pro- then, 11-type colloquy, “is to ceeding in federal occurs when a protect an the defendant from unintelli- defendant enters his or nolo gent involuntary plea.”9 purpose or Its contendere, or agree- without testimony judge may to air so the trial 11 encompass ment.4 Rule does not an himself propose par- sentence which the hearing. evidentiary sentencing previously agreed ties have not themselves Texas, In protects to. Rule or nolo hearing, article 26.13 accepts any a court considers and or itself and statements that n 1-2, Bowie, 745153, 3. State v. 2003 WL at (d); 11(c) 6. Tex.Code Fed. R.Crim. Proc. & Tex.App. 2003 LEXIS at *8-9. 1902 26.13(a) (b). Crim. Proc. art. & Although, 4. Fed. R.Crim. Proc. 11. read liter- (f); 11(c)(5) 7. & Tex.Code Fed. R.Crim. Proc. ally, pleas guilty, Rule 11 also covers of not Crim. Proc. 1.15. art. 11-type proceedings those are not the Rule encompassed 410 or Tex.R. Fed.R.Evid. supra Kirkpatrick, § 8. note 5, Mueller & Evid. at 122. 5. 2 B. Mueller & Laird C. Chrisopher Kirkpat- 314, 322, States, (2d § United 526 U.S. at Mitchell v. rick, Federal Evidence (1999). ed.1994). S.Ct. L.Ed.2d during made and statements colloquy defendant made appellant’s guilty plea. entry It does is later withdrawn.10 privilege not throw tent of around by a B. Statements hearing. sentencing hearing sentencing case, and the State appellant In this dining 11-type a Rule not made are itself, guilty plea agree both proceeding. and state- signed, documents associated cite a nor Neither made at the time ments ju- any or Texas single case from federal protected plea colloquy are a defen- which has held that risdiction (3). & The State did not offer *14 during a testimony given dant’s sworn the arti- during made statements open an hearing following plea proceeding cle 1.15 or 26.13 410(3). protected under Rule plea11 is any proceeding. him in later To ex- held that Generally, federal courts have is fur- tent of Rule 410 purpose that are not pro- post-plea-agreement statements by plea” pass thered this Furthermore, all, by fed- by protected the rule.12 protecting at it was satisfied cedure See, Davis, analogy e.g., the closest to this “time- v. 617 F.2d ernment —is United States (D.C.Cir.1979), although ap- ly procedure, plea” an 677 which peals explained exclusionary purpose at the defen- "open cannot be retracted 410(3): pleasure. dant’s Fed.R.Evid. proceed- "during Other statements made 28, Ross, 12.See, e.g., 429 n. v. U.S. 30 Hutto ings in connection with disclosure 3, 202, (1976) (noting 194 S.Ct. 50 L.Ed.2d 97 rejection agree- acceptance plea of a or agreement post-plea state that defendant’s fall as Exclud- ment” within rule well. prosecutor a statement made ment to was not ing necessary to effectu- these statements is negotiation process during and was rejection plea or Were ate the later withdrawal. admissible, agree required by plea of the terms the statements the defendant’s not ment; words, incriminating inseparably holding was not invol own that confession nullity, plea regarded untary simply linked now because "it would not have ”); many operate bargain' in him, cases to convict would Unit been made 'but for the Marks, 577, thereby rendering meaningless (6th the re- ed v. F.3d 582 States 209 jection (defendants’ or Cir.2000) withdrawal. inculpatory statements (citations omitted). courts, Id. 684 Texas agents plea agreement made to F.B.I. after rule, of the have rec like the drafters federal pleas completed and formal entered had been ognized who a defendant enters protected 11 and were ad were not plea bargain agreement pursuant to a missible); Segal, v. 549 F.2d United States regarding make statements the rationale 1293, ("[i]t (9th Cir.1977) taking is the 1296 designed primarily that are for his imposition or of sentence See, bargain. e.g., parte Tu effectuate Ex probation, to the rule the revocation ley, (Tex.Crim.App.2003) 109 S.W.3d addressed”); United States v. [Rule 11] is (concurring op. reh'g); Cruz Davis, (D.C.Cir.1979). As 617 F.2d (Tex.Crim.App.1975) S.W.2d 821-22 explained: the court Davis deny "commonly (stating that dur defendants pursu- Excluding testimony after and any prom inquiry Art. ... 26.13 agreement not serve [plea] would ant induced a ises have been made that encouraging compromise. purpose of prom guilty, prosecutor has in fact the Indeed, permit a rule a defen- such would in ex ised to recommend certain sentence bargain impunity: dant to breach deceptive change for the denial agreement and re- could renounce the he court will from the fear that the trial stems quo status ante whenever turn to the accept question is answered chose, though has no the Government even truthfully”). power compromise to rescind the parallel 11(e)(6) unilaterally. of rule The drafters "open plea” guilty plea entered An —a contemplated gov- such result. could not have previous agreement with without eral have courts held that Rule 410 does maintain that sentencing proceedings not apply during sentencing stage part “any are not criminal case” is proceeding.13 federal If federal courts rec- contrary to the law and to common ognize that statements made law, sense. As to the under the Federal entry are covered Procedure, Rules of Criminal a court 410, but that Rule 410 does not apply must impose sentence a judgment sentencing hearings, it would seem that of conviction can issue.... As to com- federal courts recognize distinction be- sense, appears case, mon 11 plea proceedings tween Rule non- is often true in justice the criminal plea-agreement sentencing or punishment system, the defendant less con- hearings. proof guilt cerned with the of her severity innocence than with the of her Supreme Court has not resolved the punishment. imprison- Petitioner faced issue of whether proceedings year life, entirely upwards are distinct ment from one sentencing hear- ings. depending in Mitchell v. United circumstances of the States,14 that, the Court held say the federal crime. To that she no had *15 system, guilty plea a does not the waive remain silent but instead could be com- privilege against self-incrimination in the deprivation to pelled cooperate the sentencing phase, either as a result of the liberty ignore her would the Fifth Rule 11 proceeding by operation or of law privilege precise Amendment at the when the entered.15 The Court stage where, view, point from her explained: important. appli- was most Our rule is by pre-
The Fifth Amendment
its terms
cable
or
sentencing
whether
not
being
person
“compelled
hearing
vents a
from
proceeding sepa-
is deemed a
any criminal case
a
against
hearing,
to be witness
rate
the Rule 11
an issue
Const.,
himself.” U.S.
Arndt. 5. To
we need not resolve.16
(citation omitted).
Id. at 685
in its sound
to
discretion
assure itself the
being pressured
defendant is not
to offer a
Medina-Estrada,
13. United States v.
F.3d
81
plea for which there is no factual basis. A
981,
("[sjince
(10th Cir.1996)
984
Fed.R.Evid.
by
defendant who withholds information
apply
sentencing,
410 does not
at
it cannot
invoking
privilege against
self-incrimi-
prohibit
sentencing
court’s consideration
plea colloquy
nation at a
runs
risk the
relating
pleas
evidence
to
district court
find the factual basis in-
will
withdrawn”);
are later
United States v. Rumi
adequate.
At least once the
has been
ner,
381,
(10th Cir.1986)
786 F.2d
386-87
accepted,
statements or admissions
(stating that neither Rule 410 nor Rule
during
plea colloquy
preceding
are later
11(e)(6)(D) apply
stage).
sentencing
at federal
defendant,
against
admissible
as is the
against
itself.
admissible
A statement
1307,
14. 526 U.S.
119 S.Ct.
143 L.Ed.2d
defendant, however,
necessarily a
a
is not
(1999).
424
privilege
waiver of the
self-incrimi-
prevent
de-
nation. Rule 11 does not
Supreme
15. The
Court stated:
relying upon
privilege
fendant from
at
course,
discharge
duty
a
may
Of
sentencing.
its
"ques-
ensuring
a factual
for a
basis
Treating
guilty plea
a
as a waiver of the
oath,
tioning the defendant under
privilege
sentencing
grave
be a
at
would
record,
presence
and in the
of counsel
rights
encroachment on
of defendants.
about
offense which the
to
Id. at
S.Ct.
11(c)(5).
pleaded.”
has
We do not
question
(emphasis
authority
a
at
S.Ct.
add-
of district court
16.Id.
ed).
inquiry
necessary
make whatever
it deems
by selective
be misled
not de-
the court will
case we need
Similarly,
punishment hearing,
a
follow-
cide whether
disclosure....
necessarily
proceed-
a
ing
open
Following the dictates Mitchell
entry-of-plea
separate from
Texas
Carroll,
explicit-
judge in this case
hearing.
we have followed
not
right
he had a
appellant that
ly warned
lead in Mitchell.
Supreme Court’s
hearing,
testify
State,17
that a
In
we held
Carroll
he
testify
did choose to
but that
a
guilty, with
non-
pleads
defendant who
witness
would be treated
plea to the trial
does
negotiated
subject
testimony
under oath
would be
his
to remain silent
waive his
Only
appel-
after
to cross-examination.20
Therefore,
proceeding.18
sentencing
Fifth Amend-
his
expressly
lant
waived
a
stage
sentencing
whether one calls
stand
he take
witness
rights,
ment
did
unitary
separate
guilty plea hearing
or
education,
background,
testify
about
certainly
proceeding
proceeding, it
character,
of this of-
family,
the details
separate right
which the defendant has
fense,
Mi-
killing
of his remorse for
remain silent which he
choose
testimony was
chael
This
Wideman.
however,
not,
part
It is
invoke waive.
process with the
plea negotiation
of a
part
the con-
guilty-plea colloquy
which is
seeking mutually advanta-
prosecution
Rule 410.
cern of both Federal and Texas
part of an
It was not
geous compromise.
Supreme
explained
Court further
As
hearing.
It
testi-
was sworn
entry-of-plea
in Mitchell:
clearly
mony
had
defendant who
convincing
why
*16
There
no
reason
testify,
not to
but
Fifth Amendment
at
inquiry
colloquy
narrow
that
voluntarily waived
knowingly and
who
waiver of
should entail such
extensive
testify
hope
in the
obtain-
right and did
privilege.
the defendant who
Unlike
from
proposal
a more lenient sentence
stand,
taking the
who “cannot reason-
judge.
the trial
ably
that
the Fifth Amendment
claim
ratio-
public-policy
I cannot think what
immunity
gives him ... an
from cross-
freely
that
by insulating
nale is served
has him-
examination on the matters he
any
testimony from
use
given sworn
put
dispute,”
into
...
the defendant
self
majority
The
proceedings.
future criminal
pleads guilty puts nothing
dis-
who
that the State
important
states that was
regarding of the of-
pute
essentials
request
object
[appellant’s]
“did not
Rather,
takes
fense.
the defendant
withdrawal,
court’s exercise
discre-
dispute,
those
out of
often
matters
appellant
allowing
tion
withdraw
prose-
joint
statement with the
making
announcement,
judge’s
plea, nor
confirming
prosecution’s
cution or
plea,
that she
entrance of
prior
cir-
version of the facts. Under these
discretion in
cumstances,
to exercise her
danger
little
that
intended
there is
hearing
mony
gave
punishment
at
he
(Tex.Crim.App.2001).
entitled to offer evidence and
the punishment but stage, that is the ex-
tent of its participation process. entry colloquy be-
tween the sentence,
determination of proposed decision to accept whether HAWKINS, Appellant, Daniel Dallas that proposed sentence are matters con- solely ducted between the trial the defendant. The STATE of Texas. No. 571-03. states,
Perhaps, the Court this proce- dure “provides the net same effect as Texas, Criminal bargaining does”22 to the extent that some En Banc. criminal cases may be short resolved May full heavy trial. it does so at the expense of excluding the State from the
plea bargaining process; putting the trial
judge very process; far forward wholly insulating public, defendant’s testimony during
sworn
stage future consequences judge’s proffered
declines sen-
tence and withdraws his
I agree cannot that either the letter or spirit protects appellant voluntary own testimony sworn punishment hearing of this plea” proceeding after he accept
decided that he did not wish to
trial judge’s proposed Although sentence. might well complaints have other valid
concerning process,23appellant should protection be allowed to claim the designed protect
very justice different societal and criminal Bowie, (majority opin- why "[judicial
21. S.W.3d out involve various reasons ion). negotiations ment in runs afoul of due process and fundamental fairness” hold Bowie, (majority opin- at 63 S.W.3d "practice issuing judge’s pro that trial ion). posed punishment” assessments of violated See, McDonald, e.g., Bryan Constitution). State ex rel. the Texas 1983) (Tex.Crim.App. (setting S.W.2d