Tuesday, December 20, 2011
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:...
any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
So, let's say that the prosecutor violates Rule 410(4), but the defense does not object. If the defendant is convicted and appeals, should the court reverse for plain error? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Parker v. State, 2011 WL 5984539 (Tex.App.-Fort Worth 2011), the answer is "no."In Parker, Dominque Parker was convicted of possessing four or more but less than four hundred grams of methylenedioxy methamphetamine (ecstasy). Previously, at trial, and without an objection from Parker, the prosecutor stated,
Your Honor, the State's offer prior to the open plea had been 10 years TDC....We based on that his—the escalating nature of his criminal history. He's always been able to receive a break from the State one way or another over as many cases he's picked up. He's continued to demonstrate criminal behavior, now moving into actual narcotics transactions. And, although the State waived the intent to deliver language in good faith as part of an attempt to get an open plea, his own admissions to the PSI officer indicate that I probably should have not done that, since he clearly had the intent to sell that dope in exchange for money, but that being said, Your Honor, the State's last offer was 10 years TDC. I defer the Court for disposition in this case.
After he was convicted, Parker appealed, claiming that this statement violated Rule 410(4), claiming that the Rule was a "systemtic requirement," meaning that its violation necessitated a new trial even in the absence of a timely objection.
In response, the Court of Appeals of Texas, Fort Worth, acknowledged that the requirement of a timely objection
"does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal."... Systemic requirements, also known as absolute requirements or prohibitions, are laws that a trial court has a duty to follow even if the parties wish otherwise....Systemic requirements include jurisdiction of the person or subject matter, a constitutional requirement that a district court conduct its proceedings at the county seat, and a constitutional prohibition against ex post facto laws...."Waivable only" rights include the right to the assistance of counsel and the right to trial by jury.
The court then found, however, that
Appellant does not direct us to any authority, and we find none, characterizing the State's discussion of plea negotiations or of the defendant's criminal history during closing argument as systemic, waivable-only, or otherwise "fundamental" or "plain" error....
Moreover, in Whitaker v. State, the court of criminal appeals required preservation of a contention that witnesses improperly discussed a plea negotiation during the guilt and punishment phases of trial; the court noted, "[T]he record clearly reflects that appellant made no objection to the State's references to the...plea negotiations. Appellant, therefore, procedurally defaulted any error in these references."