*1 сase, applicant attempts In the present neuropsychological measures
to use
wholly IQ full-scale scores in meas- replace However, functioning.18
uring intellectual regarded non-IQ
this court has evidence as
relevant to an assessment of intellectual
functioning only IQ where a full-scale margin
score was within the of error for Thus, IQ testing.19
standardized we hold
that, applicants given while should be clinical
opportunity present assessment her why IQ
to demonstrate his or full-scale error, margin appli-
score is within that
cants not use clinical assessment as a
replacement IQ for full-scale scores
measuring functioning. intellectual
The evidence before us in this applica- significantly
tion does not demonstrate intellectual
subaverage functioning by ap-
plicant. Accordingly, appli- we dismiss the
cation.
Troy BOWLEY, Appellant, A.
The STATE of Texas.
No. PD-0914-09. Appeals
Court of Criminal of Texas.
5,May
Hunter,.the
support, applicant
In
cited
expert
Dr. Green-
19. In
discussed the band of
span's
IQ
substituting
neuropsy-
conclusion
imple-
confidence for the
test
IQ
chological measures for full-scale
in cases
applicant’s
depression
mented and how
mild
apparent
damage
justified
brain
“is
when
having
been handcuffed at the time of
diagnosis
there
syn-
is a medical
of a brain
IQ
taking
test
affected his score.
lesion,
drome
Spеc-
such as Fetal Alcohol
Hunter,
Donnell W. lant. Ford, Atty., Asst. Dist. Lub-
Jeffrey S. bock, Horn, Jeffrey Atty., L. Van Austin, for state.
OPINION KEASLER, J., opinion delivered KELLER, P.J., the Court in which WOMACK, HERVEY, COCHRAN, JJ., joined.
At refused to an judge give disregard sustaining after instruction to Bowley’s prosecutor’s objection to the plea negotiations. about The Seventh Appeals Court of concluded that giving erred the instruc- tion and reversed.1 We hold that no in- required struction to the testimony opened prosecu- the door question. tor’s We therefore reverse the judgment. appeals’s
Facts DWI, Bowley A en- jury convicted hanced two DWI convictions to a felony.2 Bowley qualified third-degree offender,3 felony and the habitual (Tex. 12.42(d) (Vernon § 3. Tex Ann. Penal Code 2009). 2003). App.-Amarillo 49.04(a), 49.09(b)(2) §§ Penal Code Ann. Tex. (Vernon 2003). thirty imprison- years him to questioned sentenced then ment. about his record: *3 Q: Okay. [Defense counsel] said that trial, phase Bowley’s
At the guilt you pled guilty all up to those there Isbell, Jimmy called an investi- were; you right? because is that gator County with the Lubbock District Office, Attorney’s testify Bowley’s to about Yes, sir, A: that is correct. prior
two DWI convictions that the State Q: pleading You’re not guilty to- here charge used to enhance the current DWI day you’re beсause not guilty; is to a felony. Testifying fingerprint that right? expert, Bowley positively Isbell identified A: Right. That is correct. previously as the individual convicted Q: Could be that it’s because we those offenses. On cross-examination couldn’t plea agreement on a counsel, Bowley’s Isbell testified that Bow- preferred? you ley pled previous to the guilty offenses. [DEFENSE I Judge, COUNSEL]: When testified his own de- guess I will object have to on that. fense, attorney his him questioned about That’s— the judgments prior from his two DWI THE COURT: Sustained. following tran- colloquy convictions.
spired: [DEFENSE Judge, as COUNSEL]:
Q: well, ... going you go I’m show let to me ahead and ask that this
Exhibit No. 4. Court you; And that’s is instruct the to not consider any your type deliberation, that correct? This is one of just Terry proper DWIs out of it’s not a County; simply is that area for a say? Judge. fair to Yes, A: sir. THE No COURT: instruction will be
given. [DEFENSE I Judge, COUNSEL]: Q: ... Okay. you plead And did guess perfect my to finish that and take to trial? objection, I will ask for a mistrial. A: pled that. THE COURT: Denied. Q: Okay. Why you plead did to State’s No. 4? Exhibit redirect, On Bowley’s again counsel questioned him his prior guilty about A: guilty Because was of it. pled pleas. explained that he Q: Okay. it again Let’s do with the guilty knew cases State’s Exhibit No. 5. This is a he was intoxicated. did counsel you, Hockley DWI and this is out of question him not about his for reasons County; say? is that fair to pleading charge to the in this Yes, A: sir. case. you Did take this case to trial or d> Appeals Court not? Bowley appealed, claiming that the tri- < No, sir, I didn’t. al refusing abused his discretion Okay. Why you plead? did & request instruction to disre- < Because I guilty, gard prosecutor’s sir. reference to con- Because of this that a lant’s defense.”12 Citing principle
negotiations.4
free
a trial
uphold
cern,
fa-
public policy
with the
combined
theory of law
ruling
under
judge’s
danger that
voring plea bargains and a
case,5
of ap-
the court
applicable
invite
“holding
harmless would
the error
it was
restricted to
peals stated
oth-
repeat
wrong
State
Rule of Evi-
on Texas
State’s reliance
ers,”
found harm
the court
disclosure
410,6 which involves the
dence
conviction.13
and reversed the
plea negoti-
during
made
of “statements”
*4
then ana-
appeals
court of
ations.7 The
Analysis
403,
402 and
lyzed
under Rules
the issue
the
ultimately reversed
trial
though it
evidentiary rul
judge’s
A trial
prosecu-
It held that the
judge’s ruling.8
an abuse-of-dis
ings are reviewed under
improper
“was
because it
question
tor’s
judge
If the
was
cretion standard.14
trial
irrelevant, or,
relevant,
minimally
if
was
any theory
applicable
of law
correct under
The
highly misleading
prejudicial.”9
and
case,
uphold
judge’s
will
to
we
observed, “Given the
appeals
court of
if the trial
decision.15
do this even
We
question
posed,
was
manner in which
any
failed
or used the
give
to
reason
reasonably
it as
interpret
one could
dis-
wrong
ruling.16
reason for the
had
closing
plea negotiations
oc-
curred,
potential
were made
offers
By
testify,
to
a defen
choosing
rejected,
[Bowleyj’s
and
and
desires
veracity
her
puts
dant
his or
character for
major
arriving
presented
obstacle
character)
(as
moral
in issue.17
opposed to
at a
bargain.”10
who
have held that
defendant
“[a]
We
the “grave
further
risk of un-
noted
cross-
takes
witness stand
be
deception went unabat-
prejudice
due
in
man
impeached
examined
the same
trial court withheld its in-
ed when the
any
ner as
witness.”18 A defendant
other
disregard,”
opined
and it
struction to
“contradicted,
impeached,
be
discred
there is
“common
inference that
sense”
ited,
sustained, bolstered,
attacked,
made
plea negotiations
those
in
are
engaged
himself,
give
against
evidence
cross-
offense.11 It thus
guilty of the
concluded
matters,
treated
examined
to new
as
plea
negotiations
that the mention
was
other wit-
way
negаte appel-
every respect
quick, improper
“a
527-28;
Prystash,
(citing
13.
Id.
3 S.W.3d at
Bowley,
4.
7. Tex. R. Evid Bowley, at 8. 280 S.W.3d 534. 16. Id. Id. at 532-33. State, 102, 105 v. 713 S.W.2d 17. Hammett 1986). (Tex.Crim.App. Id. at 532. State, 738, (Tex. v. 755 Feldman
11. Id. at 533.
Crim.App.2002);
Cisneros
1985).
(Tex.Crim.App.
12. Id.
having
And we have observed that a
ness....”
it admitted. Evidence of plea ne-
“opens
who
the door” to otherwise
party
gotiations
generally
relevant
inadmissible evidence risks the adverse ef- proving
offense,
elements
and it
having
fect of
that evidence admitted.20 might
prejudicial
to a defendant. As
in Prystash
stated
v. State and Smith v.
We hold
the court of
erred
State, allowing such evidence could chill
holding
prosecutor’s question
that the
plea negotiations
the parties.22
between
Bowley referencing plea negotiations was
permissible
But it was
improper. Bowley opened the door to the
to cross-examine
prosecutor’s
questioning
cross-examination
by creating a
surrounding
circumstance
which the
circumstances
guilty
could infer that his not
this case to establish an alternate motive
truthful. He
did so on direct exami-
for pleading
it was the
—that
when he
pled guilty
nation
stated that he
plea negotiations.23
result of failed
To
previous
cases “because
[he]
hold otherwise would allow a party to cre-
*5
guilty.” Although Bowley’s counsel did
a
ate
favorable inference
depriving
while
not take the ultimate logical step,
pros-
party
the other
of the truth-finding mecha-
underlying purpose
ecutor clarified the
Thus,
nism of
cross-examination.
inquiry by
defense
counsel’s
asking,
instance, even under the highly deferential
‘You’re not pleading guilty
today
here
be-
review,
abuse-of-discretion standard of
no
you’re
guilty,
right?”21
cause
is that
judge
trial
should have
sustained
By
answered in the affirmative.
objection.
testifying
pled guilty
he
in the previ-
guilty,
ous cases because he was
then that
The
of appeals’s
conclusion
pled
he
in this case because he
question
that the
subject
was
to exclusion
guilty, Bowley
was not
the jury
invited
to under Rule 403 because it
“highly
was
his
guilty pleas
consider
as evidence misleading
prejudicial”
and
and that there
that he was innocent of the offense for
“grave
was a
risk”
would
which he
on trial.
was
make the “common sense” inference that
above,
negotiated
because
had
plea,
As
for a
party
noted
a
who
crime,
he
opens the door to otherwise
had committed the
misses the
inadmissible
consequences
еvidence risks the adverse
of mark.24
prosecutor’s question sought
Feldman,
755; Cisneros,
19.
S.W.3d at
evidence
aof
offer
the State
relevant,
substantially outweighed by
S.W.2d at 83.
but is
danger
prejudice
of both unfair
and of
Feldman,
misleading
jury).
sufficient evidence HOLCOMR, J., a dissеnting filed [Rowley’s] establish strategy MEYERS, PRICE, in which opinion .”26 And the dissent also focuses guilt... JJ., JOHNSON, joined. strength of the State’s case. How ever, the focus here is the need PRICE, J., dissenting opinion filed by Row- to rebut the inference established MEYERS, which JOHNSON and sufficiency ley, opposed to the of the HOLCOMR, JJ., joined. *6 Second, State’s evidence. an assessment an case comes to us such odd This pure speculation. of the State’s case is say it is difficult for us to posture that there suf Finally, assuming even great jurisprudential signifi- anything of ficient evidence for the State to establish judge ap- trial sustained the cance. The Rowley’s guilt challenging without pellant’s general objection without indicat- mean the theme of his defense does not legal basis he understood ing upon what And, doing State had refrain from so. In appellant objecting. ap- the to be above, permissible stated it was for the brief, proceeded on pellate appellant the an State to establish alternate inference assumption objection the that his had been Rowley’s. than We conclude that the 410(4) predicated upon Rule of the Texas holding that the erred Evidence, prohibits which the use Rules question by prosecutor the was sub asked evi- against the State a defendant of than stantially prejudicial probative more any the defendant dence of “statement” under the facts of this case. in the course of unfruit- might have made reasons, trial foregoing Goode,
For the the ful plea negotiations.1 Professors Rowley’s required was not sustain tell us that the rule’s Wellborn and Sharlot objection. Accordingly, no instruction to meant to extend even to a prohibition is im- statement that would be relevant as disregard necessary. (4) any ... plea the statement Id. discussions: plea course of discussions with made the Id. authority, attorney prosecuting ... for the case, plea a in a that do not result in criminal 410(4) ("Except 1. See Tkx. R. Evid as other guilty plea a or nolo contendere or that rule, provided evidence of the wise in this withdrawn, guilty plea, later results in a against following is not admissible the defen contendere.1'). nolo participant dant who made the or was a represents By focusing on peachment evidence.2 rule am dubious. what the judgment that even relevant evi- policy to, a parties agree prosecutor’s could not the dence should be excluded the interest question does indeed any steer clear of promоting negotia- “frank free” plea express of a elicitation unilateral statement Therefore, the assuming ap- tions.3 rule appellant’s part. But here, plies prosecutor’s question the was plea agreement ordinarily entails an offer objectionable the line of appellant’s even if the and an acceptance by questioning “opened otherwise door” defendant, any of a evidence failure to any other relevant im- admission mutually agree a plea bargain on necessar- peachment evidence. ily implies communication of kind some reply appeal, In on its brief direct how- “statement,” part on the defendant’s if —a ever, prosecu- State argued you will—that accept he did not the State’s necessarily question designed tor’s was not Certainly offer. it communicates that the of any specific to elicit evidence “state- appellant option entertained the of enter- ment” that the have appellant made ing plea. To the prosecu- allow during negotiations. It is true that question tor’s here hardly serves to foster (“Could prosecutor’s it be that the “frank and free discussions between [your guilty plea nоt in this case occurred] parties” Rule 410’s near-absolute plea agree- because we couldn’t on a prohibition designed to preserve.4 you ment preferred?”) did focus event, In the court of man- any particular appellant on statement the aged to avoid addressing this issue alto- during plea have made discussions. Instead, gether.5 of appeals held argued appeal From this the on State 410(4) might that the trial judge’s ruling properly ability of Rule limitations predicated upon Rule 403’s au- develop impeach- otherwise relevant against thorization of testimony appellant ment trial courts to exclude even ought apply. probative relevant “if its evidence value is *7 Goode, Guy exception 2. Olin Wellborn III & the See Steven contain that would allow for Sharlot, against 1 a M. Michael admission defendant of a statement Texas Guide to Practice: (3rd during plea proceedings § 410.2 ed. made unsuccessful the Texas Rules of Evidence 2002), "fairness,” (“the pleas complete 348 related the at state- the interest of to picture ments mentioned in Rule 410 are when al- inadmissi- the defendant himself has subsequent litigation, ready ... ble in criminal evidence of "another introduced state- during plea proceеdings. whether offered either as substantive evidence ment” made those against plea the the optional-completeness exception defendant who made is But this participated plea during in the or to im- expressly discussions to made limited statements him.”). peach plea "the same discussions!.]” testimony prior guilty appellant’s his about Id., 410.3, specific pleas provi- cannot under § at serve this "open door” sion of Rule 410 to the to admis- might during sion of he have made statements majority upon theory proceeds 4. The that negotiations pertaining the of- to instant appellant "opened the the door” to the use of should, if Perhaps fense. in "fairness” it but plea proceedings impeach to him in this represents a case, the Court believes this lamenta- rectify misapprehension to the he im- gap and windfall the ble the rule for planted always jury pleads with the that appellant, perception (and, we should entrust guilty implication, guilty when he is not). to our Rules Committee. not when he is I am not unmind- perceived ful of the unfairness to the State But, 530, reasons, 5. Bowley policy here. for 533 n. Rule does 2009). (Tex.App.-Amarillo permit impeachment. not such Rule 410 does trial senting opiniоn, the of I the substantially outweighed by danger (if etc., ruling in court’s Rule 403 this case held that the prejudice,” unfair doubt) was, I strongly is it which was what properly was sus- objection appellant’s outside the zone of reasonable dis- not my part, For that basis.6 tained on therefore not an abuse of agreement, and this the seriously rule doubt case, trial being That the the discretion. or the trial had appellant the either discretion, had and therefore court -no it although present record mind— erred, plainly appellant’s refuse the re- to is, course, know. The impossible to of the quest disregard to instruct the has nеverthe- appeals’s court of diversion prosecutor’s question. dispute this Court in a over less embroiled probably application of what proper the majority right But even if the were evidentiary even the relevant rule— issue, grievously it respect the Rule parties rule the certainly the briefed simply judgment the errs to affirm the below. court further ado. If the trial without wrong pro- about the diversionary this issue
Weighing on priety ruling a mat- of the trial court’s (since is, all, it issue nevertheless after remains ter Rule decided),. reject the court of must (probable) actual whether trial court’s majority’s the trial сonclusion 410(a) ruling Rule was within its under court would have abused its discretion had of appeals discretion. Because the court predicated ruling on Rule actually issue, has never resolved this the correct trial Reviewing courts afford courts juncture this disposition at would be wide latitude in their exercise discretion of appeals remand cause the court reviewing A court this context. should that it do so. I must so therefore guess trial un- ruling not second court’s additional dissent basis that der Rule 403 call it an abuse of discre- the cause fur- Court does not remand can long tion as as it be said that procеedings appeals. ther in the court of ruling was within so-called zone disagreement.7 a trial reasonable When Ultimately, ever, I rue that we in our properly court, exercises its broad discre- capacity discretionary as a review tion to rule that a item evi- em- get should allowed ourselves dence, impeach- while relevant as perhaps in a like in the place. broiled case first ment, substantially is nevertheless more *8 J., JOHNSON, dissenting filed a it prejudicial probative, than and excludes opinion. reason, invariably for it abuses give if fails a request- case, discretion it then prior In this the state used two jury disregard ed the instruction to driving convictions for while intoxicated (DWI) if has inadvertently evidence the the degree to increase of the of- to it be excluded. exposed felony, before could to a then two more convic- fense be the case the always felony range This will when tions for DWI to enhance the objectionable. first-degree itself For rea- of to that of a punishment by our law. expressed Judge felony. prohibited sons Holcomb’s dis- This is case relevant, (“Although delay, presentation cu- Tbx.R. Evid 403 undue or needless of See evidence."). may probative mulative if val- evidence be excluded its by substantially outweighed danger the ue is issues, State, 372, prejudice, Montgomery of unfair confusion of the S.W.2d 391 v. 810 (opinion misleading reh'g). jury, (Tex.Crim.App.1991) of considerations
439 (Tex. State, 49.09(g) 395 Section first appears In v. 787 S.W.2d the Penal Phifer after the 1995 session of legisla determined Code Crim.App.1990), Court ture and be a Phifer, validation of felony that a DWI could be enhanced un if 12, D, poorly phrased. even Chapter Subchapter der of the Pe felony and that a DWI could be nal Code 49.09(g) Section is clear permitting as to range punishment used to enhance the felony the use of DWI to enhance non- D, felony Subchapter but it of a under felony, DWI but not using so clear as to not to do so if the indictment could be used prior different DWI convictions to enhance felony DWI. alleged offense Chapter offense under both 49 and Additionally, special provi State, enhancement Subchapter D. In Phillips v. 992 primary long sions for a offense 491 (Tex.Crim.App.1999), S.W.2d we inter- preted been held to bar enhancement under language Section general only prior 49.09(g)(49.09(f) statutes offenses at the Phillips) time of special that could be used within the allow the use of DWI convictions to State, provisions. Rawlings felony See v. 602 both raise the offense to a 12, enhance it under (Tex.Cr.App.1980); Subchapter pre- S.W.2d 268 Heredia prohibited use State, cise (Tex.Cr.App. Phillips v. 468 833 did S.W.2d Phifer. 1971); State, Phifer, overrule thus remains Tomlin Tex.Crim. Phifer good law 108, (1960); and stands stark contradiction Edwards v. of Phillips. Phifer, Under State, 301, indictment 166 Tex.Crim. S.W.2d in this (1958). subject being quashed. case was Applying principle to this Perhaps legislature would care to re- preclude prior felony cause would use of 49.09(g) clarify visit Section its intent. convictions, felony but not other DWI convictions, Chapter to enhance under respectfully dissent. HOLCOMB, J., a dissenting filed
Phifer, 787
at 396.
MEYERS, PRICE,
opinion, which
concept
I understand this
tо be set out
JOHNSON, JJ., joined.
49.09(g):
in Penal
Section
“A convic
Code
I respectfully dissent.
I think the ma-
purposes
tion
be used for
of enhance
jority
misanalyzed
has
this case and
ment under this section or enhancement
wrong
reached
result. Before
ex-
D,
Subchapter
Chapter
under
but
detail,
plain my
view
allow me to first
Subchapter
under both this section and
review the relevant facts.
1980s,
D.” During the late
various courts
27, 2007,
in which the
On
decided cases
issue
November
Lubbock
felony
County grand jury
was whether
DWI convictions could
returned an indictment
punishment
Troy
felony
A.
range
charging
used
enhance
driv-
D,
(DWI).
Subchapter
under
with mixed results.
whilе intoxicated
Tex.
ing
See
See,
§
e.g.,
purposes
Jones v.
441 your Terry County; DWI’s out THE one COURT: No instruction will be say? that fair to is given. Yes,
A: sir. DEFENSE Judge, I guess COUNSEL:
[*] [*] [*] to finish that and protect my objection, I will ask for a And, mistrial. Q: Okay. you plead did Troy, or take that to trial? THE COURT: Denied. pled IA: to that. The majority now holds that the State’s
Q: Okay. Why you plead did to State’s question referring negotiations to plea was Exhibit No. 4? proper “Bowley opened because the door A: Because I was of it. [it] cross-examination creating Okay. again Q: Let’s do with circumstance in the jury which could infer Exhibit No. 5. is judg- [another This that his not guilty plea was truthful.” DWI, you, ment for] and this out of State, 431, (Tex. Bowley v. 310 S.W.3d 435 Hockley County; say? fair to is that However, Crim.App.2010). even if the ma Yes, A: sir. jority is correct “opened question, door” to the State’s the trial Q: you Did take case to trial or court still could reasonably have deter not? mined that the State’s objec No, sir, I A: didn’t. tionable because it asked evidence that Okay. Q: Why you plead? did was inadmissible under Texas Rule of Evi A: Because I sir. guilty, dence Evidence that otherwise party be admissible opened because During the State’s cross-examination of to it may door nevertheless be inadmissi Bowley, the following occurred: State, Winegarner ble under Rule 403. v. Okay. Q: [Defense counsel] said that 787, (Tex.Crim.App.2007). pled you guilty to all those up [DWI’s] there [in State’s Exhibits Nos. and 5] “Although relevant, Rule 403 states: ev- were; you right? because is that probative idence if its excluded Yes, sir, A: that is correct. substantially outweighed by value is Q: pleading guilty You’re not here to- danger prejudice, of unfair confusion of the day you’re guilty; is that issues, misleading jury, con- right? delay, siderations undue or needless Right. A: That is correct. presentation of cumulative evidence.” Q: Could it be that it’s because we value,” phrase “Probative as is used in plea agreement couldn’t on a rule, probative refers to the inherent you preferred? is, of an force item of evidence—that how DEFENSE Judge, guess COUNSEL: strongly it make serves to more or less will object on that. That’s— of a fact of probable existence conse- quence litigation coupled THE COURT: Sustained. — item of proponent’s need for that evidence. well, DEFENSE Judge, COUNSEL: Gigliobianco gome let ahead and ask that this court (Tex.Crim.App.2006). prejudice” “Unfair
instruct the consider not to that in deliberation, tendency suggest to a any type of refers decision on simply that it’s just not a proper Judge. improper area for basis. Ibid. *11 decision, that is made a different but court have the trial consider- gives
“Rule Fur- review. appellate not the standard of evidence when exclude able discretion thermore, my the court opinion, in the humble judge, that individual appears to trial, concluding that insuf- of was correct particular be context of went prejudice risk against grave measured “the of undue when probative ficiently when the trial court withheld in the unabated countervailing specified factors State, at refer- disregard” instruction v. Winegamer rule.” negotiations. Id. at plea 533. ence sought of the evidence nature Given the the court judgment I affirm the of would admission by the State’s majority of Because the does appeals. —an pled guilty” he “not Bowley so, I respectfully do dissent. on a could not and the State trial court could have reason-
bargain —the in- evidence was
ably concluded when probative measured
sufficiently danger prejudice. unfair of
against First, that? the trial court
Why I think do that, in reasonably concluded
could have of that the context Eduardo VALTIERRA & Heriberto of such an admis- force probative inherent Valtierra, Appellants, would have modest sion for it was close v. while the State’s need Second, the trial court non-existent.2 The of Texas. STATE concluded that reasonably could PD-0907-09,PD- PD-0906-09, Nos. posed by danger prejudice of unfair such 0908-09, PD-0909-09. great. an admission was As court noted, plea negotia- “mention of Texas. Appeals of Criminal Court mistakenly having tions could occurred 5,May [Bowley] juror lead a to conclude believed himself since innocent admitting
person contemplate would not
guilt.” Bowley 2009). (Tex.App.-Amarillo poten- upon jurors
tial of the mention impact negotiations cannot overstated. now appellate
As an review- record,
ing say cold cannot ques-
trial court’s decision that the State’s clearly objectionable
tion outside disagreement.
the zone of Had reasonable shoes, might
I been in the trial court’s night ques- strength encounter Think for moment about video, against Bowley. case The State I do not State's I have viewed that tion. testimony quite damning had the clear and exaggerate write that it was most when I Jennings Altgelt, recounted Officers likely devastating to defense. above, Jennings’ together video of with the