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  • Brian Foley

Conroe Criminal Defense Lawyer - Texas Rules of Evidence Series RULES 409 and 410

Texas Rule of Evidence 409 is really short. One sentence and is pretty self explanatory. "Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury." This is the rule for purposes of public policy we generally prefer allowing others to pay medical bills without subjecting them to increased risk of liability above what other evidence already proves.


Rule 410 has a few more moving parts and breaks up its applicability into sections for Civil and Criminal but upon first glance the rules look identical. You can't offer a statement of a defendant made during plea bargain negotiations or a plea of guilty that is later withdrawn. This is to encourage free and open negotiations during the plea bargaining process.


One thing that is important to notice is that the language of 410 only prohibits the admission of a plea bargain agreement against the defendant who was involved. If the defendant wants to explain later actions based on the nature of the plea bargain agreement that was ultimately not finalized then he may do so. Abdel-Sater v. State, 852 S.W.2d 671, 673 (Tex. App. -- Houston [14th Dist.] 1993, pet. ref'd). These statements may be inadmissible under rule 403 as substantially more prejudicial that probative but rule 410 has nothing to say about statements that are not offered against a criminal defendant. The rules against hearsay generally don't apply because of the exclusion of admission by a party opponent, but it could also go to prove the mental state of the defendant as it did in Abdel-Sater when a criminal defendant offered evidence of a plea deal where he was supposed to have all the cocaine removed from his home by authorities and was then later prosecuted for possession of cocaine alleging that he thought it was already all removed but authorities missed it.


Because the last sentence of this rule states an exception for civil cases it allows a trial judge to offer what amounts to "optional completeness" evidence if the defendant offers the evidence related to the plea bargain or plea of nolo contendre first.


Another notable exception here is statements made during a finalized guilty plea may be offered against the defendant. Dennis v. State, 925 S.W.2d 32, 41 (Tex. App. -- Tyler 1995, pet. ref'd).


Statements made during plea discussions don't include every statement made by a defendant trying to work out a better deal for himself. For example discussion with police in a parking-lot do not equate to plea negotiations. United States. V. Robertson, 582 F2d 1356 (5th Cir. 1978). See Cantu v. State, 993 S.W.2d 712 722 (Tex. App. -- San Antonio 1999, pet. ref'd). Even statements by polygraph examiners that the case would be dismissed if the defendant passed the test would be admissible as not official plea negotiations. Pichon v. State, 756 S.W.2d 16, 21 (Tex. App. -- Houston [14th Dist] 1988, pet. ref'd).



Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.


Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses in Civil Cases. In a civil case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

  1. a guilty plea that was later withdrawn;

  2. a nolo contendere plea;

  3. a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

  4. a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Prohibited Uses in Criminal Cases. In a criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

  1. a guilty plea that was later withdrawn;

  2. a nolo contendere plea that was later withdrawn;

  3. a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

  4. a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty or nolo contendere plea or they resulted in a later-withdrawn guilty or nolo contendere plea.

Exception. In a civil case, the court may admit a statement described in paragraph (a)(3) or (4) and in a criminal case, the court may admit a statement described in paragraph (b)(3) or (4), when another statement made during the same plea or plea discussions has been introduced and in fairness the statements ought to be considered together.



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