Ruben Andres Baldez v. State ( 2015 )

ACCEPTED
13-14-00257-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/2/2015 11:51:57 AM
DORIAN RAMIREZ
CLERK
NO. 13-14-00257-CR
RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS2/2/2015 11:51:57 AM
FOR THE THIRTEENTH DISTRICT OF DORIAN
TEXASE. RAMIREZ
Clerk
AT CORPUS CHRISTI
RUBEN ANDRES BALDEZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from the County Court at Law #2
Of Victoria County, Texas
Cause No. 2-102358
BRIEF FOR THE STATE OF TEXAS
Stephen B. Tyler
Criminal District Attorney
State Bar No. 24008186
205 N. Bridge Street, Suite 301
Victoria, TX 77901
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brendan W. Guy
Assistant District Attorney
State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ...............................................................iii-iv
STATEMENT OF THE FACTS .......................................................... 2-8
SUMMARY OF ARGUMENT ............................................................. 8-9
ARGUMENT ...................................................................................... 10-25
I. The trial court acted well within its discretionary
authority in allowing the State to impeach the Appellant
with evidence of his prior felony conviction ........................ 10-21
II. In the alternative, any error in the admission of
Appellant’s prior conviction was harmless ......................... 21-25
PRAYER .................................................................................................. 25
SIGNATURE ........................................................................................... 25
CERTIFICATE OF COMPLIANCE ................................................... 26
CERTIFICATE OF SERVICE ............................................................. 27
INDEX OF AUTHORITIES
Texas Cases
Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003) .................. 22
Bryant v. State, 997 S.W.2d 673
(Tex. App.-Texarkana 1999, no pet) ..................................................... 20
Castro v. State, 2006 WL 1868438
(Tex. App.-Houston [1st Dist.] 2006, pet. ref’d)
(mem. op. not designated for publication) ...................................... 11, 18
Denman v. State,193 S.W. 3d 129
(Tex. App.-Houston [1st Dist.] 2006, pet. ref’d) .................................... 11
Hankins v. State, 180 S.W.3d 177
(Tex. App.-Austin 2005, pet. ref’d) ....................................................... 25
Herring v. State, 147 S.W.3d 390 (Tex. Crim. App. 2004) .................. 24
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) .................. 21-22
Leyba v. State, 416 S.W.3d 563
(Tex. App.-Houston [14th Dist.] 2013, pet. ref’d) ................................. 24
Mireles v. State, 413 S.W.3d 98
(Tex. App.-San Antonio 2014, pet. ref’d) ....................................... 16, 19
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ..................... 22
Nolen v. State, 872 S.W.2d 807
(Tex. App.-Ft. Worth 1996, pet. ref’d).................................................. 20
Poiter v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) ....................... 21
Smith v. State, 439 S.W.3d 451
(Tex. App.-Houston [1st Dist.] 2014, no pet) ......................................... 14
Brief of Appellee iii
Victoria County Criminal District Attorney
No. 13-14-00257-CR
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ......... 10-12, 15,
........................................................................................................ 16-18, 20
Yanez v. State, 199 S.W.3d 293
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 23
Yates Sel. Cas. v. State, 917 S.W.2d 915
(Tex. App.-Corpus Christi 1996, pet. ref’d) .................................... 20-21
Texas Statutes
TEX. HEALTH & SAFETY CODE § 481.115 (West 2010) ............... 13
TEX. PENAL CODE ANN. §49.04 (West 2014) .................................. 13
Texas Rules
TEX. R. APP. 9.4..................................................................................... 26
TEX. R. APP. P. 33.1 .............................................................................. 21
TEX. R. APP. P. 44.2 .............................................................................. 22
TEX. R. EVID 609 ................................................................... 9-10, 14, 20
Brief of Appellee iv
Victoria County Criminal District Attorney
No. 13-14-00257-CR
NO. 13-14-00257-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
RUBEN ANDRES BALDEZ….…………………………………..Appelant
v.
THE STATE OF TEXAS,…..……………………………………...Appellee
* * * * *
STATE’S BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellee in the above numbered
and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS
On February 11, 2014, Appellant’s driving while intoxicated case was
called for trial. [RR-III-1, 6].
The State’s first witness was Officer Robert Rogers of the Victoria
Police Department. [RR-III-142]. Officer Rogers testified to investigating a
car accident involving Appellant and to how Appellant disregarded police
instructions to stay by his vehicle four or five times. [RR-III-148-151].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
2
Officer Rogers also described how in his initial contact with Appellant, he
noted the Appellant had an odor of alcoholic beverages on his breath and
glassy eyes. [RR-III-148]. Officer Rogers then described Appellant trying
to leave the scene of the investigation entirely which led to the police putting
Appellant in handcuffs. [RR-III-151]. Officer Rogers then testified that
Appellant never reported being injured to him. Id. Officer Rogers then
described locating a beer can next to Appellant’s vehicle. [RR-III-152].
Officer Rogers also sponsored the admission of a video tape of his
investigation of the accident scene. [RR-III-153; State’s Exhibit 1]. The
video in question did not contain a working audio track. [RR-III-154;
State’s Exhibit 1].
The State then called Officer Isaac Ramirez of the Victoria Police
Department. [RR-III-229]. Officer Ramirez testified to being called out to
the accident scene on September 29, 2013, where he found the Appellant
yelling and refusing to listen to the police about staying near his vehicle.
[RR-III-230-232]. Officer Ramirez also described the Appellant as having a
“very unsteady balance”, bloodshot eyes, and “acting very aggressive”.
[RR-III-232]. Officer Ramirez then described locating a beer can next to the
driver’s side door of Appellant’s vehicle. [RR-III-237; State’s Exhibit 2].
Officer Ramirez would also testify to the presence of gouge marks and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
3
vehicle fluid located in the street that would have been caused by two
vehicles being in an accident. [RR-III-245; IV-8-9; State’s Exhibit 28].
Officer Ramirez then described how the damage to Ms. Hernandez’s vehicle
was consistent with it having been struck from behind [RR-IV-11-12], and
how the damage observed to both her vehicle and the Appellant’s was
inconsistent with the damage that would have occurred from two vehicles
merging together. [RR-IV-50-51].
The State would subsequently call Officer Manny Cordova of the
Victoria Police Department. [RR-IV-64]. Officer Cordova also described
being called out to Appellant’s accident scene the night of September 29,
2013. [RR-IV-65]. Officer Cordova testified to Appellant having a “strong
odor of alcohol”, of Appellant’s walking as being “unbalanced, staggering”,
[RR-IV-67]. and of Appellant having slurred speech. [RR-IV-69]. Officer
Cordova also described transporting Appellant to the hospital where
Appellant refused treatment. [RR-IV-70]. Officer Cordova then reaffirmed
that Appellant had spoke with slurred speech and discussed how Appellant
refused to do a blood draw. [RR-IV-84-85]. Officer Cordova then again
described detecting the odor of alcohol on the Appellant and described how
the Appellant had “very glassy eyes” and was walking in a “staggered,
unbalanced” manner. [RR-IV-86].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
4
The State then called Officer Bryan Dowden of the Victoria Police
Department. [RR-IV-129]. Officer Dowden also testified to being called
out to Appellant’s accident scene and to observing Appellant walking with
“a staggered walk.” [RR-IV-133]. Officer Dowden also described the
Appellant stating that “he was fucked up.” [RR-IV-134]. Officer Dowden
then confirmed that Appellant spoke in a “slurred fashion” [RR-IV-135],
refused to do the field sobriety tests or to accept medical treatment, had a
strong odor of alcohol on his breath, bloodshot eyes, unsteady balance, and
was uncooperative. [RR-IV-137],
The State then called Ms. Mary Jane Hernandez (also known as Marie
Juanita Salazar). [RR-IV-184, 198]. Ms. Hernandez testified to the events
of September 28, 2013, and how when she was driving home her vehicle
was struck from behind by another vehicle. [RR-IV-189-190, 192]. She
further testified that she was driving “straight” when the accident occurred.
[RR-IV-205].
After the State rested its case, Appellant elected to testify in his own
behalf. [RR-IV-241]. Appellant testified at length about how the motor
vehicle accident in his case occurred. [RR-IV-248-254]. Appellant
described the accident as being the fault of the other involved vehicle. [RR-
IV-252]. Appellant continued his testimony the next day where he provided
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
5
additional details concerning the car accident. [RR-V-6, 10-16]. Appellant
then reaffirmed his earlier testimony that the other vehicle was responsible
for the accident by coming into his lane of travel while he was attempting to
pass her. [RR-V-11-14]. Appellant also insisted that he did not hit Ms.
Salazar’s vehicle and speculated that she had fallen asleep while driving.
[RR-V-16-17].
Appellant also testified that he was not intoxicated on the night in
question. [RR-V-18]. Appellant then claimed that his staggered walk was
due to an injury caused by him tripping over debris in the immediate
aftermath of the accident. [RR-V-23]. The Appellant then characterized
Ms. Salazar’s description of the accident as “far-fetched” and suggested that
she changed her account of what happened at the prompting of the
investigating police officer. [RR-V-24-25]. Appellant then testified that he
lost his temper that night due to the officer coaching Ms. Salazar on what to
say. [RR-V-26]. The Appellant also insisted he did not attempt to leave the
scene. [RR-V-26-27]. The Appellant then described how after being
arrested and transported by the police he requested help getting out of the
backseat of the vehicle due to his height and injury. [RR-V-29-30]. The
Appellant also argued that his injury was the cause of his confrontational
attitude and inability to keep his balance on the video. [RR-V-30-31].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
6
Appellant then testified that his cousin, a physical therapist, examined
him after he was released from jail and that his cousin believed that
Appellant had injured a muscle in his groin area. [RR-V-37-38]. This
cousin did not testify at the hearing. [RR-V-38].
Appellant then claimed that the beer cans the State had indicated were
found in his vehicle were never in his vehicle. [RR-V-39]. Appellant
further insisted he had no alcohol in his vehicle on the night of the suspected
offense. [RR-V-40]. Appellant then admitted that he had consumed several
beers earlier in the evening of the date of the charged offense but again
denied that he was intoxicated at the time of the offense. [RR-V-40-41].
Once Appellant’s direct examination was concluded, the State begin
its cross-examination. [RR-V-41]. The State’s first question was if
Appellant was a convicted felon. Id. Appellant denied that he was a
convicted felon and a lengthy bench conference was held. [RR-V-41-55].
During that conference Appellant argued against permitting the State to
introduce the specific nature of his prior felony conviction, claiming it was
irrelevant and unfairly prejudicial. [RR-V-48-52]. The court ultimately
decided the State would be permitted to introduce evidence of Appellant’s
prior felony for purposes of impeachment. [RR-V-52-53].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
7
The jury was then recalled, the State asked the Appellant if he was
convicted on November 3, 2008 of possession of methadone, and Appellant
objected, arguing that evidence of the prior conviction was unfairly
prejudicial. [RR-V-56]. In that argument, Appellant conceded that the prior
conviction was for a “totally unrelated type of offense.” Id. The trial court
overruled the Appellant’s objection. Id. The trial court did not make any
verbal or written findings in support of its ruling. Id. Appellant did not
request such findings or object to them not being provided. Id. Appellant
also did not request a limiting instruction on what purpose the evidence of
the prior conviction could be used for by the jury. Id. Appellant admitted to
his prior felony conviction. [RR-V-56-58].
After each side had rested, Appellant’s closing argument repeatedly
discussed testimony that Appellant had provided. [RR-V-163-167, 170, 172,
174]. Nevertheless, Appellant was found guilty of driving while intoxicated.
[RR-V-194].
SUMMARY OF THE ARGUMENT
The trial court acted well within its discretion in admitting the
evidence of Appellant’s prior felony conviction. That prior conviction for
possession of a methadone was a recent conviction for an offense that was
not closely related to the charged offense, and given that the Appellant
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
8
testified and was in fact the primary witness for the defense, his credibility
was a critical issue in this trial thus giving the State a compelling need to be
able to impeach his testimony, while the prejudicial effect of a prior
conviction for a non-violent drug offense was slight. Thus the trial could
could reasonably conclude that the probative value of the prior conviction
outweighed its prejudicial effect, and that conclusion should not be
disturbed.
Nor was the trial court under any obligation to announce its findings
of fact and conclusions of law on the admissibility of the prior conviction.
Texas law does not require a trial court to summarize the results of it
performing the Rule 609 balancing test, and the Appellant did not request to
have such results recorded.
In the alternative, even if it was error for the trial court to admit the
prior conviction into evidence that error was harmless because the State had
substantial evidence showing the Appellant was intoxicated, and the prior
conviction itself was not of a type of offense likely to inflame the jury or
otherwise to cause them to convict the Appellant for an improper reason. As
such there is no reason to believe that the introduction of the prior conviction
had any substantial impact on the verdict in this case, and therefore any error
from its admission was harmless.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
9
ARGUMENT
I. The trial court acted well within its discretionary authority in
allowing the State to impeach the Appellant with evidence of
his prior felony conviction.
Texas Rule of Evidence 609 permits evidence of prior felony
convictions to be used to attack a witness’s credibility when the trial court
determines that the probative value of admitting this evidence outweighs its
prejudicial effect to a party. Furthermore, in balancing the probative value
of the evidence versus its prejudicial effect, the trial court must be accorded
“wide discretion.” Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.
1992). A ruling permitting the use of a prior conviction to impeach should
only be disturbed upon a showing of “a clear abuse of discretion.” Id. No
such clear abuse of discretion occurred in this case, and thus the trial court’s
ruling should stand.
The Court of Criminal Appeals has provided a non-exhaustive list of
five factors to consider in weighing the probative value of a prior conviction
against its prejudicial effect: 1) the impeachment value of the prior crime; 2)
the temporal proximity of the past crime to the current charged offense; 3)
the similarity between the past crime and the current charged offense; 4) the
importance of the defendant’s testimony; and 5) the importance of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
10
credibility issue. Id. at 880. In the present case these five factors weigh
heavily in favor of the admission of the Appellant’s prior felony conviction.
As to first Theus factor in this case, the impeachment value of the
prior conviction, drug possession offenses are not considered to be a “crime
of deception” and thus have relatively low impeachment value. See Denman
v. State,193 S.W. 3d 129, 136 (Tex. App.-Houston (1st Dist.) 2006, pet.
ref’d). That said drug possession offenses are also not “crimes of violence.”
See Castro v. State, 2006 WL 1868438 at 4 (Tex. App.-Houston (1st Dist.)
2006, pet. ref’d)(mem. op. not designated for publication.) This is
significant because crimes that involve violence are recognized to have a
higher potential for prejudice than non-violent offenses. Theus, 845 S.W.2d
at 881. As such at least one Court of Appeals (albeit only in a memorandum
opinion) has held that a conviction for a drug offense that is neither a high
impeachment value “crime of deception” nor a high prejudice risk “crime of
violence” is neutral in a Theus analysis favoring neither admission nor
exclusion. See Castro, 2006 WL 1868438 at 4. That reasoning seems
logical, and thus the State would argue it should be adopted in this case as
well. Thus the first Theus factor is neutral here, supporting neither
admission nor exclusion of the evidence.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
11
As to the second Theus factor, the temporal proximity of the past
conviction, that factor favors admission of the evidence. When a past
conviction is recent it has greater probative value and thus more strongly
supports admission. Theus, 845 S.W.2d at 881. Appellant’s prior felony
conviction occurred slightly over five years before his testimony in the
present case: Appellant was convicted of his felony offense on November 3,
2008 [RR-V-56] and testified in this trial on February 12, 2014. [RR-IV-1,
241]. In the Theus case the Court of Criminal Appeals found that a
conviction that became final five years before the current charged offense
was “recent.” Id. at 881. Since Appellant’s prior conviction is
approximately the same age as the conviction at issue in Theus, it stands to
reason that the conviction in this case also qualifies as being a “recent”
conviction and therefore the temporal proximity factor favors admission in
this case.
As to the third Theus factor, the similarity of the past conviction to the
current charged offense, that factor also favors admission. When the past
crime and the present one are similar that militates against admission of the
past offense. Id. at 881. However, here Appellant’s past conviction is not
closely related to the charged offense, a point that even the Appellant
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
12
conceded at trial when his trial counsel argued that Appellant’s prior
conviction was “totally unrelated to this type of crime.” [RR-V-49].
Appellant’s past offense was a felony conviction for possession of a
controlled substance, methadone, [RR-V-56] while in the present trial he
was facing charges for a misdemeanor offense of driving while intoxicated.
Now it is true that both of those offenses involve substance abuse but that is
where their similarity ends. Beyond that they are very different types of
crime. Possession of a controlled substance primarily puts the offender
themself at risk, whereas driving while intoxicated puts not only the offender
but everyone who shares a roadway with them at risk. And of course these
two offenses have very different elements: most notably the requirement in
the driving while intoxicated statute that you be operating a motor vehicle,
but also that it requires you to actually be intoxicated by introduction of a
substance into your body and that all of this must occur while you are in a
public place whereas possession of a controlled substance does not require
that you even utilize the contraband substance but rather merely that you
have possession of it and does not place any special restrictions on where the
offense can occur. See TEX. PENAL CODE ANN. § 49.04(a) (West 2014);
TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2010). Thus
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
13
the two offenses are not closely related and thus should not be treated as
being similar for Rule 609 purposes.
A clear example of this principle came from the Houston Court of
Appeals (1st Dist.) in the Smith case where that court found that indecent
exposure and aggravated sexual assault of a child were not similar crimes for
purposes of Rule of Evidence 609 balancing, even though both offenses
involve “sexual elements.” See Smith v. State, 439 S.W.3d 451, 459 (Tex.
App.-Houston (1st Dist.) 2014, no pet). The Smith court found major
differences between those two offenses based upon which part of the Penal
Code they were located in and what elements they contained. Id. at 458-
459. If two offenses that both involve “sexual elements” can still be
regarded as distinctive for Rule 609 purposes then that same logic should
apply with equal force to two offenses that both involve substance abuse
elements. The differences in the elements between driving while intoxicated
and possession of a controlled substance are sufficient enough for them to be
very different types of offenses, and thus they should be considered to not be
similar offenses for Rule 609 purposes.
Admittedly, this analysis might be different if the means of
intoxication suspected in Appellant’s driving while intoxicated case
involved the same controlled substance, methadone, that was at issue in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
14
Appellant’s prior conviction. It might even be different if Appellant was
suspected of being intoxicated on a different controlled substance than
methadone. However, that was not the case. The State did not present any
evidence suggesting Appellant was intoxicated on methadone or on any
other controlled substance to support its driving while intoxicated case.
Rather the State’s case focused entirely on the Appellant being intoxicated
solely due to the introduction of alcohol into his body. The State’s witnesses
testified to finding an alcoholic beverage near Appellant’s vehicle [RR-III-
152, 237] and to Appellant having a strong odor of alcohol on his breath,
person, and vehicle. [RR-III-202, 227, 233; IV-67, 86, 115, 133, 137].
Likewise the Appellant himself admitted to consuming three of four beers.
[RR-V-40]. No evidence was ever presented suggesting Appellant was
intoxicated on any substance other than alcohol. The case against Appellant
was simply not about controlled substances and therefore there was no
danger of the jury improperly utilizing Appellant’s past conviction. As such
this factor supported admission of the evidence.
The fourth and fifth Theus factors, the importance of the witnesses’
testimony and the importance of the credibility issue, are closely related and
thus best analyzed together, and in the present case they both weighed
heavily in favor of the admission of Appellant’s past felony. Appellant’s
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
15
testimony was obviously of critical importance in this case. While the
Appellant was not the only defense witness called to testify in this case, he
was the only defense witness present at the time and place of the charged
offense. As such he was the only defense witness that could truly present
the defense’s version of events. When the defendant is the only defense
witness, the importance of his testimony and credibility escalates. Theus,
845 S.W.2d at 881. This standard applies even when the defendant is not
the only defense witness, so long as he is the only defense witness capable of
denying the allegations against him. See Mireles v. State, 413 S.W.3d 98,
103 (Tex. App.-San Antonio 2013, pet. ref’d). Therefore since the
Appellant was the only defense witness capable of denying he was driving
while intoxicated, his testimony was of major importance, and the State had
an escalated need to impeach his credibility.
The Appellant’s testimony addressed a wide range of issues where he
challenged the State’s evidence. The Appellant disputed Ms. Hernandez’s
account of how the entire accident happened with him claiming that she was
the one who caused the accident and suggesting that she changed her story
after being coached by the police. [RR-IV-189-190, 192, 252; V-11-14, 16-
17, 24-25]. The Appellant also denied he was intoxicated at the time of the
charged offense [RR-V-18, 41], and provided explanations other than
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
16
intoxication for his “staggered walk” (supposedly caused by an injury) [RR-
V-23], and his belligerence and refusal to comply with police instructions
(caused by him being upset that the police were coaching Ms. Hernandez on
what to say) [RR-V-24-25]. The Appellant also claimed that despite the
police finding a fresh beer can right next to his vehicle [RR-III-152, 237],
that he had no alcohol in his vehicle on the night in question. [RR-V-39-40].
All of this testimony by the Appellant turned on his credibility, and
this testimony, if believed, would obviously have done great harm to the
State’s case. The best evidence the State had of Appellant’s intoxication
was the evidence that he had caused a car accident, the evidence that he was
showing physical signs of intoxication (most significantly having trouble
keeping his balance), the evidence that he was showing mental signs of
intoxication (most significantly irrational belligerence and an inability or
unwillingness to comply with police instructions), and the evidence that he
had alcohol with him. Appellant’s testimony attacked all of these points and
by also suggesting improper police conduct (when he accused the police of
coaching Ms. Hernandez) [RR-V-24-26] also attacked the integrity of the
remainder of the State’s case. Therefore, Appellant’s credibility was of vital
importance for the resolution of his case. When the importance of a
defendant’s credibility escalates, so does the need to allow the State the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
17
opportunity to impeach the defendant’s credibility. Theus, 845 S.W.2d at
881. As such since both the Appellant testimony and the credibility issue
were of high importance in this case, both of those factors strongly
supported permitting the State to introduce evidence of Appellant’s past
felony conviction.
Four of the five Theus factors thus clearly favored admission of the
prior conviction, and the State believes the remaining factor, the
impeachment value of the prior conviction, should be regarded as neutral on
the question of the admissibility of the prior conviction. With so many
factors favoring admission, the trial court acted well within its discretion in
ruling that the prior conviction was admissible. Furthermore, even if this
Honorable Court rejects the reasoning of Castro and concludes that the first
Theus factor is not neutral in this case but instead favors exclusion, the
balance of the remaining factors is still sufficiently weighed towards
admission that the trial court’s ruling should be upheld. Indeed this would
be the case even if this Honorable Court also rejects the reasoning of Smith
and concludes that the third Theus factor also favors exclusion of the prior
conviction in this case as other courts have concluded that even with just
three of the Theus factors supporting admission while the remaining two
factors supported exclusion that was still enough to find that a trial court did
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
18
not abuse its discretion in allowing evidence of a prior conviction to be
admitted. See Mireles, 413 S.W.3d at 103 (holding that even when the
impeachment value of the prior conviction and the temporal proximity of the
prior conviction both supported exclusion of the prior, the remaining factors
favoring admission was enough to sustain the trial court’s decision.)
Here the State had an obvious, highly elevated need to impeach
Appellant’s credibility since his testimony was the linchpin of the entire
defense case, and the value of the Appellant’s testimony depended entirely
on whether or not the jury found it credible. The prior conviction to be used
to impeach Appellant was recent in time, was not especially similar to the
charged offense, and was not the type of offense likely to inflame a jury and
put them at risk of convicting a defendant for an improper purpose. As such
there was high probative value and little danger of unfair prejudice and thus
the trial court acted well within its discretion in concluding that the
probative value of Appellant’s prior evidence outweighed its prejudicial
effect. That is a conclusion well within the zone of reasonableness and thus
the trial court’s ruling should be upheld.
Nor does it matter that the trial court did not list on the record or in
writing its findings of fact and conclusions of law concerning why it
concluded the evidence of Appellant’s past conviction was more probative
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
19
than prejudicial in this case. [RR-V-56]. Texas trial courts are encouraged
but not required to make specific findings of fact and conclusions of law
when admitting a prior offense for impeachment under Texas Rule of
Evidence 609. See Theus, 845 S.W.2d at 880 n.6; Yates v. State, 917 S.W.
2d 915, 920 (Tex. App.-Corpus Christi 1996, pet. ref’d). And when the trial
court does not announce for the record that it has performed the required
balancing test, the appellate courts should presume the trial court conducted
the required balancing. See Bryant v. State, 997 S.W.2d 673, 676 (Tex.
App.-Texarkana 1999, no pet); Nolen v. State, 872 S.W.2d 807. 812 (Tex.
App.-Ft. Worth 1996, pet. ref’d).
In this case the trial court held a lengthy hearing outside of the
presence of the jury concerning the admissibility of the prior conviction
[RR-V-41-55], and made a reasoned decision, permitting the State to
introduce the fact of the Appellant’s prior felony conviction [RR-V-56] but
not allowing the State to introduce documentary evidence of that conviction
after the Appellant had already admitted to the prior. [RR-V-58]. Thus
from the record it is clear the trial court did conduct the proper balancing
test.
Furthermore, Appellant failed to object at trial to the trial court not
announcing its findings of fact and conclusions of law on the admissibility
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
20
of Appellant’s prior conviction. [RR-V-56]. As such Appellant has waived
any claim of error on that point. See Yates, 917 S.W. 2d at 920; TEX. R.
APP. P. 33.1(a).
Therefore since the trial court can be presumed to have conducted
the proper balancing test, and since its conclusion upon performing that test
that the evidence of Appellant’s prior felony conviction was admissible was
a reasonable conclusion on the facts of this case, that conclusion was not an
abuse of the trial court’s discretion and thus the trial court ruling should be
upheld.
II. In the alternative, any error in the admission of Appellant’s
prior conviction was harmless.
In the alternative, even if there was error in the admission of
Appellant’s prior felony conviction, that error would be harmless given the
strength of the State’s case against Appellant, and the low prejudicial effect
of that type of prior conviction.
A violation of the rules of evidence is generally non-constitutional
error. See Poiter v. State, 68 S.W.3d 657, 662-663 (Tex. Crim. App. 2002).
Thus reversal from such errors is only required if the erroneous admission of
the Appellant’s prior conviction affected his substantial rights by exerting a
“substantial and injurious effect or influence in determining the jury’s
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
21
verdict.” See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997);
TEX. R. APP. P. 44.2(b). Such error will therefore be deemed harmless so
long as we have fair assurance that the error did not influence the jury or if it
did influence the jury only had but a slight effect. Bagheri v. State, 119
S.W.3d 755, 763 (Tex. Crim. App. 2003). To analyze harm, the reviewing
court must consider the entire record. Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002).
That record shows that the State had a very strong case against
Appellant. The State presented testimonial evidence of Appellant having
caused a car accident [RR-IV-189-190, 192], of Appellant acting in a very
aggressive manner towards the officers [RR-III-232-233, IV-44], of
Appellant refusing to follow police instructions [RR-III-151, 232], of
Appellant walking with a very unsteady balance [RR-III-232, IV-86, 116,
137], of Appellant having bloodshot/glassy eyes [RR-III-148, 156, 232-233;
IV-86, 137], of Appellant having slurred speech [RR-IV-69, 84, 116, 133,
135], of Appellant having a strong odor of alcohol on his breath/person [RR-
III-148; 156, IV-67, 86, 115, 133, 137], of Appellant refusing to do the field
sobriety tests [RR-IV-137], of Appellant refusing medical treatment [RR-IV-
137], of Appellant refusing to submit to a blood test [RR-IV-84-85], and of
the Appellant himself describing himself as in a bad condition. [RR-IV-
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
22
134]. The Appellant himself likewise admitted on the stand that he had
consumed alcohol earlier in the evening. [RR-V-40]. The State was also
able to present evidence of a fresh beer that was located in the immediate
vicinity of Appellant’s front door [RR-III-152, 237], and the physical
condition of the vehicles was consistent with the accident occurring in the
manner described by Ms. Hernandez rather than in the account provided by
the Appellant. [RR-IV-50-51, 189-190, 192, 248-254].
Thus the State had a strong case to show that Appellant was driving
while intoxicated. And when the State’s other evidence is compelling that
renders it much less likely that improperly admitted evidence of a prior
conviction will compromise a defendant’s rights. See Yanez v. State, 199
S.W.3d 293, 306 (Tex. App.-Corpus Christi 2006, pet. ref’d). And
compared to all the evidence the State did have, the effect of a prior felony
drug conviction would have a negligible impact on the jury’s deliberations.
A conviction for possession of methadone (which was only punished as a
misdemeanor) is not the kind of violent or sexual offense that is going to
irrationally inflame a jury. Nor is the type of offense that suggests a general
propensity to commit other types of crimes. If Appellant’s prior had been
another driving while intoxicated conviction than obviously there would be a
substantial risk of a jury seeing propensity from the conviction, but since
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
23
Appellant’s prior offense did not involve driving while intoxicated the risk
of the jury imputing a generalized criminal propensity from his prior
conviction was slight. See Herring v. State, 147 S.W.3d 390, 396 (Tex.
Crim. App. 2004).
It is also important that the State did not inquiry into detail about
the specifics of the prior offense. [RR-V-56-58]. Rather the State simply
elicited the fact of the conviction and briefly referenced the existence of that
conviction in its closing argument to remind the jury to question Appellant’s
credibility. [RR-V-56-58, 178, 180, 184]. And the State certainly was not
pursuing an improper motive in attempting to introduce evidence of a recent
felony conviction to impeach a defendant who testified, and whose
testimony was the critical component of the defense case. See Leyba v.
State, 416 S.W.3d 563, 574 (Tex. App.-Houston [14th Dist.] 2013, pet.
ref’d)(holding that the improper admission of a defendant’s prior aggravated
robbery conviction was harmless in part because the court could not
determine that the prosecutor elicited the inadmissible evidence for an
inflammatory purpose.)
Given the strength of the State’s case against Appellant, and the
relatively inoffensive nature of Appellant’s prior felony, it is implausible
that a handful of brief references to that prior conviction could have caused
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
24
more than a slight impact on the jury in light of all of the other evidence the
State presented. As such any error from the admission of Appellant’s prior
conviction would have been harmless and can be disregarded. See Hankins
v. State, 180 S.W.3d 177, 183 (Tex. App.-Austin 2005, pet. ref’d).
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court affirm the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLEE,
THE STATE OF TEXAS
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
25
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellee’s Brief submitted on
February 2, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,046.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
26
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing brief has been served on
Edward Shaughnessy, III, Attorney for the Appellant, by depositing same in
the United States Mail, postage prepaid on the day of February 2, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
27