Sammy Roach v. State ( 2007 )

NUMBER 13-05-786-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SAMMY ROACH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez

Appellant, Sammy Roach, was charged and convicted of driving while intoxicated, third offense. Tex. Penal Code Ann. § 49.04 (Vernon 2006). A jury found appellant guilty, and the trial court sentenced appellant to seven years' imprisonment. On appeal, appellant raises the issue of whether the trial court erred in admitting evidence of appellant's prior convictions. The State raises two additional issues: (1) whether appellant timely filed his notice of appeal to provide this Court with jurisdiction; and (2) whether and to what extent appellant preserved his right to appeal the admissions. We affirm.

I. Jurisdiction

On August 23, 2005, appellant was convicted and sentenced. After sentencing, appellant expressed his desire to appeal. No written notice of appeal was filed within the 90 day time limit. See Tex. R. App. P. 26.2(a)(2) (Vernon 2003) (providing that notice of appeal must be filed within 90 days of the date sentence is imposed). On September 2, 2005, however, appellant signed an affidavit of indigency requesting that counsel be appointed for appeal.

Ordinarily, the law requires that a convicted person file a notice of appeal in writing with the clerk. Tex. R. App. P. 25.2(b), (c) (Vernon 2003) (providing that notice of appeal must be timely filed with the trial court clerk). The notice must show the person's desire to appeal from the judgment or other appealable order. Id. However, in Cantu v. State, 46 S.W.3d 421, 423-24 (Tex. App.-Corpus Christi 2001, no pet.), this Court recognized a limited exception. See id. In Cantu, we concluded that rule 25.2 is satisfied when: (1) the appellant orally expresses to the trial court his desire to appeal, and the trial court gives permission; and (2) the appellant files a form requesting counsel and expressing his desire to appeal. Id.

In this case, on two occasions after appellant was sentenced he personally requested the trial court to "proceed to appeal." See id. The trial court responded by stating "that's fine" or "all right." See id. Appellant also filed his affidavit of indigency requesting counsel and expressing his desire to appeal. See id. The requirements of rule 25.2(c), in light of Cantu, were thus satisfied. We conclude that this Court has jurisdiction over appellant's appeal.

II. Admissibility of Prior Convictions

At trial, during cross-examination of appellant, the State requested a hearing outside the presence of the jury to discuss the admissibility of appellant's prior convictions for the purpose of impeaching appellant's testimony. Appellant had three theft convictions occurring between 1992 and 1993 ⁽¹⁾ and an aggravated assault conviction in 1982. Appellant's counsel stated that he "believe[d] the theft convictions aren't permissible for impeachment at this time" and that he "d[id] not believe that the aggravated assault is an impeachable crime." The trial court disagreed with both statements and decided that "[i]f it's a felony, it can be used for impeachment." At that point, the trial court asked if there were objections. Appellant's counsel responded, "No."

The trial resumed with the State questioning appellant. Appellant's counsel objected to the State's questions regarding his prior theft convictions on grounds that "any prior convictions have to be within ten years." ⁽²⁾ The State supported the admissibility of the evidence on grounds of moral turpitude, and the trial court overruled appellant's objection. Without objection, the State then proceeded to ask appellant about his conviction for aggravated assault.

Based on the above, we conclude appellant preserved his objection to evidence regarding the theft convictions, but not as to the conviction for aggravated assault. See Tex. R. App. P. 33.1(a) (to preserve appellate review, an objection must be timely and state the grounds for the ruling "with sufficient specificity to make the trial court aware of the complaint, unless specific grounds were aware from the context"); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (providing that one of the two general policies for sufficiently specific objections is that a specific objection will provide the trial court the basis for the objection so that the trial court may rule on it).

A. Evidence of Theft Convictions

By his sole issue on appeal, appellant contends that the trial court erred by allowing the State to introduce evidence of appellant's remote prior convictions. At trial, appellant objected on grounds of remoteness--that the crimes occurred more than ten years before the trial. See Tex. R. Evid. 609(b). On appeal, appellant argues that the probative value of admitting the evidence does not substantially outweigh its prejudicial effect. The State contends appellant has waived error because his objection at trial does not comport with his argument on appeal. See Tex. R. App. P. 33.1(a). We disagree.

Rule 609(b) provides that when an objection to the remoteness of a prior conviction is raised, the trial court conducts a balancing test to determine whether the probative value of evidence of a conviction occurring more than ten years prior to trial substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). On appeal, when reviewing the issue of remoteness, "[we] may presume that the trial judge conducted the balancing test, which need not be shown in the record." Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.). Thus, while appellant's argument on appeal uses the more specific balancing language, we conclude it comports with his general remoteness objection and is properly before us on appeal.

B. Applicable Law and Standard of Review

In determining whether the probative value of the evidence substantially outweighed the prejudicial effect, see Tex. R. Evid. 609(a), (b), we must weigh the following factors: "(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue." Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (en banc); see Hankins v. State, 180 S.W.3d 177, 180-81 (Tex. App.-Austin 2006, pet. ref'd) (applying Theus factors to a rule 609(b) issue); Polk v. State, 865 S.W.2d 627, 630-31 (Tex. App.-Fort Worth 1993, pet. ref'd) (same). We presume that the trial court, in this case, conducted the balancing test. Bryant, 997 S.W.2d at 676.

"The determination of the admissibility of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Theus, 845 S.W.2d at 876. In fact, we must accord the trial court "wide discretion" in weighing the factors. Id. at 881.

C. Analysis

The theft convictions occurred in 1992 and 1993, but the record does not show any confinement. Thus, we must assume that the convictions (and confinements) occurred more than ten years before this trial. Rule 609(b) therefore applies.

Regarding the first Theus factor, "[t]he impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice." Theus, 845 S.W.2d at 881. Theft is a crime of deception and moral turpitude, and thus weighs in favor of the evidence being admitted. Bryant, 997 S.W.2d at 676. Therefore, appellant's past theft convictions weigh in favor of admissibility.

The temporal proximity of a crime "will favor admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law." Theus, 845 S.W.2d at 881 (citing United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (stating that Court has held that convictions have more probative value as they become more recent)). Appellant's theft convictions occurred approximately thirteen years before trial; therefore, they cannot be considered proximate. See Tex. R. Evid. 609(b). This factor weighs against admissibility of the evidence.

If the past crime and the charged crime are similar, then a jury might be more likely to "convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense." Theus, 845 S.W.2d at 881. In this case, appellant's prior theft convictions are not similar to his current charge of DWI. Theft is a crime of deception, see White v. State, 21 S.W.3d 642, 647 (Tex. App.-Waco 2000, pet. ref'd), while DWI is a crime of strict liability with no regard to appellant's mental state. See, e.g., Aguirre v. State, 22 S.W.3d 463, 476 (Tex. Crim. App. 1999); Ex parte Weise, 23 S.W.3d 449, 453 (Tex. App.-Houston [1st Dist.] 2000), rev'd on other grounds, 55 S.W.3d 617, 621 (Tex. Crim. App. 2001). The dissimilarity between the two types of crimes demonstrates a low prejudicial effect, and thus weighs in favor of admissibility of evidence of the theft convictions.

The last two factors are related and often analyzed together because "both depend on the nature of a defendant's defense and the means available to him of proving that defense." Theus, 845 S.W.2d, at 881. "When the case involves the testimony of only the defendant and the State's witnesses, . . . the importance of the defendant's credibility and testimony escalates. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility." Id. At trial, appellant served as the defense's only witness. Thus, these two factors weigh in favor of admissibility.

Because four of the five factors weigh in favor of admissibility, we find that determining the probative value to substantially outweigh the prejudicial effect lies within the "zone of reasonable disagreement." Id. The trial court did not abuse its discretion in admitting evidence of the theft convictions. Thus, we overrule appellant's sole issue.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

   NELDA V. RODRIGUEZ  

Justice  

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 23rd day of August, 2007.

1. We note that the State, on one occasion, referred to the convictions as occurring between 1991 and 1992. The one year difference, however, does not affect our analysis.

2. Appellant did not cite an evidentiary rule; however, it is assumed to be rule 609(b), the time limit subsection under impeachment by evidence of a conviction of a crime. Tex. R. Evid. 609(b).