Marvin Dale Adkins v. State ( 2007 )

Affirmed and Memorandum Opinion filed August 16, 2007

Affirmed and Memorandum Opinion filed August 16, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00402-CR

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MARVIN DALE ADKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd  District Court

 Harris County, Texas

Trial Court Cause No. 1042871

M E M O R A N D U M  O P I N I O N

A jury found appellant, Marvin Dale Adkins, guilty of sexual assault.  The trial judge found each enhancement paragraph true and sentenced him to sixty years= confinement.  In one issue, appellant contends the trial court erred by allowing the State to impeach him with prior convictions.  Our disposition is based on settled law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

On September 19, 2005, appellant sexually assaulted C.B. while she worked in her family=s grocery store.  At trial, C.B. testified that appellant entered the store, purchased a soft drink, and told C.B. that she was beautiful.  She responded that she was married and had a family, even though she was not married.  Appellant remained for a few more minutes while other customers were in the store and then left. 

Five to ten minutes later, appellant reentered the store after the other customers had left.  Appellant pushed C.B. to the ground, slid his right hand inside her shirt, squeezed her breast, and inserted two of his fingers from his left hand into her vagina.  Appellant began to unzip his pants, but he  stopped when he heard another customer enter the store.  Appellant attempted to leave through the front door.  However, C.B. locked the front door by pressing a button near the cash register.  Appellant ran out the back door.   

C.B. called her sister, who was working at a nearby store.  Her sister=s husband drove from the nearby store to the grocery store.  When he arrived, he observed an African-American man getting into a white car.  C.B. told her brother-in-law that she had been raped by the man getting into the white car.  C.B.=s brother-in-law followed the white car and wrote down the license plate number.  He returned to the store and gave the license plate number to the police.  The license plate was registered in appellant=s name. 

A few days later, Detective Moreno, a Houston Police Department detective, showed C.B. a photo spread.  C.B. positively identified appellant in the photo spread as the attacker.  Appellant was arrested. Detective Moreno spoke with appellant while he was in jail.  Appellant agreed to make a written statement about the incident.  In the statement, appellant admitted that he saw an Asian female working in the grocery store.  He thought she was dressed very provocatively. He assumed based on her manner of dress that Ashe wanted some sexual contact,@ so he touched her in an Ainappropriate@ manner.  She resisted his advances, and he realized that he had Amade a serious mistake.@  At trial, appellant testified to the same version of the incident.

A jury found appellant guilty of sexual assault, and the trial judge sentenced him to sixty years= confinement.

II.  Analysis

In his sole issue, appellant contends the trial judge erred by allowing the State to impeach him with prior convictions, several of which were more than ten-years old.  Specifically, appellant argues that the trial court abused its discretion in allowing the State to impeach with extraneous offenses because they were more prejudicial than probative under the Theus factors. See Theus v. State, 845 S.W.2d 874, 881B82 (Tex. Crim. App. 1992).

We review a trial court=s evidentiary ruling for an abuse of discretion.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  In reviewing a trial court=s decision to admit into evidence a prior conviction, we must accord the trial court Awide discretion.@  Theus, 845 S.W.2d at 881.  A ruling permitting use of a prior conviction to impeach will be reversed on appeal only upon a showing of a clear abuse of discretion. Id. As long as the trial court=s ruling is within the zone of reasonable disagreement, we may not disturb it.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).            

Under Texas Rule of Evidence 609, evidence that a witness has been convicted of a crime is admissible to attack the witness=s credibility if the crime was a felony or involved moral turpitude and the court determines that the probative value of the evidence outweighs its prejudicial effect.  See Tex. R. Evid. 609(a);  LaHood v. State, 171 S.W.3d 613, 620 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  However, evidence of a conviction is not admissible under the rule if more than ten years has elapsed since the date of the conviction, or the release from confinement if later, unless the probative value substantially outweighs the prejudicial effect.  See Tex. R. Evid. 609(b); LaHood, 171 S.W.3d at 620.  An appellate court may find that later convictions for felonies or misdemeanors that involve moral turpitude remove the taint of remoteness from prior convictions, which are more than ten-years old.  Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d).  In that circumstance, the rule 609(a) Aoutweigh@ standard is appropriate because Atacking@ of intervening convictions ameliorates the remoteness of ten years or other convictions.  Id.  

In determining whether the probative value of a prior conviction outweighs its prejudicial effect, courts consider the following factors adopted by the Court of Criminal Appeals in  Theus v. State:  (1) impeachment value of the prior crime, (2) temporal proximity of the past crime relative to the charged offense and the witness=s subsequent history, (3) similarity between the past crime and the offense being prosecuted, (4) importance of the defendant=s testimony, and (5) importance of the credibility issue.  845 S.W.2d at 880.  These factors cannot be applied with Amathematical precision@ because several of the factors relevant to assessing probative value cut in different directions.  Id.

Before trial, appellant filed a Motion to Permit Defendant to Testify Free of Impeachment with Prior Conviction.  The trial court denied appellant=s motion.  At trial, the State questioned appellant about the following convictions and appellant admitted to them:

$ Convicted in 1999 of possession of a controlled substance in the 180th District Court in Harris County;

$ Convicted in 1994 of possession of a controlled substance in the 176th District Court in Harris County and received prison sentence;

$ Convicted in 1989 of possession of a controlled substance in the 177th District Court in Harris County and received prison sentence;

$ Convicted in 1989 of delivery of a controlled substance in the 177th District Court and received prison sentence;

$ Convicted in 1991 of robbery in Wichita, Kansas, and received prison sentence;

$ Convicted in 1974 of manslaughter in Oklahoma City, Oklahoma and received  prison sentence. 

Appellant=s counsel objected to each of these questions on the basis of Aimproper impeachment,@ Arelevance,@ or both.  The trial court overruled his objections regarding these listed offenses. 

The State asked appellant about the following convictions, and he denied them: 

$ Convicted in 1973 of sexual assault of a child in Harris County;

$ Convicted in 1981 of grand larceny in Little Rock, Arkansas. 

The State asked appellant about the following convictions to which the trial court sustained appellant=s objections and denied his motions for new trial:

$ Convicted in 1977 of assault in Harris County in County Court 7; 

$ Convicted in 1958 of burglary of a motor vehicle in Oklahoma City, Oklahoma.

$ Convicted in 1974 of escape in Oklahoma City, Oklahoma.  

Therefore, we focus our Rule 609 analysis on whether the probative value of appellant=s prior convictions for possession and delivery of a controlled substance, robbery, and manslaughter outweighs its prejudicial effect. 

A.        Impeachment Value of Prior Crimes

We begin our analysis with the first Theus factorCimpeachment value of the prior crime.^[1] Appellant contends impeachment with prior convictions was unnecessary because his written statement provided Aexcellent fodder@ for the State.  However, appellant=s argument misconstrues the first Theus factor.  The first factor attributes greater impeachment value to prior convictions involving deception or moral turpitude than crimes involving violence because violent crimes are more likely to have a prejudicial effect. Theus, 845 S.W.2d at 881.

Relative to appellant=s drug-related convictions, possession of a controlled substance and delivery of a controlled substance, impeachment value is low because they are neither a crime of deception nor a crime of violence.  See Denman v. State, 193 S.W.3d 129, 136 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d) (declining the State=s invitation to find delivery of cocaine to be a crime of moral turpitude and finding that first Theus factor cut against admissibility); Hernandez, 976 S.W.2d at 762 (finding impeachment value for delivery of marijuana is low); White v. State, No. 14-93-00908-CR, 1995 WL 321599, at *3 (Tex. App.CHouston [14th Dist.] May 25, 1995, no writ) (not designated for publication) (finding impeachment value for possession of a controlled substance is low). 

Relative to appellant=s robbery conviction, while robbery is clearly dishonest and involves the threat or use of violence, it is not clear whether it necessarily includes the element of deception.  Simpson v. State, No. 14-04-01019-CR, 886 S.W.2d 449, 452 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). Therefore, the first factor favors neither admitting nor excluding the prior robbery conviction.  See Berry v. State, No. 14-04-01019-CR, 2006 WL 909482, at *3 (Tex. App.CHouston [14th Dist.] April 11, 2006, no pet.) (not designated for publication) (stating the first factor favors neither party because it was unclear whether robbery necessarily involves an element of deception).

Relative to appellant=s manslaughter conviction, we note that one of our sister courts has observed that manslaughter does not involve deception, but may involve violence. See Smith v. State, No. 01-05-01095-CR, No. 01-05-01096-CR, 2007 WL 79475, at *10 (Tex. App.CHouston [1st Dist.] Jan. 11, 2007, pet. ref=d) (not designated for publication) (finding first Theus factor may favor exclusion of manslaughter);  DeLeon v. State, 126 S.W.3d 210, 215 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d) (finding murder to be an act of violence rather than deception when applying first Theus factor).  For purposes of this case, we treat the conviction for manslaughter in the same neutral manner as a conviction for robbery because both may involve some level of violence and it is unlikely that either would involve deception. Therefore, the first Theus factor favors exclusion of the drug-related offenses, and it is neutral relative to the robbery and manslaughter convictions.

B.        Temporal Proximity and Subsequent History

We next consider the second factorC temporal proximity of the past crimes relative to the charged offense and the witness=s subsequent history.  This factor favors 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.  Appellant contends the second factor favors inadmissibility for the prior offenses because only the 1999 conviction for possession of a controlled substance occurred within ten years prior to this trial.  However, Texas courts have held that subsequent convictions for felonies or misdemeanors involving moral turpitude may remove the taint of remoteness from prior convictions.  See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989) (stating the A[e]vidence of the lack of reformation or subsequent felony and certain misdemeanor convictions may then cause the prior conviction to fall outside the general rule and not be subject to remoteness@ and that A[t]he question is one of discretion for the trial court@(emphasis in original)); see also Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d); Hernandez, 976 S.W.2d at 755.

Here, appellant=s 1999 felony conviction for possession of a controlled substance was not remote for purposes of Rule 609.  Although the five other convictions were more than ten years old, appellant=s intervening felony conviction in 1999 indicates he has not reformed his conduct and has shown a propensity for running afoul of the law.  See Theus, 845 S.W.2d at 881; Rodriguez, 129 S.W.3d at 560.  Thus, the second factor favors admission of appellant=s prior convictions. 

C.        Similarity

The third factor concerns the similarity between the past offenses and the offense being prosecuted.  Similarity between an offense and the current offense militates against admissibility, whereas dissimilarity between the prior offenses and the current offense favors admissibility.  Theus, 845 S.W.2d at 881.  Appellant contends the third factor militates against admissibility of  Aappellant=s prior sexual assault and assault convictions@ due to similarity with the prosecuted offense.  However, the record reflects that appellant denied that he had been convicted of sexual assault. Furthermore, the State offered no other evidence during the guilt-innocense phase to support impeachment based on the prior conviction for sexual assault. Consequently, appellant was not impeached.  Furthermore, the trial court sustained appellant=s counsel=s objection to the State=s question regarding a prior conviction for Aassault@ and instructed the jury to disregard the question about Aassault.@  Therefore, the Aassault@ conviction was not admitted.  See Theus, 845 S.W.2d at 881 (explaining that under the third factor prejudice arises when admission of the prior conviction would likely lead the jury to convict on the perception of a past pattern of similar conduct rather than the facts of the charged offense).    

This case involves sexual assault, which is not similar to any of appellant=s prior convictions.  Appellant admitted prior convictions for possession of a controlled substance, delivery of a controlled substance, robbery, and manslaughter.  Thus, the third factor favors admission because there is a lessened possibility of prejudice.  See Theus, 845 S.W.2d at 881.

D.        Importance of Defendant=s Testimony and Credibility

The fourth and fifth factors are related because they both concern the importance of appellant=s testimony and credibility.  See Theus, 845 S.W.2d at 881.  The fourth factor focuses on the importance of the defendant=s testimony, and the fifth factor focuses on the importance of the credibility issue.  Id. at 880.  When the evidence presented in a case involves only the defendant=s testimony versus the testimony of the State=s witnesses, the importance of the defendant=s testimony and credibility escalates.  Id. at 881.  As the importance of the defendant=s credibility escalates, the need to allow the State an opportunity to impeach the defendant=s credibility also escalates.  Id.

Here, appellant was the only witness during his case-in-chief.  His testimony focused on his recollection of the encounter with C.B. in the grocery store.  As often happens in sexual assault cases, there were no eyewitnesses other than the parties involved.  LaHood, 171 S.W.3d at 621.  Therefore, appellant=s testimony and the credibility issue were crucial elements at trial.  See id.  Thus, the fourth and fifth factors favor admission.  

After considering appellant=s argument and the appellate record in light of the Theus factors, the first factor favors exclusion of the drug-related offenses.  However, the first factor is neutral relative to the manslaughter and robbery convictions.  The remaining four factors favor admission of the prior convictions.  Affording the trial court wide discretion mandated by Theus, we hold the trial court properly permitted the State to impeach appellant with his prior convictions for possession and delivery of a controlled substance, robbery, and manslaughter.

Accordingly, we overrule appellant=s sole issue and affirm the judgment of the trial court. 

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2007.

Panel consists of Justices Anderson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note that appellant does not address each conviction separately.  Instead, he only generally argues that the trial court erred by admitting Aprior convictions.@