Bowie v. State

Full title: KELVIN DWAYNE BOWIE, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 28, 2003

No. 05-02-00527-CR (Tex. App. Feb. 28, 2003)

Opinion

No. 05-02-00527-CR.

Opinion Filed February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-98229-W. REVERSE and REMAND.

Before Justices WHITTINGTON, RICHTER, and FRANCIS.

OPINION

Opinion By Justice RICHTER.

A jury convicted Kelvin Dwayne Bowie of murder and assessed punishment, enhanced, at thirty years imprisonment. On appeal, appellant asserts he was harmed when the trial court admitted, over objection, statements made in the course of a prior plea proceeding. We agree. Accordingly, we reverse. Because the sufficiency of the evidence is not challenged and the parties are familiar with the facts, we recite only those facts necessary for the disposition of the appeal. The record reveals appellant, represented by counsel, initially pleaded guilty. During the plea proceeding and after a finding by the court that appellant knowingly and voluntarily waived his Fifth Amendment rights, appellant took the stand and testified that he initially claimed he acted in self-defense and lied to the grand jury about that claim. Appellant also testified concerning his relationship with the victim and the actual events leading up to and following the murder. Subsequently, the trial court allowed appellant to withdraw his plea and proceed with a jury trial. Seeking to introduce at trial appellant's plea proceeding testimony, the State moved for a pre-trial ruling on its admissibility. At the hearing on its motion, the State contended the testimony was admissible under subsection four of rule of evidence 410. Although rule 410(4) is an exclusionary rule prohibiting the admission of statements made in the course of plea discussions with a prosecuting attorney, the State reasoned the testimony in question was admissible because it was elicited in open court, after appellant's waiver of his Fifth Amendment rights and was not a part of any plea discussions with the prosecutor. See Tex. R. Evid. 410(4); Cantu v. State, 993 S.W.2d 712, 722 (Tex.App.-San Antonio 1999, pet. ref'd) (citing Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997)). Appellant agreed the admissibility of his testimony was governed by rule 410, but maintained the applicable subsection was subsection three, which prohibits the admission of any statement made in the course of a proceeding regarding a guilty plea later withdrawn. See Tex. R. Evid. 410(3). Concluding subsection three protects only the actual plea and subsection four protects only statements made to the prosecutor, the trial court ruled in the State's favor. The trial court also noted, as a basis for its ruling, that appellant was not promised at the time he testified that his testimony would not be used against him at another time. When the State offered and read at trial the record of appellant's testimony, appellant renewed his objection, but the trial court did not change its pre-trial ruling. Appellant now challenges the court's ruling, maintaining subsection three of rule 410 specifically barred the admission of his plea proceeding testimony. Appellant further argues he was harmed by the admission of this evidence. We agree with both contentions. We review rulings on the admissibility of evidence under an abuse of discretion standard. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim. App. 1990). Because the erroneous admission of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim. App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). Rule 410 provides in relevant part as follows:

Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty that was later withdrawn;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding, in a civil case, either a plea of guilty that was later withdrawn or a plea of nolo contendere, or in a criminal case, either a plea of guilty that was later withdrawn or a plea of nolo contendere that was later withdrawn; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority, in a civil case, that do not result in a plea of guilty or that result in a plea of guilty later withdrawn, or in a criminal case, that do not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

Tex. R. Evid. 410. By their literal wording, subsection one protects the later-withdrawn guilty plea, subsection three protects the statements made in the course of plea proceedings, and subsection four protects the statements made in the course of plea discussions with the prosecutor. See Cantu, 993 S.W.2d at 722 (plea discussions with prosecutor); Childs v. State, 837 S.W.2d 822, 824 (Tex.App.-San Antonio 1992, pet. ref'd) (guilty plea); Tex. R. of Evid. Handbook 339 (3d ed., 1998) (plea proceedings). This is consistent with the policy behind rule 410 of promoting frank discussions among the defendant, prosecutor, and court. See Tex. R. of Evid. Handbook 339. Given the literal wording of subsection three, the trial court's conclusion that it protected only the plea itself was erroneous. So, too, was the court's alternative basis — that appellant was not promised his testimony would not be used against him at a later time — for admitting the plea proceeding testimony. Although the court correctly noted no verbal promises were made to appellant, none were necessary as the rule itself explicitly provided appellant the assurances he needed. Because the admission of appellant's plea proceedings testimony violated the express provision of rule 410(3), we conclude the trial court abused its discretion. Having concluded the court abused its discretion, we now turn to whether appellant was harmed. In making this determination, we consider first the nature of the evidence supporting the verdict. In addition to the complained-of testimony, this consisted of testimony from the investigating officer that appellant admitted shooting the victim, appellant's videotaped confession and eye witness testimony. Although this evidence appears to weigh against a finding of harm, the eye witness admitted to two prior misdemeanor convictions, and the voluntariness of appellant's confession was submitted to the jury in its charge. Additionally, although appellant did not testify, appellant conveyed a theory of self-defense through cross-examination of witnesses and the recall testimony of the investigating officer. The issue of self-defense was also included in the court's charge to the jury. Because witness credibility, the voluntariness of appellant's confession, and the viability of appellant's defensive theory were at issue, the prior, in-court and sworn testimony of appellant, elicited while represented by counsel, provided the State its strongest evidence at trial. Indeed, the prosecutor capitalized on this by repeatedly emphasizing appellant's testimony in argument. Twice in his opening statement, the prosecutor informed the jury it would hear that in a prior proceeding, after being admonished of his right against self-incrimination and voluntarily waiving that right, appellant took the stand and confessed to each of the elements of murder. Then, in closing, the prosecutor began his argument by directing the jury's attention to appellant's "very own testimony . . . in a prior proceeding . . . admitt[ing] each and every one of th[e] elements [of murder]." The prosecutor continued: "And if there's any doubt, whatsoever, go back and look at this prior proceeding. I believe it's State's Exhibit No. 43 that was introduced. Because [appellant] admits to you every single one of those elements. Those issues, those elements, they are not in dispute in this case . . ." The prosecutor concluded his argument by again pointing to appellant's plea proceeding testimony and noting appellant admitted lying about his claim of self-defense. The State's rebuttal, the last argument heard by the jury before retiring to deliberate, was similar. Given the record before us, we have no fair assurance the error did not influence the jury or had but a slight effect. We sustain appellant's sole issue. We reverse the trial court's judgment and remand to the court for proceedings consistent with this opinion.