author: Chief Justice JEFFERSON

text:
    SCOTT AND WHITE MEMORIAL HOSPITAL and Scott, Sherwood and Brindley Foundation, Petitioners, v. Gary FAIR and Linda Fair, Respondents.
    No. 08-0970.
    Supreme Court of Texas.
    Argued Dec. 15, 2009.
    Decided May 7, 2010.
    Rehearing Denied June 11, 2010.
    Stuart Smith, Ñaman Howell Smith & Lee LLP, Waco, TX, Bruce Burleson, Attorney at Law, Belton, TX, for Petitioner.
    Richard E. Brophy Jr., Frederick deB. Bostwick III, Julia Brooks Jurgensen, Beard Kultgen Brophy Bostwick Dickson & Squires, Waco, TX, for Respondent.
    Bruce Burleson, Attorney at Law, Bel-ton, TX, for other interested parties.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

In this premises liability case, we must decide whether ice that accumulates naturally outside a business due to a winter storm poses an unreasonable risk of harm. Because we hold that it does not, we reverse in part the court of appeals’ judgment and render judgment that the respondents take nothing.

I

Factual and Procedural Background

Gary Fair drove his wife to a doctor’s appointment at Scott and White Memorial Hospital the morning after a winter storm. The Fairs walked through the parking lot, across the roadway separating the parking lot from the hospital, and next to a set of stairs leading to the building. There was ice in the parking lot, on the road, and on the steps. After the appointment, Fair left the building to retrieve his car while his wife waited inside. Fair slipped and fell on the road that separated the hospital from the parking lot. The Fairs sued Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation (Scott and White) for damages arising from injuries Fair sustained in the fall.

Scott and White moved for summary judgment, asserting that the accumulated ice did not pose an unreasonable risk of harm. The trial court granted Scott and White’s motion and rendered judgment that the Fairs take nothing.

The court of appeals reversed, holding that Scott and White failed to “conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition.” 2008 Tex.App. LEXIS 4277, at *11. We granted Scott and White’s petition for review, 52 Tex.Sup.Ct. J. 1133, 1140 (Aug. 21, 2009), and now reverse.

II

Discussion

A. Naturally accumulated ice does not pose an unreasonable risk of harm.

In a premises liability action, the duty owed by a premises owner depends on the plaintiffs status. In this case, the parties agree that the Fairs were invitees. 2008 Tex.App. LEXIS 4277, at *5. Thus, Scott and White owed a duty “to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000). Scott and White asserts that the naturally accumulated ice on its premises did not pose an unreasonable risk of harm to invitees. We agree.

On several prior occasions, we have addressed whether certain naturally occurring conditions create unreasonable risks of harm. We have held that dirt in its natural state does not pose such a risk. See Johnson County Sheriffs Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex.1996) (“The natural state of dirt, that it may be slippery when wet or may contain small rocks, can present a hazard under the right conditions, but not unreasonably so.... [Djirt containing small rocks is not an unreasonably dangerous condition for which a landlord may be held liable.... ”); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160-61 (Tex.1992) (“Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable.”). More recently, we held that “[ojrdinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.2004) (per curiam). We recognized that holding a landowner accountable for naturally accumulated mud would impose a heavy burden because rain, a cause of mud, is beyond a premises owner’s control. Id. Further, mud-induced accidents are likely to occur regardless of precautions taken by landowners, and invitees are often better positioned to avoid the dangers associated with muddy walkways. Id. Thus, because the mud in M.O. Dental accumulated due to rain and remained in its natural state, it was not a condition that posed an unreasonable risk of harm. Id.

Numerous courts of appeals have applied M.O. Dental’s holding to premises liability cases involving other naturally occurring conditions, including ice, and have consistently concluded that naturally formed ice is not an unreasonably dangerous condition for premises liability purposes. See, e.g., Almazon v. Amli Residential Props. Ltd. P’ship, No. 03-08-00297-CV, 2009 WL 4456141, at *3, 2009 Tex.App. LEXIS 9266, at *7-*8 (Tex.App.Austin Dec. 3, 2009, no pet.) (mem.op.). And, many have found no significant distinction between naturally occurring ice and naturally occurring mud. See Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex.App.-Waco 2006, no pet.); Griffin v. 14.38, Ltd., No. 02-03-255-CV, 2004 Tex.App. LEXIS 6403, at *9 (Tex.App.-Fort Worth July 15, 2004, no pet.) (mem.op.); see also Almazon, 2009 WL 4456141, at *1-2, 2009 Tex.App. LEXIS 9266, at *3-*4 (finding the rule for naturally occurring substances, such as mud, ice, and slime, to be the same); Haney v. Jerry’s GM, Ltd., — S.W.3d -, - (Tex.App.-El Paso 2009, no pet.) (emphasizing the Gagne court’s analysis); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 443-44 (Tex.App.-Eastland 2003, pet. denied) (citing the dirt cases as support). Before today, we have never addressed whether naturally occurring ice poses an unreasonable risk of harm.

The Fairs argue that ice should be treated differently from mud because, unlike mud, icy conditions occur rarely in Texas. We see no basis for such a distinction. Both conditions pose the same risk of harm, and ice, like mud, results from precipitation beyond a premises owner’s control. Further, invitees “are at least as aware as landowners of the existence of [ice] that has accumulated naturally outdoors and will often be in a better position to take immediate precautions against injury.” M.O. Dental, 139 S.W.3d at 676; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex.1993) (per curiam) (“When there is precipitation accompanied by near-freezing temperatures ... [ice] is neither unexpected nor unusual, but rather entirely predictable .... [A]n icy bridge is something motorists can and should anticipate when the weather is conducive to such a condition.”). As other jurisdictions have recognized:

The magnitude of the burden on [the] defendant to prevent injuries from snow or ice is great.... [N]atural winter conditions make it impossible to prevent all accidents. The plaintiff is in a much better position to prevent injuries from ice or snow because the plaintiff can take precautions at the very moment the conditions are encountered.

Eiselein v. K-Mart, Inc., 868 P.2d 893, 898 (Wyo.1994).

Ice in Texas may occur less frequently than mud, but frequency is only one of many factors relevant to our analysis. And, the relative irregularity of icy conditions in this state may weigh against imposing liability. Requiring premises owners to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations. See Surratt, 102 S.W.3d at 443 (“[A] premises owner/operator [will be required] to expend a great deal of physical and financial effort to protect its invitees from a naturally occurring condition which usually disappears on its own in a short period of time.”); cf. Geise v. Lee, 84 Wash.2d 866, 529 P.2d 1054, 1056 (1975) (imposing liability in a state accustomed to snow and ice because landlords are already “ ‘armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower’” (quoting Fuller v. Hous. Auth. of Providence, 108 R.I. 770, 279 A.2d 438, 440 (1971))). Because we find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.

B. Scott and White established that the ice was in its natural state.

Generally, “a natural accumulation of ice ... is one which accumulates as a result of an act of nature,” Coletta v. Univ. of Akron, 49 Ohio App.3d 35, 550 N.E.2d 510, 512 (1988), whereas an “ ‘[u]n-natural’ accumulation ... referfs] to causes and factors other than the inclement weather conditions ... ie., to causes other than the meteorological forces of nature,” Porter v. Miller, 13 Ohio App.3d 93, 468 N.E.2d 134, 136 (1983). Here, the court of appeals reversed the trial court’s judgment because it concluded that Scott and White did not “conclusively establish that the ice accumulation was in its natural state.” 2008 Tex.App. LEXIS 4277, at *11. We disagree.

The summary judgment evidence, which includes affidavits from a local meteorologist and the Scott and White grounds supervisor and deposition testimony from Fair, shows that an ice storm hit the Temple area causing ice to accumulate on the Scott and White grounds, including the road where Fair fell. The court of appeals discounted the testimony of Scott and White’s grounds supervisor, Melissa Frei, which detailed the impact of the winter storm on the hospital property. Specifically, the court of appeals determined that “Frei’s affidavit [could not] support summary judgment with regard to whether the ice accumulations ... were in their natural state” because Frei’s deposition testimony revealed that she was not at the scene when Fair’s accident occurred nor called to the scene following the accident. Id. at *10. But such testimony does not controvert Frei’s personal knowledge of ice accumulations on the hospital grounds. Frei personally observed the winter storm and the resultant ice accumulations on the Scott and White grounds, including on the road in front of the Special Treatment Center (where Fair fell). This, together with the local meteorologist’s testimony and Fair’s deposition testimony stating that an ice storm occurred in the area the night prior to his fall and that ice was present on the road where he fell, satisfies Scott and White’s summary judgment burden. Furthermore, the Fairs did not present any controverting evidence (or even suggest) that the ice resulted from something other than the winter storm. Thus, the ice in this case accumulated naturally and did not pose an unreasonable risk of harm necessary to sustain the Fairs’ premises liability action.

C. Neither exception asserted by the Fairs applies.

The Fairs propose two exceptions to the natural accumulation rule and assert there is evidence to support both. They first contend that a premises owner should be liable when it has “actual or implied notice that a natural accumulation of ice or snow on his property created a condition substantially more dangerous than a business invitee should have anticipated by reason of knowledge of the conditions generally prevailing in the area.” Cooper v. Valvoline Instant Oil Change, No. 07AP-892, 2007 WL 3257245, at *5, 2007 Ohio App. LEXIS 5189, at *14 (Ohio Ct.App. Nov. 6, 2007). Second, the Fairs assert that the natural accumulation rule does not apply when a landowner is “actively negligent in permitting or creating an unnatural accumulation of ice or snow.” Id. 2007 WL 3257245, at *5-6, 2007 Ohio App. LEXIS 5189, at *15. Assuming, without deciding, that these exceptions are cognizable under Texas law, there is no evidence to support either one.

Regarding the first exception, the Fairs argue that Scott and White’s use of a deicer, “Meltz,” made the ice slipperier, thereby creating “a condition substantially more dangerous than a business invitee should have anticipated.” Id. 2007 WL 3257245, at *5, 2007 Ohio App. LEXIS 5189, at *14. We reject this argument. In Cooper, the case relied on by the Fairs, the court explained that this exception applies only in situations where the ice or snow conceals a defect or hazard that an invitee should not anticipate from his general knowledge of wintery conditions in the area. Id. 2007 WL 3257245, at *7-8, 2007 Ohio App. LEXIS 5189, at *19-*21. For instance, the exception would arise when accumulated snow or ice covers a normally open and obvious danger, such as a deep hole in a parking lot or an eight-inch raised concrete bumper. Id. 2007 WL 8257245, at *7-8, 2007 Ohio App. LEXIS 5189, at 19-*20 (citing Mikula v. Tailors, 24 Ohio St.2d 48, 268 N.E.2d 316, 322 (1970) and Koss v. Cleveland Holding Corp., No. 34111, 1975 WL 182913, at *2, 1975 Ohio App. LEXIS 6565, at *5 (Ohio Ct.App. July 10,1975)); see also Weaver v. Standard Oil Co., 61 Ohio App.3d 139, 572 N.E.2d 205, 207 (1989) (whether ice that covered a recessed steel plate in a gas station lot created a condition substantially more dangerous was a question for the jury). Here, however, there is no evidence that the ice concealed any dangerous condition beneath it. In fact, the hazard complained of by the Fairs is the slipperiness of the ice itself. Such a danger is one that is normally associated with ice, one that Fair was clearly aware of, and one not substantially more dangerous than should be anticipated. See Cooper, 2007 WL 3257245, at *8, 2007 Ohio App. LEXIS 5189, at *21 (when the hazard is “simply the slippery nature of the ice on the sidewalk,” a substantially more dangerous condition than is normally associated with ice and snow is not created); Nolan v. Kroger Co., No. 93OT026, 1993 WL 496697, at *1-2, 1993 Ohio App. LEXIS 5722, at *3-*4 (Ohio Ct.App. Dec. 3, 1993) (“Injuries resulting from the failure to remove the snow and ice are not compensable when the injury resulted from the slippery nature of snow and ice. When the injuries result from ... [ice’s] propensity to conceal that which lies beneath it, then an exception to the general rule of non-liability occurs”).

Further, the application of a deicer does not create a substantially more dangerous condition. In this case, the grounds supervisor testified that Meltz was used once the evening before Fair’s accident when conditions first became icy, but does not indicate where on the hospital grounds Meltz was applied. Scott and White’s written procedures manual for handling ice accumulations states that employees should “[ajpply the material Meltz to sidewalks and steps at [certain] locations,” including the “[f]ront entrance” of the Special Treatment Center. Assuming that deicer was applied to the ice on the street where Fair slipped, a concealed danger still was not created. “ ‘The spreading of de-icing materials on certain portions of a parking lot will, as a matter of law, neither create a hidden danger nor impute superior knowledge thereof to a property owner.’ ” Klein v. Ryan’s Family Steak House, No. 20683, 2002 WL 1022974, at *3-4, 2002 Ohio App. LEXIS 2335, at *10 (Ohio CtApp. May 15, 2002) (quoting Goodwill Indus. of Akron, Ohio, Inc. v. Sutcliffe, No. 19972, 2000 WL 1288057, at *3-4, 2000 Ohio App. LEXIS 4131, at * 11-*12 (Ohio Ct.App. Sept. 13, 2000)). Thus, the Fairs have not raised a fact issue as to whether the naturally accumulated ice on which Fair slipped created a substantially more dangerous condition than an invitee should reasonably have anticipated from his knowledge of the inclement winter weather in the area.

There is no fact issue with respect to the second exception either. As to this exception, the Fairs assert that Scott and White negligently applied the Meltz, causing the ice to refreeze, and thereby creating an unnatural accumulation. The Ohio cases on which the Fairs rely for support distinguish between natural and unnatural accumulations of ice by defining an unnatural accumulation as one that entails “causes and factors other than the inclement weather conditions of low temperature, strong winds and drifting snow.” Porter, 468 N.E.2d at 136. Here, it is uncontested that the source of the ice was a winter storm. Therefore, for the Fairs to prevail under this exception, application of the deicer would have to convert the natural accumulation into an unnatural one. Because the deicer is composed of a salt-like compound, we look to other jurisdictions for guidance regarding whether application of salt to a natural accumulation of ice .renders the ice no longer natural.

To support their position, the Fairs direct the Court to Estep v. B.F. Saul Real Estate Investment Trust, 843 S.W.2d 911 (Ky.Ct.App.1992), a Kentucky case in which the plaintiff fell on ice and snow outside a shopping mall. Estep, 843 S.W.2d at 912. In that case, the evidence showed that the parking lot had been scraped and the snow piled, but it was unclear whether salt had been applied. Id. at 912-14. Although the Kentucky Supreme Court had previously held that “natural outdoor hazards which are as obvious to an invitee as to the owner of the premises do not constitute unreasonable risks to the former which the landowner has a duty to remove or warn against,” Standard Oil Co. v. Manis, 433 S.W.2d 856, 858 (Ky.1968), the Estep court concluded that when a premises owner attempts to clear its lot of ice and snow, it must do so reasonably or be subject to liability. Estep, 843 S.W.2d at 914-15. And, whether the premises owner acted reasonably is a question for the jury. Id.

The Fairs’ reliance on Estep is misplaced. In Estep, there was no evidence that salt was applied to the snow and ice during clearing of the parking lot, and the plaintiff did not argue that the premises owner was liable because the ice on which the plaintiff fell was unnatural. Instead, the plaintiff contended that the ice was not an obvious natural hazard; the issue of whether the ice was unnatural was never discussed. Here, the question before us is whether natural ice becomes unnatural when deicer is applied. Consequently, we are unpersuaded that Estep is relevant to our analysis.

Notably, an examination of Ohio jurisprudence, which developed the exception on which the Fairs rely, reveals that “[sjalting or shoveling [ice or snow] does not turn a natural accumulation into an unnatural accumulation,” and even the application of a chemical deicer to a natural accumulation of ice does not render the ice unnatural. Cunningham v. Thacker Servs., Inc., No. 03AP-455, 2003 WL 22681389, at *4, 2003 Ohio App. LEXIS 5398, at *10 (Ohio Ct.App. Nov. 13, 2003); Gyulay v. Rolling Acres Mgmt. Inc., No. 10356, 1982 WL 5032, at *1-2, 1982 Ohio App. LEXIS 11507, at ⅜4-*5 (Ohio Ct.App. June 2, 1982). Furthermore, ice that melts and later refreezes is still deemed a natural accumulation. See Kaeppner v. Leading Mgmt., Inc., No. 05AP-1324, 2006 WL 1932327, at *5, 2006 Ohio App. LEXIS 3523, at *14 (Ohio Ct.App. July 13, 2006).

Again, assuming that deicer was applied to the ice on the road where Fair slipped, the Fairs still cannot prevail under this proposed exception. The Fairs assert that Scott and White’s negligent deicing caused the ice to refreeze, rendering it unnatural. But, “the mere fact that [a premises owner] salted the sidewalk and then allowed the sidewalk to freeze again does not turn the natural accumulation of snow and ice into an accumulation that is unnatural.” Lehman v. Cracker Barrel Old Country, No.2004-CA-0048, 2005 WL 267658, at 4, 2005 Ohio App. LEXIS 851, at *11 (Ohio Ct.App. Jan. 28, 2005). In other words, salting, shoveling, or applying deicer to a natural ice accumulation does not transform it into an unnatural one. To find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe. See Cunningham, 2003 WL 22681389, at *4, 2003 Ohio App. LEXIS, at *10. Because there is no evidence that Scott and White’s actions made the ice accumulation unnatural, the second exception urged by the Fairs does not apply.

Ill

Conclusion

A condition on a premises owner’s property, like a natural accumulation of ice or mud, certainly poses a risk but, as a matter of law, does not present an unreasonable risk of harm. We reverse in part the court of appeals’ judgment and render judgment that the Fairs take nothing. Tex.R.App. P. 60.2(c).

      . Scott and White states that ''[wjhile the name of the Petitioner gives the appearance that it is two entities, it is actually a single entity.” The Fairs also sued "Scott and White Memorial Hospital” and Scott and White Properties, Inc.; however, the Fairs have not challenged the portion of the court of appeals' judgment affirming summary judgment as to those parties.

      . The Fairs also moved for summary judgment, which the trial court denied. The Fairs did not challenge that ruling.

      . See Almazon v. Amli Residential Props. Ltd. P’ship, No. 03-08-00297-CV, 2009 WL 4456141, at *1-2, *3, 2009 Tex.App. LEXIS 9266, at *3-4, *7 (Tex.App.-Austin Dec. 3, 2009, no pet.) (mem.op.) (‘‘[T]he natural accumulation of ice-is not unreasonably dangerous for purposes of premises liability."); Smith v. Shofner Auto Repair, Inc., No. 02-08-285-CV, 2009 WL 975999, at *1, *2, 2009 Tex.App. LEXIS 2658, at *4 n.8 and *5 (Tex.App.-Fort Worth Apr. 9, 2009, no pet.) (mem.op.) (“[N]aturaIly-occurring ice in a parking lot does not constitute an unreasonably dangerous condition under the law....”); Haney v. Jeny’s GM, Ltd., - S.W.3d -, -(Tex.App.-El Paso 2009, no pet.) ("[Njaturally forming ice is not an unreasonably dangerous condition that would impose liability on a premises owner/operator."); Eubanks v. Pappas Rests., Inc., 212 S.W.3d 838, 840 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (holding that slime, composed of topsoil, leaves, and grass, is not an unreasonably dangerous condition); Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex.App.-Waco 2006, no pet.) ("[WJe hold that the natural accumulation of ice on a sidewalk near the entrance of a business does not pose an unreasonable risk of harm to invitees.”); Tex. Dep't of Transp. v. Martinez, No. 04-04-00867-CV, 2006 WL 1406571, at *5-6, 2006 Tex.App. LEXIS 4420, at *18-* 19 (Tex.App.-San Antonio May 24, 2006, pet. denied) (deciding that the slippery road condition caused by rain is not a condition posing an unreasonable risk of harm); Griffin v. 1438, Ltd., No. 02-03-255-CV, 2004 Tex.App. LEXIS 6403, at *9-*10 (Tex.App.-Fort Worth July 15, 2004, no pet.) (mem.op.) (a premises owner does not owe a duty to protect an invitee "from the natural accumulation of frozen precipitation on its parking lot”); see also Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex.App.-Eastland 2003, pet. denied) (decided before M.O. Dental, holding naturally frozen precipitation does not constitute an unreasonably dangerous condition).

      . See also Kellermann v. Car City Chevrolet-Nissan, 306 Ill.App.3d 285, 239 Ill.Dec. 435, 713 N.E.2d 1285, 1289 (1999) (''[S]now and ice is a hazard ... known to all.... [I]t [is] an unreasonable burden for a business to keep ... parking lots, sidewalks, and entryways safe from naturally accumulated snow and ice.); Standard Oil Co. v. Manis, 433 S.W.2d 856, 859 (Ky.1968) ("[T]he hazard faced by [invitee] was created by natural elements. It was outside, and exposed in broad daylight.... [Invitee] was fully aware of the accumulation of ice and snow in the area."); Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589, 592 (1968) ("The danger from ice and snow is an obvious danger and an occupier of premises should expect that an invitee on his premises will discover and realize that danger and protect himself against it.”); Cooper v. Valvoline Instant Oil Change, No. 07AP-392, 2007 WL 3257245, at 8-9, 2007 Ohio App. LEXIS 5189, at *23-*24 (Ohio Ct.App. Nov. 6, 2007) (" '[I]t is assumed that reasonable individuals will understand that winter conditions can create dangers from ice and snow, and individuals will take the necessary precautions.' "); 62A Am. Jur. 2d Premises Liability § 656 (2005) (”[T]he danger from ice and snow ... is an obvious one, and the occupier of the premises may expect that an invitee on his or her premises will discover and realize the danger and protect himself or herself.”).

      . Texas court of appeals draw this distinction as well. See Almazon, 2009 WL 4456141, at *3, 2009 Tex.App. LEXIS 9¿66, at *7 (ice accumulating from frozen precipitation was natural, not man-made); Smith, 2009 WL 975999, at *1-2, 2009 Tex.App. LEXIS 2658, at *4-*5 (ice resulting from a winter storm is naturally occurring); Haney, - S.W.3d at -(same); Gagne, 201 S.W.3d at 856, 858 (same); Griffin, 2004 Tex.App. LEXIS 6403, at *9-* 10 (distinguishing a case involving ice created by a leaking vending machine because it was not a natural accumulation); Surratt, 102 S.W.3d at 439 (ice is a natural accumulation when caused by an ice storm); Furr’s, Inc. v. Logan, 893 S.W.2d 187, 189, 191-92 (Tex.App.-El Paso 1995, no writ.) (unnatural ice accumulation caused by leaking vending machine could support a premises liability action); see also Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex.2006) (ice on the floor from a soft drink dispenser was not naturally occurring and could be an unreasonably dangerous condition); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.2004) (mud created by falling precipitation was natural).

      . Other jurisdictions, which have adopted a similar liability rule with respect to natural accumulations of ice and snow, recognize additional exceptions to the ones asserted by the Fairs in this case. See, e.g., Reed v. Galaxy Holdings, Inc., 394 IH.App.3d 39, 333 Ill.Dec. 213, 914 N.E.2d 632, 636-37 (2009) ("LPJrop-erty owners and business operators may be liable for injuries resulting from an accumulation of ice, water, or snow if a plaintiff establishes that the means of ingress or egress was unsafe for any reason other than a natural accumulation of ice, water, or snow."); Judge-Zeit v. Gen. Parking Corp., 376 Ill. App.3d 573, 314 Ill.Dec. 922, 875 N.E.2d 1209, 1216 (2007) ("[A] contract to remove snow creates a duty to remove even natural accumulations of snow.”); Wells v. Great Atl. & Pac. Tea Co., 171 Ill.App.3d 1012, 121 Ill.Dec. 820, 525 N.E.2d 1127, 1131 (1988) ("[A] voluntary undertaking to remove snow and ice may subject the landowner to liability if the removal is performed negligently.”); Stapleton v. Citizens Nat'l Corp., No.2009-CA-000264-MR, 2010 WL 323284, at *2-3, 2010 Ky.App. Unpub. LEXIS 81, at *5-*6 (Ky.Ct. App. Jan.29, 2010) (an exception exists “when the owner undertakes protective measures that heighten or conceal the nature of the naturally-occurring condition, thus making it worse”); Willis v. Springfield Gen. Osteopathic Hosp., 804 S.W.2d 416, 421-22 (Mo.Ct.App. 1991) (a landlord or an invitor "may become obligated either by agreement or a course of conduct over a period of time to remove snow and ice from common areas, thereby assuming a duty to exercise ordinary care to remove the snow and ice to make the common area reasonably safe.” (internal quotations omitted)); Maschoff v. Koedding, 439 S.W.2d 234, 236 (Mo.Ct.App. 1969) (an exception arises when "it [is] shown that although the landlord did not expressly agree to perform the duty of removal, he obligated himself to do so by his course of conduct over a period of time”); see also 62A AmJur 2d Premises Liability § 657 (“In some jurisdictions, the traditional rule ... has been modified to some extent, the courts holding that the owner of a business has a duty to remove natural accumulations of ice and snow which he or she knows or should know created a condition substantially more dangerous to his or her business invitees than they could reasonably have anticipated from their knowledge of weather conditions prevailing generally in the area, or from their knowledge of the terrain, or that the property owner or tenant has a duty to act within a reasonable time after notice to remove snow and ice when it accumulates in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon.” (footnotes omitted)). However, because none of these exceptions are at issue here, we express no opinion on their viability under Texas law.

      . Because we find that the ice did not create a substantially more dangerous condition than an invitee would normally anticipate, we do not reach whether Scott and White had actual or implied notice of such a condition. See Cooper, 2007 WL 3257245, at *5, 2007 Ohio App. LEXIS 5189, at *14 (setting forth the elements of the exception).

      . There is some evidence that Scott and White applied sand to the road where Fair fell, however, the Fairs do not complain that Scott and White was negligent in sanding the road or that the sanding created an unnatural accumulation of ice.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re ODYSSEY HEALTHCARE, INC. and George Portillo, Relators.
    No. 09-0786.
    Supreme Court of Texas.
    May 7, 2010.

      Gerard Fazio, R. Michael Perez, Owen & Fazio, P.C., Dallas, TX, for Relator.
    Joseph Gabriel Isaac, Scherr & Legate, PLLC, El Paso, TX, for Real Party in Interest.
   PER CURIAM.

In this negligence case, we must decide whether the trial court abused its discretion by refusing to grant the relator’s motion to compel arbitration. We conclude that it did. Here, the real party in interest failed to prove a valid defense against enforcement of her agreement to arbitrate disputes with her employer. Accordingly, we conclude the trial court abused its discretion in failing to compel arbitration, and we conditionally grant the writ of mandamus.

Guadalupe Morales worked in El Paso for Odyssey Healthcare, Inc., which provides hospice care. Morales alleges that she was injured at work when she tripped on an uneven step at a patient’s home. She sued Odyssey and her supervisor, George Portillo, for negligence.

Odyssey is a non-subscriber and, in lieu of workers’ compensation insurance, it provided its workers with an “Occupational Injury Benefit Plan.” Morales enrolled in this plan as a condition of her employment. Upon being sued, Odyssey moved to compel arbitration, relying on the arbitration clause contained in the plan.

The agreement between Morales and Odyssey provides in relevant part:

• All claims or disputes described below [including injury caused by negligence] that cannot otherwise be resolved between the Company and you are subject to final and binding arbitration. This binding arbitration is the only method for resolving any such claim or dispute, (emphasis in original)
• The Company is engaged in transactions involving interstate commerce ... and your employment involves such commerce. The Federal Arbitration Act will govern the interpretation, enforcement, and proceedings under this arbitration requirement.
• Unless otherwise agreed to in writing by the parties, the arbitrator selected by the parties ... shall be selected from a panel of arbitrators located in Dallas County, Texas.
• Adequate consideration for this arbitration requirement is represented by, among other things, your eligibility for (and not necessarily any receipt of) benefits under this Plan and the fact that it is mutually binding on both the Company and you.
• [T]he Company reserves the right to amend, modify, or terminate the Plan at any time; provided, however, that no such amendment or termination will alter the arbitration provisions incorporated into this booklet with respect to, or reduce the amount of any benefit payable to or with respect to you under the Plan in connection with, an Injury occurring prior to the date of such amendment or termination. In addition, any such amendment or termination of the arbitration provisions incorporated into this booklet shall not be effective until at least 14 days after written notice has been provided to you.

After a hearing, the trial court denied Odyssey’s motion to compel arbitration. The court found that the arbitration provision forcing Morales to arbitrate in Dallas was unconscionable. The court of appeals denied Odyssey’s petition for writ of mandamus. 310 S.W.3d 464 (Tex.App.-El Paso 2009).

Mandamus will issue if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). A trial court that refuses to compel arbitration under a valid and enforceable arbitration agreement has clearly abused its discretion. See In re Halliburton Co., 80 S.W.3d 566, 573 (Tex.2002). A party seeking to compel arbitration must establish the existence of a valid arbitration agreement between the parties. Cantella Co. v. Goodwin, 924 S.W.2d 943, 945 (Tex.1996) (orig. proceeding) (per curiam). The party seeking to avoid arbitration then bears the burden of proving its defenses against enforcing an otherwise valid arbitration provision. FirstMerit Bank, 52 S.W.3d at 756. Morales does not dispute that her claims are covered by the agreement and subject to arbitration if the arbitration clause is valid and enforceable.

Morales asserts several grounds for why the arbitration clause here is invalid and unenforceable, including substantive un-conscionability, a non-waiver provision of the Texas Workers’ Compensation Act, a Tenth Amendment violation by the Federal Arbitration Act, and illusory promises or lack of mutual consideration. We address these arguments in turn.

First, we conclude that Morales failed to establish that the arbitration clause is unconscionable. Substantive un-conscionability refers to whether the arbitration provision ensures preservation of the substantive rights and remedies of a litigant. Halliburton, 80 S.W.3d at 572. Morales contends the arbitration clause is unconscionable because it will force her to arbitrate in Dallas, and she will incur substantial expense by having to produce witnesses in Dallas. Testimony from an Odyssey representative showed that Odyssey intended to arbitrate all employee claims covered by this agreement in Dallas, and it had never agreed to arbitrate any claims elsewhere. Regardless, when a party contests arbitration due to substantial expense, that party bears the burden of proving the likelihood of incurring such costs, and must provide some specific information concerning those future costs. See FirstMerit Bank, 52 S.W.3d at 756 (“[T]here is no doubt that some specific information of future costs is required.”). Here, the record fails to show any specific information or evidence about what costs Morales would likely incur. Her concluso-ry assertions about costs relating to witnesses and medical experts are thus “legally insufficient evidence that [Morales] would be denied access to arbitration based on excessive costs.” Id. at 757. Moreover, nothing in the agreement requires the arbitration to occur in Dallas. The agreement simply provides that (absent agreement otherwise) the arbitrator must be selected from a Dallas panel of arbitrators. Finally, even if the arbitrator were to conduct arbitration in Dallas, and even if this would cause Morales to incur substantial expense, the arbitrator may still “assess whether the cost provision in this case will hinder effective vindication of [the employee’s] statutory rights and, if so, ... modify the contract’s terms accordingly.” In re Poly-America, L.P., 262 S.W.3d 337, 357 (Tex.2008).

Next, Morales is incorrect that a certain non-waiver provision of the Texas Workers’ Compensation Act defeats the arbitration provision. Texas Labor Code section 406.033(e), which applies to non-subscribers such as Odyssey, states: “A cause of action described in Subsection (a) may not be waived by an employee before the employee’s injury or death. Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee’s injury or death is void and unenforceable.” However, we have held that section 406.033(e) does not render an arbitration agreement void. In re Golden Peanut Co., LLC, 298 S.W.3d 629, 631 (Tex.2009) (per curiam) (“[A]n agreement to arbitrate is a waiver of neither a cause of action nor the rights provided under section 406.033(a), but rather an agreement that those claims should be tried in a specific forum. Accordingly, section 406.033(e) does not render the arbitration agreement void.” (internal citations omitted)).

Third, we conclude that the Federal Arbitration Act does not violate the Tenth Amendment by encroaching on a state power to enact and regulate its own workers’ compensation system. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The Tenth Amendment is a limitation “upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to ... regulate commerce.” Nat’l League of Cities v. Usery, 426 U.S. 833, 842, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). The United States Supreme Court has stated that there are three requirements to show that a statute violates the Tenth Amendment: (1) a showing that the challenged statute regulates the states as states; (2) the federal regulation must address matters that are indisputable attributes of state sovereignty; and (3) it must be apparent that the states’ compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional government functions. Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 287-88, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Even if all three are met, “[t]here are situations in which the nature of the federal interest advanced may be such that it justifies state submission.” Id. at 288 n. 29, 101 S.Ct. 2352.

We have recognized that a state has a Tenth Amendment power to enact and regulate its own workers’ compensation system, protecting workers’ claims against employers. Ruiz v. Miller Curtain Co., Inc., 702 S.W.2d 183, 185 (Tex.1985). However, we have, also held that statutory claims under the Texas Workers’ Compensation Act are arbitrable. See Poly-America, 262 S.W.3d at 352 (“An arbitration agreement covering statutory claims [including workers’ compensation claims] is valid so long as the arbitration agreement does not waive substantive rights and remedies of the statute and the arbitration procedures are fair so that the employee may effectively vindicate his statutory rights.” (internal citation omitted)). Thus, we conclude that compliance with the Federal Arbitration Act would not “directly impair [Texas’s] ability to structure integral operations in areas of traditional government functions,” Hodel, 452 U.S. at 288, 101 S.Ct. 2352 (internal quotation omitted).

Finally, Morales is incorrect that the arbitration provision lacks consideration and is illusory for lack of mutual obligation. Mutual promises to submit all employment disputes to arbitration is sufficient consideration for such agreements. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 228 (Tex.2003). Such mutual obligations existed here. Moreover, an arbitration clause is not illusory unless one party can avoid its promise to arbitrate by amending the provision or terminating it altogether. Halliburton, 80 S.W.3d at 570. In Halliburton, we considered a very similar arbitration clause, which provided that “no amendment shall apply to a Dispute of which the Sponsor [Halliburton] had actual notice on the date of amendment,” and that “termination shall not be effective until 10 days after reasonable notice of termination is given to Employees or as to Disputes which arose prior to the date of termination.” Id. at 569-70. Here, too, the agreement provided that “no such amendment or termination [by Odyssey] will alter the arbitration provisions incorporated into this booklet with respect to, or reduce the amount of any benefit payable to ... you under the Plan in connection with, an Injury occurring prior to the date of such amendment or termination,” and that “any such amendment or termination of the arbitration provisions incorporated into this booklet shall not be effective until at least 14 days after written notice has been provided to you.” Thus, because of these limitations on Odyssey’s right to amend or terminate the agreement, the arbitration agreement did not contain an illusory promise by Odyssey.

For these reasons, we conclude that the arbitration clause at issue was valid and enforceable, and the trial court abused its discretion by failing to grant Odyssey’s motion to compel arbitration. Mandamus relief is appropriate because Odyssey has no adequate remedy by appeal. See id. at 573. Therefore, without hearing oral argument, Tex R.App. P. 52.8(c), we conditionally grant the writ of mandamus and direct the trial court to vacate its prior order and grant Odyssey’s motion to compel arbitration. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

      . The trial court also found unconscionable a provision in the agreement that employees must "allow an authorized representative of the Company to go with you to appointments with health care providers.” However, in considering an arbitration clause, uncon-scionability "must specifically relate to the [arbitration clause] itself, not the contract as a whole, if [unconscionability is] to defeat arbitration.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001). Therefore, we express no opinion as to this determination of unconscionability, as it does not relate to whether to enforce the arbitration clause at issue.

      . Texas Labor Code section 406.033(a) refers to causes of action against a non-subscriber employer "to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment.”


text:
    Ex parte Yokamon Laneal HEARN, Applicant.
    No. AP-76,237.
    Court of Criminal Appeals of Texas.
    April 28, 2010.

      Richard Burr, Houston & Naomi Terr, Houston, for Appellant.
    Craig Watson, D.A., Dallas, Jeffrey L. VanHorn, State’s Attorney, Austin, for State.
   OPINION

JOHNSON, J., delivered the opinion for a unanimous Court.

Applicant, Yokamon Laneal Hearn, was convicted of capital murder and sentenced to death. In this subsequent application for habeas corpus, applicant asserts that he is mentally retarded and, pursuant to the United States Supreme Court holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), constitutionally exempt from a death sentence.

In our statutes and case law, “mental retardation” is defined by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. Ex parte Briseno, 135 S.W.3d 1, 7 n. 26 (Tex.Crim.App.2004) (citing American Association of Mental Retardation (AAMR), Mental Retardation: Definition, Classification, and Systems of Support 5 (9th ed. 1992)). See also American Association on Mental Deficiency (AAMD), Classification in Mental Retardation 1 (Grossman ed. 1983). The issue before this court is whether alternative assessment measures can be substituted for full-scale IQ scores in supporting a finding of subaverage intellectual functioning. We hold that alternative assessment measures can not be substituted for full-scale IQ scores.

Procedural History

In December 1998, applicant was convicted of capital murder and sentenced to death. This Court affirmed his conviction and sentence, and the United States Supreme Court denied his petition for writ of certiorari.

While his appeal was pending in this Court, applicant filed his initial application for writ of habeas corpus in the 282nd District Court of Dallas County (state district court). That court recommended that all relief be denied. Ex parte Hearn, No. W98-46232-S(A) (282nd Dist. Ct., Dallas County, Aug. 1, 2001). Upon review of the record, this Court denied relief in an unpublished order. Ex parte Hearn, No. 50,116-01 (Tex.Crim.App. Nov. 14, 2001).

Subsequently, applicant sought habeas corpus relief from his conviction and sentence in federal court. The United States District Court for the Northern District of Texas (federal district court) denied relief on his application for writ of habeas corpus. Hearn v. Cockrell, 2002 WL 1544815 (N.D.Tex. July 11, 2002). Thereafter, the United States Court of Appeals for the Fifth Circuit (Fifth Circuit) and the United States Supreme Court each refused applicant’s petitions for review.

After the United States Supreme Court refused applicant’s petition for writ of cer-tiorari, applicant’s counsel concluded her representation of applicant. Applicant then sought the help of the Texas Defender Service. In March 2004, with the assistance of the Texas Defender Service attorneys, applicant filed a motion for stay of execution and appointment of counsel to assist him in investigating an Atkins claim. We denied both requests, finding that applicant failed to make a prima facie showing of mental retardation. Ex parte Yokamon Laneal Hearn, No. 50,116-02 (Tex.Crim.App. Mar. 3, 2004).

At about the same time, in the federal district court, applicant moved for appointment of counsel and stay of execution. The federal district court transferred the motions to the Fifth Circuit sua aponte. Applicant then filed a separate notice of appeal, asking the Fifth Circuit to reverse the order, appoint counsel, and stay the execution. The Fifth Circuit granted a stay of execution in order to determine whether applicant was entitled to counsel and services under 21 U.S.C. § 848(q). It held that applicant was entitled to such counsel, granted applicant’s request for appointment of counsel, and remanded his case to the federal district court. In re Hearn and Hearn v. Dretke, 376 F.3d 447 (5th Cir.2004), reh. denied, 389 F.3d 122 (5th Cir.2004).

On remand, the federal district court held that applicant had not made a showing of mental retardation, as is required in order to proceed on his successive habeas corpus petition. Hearn v. Quarterman, 2007 WL 2809908 (N.D.Tex. Sep.27, 2007). Applicant then filed a Rule 59(e) motion to vacate the judgment and supported that motion with two new expert reports. After reviewing these reports, the federal district court held that applicant did make a prima facie case for an Atkins claim and stayed the federal proceedings to allow applicant to present his Atkins claim to the state court. Hearn v. Quarterman, 2008 WL 3362041 (N.D.Tex. Aug.12, 2008).

In October 2008, applicant filed, in the state district court, a subsequent application that is based on an Atkins claim and seeks post-conviction relief from his death sentence. It was forwarded to this Court in June 2009. In September 2009, the Court filed and set this case in order to determine whether alternative-assessment measures can be substituted for full-scale IQ scores in supporting a finding of subav-erage intellectual functioning.

Applying Atkins

In Atkins, the Supreme Court held that executing persons who are mentally retarded is a violation of the Eighth Amendment. Atkins, 536 U.S. at 320, 122 S.Ct. 2242. The Supreme Court “le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Id. at 317, 122 S.Ct. 2242. Post-Atkins, we have received a significant number of habeas corpus applications from death row inmates who allege they suffer from mental retardation and are therefore exempt from execution. “This Court does not, under normal circumstances, create law. We interpret and apply the law as written by the Texas Legislature or as announced by the United States Supreme Court.” Briseno, 135 S.W.3d at 4. However, the Texas Legislature has not yet enacted legislative guidelines for enforcing the Atkins mandate. Consequently, we have set out guidelines by which to address Atkins claims until the legislature acts. Briseno, 135 S.W.3d at 4.

In Briseno we announced that “[u]ntil the Texas Legislature provides an alternate statutory definition of ‘mental retardation,’ ... we will follow the AAMR or section 591.003(13) of the Texas Health and Safety Code criteria in addressing Atkins mental retardation claims.” Brise- no, 185 S.W.3d at 8. The AAMR defines mental retardation as a disability characterized by: (1) significantly subaverage general intellectual functioning; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. Briseno, 135 5.W.3d at 7 n. 26 (citing AAMR at 5). See also AAMD at 1.

Determining whether one has significantly subaverage intellectual functioning is a question of fact. It is defined as an IQ of about 70 or below. American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 41 (DSM-IV). There is “a measurement error of approximately 5 points in assessing IQ,” which may vary from instrument to instrument. Id. Thus, any score could actually represent a score that is five points higher or five points lower than the actual IQ. Id.; see also Wilson v. Quarterman, 2009 WL 900807 *4 (E.D.Tex. Mar.31, 2009).

The IQ score is not, however, the exclusive measure of mental retardation. A finding of mental retardation also requires a showing of “significant limitations in adaptive functioning.” DSM-IV at 41. According to the AAMR, three adaptive-behavior areas are applicable to determining mental retardation: conceptual skills, social skills, and practical skills. Limitations in adaptive behavior can be determined by using standardized tests. According to the DSM-IV, “significant limitation” is defined by a score of at least two standard deviations below either (1) the mean in one of the three adaptive behavior skills areas or (2) the overall score on a standardized measure of conceptual, social, and practical skills. Id. Although standardized tests are not the sole measure of adaptive functioning, they may be helpful to the factfinder, who has the ultimate responsibility for determining mental retardation.

In addition to demonstrating that one has subaverage intellectual functioning and significant limitations in adaptive functioning, he or she must demonstrate that the two are linked — the adaptive limitations must be related to a deficit in intellectual functioning and not a personality disorder. To help distinguish the two, this court has set forth evidentiary factors that “fact-finders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder.” Briseno, 135 S.W.3d at 8.

Applicant’s prima facie case for mental retardation

In 2005, defense psychologist Dr. Alice Conroy administered a WAIS-III test to applicant; applicant obtained a full-scale IQ score of 74. Defense expert Dr. James Patton concluded that applicant’s full scale IQ score of 74 was within the standard error of measurement. Therefore, applicant argues that because his IQ score of 74 is within the standard error of measurement, he has met the requirement of significant subaverage intellectual functioning.

However, three additional IQ test scores yielded results that are materially above 70. In January 2007, the district court held an evidentiary hearing on applicant’s Atkins claim. In preparation for the hearing, the two state experts administered the WAIS-III and Stanford-Binet Intelligence Scales (5th Edition). Applicant’s resulting full-scale IQ scores on those tests were 88 and 93 respectively.

The defense then asked Dr. Dale G. Watson to review applicant’s previous test results. As a part of his evaluation of applicant’s mental health, Dr. Watson administered an additional IQ test using the Woodcock Johnson Test of Cognitive Abilities (3rd Edition); applicant’s resulting full-scale IQ score on that test was 87. Id. After reviewing applicant’s results on that test, Dr. Watson found that it did not demonstrate subaverage intellectual functioning, but did demonstrate deficits in adaptive behavior. In an effort to better understand the inconsistency between applicant’s above-70 full-scale IQ scores and his significant deficits in adaptive functioning, Dr. Watson administered a neuropsy-chological test battery. After reviewing the results, Dr. Watson concluded that applicant’s neuropsychological deficits “appear” to underlie previous findings of deficits in adaptive functions, and are “likely” developmental in nature.

The defense then asked Dr. Stephen Greenspan to consider whether neuropsy-chological deficits such as those revealed by neuropsychological testing of applicant could satisfy the requirement of significantly subaverage general intellectual functioning, despite full-scale IQ scores ranging from 87 to 93. Dr. Greenspan opined that substituting neuropsychological measures for full-scale IQ scores is “justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder ... because it is well known that such conditions cause a mixed pattern of intellectual impairments that, while just as serious and handicapping as those found in people with a diagnosis of MR, are not adequately summarized” by full-scale IQ scores. Dr. Greenspan concluded that, under a more expansive definition of mental retardation, applicant could establish a mental-retardation claim.

In view of all the evidence, applicant argues that he is mentally retarded. He notes that, in spite of the new IQ test results, Dr. Patton concluded that applicant is mentally retarded. “Neuropsycho-logical testing, together with the diagnosis of fetal alcohol syndrome, has demonstrated that the significant limitations I have identified in Mr. Hearn’s adaptive behavior are, nevertheless, a product of intellectual deficits.... I am satisfied that Mr. Hearn has mental retardation.” Id.

In making his Atkins claim, applicant asks this Court to significantly alter the current definition of mental retardation. Applicant correctly notes that the assessment of “about 70 or below” is flexible; “[sjometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded while a person whose IQ tests below 70 may not be mentally retarded.” Briseno, 135 S.W.3d at 7 n. 24 (citing AAMD at 23). Applicant, however, misconstrues this language to mean that clinical judgment can completely replace full-scale IQ scores in measuring intellectual functioning.

This court has expressly declined to establish a “mental retardation” bright-line exemption from execution without “significantly greater assistance from the [ ] legislature.” Briseno, 135 S.W.3d at 6. Instead, this court interprets the “about 70” language of the AAMR’s definition of mental retardation to represent a rough ceiling, above which a finding of mental retardation in the capital context is precluded.

In the present case, applicant attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning. However, this court has regarded non-IQ evidence as relevant to an assessment of intellectual functioning only where a full-scale IQ score was within the margin of error for standardized IQ testing. Thus, we hold that, while applicants should be given the opportunity to present clinical assessment to demonstrate why his or her full-scale IQ score is within that margin of error, applicants may not use clinical assessment as a replacement for full-scale IQ scores in measuring intellectual functioning.

The evidence before us in this application does not demonstrate significantly subaverage intellectual functioning by applicant. Accordingly, we dismiss the application.

      . Hearn v. State, No. 73,371, slip op. (Tex.Crim.App. Oct. 3, 2001).

      . Hearn v. Texas, 535 U.S. 991, 122 S.Ct. 1547, 152 L.Ed.2d 472 (2002).

      . Hearn v. Cockrell, 73 Fed.Appx. 79 (5th Cir.2003).

      . Hearn v. Dretke, 540 U.S. 1022, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003).

      . According to § 591.003(13) of the Texas Health and Safety Code, mental retardation "means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during die developmental period.” Tex. Health & Safety Code § 591.003(13).

      . A jury determination of mental retardation is not required. Briseno, 135 S.W.3d at 9.

      . General intellectual functioning is defined by the intelligence quotient (IQ). It is obtained by assessment with a standardized, individually administered intelligence test (i.e. Wechsler Intelligence Scales for Children, 3rd Edition; Stanford-Binet, 4th Edition; and Kaufman Assessment Battery for Children). DSM-IV at 41.

      . A Wechsler IQ score of 70 would represent a score range of 65 to 75. DSM-IV at 41.

      . Conceptual skills include skills related to language, reading and writing, money concepts, and self-direction. Social skills include skills related to interpersonal relationships, responsibility, self-esteem, gullibility, naivete, following rules, obeying laws, and avoiding victimization. Practical skills are skills related to activities of daily living and include occupational skills and maintaining a safe environment. AAMR at 82.

      .Several scales that have been designed to measure adaptive functioning: Vineland Adaptive Behavior Scales, the AAMR Adaptive Behavior Scale, the Scales of Independent Behavior, and the Adaptive Behavior Assessment System. DSM-IV at 42; Ex parte Woods, 296 S.W.3d 587, 596-97 (Tex.Crim. App.2009); Hunter v. State, 243 S.W.3d 664 at 670-71 (Tex.Crim.App.2007).

      .This court has set forth the following evi-dentiary factors:
      Did those who knew the offender during the developmental stage — his family, friends, teachers, employers, authorities — think he was mentally retarded at that time, and, if so, act in accordance with that determination?
      Has the person formulated plans and carried them through or is his conduct impulsive?
      Does his conduct show leadership or does it show that he is led around by others?
      Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
      Does he respond coherently, rationally, and on point to oral and written questions or do his responses wander from subject to subject?
      Can the person hide facts or lie effectively in his own or others' interests?
      Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning and complex execution of purpose?

        Briseno, 135 S.W.3d at 8-9.

      . Dr. Watson specifically stated that applicant’s full-scale score of 74 is "in the IQ range that can be considered approximately two standard deviations below the mean of 100.” Applicant's Habeas Application, Ex. 2 at 46.

      . An entry in the clinic notes of the Texas Department of Criminal Justice-institutional division on January 5, 1999, notes that applicant's estimated full-scale IQ on a WAIS-R short-form test was 82.

      . Dr. Watson testified that there were errors in the scoring of the WAIS-III completed by Dr. Conroy and the WAIS-III completed by Dr. Price. None of the errors changed any score by more than one point.

      . Dr. Pablo Stewart previously found that applicant suffers from Fetal Alcohol Syndrome and Dr. Greenspan adopted this finding in conducting his evaluation of applicant's mental health. Applicant's Habeas Application, Ex. 4 at 64-65. Dr. Greenspan also noted that, in the past, other experts have argued that "full-scale IQ is not an adequate indicator of significant intellectual impairment in someone with brain damage,” and that extremely deficient verbal IQ could be a better index. Id. at 11-12 (discussing People v. Superior Court (Vidal), 40 Cal.4th 999, 56 Cal.Rptr.3d 851, 155 P.3d 259 (2007)).

      . The AAMD states that, "[t]he maximum specified IQ is not to be taken as an exact value, but as a commonly accepted guideline” and that "clinical assessment must be flexible.” AAMD at 22.

      . See, e.g., Ex parte Woods, 296 S.W.3d at 608 n. 35 & 36; Williams, 270 S.W.3d at 132; Neal v. State, 256 S.W.3d 264, 273 (Tex.Crim.App.2008); Hunter, 243 S.W.3d at 671; Gallo v. State, 239 S.W.3d 757, 771 (Tex.Crim.App.2007); Ex parte Blue, 230 S.W.3d 151, 165 (Tex.Crim.App.2007); Ex parte Lewis, 223 S.W.3d 372, 378 n. 21 (Cochran, J. concurring) (Tex.Crim.App.2006); Hall v. State, 160 S.W.3d 24, 36 (Tex.Crim.App.2004); Briseno, 135 S.W.3d at 14 n. 53. Compare, Ex parte Van Alstyne, 239 S.W.3d 815 (Tex.Crim.App.2007); Ex parte Bell, 152 S.W.3d 103 (Tex.Crim.App.2004); Ex parte Modden, 147 S.W.3d 293 (Tex.Crim.App.2004).

      . In support, applicant cited Dr. Greenspan's conclusion that substituting neuropsy-chological measures for full-scale IQ in cases of apparent brain damage “is justified when there is a medical diagnosis of a brain syndrome or lesion, such as Fetal Alcohol Spectrum Disorder.” Applicant’s Habeas Application, Ex. 4 at 68.

      . In Hunter,.the expert discussed the band of confidence for the particular IQ test implemented and how applicant’s mild depression and having been handcuffed at the time of taking an IQ test may have affected his score. Hunter, 243 S.W.3d at 670.


author: KEASLER, J., PRICE, J., JOHNSON, J., filed a HOLCOMB, J.,

text:
    Troy A. BOWLEY, Appellant, v. The STATE of Texas.
    No. PD-0914-09.
    Court of Criminal Appeals of Texas.
    May 5, 2010.

      Donnell W. Yandell, Lubbock, for appellant.
    Jeffrey S. Ford, Asst. Dist. Atty., Lubbock, Jeffrey L. Van Horn, State’s Atty., Austin, for state.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which KELLER, P.J., WOMACK, HERVEY, and COCHRAN, JJ., joined.

At trial, the judge refused to give an instruction to disregard after sustaining Bowley’s objection to the prosecutor’s question about plea negotiations. The Seventh Court of Appeals concluded that the judge erred by not giving the instruction and reversed. We hold that no instruction was required because Bowley’s testimony opened the door to the prosecutor’s question. We therefore reverse the court of appeals’s judgment.

Facts

A jury convicted Bowley of DWI, enhanced by two prior DWI convictions to a third-degree felony. Bowley qualified as an habitual felony offender, and the jury sentenced him to thirty years imprisonment.

At the guilt phase of Bowley’s trial, the prosecutor called Jimmy Isbell, an investigator with the Lubbock County District Attorney’s Office, to testify about Bowley’s two prior DWI convictions that the State used to enhance the current DWI charge to a felony. Testifying as a fingerprint expert, Isbell positively identified Bowley as the individual previously convicted of those offenses. On cross-examination by Bowley’s counsel, Isbell testified that Bow-ley pled guilty to the previous offenses.

When Bowley testified in his own defense, his attorney questioned him about the judgments from his two prior DWI convictions. The following colloquy transpired:

Q: ... I’m going to show you State’s Exhibit No. 4. And that’s you; is that correct? This is one of your DWIs out of Terry County; is that fair to say?
A: Yes, sir.
Q: Okay. And ... did you plead to that or take that to trial?
A: I pled to that.
Q: Okay. Why did you plead to State’s Exhibit No. 4?
A: Because I was guilty of it.
Q: Okay. Let’s do it again with the State’s Exhibit No. 5. This is a DWI and this is you, out of Hockley County; is that fair to say?
A: Yes, sir.
Did you take this case to trial or not? d>
No, sir, I didn’t. <
Okay. Why did you plead? &
Because I was guilty, sir. <

The prosecutor then questioned Bowley about his record:

Q: Okay. [Defense counsel] said that you pled guilty to all those up there because you were; is that right?
A: Yes, sir, that is correct.
Q: You’re not pleading guilty here today because you’re not guilty; is that right?
A: Right. That is correct.
Q: Could it be that it’s because we couldn’t agree on a plea agreement that you preferred?
[DEFENSE COUNSEL]: Judge, I guess I will have to object on that. That’s—
THE COURT: Sustained.
[DEFENSE COUNSEL]: Judge, as well, let me go ahead and ask that this Court instruct the jury not to consider that in any type of deliberation, that it’s simply just not a proper area for a trial, Judge.
THE COURT: No instruction will be given.
[DEFENSE COUNSEL]: Judge, I guess to finish that and perfect my objection, I will ask for a mistrial.
THE COURT: Denied.

On redirect, Bowley’s counsel again questioned him about his prior guilty pleas. Bowley explained that he pled guilty in the prior cases because he knew he was intoxicated. Bowley’s counsel did not question him about his reasons for pleading not guilty to the charge in this case.

Court of Appeals

Bowley appealed, claiming that the trial judge abused his discretion by refusing his request for an instruction to disregard the prosecutor’s reference to plea negotiations. Citing the principle that a court of appeals is free to uphold a trial judge’s ruling under any theory of law applicable to the case, the court of appeals stated that it was not restricted to State’s reliance on Texas Rule of Evidence 410, which involves the disclosure of “statements” made during plea negotiations. The court of appeals then analyzed the issue under Rules 402 and 403, though it ultimately reversed the trial judge’s ruling. It held that the prosecutor’s question “was improper because it was irrelevant, or, if minimally relevant, highly misleading and prejudicial.” The court of appeals observed, “Given the manner in which the question was posed, one could reasonably interpret it as disclosing that plea negotiations had occurred, that potential offers were made and rejected, and that [Bowleyj’s desires presented the major obstacle to arriving at a bargain.” The court of appeals further noted that the “grave risk of undue prejudice and deception went unabated when the trial court withheld its instruction to disregard,” and it opined that there is a “common sense” inference that those engaged in plea negotiations are guilty of the offense. It thus concluded that the mention of plea negotiations was “a quick, improper way to negate appellant’s defense.” Because of this concern, combined with the public policy favoring plea bargains and a danger that “holding the error harmless would invite the State to repeat this wrong and others,” the court of appeals found harm and reversed the conviction.

Analysis

A trial judge’s evidentiary rulings are reviewed under an abuse-of-discretion standard. If the trial judge was correct under any theory of law applicable to the case, we will uphold the judge’s decision. We do this even if the trial judge failed to give any reason or used the wrong reason for the ruling.

By choosing to testify, a defendant puts his or her character for veracity (as opposed to moral character) in issue. We have held that “[a] defendant who takes the witness stand may be cross-examined and impeached in the same manner as any other witness.” A defendant may be “contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness....” And we have observed that a party who “opens the door” to otherwise inadmissible evidence risks the adverse effect of having that evidence admitted.

We hold that the court of appeals erred in holding that the prosecutor’s question to Bowley referencing plea negotiations was improper. Bowley opened the door to the prosecutor’s question on cross-examination by creating a circumstance in which the jury could infer that his not guilty plea was truthful. He did so on direct examination when he stated that he pled guilty in the previous cases “because [he] was guilty.” Although Bowley’s counsel did not take the ultimate logical step, the prosecutor clarified the underlying purpose of defense counsel’s inquiry by asking, ‘You’re not pleading guilty here today because you’re not guilty, is that right?” Bowley answered in the affirmative. By testifying that he pled guilty in the previous cases because he was guilty, then that he pled not guilty in this case because he was not guilty, Bowley invited the jury to consider his prior guilty pleas as evidence that he was innocent of the offense for which he was on trial.

As noted above, a party who opens the door to otherwise inadmissible evidence risks the adverse consequences of having it admitted. Evidence of plea negotiations is generally not relevant to proving the elements of an offense, and it might be prejudicial to a defendant. As stated in Prystash v. State and Smith v. State, allowing such evidence could chill plea negotiations between the parties. But it was permissible for the prosecutor to cross-examine Bowley by questioning the circumstances surrounding his plea in this case to establish an alternate motive for pleading not guilty — that it was the result of failed plea negotiations. To hold otherwise would allow a party to create a favorable inference while depriving the other party of the truth-finding mechanism of cross-examination. Thus, in this instance, even under the highly deferential abuse-of-discretion standard of review, no trial judge should have sustained Bowley’s objection.

The court of appeals’s conclusion that the question was subject to exclusion under Rule 403 because it was “highly misleading and prejudicial” and that there was a “grave risk” that the jury would make the “common sense” inference that because Bowley had negotiated for a plea, he had committed the crime, misses the mark. The prosecutor’s question sought to elicit an alternate motive for Rowley’s plea. The court of appeals commented that the question was “troubling” because it “struck at one of the major themes of [Rowley’s] defense.” We disagree about the troublesome nature of the question. If the inference established by Rowley was a “major theme” of his defense, that fact militates in favor of allowing the State to challenge its soundness through cross-examination. The court of appeals further opined that the prosecutor should not have asked the question because he “possessed sufficient legitimate evidence to rebut the strategy and establish [Rowley’s] guilt... .” And the dissent also focuses on the strength of the State’s case. However, the focus here is the particular need to rebut the inference established by Row-ley, as opposed to the sufficiency of the State’s evidence. Second, an assessment of the State’s case is pure speculation. Finally, even assuming that there was sufficient evidence for the State to establish Rowley’s guilt without challenging this theme of his defense does not mean the State had to refrain from doing so. And, as stated above, it was permissible for the State to establish an alternate inference than Rowley’s. We conclude that the court of appeals erred in holding that the question asked by the prosecutor was substantially more prejudicial than probative under the particular facts of this case.

For the foregoing reasons, the trial judge was not required to sustain Rowley’s objection. Accordingly, no instruction to disregard was necessary.

Conclusion

The court of appeals erred in concluding that the trial judge was required to give an instruction to disregard. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

PRICE, J., filed a dissenting opinion in which MEYERS, JOHNSON, and HOLCOMR, JJ. joined.

JOHNSON, J., filed a dissenting opinion.

HOLCOMR, J., filed a dissenting opinion in which MEYERS, PRICE, and JOHNSON, JJ., joined.

PRICE, J.,

filed a dissenting opinion in which MEYERS, JOHNSON and HOLCOMR, JJ., joined.

This case comes to us in such an odd posture that it is difficult for us to say anything of great jurisprudential significance. The trial judge sustained the appellant’s general objection without indicating upon what legal basis he understood the appellant to be objecting. In his appellate brief, the appellant proceeded on the assumption that his objection had been predicated upon Rule 410(4) of the Texas Rules of Evidence, which prohibits the use by the State against a defendant of evidence of any “statement” the defendant might have made in the course of unfruitful plea negotiations. Professors Goode, Wellborn and Sharlot tell us that the rule’s prohibition is meant to extend even to a statement that would be relevant as impeachment evidence. The rule represents a policy judgment that even relevant evidence should be excluded in the interest of promoting “frank and free” plea negotiations. Therefore, assuming the rule applies here, the prosecutor’s question was objectionable even if the appellant’s line of questioning otherwise “opened the door” to admission of any other relevant impeachment evidence.

In its reply brief on direct appeal, however, the State argued that the prosecutor’s question was not designed necessarily to elicit evidence of any specific “statement” that the appellant may have made during plea negotiations. It is true that the prosecutor’s question (“Could it be that [your not guilty plea in this case occurred] because we couldn’t agree on a plea agreement that you preferred?”) did not focus on any particular statement the appellant may have made during plea discussions. From this the State argued on appeal that the limitations of Rule 410(4) on its ability to develop otherwise relevant impeachment testimony against the appellant ought not to apply.

I am dubious. By focusing on what the parties could not agree to, the prosecutor’s question does indeed steer clear of any express elicitation of a unilateral statement on the appellant’s part. But because a plea agreement ordinarily entails an offer by the prosecutor and an acceptance by the defendant, any evidence of a failure to mutually agree on a plea bargain necessarily implies a communication of some kind on the defendant’s part — a “statement,” if you will — that he did not accept the State’s offer. Certainly it communicates that the appellant entertained the option of entering a guilty plea. To allow the prosecutor’s question here hardly serves to foster the “frank and free discussions between the parties” that Rule 410’s near-absolute prohibition is designed to preserve.

In any event, the court of appeals managed to avoid addressing this issue altogether. Instead, the court of appeals held that the trial judge’s ruling might properly have been predicated upon Rule 403’s authorization of trial courts to exclude even relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,” etc., and held that the appellant’s objection was properly sustained on that basis. For my part, I seriously doubt that this was the rule that either the appellant or the trial judge had in mind — although on the present record it is, of course, impossible to know. The court of appeals’s diversion has nevertheless embroiled this Court in a dispute over the proper application of what is probably not even the relevant evidentiary rule— certainly not the rule the parties briefed below.

Weighing in on this diversionary issue nevertheless (since it is, after all, the issue the court of appeals decided),. I must reject the majority’s conclusion that the trial court would have abused its discretion had it actually predicated its ruling on Rule 403. Reviewing courts afford trial courts wide latitude in their exercise of discretion in this context. A reviewing court should not second guess a trial court’s ruling under Rule 403 and call it an abuse of discretion as long as it can be said that the ruling was within the so-called zone of reasonable disagreement. When a trial court properly exercises its broad discretion to rule that a particular item of evidence, while perhaps relevant as impeachment, is nevertheless substantially more prejudicial than probative, and excludes it for that reason, it invariably abuses its discretion if it then fails to give a requested instruction to the jury to disregard that evidence if the jury has inadvertently been exposed to it before it could be excluded. This will always be the case when the question itself is objectionable. For reasons expressed in Judge Holcomb’s dissenting opinion, I agree that the trial court’s Rule 403 ruling in this case (if that is what it was, which I strongly doubt) was not outside the zone of reasonable disagreement, and therefore not an abuse of discretion. That being the case, the trial court had -no discretion, and therefore plainly erred, to refuse the appellant’s request to instruct the jury to disregard the prosecutor’s question.

But even if the majority were right with respect to the Rule 403 issue, it grievously errs simply to affirm the judgment of the trial court without further ado. If the court of appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was within its discretion. Because the court of appeals has never resolved this issue, the correct disposition at this juncture would be to remand the cause to the court of appeals so that it may do so. I must therefore dissent on the additional basis that the Court does not remand the cause for further proceedings in the court of appeals.

Ultimately, I rue that we ever, in our capacity as a discretionary review court, should have allowed ourselves to get embroiled in a case like this in the first place.

JOHNSON, J., filed a

dissenting opinion.

In this case, the state used two prior convictions for driving while intoxicated (DWI) to increase the degree of the offense to a felony, then two more convictions for felony DWI to enhance the range of punishment to that of a first-degree felony. This is prohibited by our case law.

In Phifer v. State, 787 S.W.2d 395 (Tex.Crim.App.1990), this Court determined that a felony DWI could be enhanced under Chapter 12, Subchapter D, of the Penal Code and that a felony DWI could be used to enhance the range of punishment of a felony under Subchapter D, but it could not be used to do so if the indictment alleged the offense of felony DWI.

Additionally, special enhancement provisions for a primary offense have long been held to bar enhancement under general statutes only for prior offenses that could be used within the special provisions. See Rawlings v. State, 602 S.W.2d 268 (Tex.Cr.App.1980); Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971); Tomlin v. State, 170 Tex.Crim. 108, 338 S.W.2d 735 (1960); Edwards v. State, 166 Tex.Crim. 301, 313 S.W.2d 618 (1958). Applying that principle to this cause would preclude use of prior felony DWI convictions, but not other felony convictions, to enhance under Chapter 12.

Phifer, 787 S.W.2d at 396.

I understand this concept to be set out in Penal Code Section 49.09(g): “A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.” During the late 1980s, various courts of appeals decided cases in which the issue was whether felony DWI convictions could be used to enhance a range of punishment under Subchapter D, with mixed results. See, e.g., Jones v. State, 762 S.W.2d 330 (Tex.App.-Austin 1988) (can enhance DWI under Subchapter D); Childress v. State, 756 S.W.2d 11 (Tex.App.-Houston [1st Dist.] 1988)(cannot enhance DWI under Subchapter D). Phifer settled the question, deciding that a felony DWI conviction could be enhanced under Subchapter D, but not with another DWI conviction. Section 49.09(g) first appears in the Penal Code after the 1995 session of the legislature and may be a validation of Phifer, even if poorly phrased.

Section 49.09(g) is clear as to permitting the use of felony DWI to enhance a non-DWI felony, but not so clear as to using different prior DWI convictions to enhance the offense under both Chapter 49 and Subchapter D. In Phillips v. State, 992 S.W.2d 491 (Tex.Crim.App.1999), we interpreted the language of Section 49.09(g)(49.09(f) at the time of Phillips) to allow the use of prior DWI convictions to both raise the offense to a felony and enhance it under Subchapter 12, the precise use prohibited by Phifer. Phillips did not overrule Phifer, thus Phifer remains good law and stands in stark contradiction of Phillips. Under Phifer, the indictment in this case was subject to being quashed. Perhaps the legislature would care to revisit Section 49.09(g) and clarify its intent.

I respectfully dissent.

HOLCOMB, J.,

filed a dissenting opinion, in which MEYERS, PRICE, and JOHNSON, JJ., joined.

I respectfully dissent. I think the majority has misanalyzed this case and reached the wrong result. Before I explain my view in detail, allow me to first review the relevant facts.

On November 27, 2007, a Lubbock County grand jury returned an indictment charging Troy A. Bowley with felony driving while intoxicated (DWI). See Tex. Pen.Code § 49.04. For purposes of offense enhancement, the indictment alleged that Bowley had two prior DWI convictions, one in Hockley County and one in Terry County. See Tex. Pen.Code § 49.09(b)(2). For purposes of punishment enhancement, the indictment alleged that Bowley had two prior felony DWI convictions in Lubbock County. See Tex. Pen.Code 12.42(d).

On April 14, 2008, the State brought Bowley to trial before a petit jury. At the guilt stage of that trial, the State presented three witnesses and several exhibits, and Bowley presented one witness (himself).

The State’s first witness, Lubbock Police Officer Brooks Jennings, testified that on the early morning of October 14, 2007, as he patrolled southeastern Lubbock in his police vehicle, he observed Bowley, who was driving a sport utility vehicle, commit a minor traffic offense. Jennings activated his police vehicle’s overhead lights and pulled Bowley over into a motel parking lot. Jennings exited his vehicle, approached Bowley’s vehicle, and asked Bow-ley for his driver’s license and proof of insurance. Bowley produced a Texas identification card but no proof of insurance. Jennings noticed that Bowley “fumbled” with his wallet while trying to find his identification card. Jennings also noticed that Bowley’s eyes were “bloodshot and glassy” and that he smelled of alcohol. Jennings asked Bowley to step out of his vehicle, and Bowley did so. Jennings then asked Bowley whether he would perform some field sobriety tests, and Bowley agreed to do so. Jennings then administered three such field tests to Bowley — the horizontal gaze nystagmus, the walk-and-turn, and the one-leg-stand. Bowley performed poorly on each of the tests. Jennings then arrested Bowley for driving while intoxicated.

Jennings testified further that he had had extensive training and experience with the field sobriety tests mentioned. Finally, he testified that on the night in question, his police vehicle had been equipped with a video camera and that that camera had recorded his encounter with Bowley.

During the latter part of Jennings’ testimony, the State played for the jury the video of Jennings’ encounter with Bowley. That video (State’s Exhibit One) showed that Bowley staggered repeatedly while performing the walk-and-turn test and that, despite repeated attempts, he could not perform the one-leg-stand test satisfactorily.

The State’s second witness, Lubbock Police Officer James Altgelt, testified that he had had extensive training and experience with field sobriety tests, and that such tests were “designed so that any normal person, provided that they’re sober, [is] able to accomplish” them satisfactorily. Altgelt testified further that he had had extensive professional training in the recognition of intoxication and that, from his viewing of State’s Exhibit One, Bowley’s performance of the walk-and-turn and one-leg-stand field sobriety tests was “clearly consistent with intoxication.”

The State’s third witness, Jimmy Isbell, testified that he had been professionally trained in fingerprint identification and comparison, and that the fingerprints in State’s Exhibits Four and Five matched fingerprints that he took from Bowley shortly before trial. (State’s Exhibits Four and Five were certified copies of judgments showing that Bowley had been convicted of DWI in Hockley County in 1988 and in Terry County in 1991.)

Bowley, on direct examination, testified that on the night in question, he had the normal use of his mental and physical faculties and was not intoxicated. His testimony continued:

Q: Troy, I’m going to show you State’s Exhibit No. 4. And that’s you [named in that judgment]; is that correct? This is one of your DWI’s out of Terry County; is that fair to say?
A: Yes, sir.
* * *
Q: Okay. And, Troy, did you plead to that or take that to trial?
A: I pled to that.
Q: Okay. Why did you plead to State’s Exhibit No. 4?
A: Because I was guilty of it.
Q: Okay. Let’s do it again with State’s Exhibit No. 5. This is [another judgment for] DWI, and this is you, out of Hockley County; is that fair to say?
A: Yes, sir.
Q: Did you take this case to trial or not?
A: No, sir, I didn’t.
Q: Okay. Why did you plead?
A: Because I was guilty, sir.

During the State’s cross-examination of Bowley, the following occurred:

Q: Okay. [Defense counsel] said that you pled guilty to all of those [DWI’s] up there [in State’s Exhibits Nos. 4 and 5] because you were; is that right?
A: Yes, sir, that is correct.
Q: You’re not pleading guilty here today because you’re not guilty; is that right?
A: Right. That is correct.
Q: Could it be that it’s because we couldn’t agree on a plea agreement that you preferred?
DEFENSE COUNSEL: Judge, I guess I will have to object on that. That’s—
THE COURT: Sustained.
DEFENSE COUNSEL: Judge, as well, let me go ahead and ask that this court instruct the jury not to consider that in any type of deliberation, that it’s simply just not a proper area for a trial, Judge.
THE COURT: No instruction will be given.
DEFENSE COUNSEL: Judge, I guess to finish that and protect my objection, I will ask for a mistrial.
THE COURT: Denied.

The majority now holds that the State’s question referring to plea negotiations was proper because “Bowley opened the door to [it] on cross-examination by creating a circumstance in which the jury could infer that his not guilty plea was truthful.” Bowley v. State, 310 S.W.3d 431, 435 (Tex.Crim.App.2010). However, even if the majority is correct that Bowley “opened the door” to the State’s question, the trial court still could have reasonably determined that the State’s question was objectionable because it asked for evidence that was inadmissible under Texas Rule of Evidence 403. Evidence that may otherwise be admissible because a party opened the door to it may nevertheless be inadmissible under Rule 403. Winegarner v. State, 235 S.W.3d 787, 791 (Tex.Crim.App.2007).

Rule 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” “Probative value,” as that phrase is used in the rule, refers to the inherent probative force of an item of evidence — that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation — coupled with the proponent’s need for that item of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App.2006). “Unfair prejudice” refers to a tendency to suggest decision on an improper basis. Ibid.

“Rule 403 gives the trial court considerable discretion to exclude evidence when it appears to that individual judge, in the context of that particular trial, to be insufficiently probative when measured against the countervailing factors specified in the rule.” Winegamer v. State, 235 S.W.3d at 791.

Given the nature of the evidence sought by the State’s question — an admission by Bowley that he pled “not guilty” because he and the State could not agree on a plea bargain — the trial court could have reasonably concluded that that evidence was insufficiently probative when measured against the danger of unfair prejudice. Why do I think that? First, the trial court could have reasonably concluded that, in the context of that particular trial, the inherent probative force of such an admission by Bowley would have been modest while the State’s need for it was close to non-existent. Second, the trial court could have reasonably concluded that the danger of unfair prejudice posed by such an admission was great. As the court of appeals noted, “mention of plea negotiations having occurred could mistakenly lead a juror to conclude that [Bowley] believed himself guilty since an innocent person would not contemplate admitting guilt.” Bowley v. State, 280 S.W.3d 530, 532 (Tex.App.-Amarillo 2009). The potential impact upon jurors of the mention of plea negotiations cannot be overstated.

As an appellate court judge now reviewing a cold record, I cannot say that the trial court’s decision that the State’s question was objectionable was clearly outside the zone of reasonable disagreement. Had I been in the trial court’s shoes, I might have made a different decision, but that is not the standard of appellate review. Furthermore, in my humble opinion, the court of appeals was correct in concluding that “the grave risk of undue prejudice went unabated when the trial court withheld its instruction to disregard” the State’s reference to plea negotiations. Id. at 533.

I would affirm the judgment of the court of appeals. Because the majority does not do so, I respectfully dissent.

      . Bowley v. State, 280 S.W.3d 530, 534 (Tex.App.-Amarillo 2009).

      . Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (Vernon 2003).

      . Tex Penal Code Ann. § 12.42(d) (Vernon 2003).

      . Bowley, 280 S.W.3d at 532.

      . Id. at 533 n. 4 (citing Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999)).

      . Id.

      . Tex. R. Evid 410(4).

      . Bowley, 280 S.W.3d at 534.

      . Id. at 532-33.

      . Id. at 532.

      . Id. at 533.

      . Id.

      . Id. (citing Prystash, 3 S.W.3d at 527-28; Smith v. State, 898 S.W.2d 838, 843-44 (Tex.Crim.App.1995)).

      . Id.

      . Prystash, 3 S.W.3d at 527.

      . Id.

      . Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986).

      . Feldman v. State, 71 S.W.3d 738, 755 (Tex.Crim.App.2002); Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App.1985).

      . Feldman, 71 S.W.3d at 755; Cisneros, 692 S.W.2d at 83.

      . Feldman, 71 S.W.3d at 755-56.

      . See, e.g., id. at 756 (holding that the State's question asking appellant to explain his previous statement about being in trouble did not exceed the scope of the invitation appellant initially gave).

      . See Prystash, 3 S.W.3d at 527-28 (reaffirming that the defendant's introduction of a plea offer by the State as evidence of defendant's future dangerousness is excludable under Rule 403 and observing that public policy militated in favor of excluding plea offers); Smith, 898 S.W.2d at 843-44 (holding that evidence of a plea offer by the State may be relevant, but is substantially outweighed by the danger of both unfair prejudice and of misleading the jury).

      . Cf. Ochoa v. State, 481 S.W.2d 847, 849-50 (Tex.Crim.App.1972) (observing that where a witness makes blanket statements concerning his or her exemplary conduct such as having never been arrested, charged or convicted of any offense, or having never been "in trouble,” or purports to detail his convictions leaving the impression there are no others, the State may refute such testimony despite the nature of the conviction used or its remoteness).

      . See Bowley, 280 S.W.3d at 533.

      . Id.

        . Id.

      . See Tkx. R. Evid 410(4) ("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: ... (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority, ... in a criminal case, that do not result in a plea of guilty or a plea or nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.1').

        . See Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice: Guide to the Texas Rules of Evidence § 410.2 (3rd ed. 2002), at 348 (“the pleas and related statements mentioned in Rule 410 are inadmissible in subsequent ... criminal litigation, whether offered either as substantive evidence against the defendant who made the plea or participated in the plea discussions or to impeach him.”).

      . Id., § 410.3, at 352.

      . The majority proceeds upon a theory that the appellant "opened the door” to the use of his plea proceedings to impeach him in this case, to rectify the misapprehension he implanted with the jury that he always pleads guilty when he is guilty (and, by implication, not guilty when he is not). I am not unmindful of the perceived unfairness to the State here. But, for policy reasons, Rule 410 does not permit such impeachment. Rule 410 does contain an exception that would allow for the admission against a defendant of a statement made during unsuccessful plea proceedings in the interest of "fairness,” to complete the picture when the defendant himself has already introduced evidence of "another statement” made during those plea proceedings. But this optional-completeness exception is expressly limited to statements made during "the same plea or plea discussions!.]” The appellant’s testimony about his prior guilty pleas cannot serve under this specific provision of Rule 410 to "open the door” to admission of statements he might have made during plea negotiations pertaining to the instant offense. Perhaps in "fairness” it should, but if the Court believes this represents a lamentable gap in the rule and a windfall for the appellant, we should entrust that perception to our Rules Committee.

        . Bowley v. State, 280 S.W.3d 530, 533 n. 4 (Tex.App.-Amarillo 2009).

        . See Tbx.R. Evid 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.").

      . Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (opinion on reh'g).

      . The video was shot from a distance and, therefore, was unable to show the movements of Bowley’s eyes during the horizontal gaze nystagmus field sobriety test.

      . Think for a moment about the strength of the State's case against Bowley. The State had the clear and quite damning testimony of Officers Jennings and Altgelt, recounted above, together with the video of Jennings’ encounter with Bowley on the night in question. I have viewed that video, and I do not exaggerate when I write that it was most likely devastating to Bowley’s defense.