WOOLSEY v. STATE (2025)

OPINION

A jury acquitted appellant of murder, found her guilty of manslaughter, and assessed a punishment of five years' confinement. She contends that the trial court reversibly erred by denying her motion for a directed verdict on the murder charge and, during the punishment phase, excluding evidence of her pretrial offer to plead guilty to manslaughter.

We affirm.

I. Background

The parties present largely consistent recitations of the facts in their briefs. Most of the evidence in this case is undisputed because the offense was recorded on a surveillance camera located inside the shop where the decedent, Matthew Pillsbury, worked as a mechanic. The footage—more than four hours in length from one late night and early morning in April 2021—was admitted as an exhibit. It does not contain audio. The video shows appellant and Pillsbury having a good time, conversing, laughing, flirting, consuming ecstasy and methamphetamine, and having sex. An officer described appellant as appearing “under the influence.” Appellant testified that they had done this many times over the prior six months.

The video shows that Pillsbury fell asleep in a chair multiple times. Appellant tried to wake him up—sometimes successfully, sometimes not. She testified that she was concerned he fell asleep because he had never fallen asleep when they were taking methamphetamine. Moreover, she claimed to have heard noises and to have seen two men outside climbing a nearby fence towards the mechanic's shop, and she became scared. The video is consistent with her believing there was trouble outside, showing her at different points taking a knife, paintball gun, and flashlight outside in between trying to wake up Pillsbury. She later told a 911 dispatcher that somebody had been trying to break in. An officer testified that appellant gave a similar story on the night of the shooting.

Ultimately, the video shows her picking up a handgun. She tried to wake up Pillsbury a few times and went outside a few times with the gun. As she walked around a table while holding the gun, she appears unsteady on her feet. Over the course of about five seconds, she held the gun next to her, pointed upwards, and then brought it down in front of her, pointed towards Pillsbury. She testified that she was falling asleep. Her eyes were closed during this time. Her eyes remained closed when the gun fired and recoiled. When she opened her eyes, she appears shocked. An officer testified similarly that appellant appeared shocked and stunned.

She immediately dropped the gun and ran over to Pillsbury. She tried to wake him up, brought him to the floor, and began CPR. She ran out of the building and found someone nearby to help call 911 (as she testified that her phone was locked in her car). On the 911 call, she seemed frantic and said Pillsbury was shot accidentally. She asked the dispatcher to tell her what to do to prevent the “love of [her] life” from dying. When officers arrived, she said that she shot him accidentally.

She testified that she did not intentionally or knowingly shoot Pillsbury, and it was an accident. She had no training with firearms and did not grow up shooting guns. She thought that to shoot the gun, she would have had to flip a safety. But as an officer testified, this gun did not have a “traditional safety”—a thumb or switch safety. It had a grip safety and trigger safety, “So, when your hand is on this gun correctly, the gun will fire.”

Appellant testified that she did not intend to pull the trigger, but she did pull the trigger. She was unsure if the gun went off by accident or because she pulled the trigger. She knew that a gun is dangerous and can kill someone. She testified, “I just don't think you point guns at people.”

Appellant called an expert to testify about hallucinations people can experience while falling asleep and how those hallucinations can lead to hypnagogic or hypnic jerks. Hypnic jerks are involuntary movements that occur “in this weird state between wakefulness and sleep.”

The jury acquitted her of murder and found her guilty of the lesser-included offense of manslaughter.

II. Denial of Directed Verdict

In her first two issues, appellant contends that the trial court erred by denying her motion for a directed verdict on the State's murder charge, and she was harmed because the ruling allowed her to be convicted of manslaughter.

In her brief, appellant “does not argue that there was insufficient evidence to convict her of manslaughter.” Rather, she contends that if the trial court had granted the directed verdict, “she would have been acquitted of murder and all lesser-included offenses, including manslaughter,” citing Stephens v. State, 806 S.W.2d 812, 819–20 (Tex. Crim. App. 1990).

Stephens held that a defendant could not be retried for a lesser-included offense following an appellate finding of insufficient evidence and concomitant acquittal of the greater offense. See id. at 819. Stephens did not hold that a trial court's directed verdict on a greater offense precludes a conviction in the same trial for a lesser offense. Nor did Stephens address the possible harm from a trial court's failure to grant a directed verdict on a charged offense when the defendant was ultimately convicted of a lesser offense. Regardless of the continued viability of Stephens,¹ it would not have barred a conviction for a lesser-included offense if the jury charge had included an instruction on the lesser-included offense, as here. See Ex parte Navarro, 523 S.W.3d 777, 781 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Stephens, 806 S.W.2d at 814 n.4); see also Ex parte Granger, 850 S.W.2d 513, 519–20 (Tex. Crim. App. 1993) (declining to apply Stephens when the jury charge instructed the jury on the lesser-included offense).

Appellant suggests that a directed verdict on the charged offense would necessarily operate as an acquittal on the lesser-included offense, so any subsequent conviction on a lesser-included offense is a harmful consequence of the denial of a directed verdict. She cites no authority other than Stephens to support this proposition, and we find none to support it.

Rather, every Texas court of appeals to address this issue, including this one, has held there was no harm from a trial court's erroneous denial of a directed verdict on a charged offense when the jury did not find the defendant guilty of the charged offense but instead found the defendant guilty of a lesser-included offense. See Taylor v. State, 630 S.W.3d 262, 263 (Tex. App.—Eastland 2020, no pet.); Sutton v. State, 35 S.W.3d 737, 739–40 (Tex. App.—Houston [1st Dist.] 2000, pet. dism'd); Jones v. State, 850 S.W.2d 236, 239 (Tex. App.—Fort Worth 1993, no pet.); see also Fragoso v. State, No. 08-22-00182-CR, 2023 WL 4295855, at *4 (Tex. App.—El Paso June 30, 2023, pet. ref'd) (mem. op., not designated for publication); Fernandez v. State, No. 14-13-00376-CR, 2015 WL 778482, at *7 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op., not designated for publication); Calvin v. State, No. 03-09-00629-CR, 2011 WL 1562138, at *7 (Tex. App.—Austin Apr. 21, 2011, no pet.) (mem. op., not designated for publication).²

An underlying rationale—though often unstated—for these decisions is that a trial court may grant a directed verdict on a charged offense and subsequently submit a lesser-included offense to the jury. See Calvin, 2011 WL 1562138, at *7 (“[W]e see no reason that the grant of a directed verdict against the greater offense would preclude submission or conviction of the lesser included offense.”). Indeed, a trial court may sua sponte submit a lesser-included offense to a jury and may do so over a defendant's objection if the lesser offense is supported by the evidence. See Ford v. State, 38 S.W.3d 836, 840 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd); see also Grey v. State, 298 S.W.3d 644, 655–56 & nn. 19–20 (Tex. Crim. App. 2009) (Cochran, J., concurring). A trial court's submitting a lesser-included offense to the jury after granting a directed verdict on the charged offense avoids the “unjust result of an outright acquittal” when the evidence is insufficient for the charged offense but sufficient for a lesser offense. Cf. Turley v. State, 691 S.W.3d 612, 619 (Tex. Crim. App. 2024) (quotation omitted) (applying this rationale when a court reverses the conviction for the charged offense; requiring courts to reform the conviction to a lesser-included offense supported by the evidence).

Assuming without deciding that the trial court erred by denying appellant's motion for a directed verdict on the murder charge and the error was constitutional, we are convinced beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment because she was not convicted of that offense. See Taylor, 630 S.W.3d at 263; Jones, 850 S.W.2d at 239; see also Sutton, 35 S.W.3d at 739–40.

Appellant's second issue is overruled, and we do not reach her first issue. See Tex. R. App. P. 47.1

III. Exclusion of Evidence at Punishment

In her third and fourth issues, appellant contends that the trial court erred during the punishment phase by excluding evidence that she had been willing to plead guilty to manslaughter, and she was harmed because the evidence would have countered the State's argument that she had not accepted responsibility for the shooting.

A. Punishment Record

Appellant asked the jury to recommend probation while the State argued for prison. Other than reoffer the evidence from the guilt–innocence phase and cross-examine appellant's witnesses, the State did not adduce additional punishment evidence.

Appellant called Kathryn Griffin, the founder of several recovery programs connected to Santa Maria Hostel, where appellant attended an intensive inpatient drug rehabilitation program after the shooting. Griffin spent a lot of time with appellant during the three-month inpatient treatment and subsequent weekly meetings. Griffin testified, “I put my professional career on this, that she has gone above and beyond what I've asked her and suggested to her to do for her rehabilitation.”

On cross, Griffin acknowledged that there were drug treatment programs available in correctional facilities, including her program. The State asked Griffin, “Is accountability an important part of the recovery process?” She answered, “Yes.”

Appellant's father testified that appellant began smoking marijuana while she was in college in 2012 or 2013. Appellant “really deteriorated” with her drug problem about six months before the shooting. He had made several attempts to help her check into rehabilitation facilities before the shooting, but “she checked herself out” and wasn't successful. He testified that appellant is determined to not have that lifestyle again, she can do probation, and she has worn an ankle monitor after bonding out and has not violated any of the rules.

He testified, “She very much takes responsibility. Very, very, very much takes responsibility.” Appellant “more than understands” her responsibility for this incident. On cross, the State asked whether he believed “accountability to be an important part of the recovery process.” He answered, “Of course I do.”

Appellant testified again during punishment. Early in her testimony, the State objected to relevance when counsel asked, “[H]ow many times since April of 2021 have we tried to resolve this case for something short of murder?” Outside the jury's presence, appellant argued that the State “opened the door by arguing that accountability is an important part of probation.” The court acknowledged that the State's questioning concerned “accountability like accepting responsibility.” But the court sustained the objection, ruling that evidence of plea negotiations was inadmissible.³ Later, counsel made an offer of proof outside the jury's presence:

[We] would have established that Ms. Woolsey had made multiple attempts to negotiate with the State to plead guilty to manslaughter or a lesser included offense with the option of going to the Court for punishment or for an agreed deferred, but the State never allowed her to plea to anything lower than murder.

In front of the jury, counsel asked, “Ms. Woolsey, at any point since April of 2021, have you ever not accepted responsibility for your role in this accident?” She answered, “I've accepted the responsibility.” Later, counsel asked if the State had “ever charged you with or even mentioned anything less than” murder before the trial began. She answered, “No, sir.”

Appellant testified about her failed attempts at rehabilitation before shooting Pillsbury. Her latest attempt at rehabilitation worked because she wanted to go into treatment and get help. She understood that if she slipped up while on probation, she could be sent to prison. She testified that she understood Pillsbury wouldn't get a “second chance,” and she wanted to tell his family that he was her friend, she cared about him, and she was sorry for affecting their lives.

On cross, appellant reiterated her trial testimony that she didn't know if she pulled the trigger or not, but she picked up the gun voluntarily and knew it was dangerous “to a degree.” The State asked whether she was “really accepting responsibility” if she doesn't know if she pulled the trigger; she answered, “I accept responsibility day in and day out for this.”

During arguments, appellant's counsel asked for the jury to give her ten years' probation. He noted that she had no criminal history. He argued, “[S]he knows that she is responsible. She accepted responsibility.” The State asked the jury to not recommend probation. The State asked the jury to assess a prison sentence, arguing, “I respect that she's done some work to become sober and better herself, but that doesn't mean that actions don't have accountability.”

The jury assessed her punishment at five years' confinement in the institutional division of the Texas Department of Criminal Justice and did not recommend probation.

B. Standard of Review

We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Heath, 696 S.W.3d 677, 688 (Tex. Crim. App. 2024). A trial court abuses its discretion if the decision lies outside the zone of reasonable disagreement. Id. at 688–89. We may not substitute our judgment for that of the trial court. Id. at 689. And, we must uphold a trial court's evidentiary ruling if it was correct under any applicable theory of law, even if the court gave the wrong reason for the ruling. See Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016).

C. Legal Principles

Evidence is relevant if it has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. See Tex. R. Evid. 401. This definition is “not a perfect fit” in the context of many punishment proceedings because a jury's choosing of a sentence from a range of punishment presents no discrete factual issue. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Rather, deciding what punishment to assess is a “normative process, not intrinsically factbound.” Id. (quotation omitted). Evidence is admissible during punishment if it is “relevant to tailor the sentence to the particular offense” and “the particular defendant.” See id. The admissibility of evidence during punishment is more “a function of policy rather than relevancy.” Id. (quotation omitted).⁴

Generally, evidence that has a bearing on the defendant's “personal responsibility and moral culpability” is admissible. Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002) (victim-impact evidence). “One can accept responsibility by pleading guilty.” Randolph v. State, 353 S.W.3d 887, 892 (Tex. Crim. App. 2011) (“Thus, the defense may fairly argue, during punishment, that the defendant has accepted responsibility by pleading guilty.”). In determining the degree of punishment to assess, a jury may be “aided in knowing that the defendant admitted his guilt” by pleading guilty. Boone v. State, 60 S.W.3d 231, 240 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Indeed, a plea of guilty will “often favor the defendant, as the jury may take it as a sign of the defendant's contrition.” Id.⁵

But, what about a defendant's offer to plead guilty? Under Rule 410, this type of evidence is not admissible “against the defendant.” Tex. R. Evid. 410(b)(4). This rule, however, does not bar a defendant from introducing such evidence in her defense. See Jenkins, 493 S.W.3d at 607 (addressing the trial court's exclusion of the defendant's plea offer under Rule 403 because “Rule 410 is silent on the admissibility of plea negotiations when that evidence is presented for, rather than against, a defendant.”); see also Wimberley v. State, No. 01-17-00529-CR, 2018 WL 2925697, at *3 (Tex. App.—Houston [1st Dist.] June 12, 2018, no pet.) (mem. op., not designated for publication).

The parties cite one case addressing the admissibility of a defendant's pretrial offer to plead guilty: Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016). In that case, the jury found the defendant guilty of capital murder, and the trial court excluded evidence of the defendant's written offer to plead guilty to capital murder in exchange for a sentence of life imprisonment. See id. at 606. The Court of Criminal Appeals assumed the evidence was “minimally relevant” to the mitigation special issue ⁶ and held that the trial court would not have abused its discretion by excluding the evidence under Rule 403, applying the familiar principle that appellate courts will uphold a trial court's evidentiary decision under any applicable theory of law. See id. at 607–08.

Rule 403 provides that a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. A court must balance (a) the probative force of the evidence along with the proponent's need for the evidence against (b) any tendency of the evidence to suggest a decision on an improper basis, to be given undue weight by the jury, to confuse or distract the jury, and to consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Courts consider, among other factors, the probative value of the evidence, the proponent's need for it, the potential for it to impress the jury in some irrational yet indelible way, and the time needed to develop the evidence. See Jenkins, 493 S.W.3d at 608.

Rule 403 “favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006); see also De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (Rule 403 balancing “is always slanted toward admission, not exclusion, of otherwise relevant evidence”). Exclusion under Rule 403 requires a “clear disparity between its probative value, on the one hand, and its prejudicial or misleading effect, on the other.” Valadez v. State, 663 S.W.3d 133, 142 (Tex. Crim. App. 2022).

D. Error

We agree with appellant that the trial court erred by excluding evidence of her pretrial offer to plead guilty to manslaughter, at least in part.

1. Relevant Under Rule 401

Appellant's pretrial offer to plead guilty to manslaughter without an agreed sentencing recommendation (i.e., “with the option of going to the Court for punishment”), is relevant mitigating evidence for punishment by showing her acceptance of responsibility. See Randolph, 353 S.W.3d at 892 (plea of guilty allows for argument about acceptance of responsibility); Boone, 60 S.W.3d at 240 (plea of guilty shows contrition and may aid the jury in assessing the degree of punishment); see also Busso-Estopellan v. Mroz, 238 Ariz. 553, 364 P.3d 472, 473 (2015) (“[H]is pretrial offer to plead guilty is relevant because it tends to make his acceptance of responsibility for the murders more probable.”). This is true even though she was charged with a greater offense because the jury ultimately convicted her of the offense for which she was willing to plead guilty. Cf. United States v. Guerrero–Cortez, 110 F.3d 647, 656 (8th Cir. 1997) (holding that the defendant accepted responsibility under the federal sentencing guidelines when the government refused his offers to plead guilty to possession of a lesser amount of cocaine than the amount charged because the fact finder ultimately found that he was responsible for the lesser amount only).

The trial court erred by excluding the evidence as irrelevant.

2. Admissible Under Rule 410

The State does not argue that the trial court's ruling can be upheld under Rule 410, and we see no basis for doing so. See Jenkins, 493 S.W.3d at 607. Because appellant sought to introduce this evidence for her benefit, it does not fall within Rule 410's prohibition on evidence of plea negotiations offered “against the defendant.” See Tex. R. Evid. 410.

To the extent the trial court excluded the evidence under Rule 410, the court erred.

3. Not Excludible Under Rule 403

Though the parties and trial court did not mention Rule 403 below, we will consider its application as a possible basis for affirming the trial court's ruling. See Jenkins, 493 S.W.3d at 607.

Evidence is probative if it is relevant. See Hart v. State, 688 S.W.3d 883, 892 (Tex. Crim. App. 2024) (citing Tex. R. Evid. 401(a)). Under Rule 403, the probative value of the evidence and the proponent's need for it are a measure of how strongly relevant the evidence is compared to other admitted evidence regarding the same fact of consequence. See Valadez v. State, 663 S.W.3d 133, 142 (Tex. Crim. App. 2022).

Here, the jury heard that appellant accepted some responsibility for her conduct immediately after the shooting by admitting to a police officer that she accidentally shot Pillsbury. She also testified generally during the punishment phase that she accepted responsibility and that the State never “mentioned anything less than” murder. But no evidence showed that she was willing to accept responsibility for the crime of manslaughter before trial. Indeed, the jury would have had a different impression: during closing arguments for guilt–innocence, her attorneys asked the jury to acquit her of manslaughter because appellant's act of shooting Pillsbury “clearly was not a voluntary act.” This trial theory was inconsistent with her accepting responsibility for manslaughter. Undoubtedly, a pretrial offer to plead guilty without a sentence recommendation is more probative than a self-serving mea culpa during the punishment phase after the jury rejects the defendant's request for an acquittal.

Moreover, appellant's need for this evidence was heightened because the State opened the door to appellant's “accountability” being important to her recovery process and later questioned whether she was “really accepting responsibility” for the manslaughter. Cf. Bowley v. State, 310 S.W.3d 431, 435 (Tex. Crim. App. 2010) (evidence of plea negotiation was admissible against the defendant under Rule 403 because the State needed the evidence to rebut the inference that the defendant created—that he did not plead guilty to the charged offense because he was innocent).

Although a defendant's offer to plead guilty with a beneficial sentencing recommendation may be “minimally relevant,” see Jenkins, 493 S.W.3d at 608, here the need for evidence of her pretrial plea offer was heightened, and its probative value was not lessened by a requested sentencing recommendation like in Jenkins.⁷ The time needed to develop this evidence was minimal; the State does not contend otherwise.

We disagree with the State's argument that this case is similar to Jenkins. There, the Court of Criminal Appeals applied Rule 403 to uphold the exclusion of a capital defendant's written offer to plead guilty in exchange for a life sentence. See id. at 606, 608–09. The court reasoned that the probative value was low and the danger of misleading the jury or affecting the jury in an irrational way was high because the defendant sought to benefit by pleading guilty in exchange for a sentence other than death and there was no additional evidence of appellant's motivations. Id. at 608.⁸ In a capital case, a plea to avoid the death penalty inures to the defendant's benefit, and the defendant is no worse off if the State rejects it. Id. Moreover, Jenkins “offer[ed] little argument as to how the jury is to infer mitigation from his plea offer other than it was not his fault that the trial went forward.” Id. The majority in Jenkins made no mention of an intent to show acceptance of responsibility. See id. at 607–09; but see id. at 621–22 (Alcala, J., concurring) (discussing acceptance of responsibility and distinguishing the conditional plea in this case with an offer to plead guilty unconditionally; “I would not have determined that the evidence was overly prejudicial,” but deferring to the trial court because it was a “very close call”).

Several factors that were key to the court's conclusion about prejudice and misleading the jury in Jenkins are not present here:

Without these considerations that impacted the court's decision in Jenkins, the danger of misleading the jury or affecting it in some irrational way was not significant enough to “substantially outweigh” the evidence's obvious probative value. Mindful that Rule 403 favors the admission of evidence and requires a “clear disparity” to exclude evidence, we conclude that the trial court would have acted outside the zone of reasonable disagreement if it had excluded the evidence under Rule 403, so we cannot uphold the trial court's ruling on this alternative basis.

4. Policy Considerations

The State contends that public policy also favors exclusion of the evidence. See Rogers, 991 S.W.2d at 265 (admission of evidence at punishment is a function of policy rather than relevance). The State again points to Jenkins, where the court reasoned that “allowing a defendant to present evidence of his own plea offer militates against public policy favoring the conclusion of litigation by compromise and settlement” because it would “encourage defendants to make plea offers in order to develop evidence for later proceedings, rather than to conclude the litigation through good-faith negotiation.” Jenkins, 493 S.W.3d at 609.

This policy consideration may be particularly implicated in capital cases because a defendant's “offer to plead guilty in exchange for a sentence other than death inures to his benefit if the State accepts it, and, if the State rejects it, the defendant is no worse off than he was before.” Id. at 608. This policy may be implicated when a defendant's plea is conditioned on a particular sentence, like in Jenkins, or when a defendant rescinds an offer. But these considerations do not appear to be implicated here. The State has never argued that appellant's offer to plead guilty to the crime that the jury ultimately convicted her of was a bad-faith negotiation.

* * *

The trial court erred by excluding evidence of appellant's offer to plead guilty to manslaughter. Her third issue is sustained.

E. No Harm

We must disregard a non-constitutional error, as here, unless it affects appellant's substantial rights. See Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). This inquiry does not focus on whether the outcome of the proceeding was proper despite the error. Barshaw, 342 S.W.3d at 93–94. Rather, a substantial right is affected if the error had a substantial and injurious effect or influence in determining the jury's verdict. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). A conviction must be reversed if this court has “grave doubt” that the result of the trial was free from a substantial and injurious effect of the error. See Barshaw, 342 S.W.3d at 94. But, if the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. Thomas, 505 S.W.3d at 926.

In assessing the likelihood that the jury's decision was improperly influenced, we must consider the entire record, including the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence, the parties' theories of the case and arguments, and whether the State emphasized the error. See id. at 927, Barshaw, 342 S.W.3d at 94.

Here, the State presented no aggravating evidence at punishment, and appellant put on significant mitigating evidence through the director of her rehabilitation program, her family members, and herself. The jury heard multiple witnesses, including herself, discuss her acceptance of responsibility for the crime. And the jury heard that the State had never “even mentioned anything less than” murder before the trial began, thus indicating that the State took a hardline position before trial that it would not consider manslaughter.⁹ Considering the entire record, evidence of appellant's plea offer would not have been significant in light of “the robust case of mitigation that defense counsel put on.” Fauber v. Davis, 43 F.4th 987, 1013 (9th Cir. 2022) (exclusion of the State's plea offer in death penalty case did not have a substantial and injurious effect or influence on the jury's decision); cf. People v. Alfaro, 41 Cal.4th 1277, 63 Cal.Rptr.3d 433, 163 P.3d 118, 159 (2007) (harmless error from the trial court's failure to consider, when ruling on a motion to impose a lesser punishment, the defendant's desire to plead guilty unconditionally because the court heard abundant evidence of the defendant's remorse).

Considering the totality of the aggravating and mitigating evidence, it is not “so delicately balanced that the excluded [plea offer] would have been enough to tip the scales in Appellant's favor.” Wells v. State, 611 S.W.3d 396, 418 (Tex. Crim. App. 2020) (applying the more favorable standard for constitutional error—which asks whether the excluded evidence would have moved the jury from a state of non-persuasion to persuasion—to hold that exclusion of a six-hour portion of a video of the defendant from the night of the offense was harmless); see also Halprin v. State, 170 S.W.3d 111, 116 (Tex. Crim. App. 2005) (no harm from constitutional error in excluding cumulative mitigating evidence showing the defendant's lack of leadership during the murder because the defendant “presented from other sources a significant amount of mitigating evidence”).

During closing arguments, among other things, trial counsel stressed appellant's acceptance of responsibility for her conduct. The State did not argue otherwise, stating only that appellant had “done some work to become sober and better herself, but that doesn't mean that actions don't have accountability.”

In light of the arguments of the parties and all the mitigating evidence presented to the jury—including her evidence of accepting responsibility—and the lack of any additional aggravating evidence presented by the State, we do not doubt that the result of the trial was free from any substantial and injurious effect of the exclusion of her offer to plead guilty to manslaughter. The error likely did not influence the jury or had but a slight effect.

Appellant's fourth issue is overruled.

IV. Conclusion

Any error from the trial court's denial of a directed verdict during guilt–innocence or the exclusion of evidence during punishment was harmless. The trial court's judgment is affirmed.

FOOTNOTES

1.   See Ex parte Navarro, 523 S.W.3d 777, 781 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (“Stephens no longer appears to be good law” and “more recent authority casts doubt on the continued viability of Stephens.”).

2.   We cite unpublished opinions for comparative and illustrative purposes, not as precedential authority. See Roberson v. State, 420 S.W.3d 832, 837 (Tex. Crim. App. 2013).

3.   The court seemed to rule that evidence of plea negotiations was categorically inadmissible: (1) “You know y'all can't go into plea bargain negotiations.” (2) “[Y]all know y'all can't get into plea bargains. And I know you know that.” (3) “You just can't get into plea bargains.”

4.   Among those policies are ensuring the public safety through deterrence, rehabilitation, and crime prevention; and prescribing penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders. See Tex. Penal Code § 1.02(1), (3); see also Rogers, 991 S.W.2d at 265–66 (describing the objectives listed in Section 1.02 of the Penal Code as “helpful to our determination” of whether certain evidence was relevant during punishment).

5.   This concept is well-recognized in federal courts as the sentencing guidelines recommend a lower sentence when a defendant accepts responsibility through a plea of guilty before the commencement of trial. See U.S.S.G. § 3E1.1 cmt. 3 (“Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct ․ will constitute significant evidence of acceptance of responsibility ․”).

6.   In a capital case in which the State seeks the death penalty, the mitigation special issue asks the jury to consider the defendant's “personal moral culpability” and any mitigating evidence that the jury “might regard as reducing the defendant's moral blameworthiness” in deciding whether to assess a punishment of life imprisonment rather than death. Tex. Code Crim. Proc. art. 37.0711(e), (f)(3).

7.   Because we find error in the trial court's exclusion of the open plea offer, we do not address the exclusion of the plea offer involving an “agreed deferred,” which would be significantly less probative under Rule 403. Cf. Jenkins, 493 S.W.3d at 608–09.

8.   In its recitation of the mitigation evidence, the court did not indicate that the defendant testified. See Jenkins, 493 S.W.3d at 597–98.

9.   Appellant's arguments and evidence during the guilt–innocence phase similarly communicated to the jury that the State zeroed-in on the charge of murder and wouldn't consider less. For example, counsel told the jury during voir dire that he was “pretty frustrated” the State had charged appellant with murder two years before the trial and the State was now “hedging their bet” by talking about lesser-included offenses. Counsel adduced evidence that the State charged her with murder before the lead investigator had watched the surveillance video. Counsel argued during closing that the State charged her with murder without collecting all the evidence and, “That's why I believe they waited until Monday and all of a sudden went, Oh, well, we may talk about manslaughter.”

Ken Wise, Justice