Steve Vic Parker v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00381-CR
STEVE VIC PARKER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2010-447-C1
MEMORANDUM OPINION
Steve Vic Parker was convicted of two counts of Theft less than $1,500. TEX.
PENAL CODE ANN. § 31.03 (West 2011). The thefts involved stealing alcohol from a
liquor store on two separate occasions. The jury found two enhancement paragraphs
true, and Parker was sentenced to seven years in prison for each count. We modify the
trial court’s judgments, and affirm them as modified.
ATTORNEY’S FEES
In his first issue, Parker contends the evidence is insufficient to prove he has the
financial means to pay his court-appointed attorney’s fees. The State agrees with, and
the record supports, Parker’s contention. Accordingly, we hold that the evidence is
insufficient to support the trial court's assessment of attorney’s fees. See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2011); Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010); Watkins v. State, 333 S.W.3d 771, 782 (Tex. App.—Waco 2010,
pet. ref’d). Parker’s first issue is sustained.
IMPEACHMENT
In his second issue, Parker asserts that the trial court abused its discretion by
permitting the State to impeach Parker with nine prior convictions. One of the
convictions was in 2003 for a misdemeanor theft; the other eight were felony
convictions more than 10 years old. The trial court conducted a Rule 609 balancing test
and overruled Parker’s objection to the admission of the nine prior convictions for
impeachment purposes.
Rule 609
Rule 609 of the Texas Rules of Evidence governs the use of a prior conviction for
impeachment and provides a balancing test through which the trial court must
determine whether the probative value of admitting a prior conviction outweighs its
prejudicial effect to a party. TEX. R. EVID. 609(a). When convictions are older than 10
years, the probative value of the prior conviction must substantially outweigh its
prejudicial effect. Id. (b). However, the “substantially outweighs” test does not apply
to a prior conviction over 10 years old if a lack of reformation is shown by evidence that
the witness has an intervening conviction for a felony or a misdemeanor involving
moral turpitude. LaHood v. State, 171 S.W.3d 613, 620 (Tex. App.—Houston [14th Dist.]
Parker v. State Page 2
2005, pet. ref’d). See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989), vacated on
other grounds, 509 U.S. 918, 113 S. Ct. 3029, 125 L. Ed. 2d 717 (1993). When there is
evidence of lack of reformation, the test under Rule 609(a) applies. Id. A trial court's
decision regarding the admissibility of evidence is reviewed under an abuse of
discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).
Balancing Test
The appropriate test to be used in this case is the test pursuant to Rule 609(a), not
the “substantially outweighs” test of Rule 609(b), because Parker’s 2003 theft conviction
was an intervening conviction of a crime of moral turpitude. See Poore v. State, 524
S.W.2d 294, 296 (Tex. Crim. App. 1975). To determine whether the probative value of a
prior conviction for impeachment purposes outweighs its prejudicial effect, a court
must consider 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’s 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).
Impeachment Value, Temporal Proximity; Similarity
The impeachment value of crimes that involve deception is higher than crimes
that involve violence, and the latter have a higher potential for prejudice. Id. at 881.
Parker’s five prior convictions for unauthorized use of a motor vehicle, two prior theft
convictions, and one prior burglary of a motor vehicle conviction all have strong
Parker v. State Page 3
impeachment value because they are crimes that involve deception. See Davis v. State,
259 S.W.3d 778, 782 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (theft); Baca v. State,
223 S.W.3d 478, 484 (Tex. App.—Amarillo 2006, no pet.) (unauthorized use); LaHood v.
State, 171 S.W.3d 613, 620 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (burglary).
Arguably, Parker’s prior conviction for escape relates more to deception than not and
would still have some impeachment value although we have not found any cases that
discuss escape in the context of Rule 609.
Temporal proximity of a past crime to the charged offense 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. Although only one of Parker’s prior
convictions is relatively recent, the number of prior convictions demonstrates Parker’s
propensity for lawlessness.
If, however, the past crime and the charged crime are similar, the similarity will
militate against admission. Id. Most of Parker’s prior convictions admitted were
similar to the theft offenses charged because those prior convictions involved the
unlawful taking of another person’s property.
Importance of Defendant’s Testimony and Credibility
These last two factors are related 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;
and as the importance of the defendant's credibility escalates, so will the need to allow
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the State an opportunity to impeach the defendant's credibility. Id. Parker was the only
witness in his defense. He repeatedly denied being in the liquor store on two different
dates and stealing alcohol. He denied being the person shown on the store video
stealing the alcohol. He also denied confessing to the offenses when arrested. Because
of Parker’s testimony, the State needed the opportunity to impeach Parker’s credibility.
Conclusion
Weighing all the factors, we hold that the trial court did not abuse its discretion
in permitting the State to impeach Parker with nine prior convictions. Parker’s second
issue is overruled.
CUMULATIVE SENTENCES
The decision to run multiple sentences concurrently or cumulatively is at the
discretion of the trial court. See TEX. CODE CRIM. PROC. ANN. art. 42.08 (West Supp.
2011). The judgment, however, must reflect the terms of any order for cumulative or
concurrent sentences. Id. art. 42.01, § 1(19) (West Supp. 2011).
In each judgment of conviction for Parker, the trial court included a cumulation
order which provided, “This sentence shall run consecutively to Cause No. 39,082 in the
264th District Court of Bell County, Texas.” In his third issue, Parker contends that
these orders are not sufficiently specific because he has multiple convictions in the
264th District Court of Bell County and a conviction in the 27th District Court of Bell
County.
The Court of Criminal Appeals has set out five recommended elements of a
cumulation order: (1) the trial court number of the prior conviction; (2) the correct
Parker v. State Page 5
name of the court where the prior conviction was taken; (3) the date of the prior
conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior
conviction. Williams v. State, 675 S.W.2d 754, 763-764 (Tex. Crim. App. 1984) (op. on
reh’g). Inclusion of all the elements is not mandatory. Id. 764.
In this appeal, two of the five elements were included in the trial court’s
cumulation orders, the trial court number of the prior conviction and the correct name
of the court where the prior conviction was taken. Cumulation orders containing only
these two elements have been found to be sufficient. Stokes v. State, 688 S.W.2d 539, 541
(Tex. Crim. App. 1985); Ex parte Pruitt, 385 S.W.2d 384, 385 (Tex. Crim. App. 1964). We
likewise find the cumulation orders in Parker’s convictions to be sufficient. His third
issue is overruled.
PARKER’S PRO SE REQUESTS
Since September of this year, Parker has sent this Court requests to represent
himself on appeal and file his own brief. Parker has a court-appointed attorney. By
letter dated September 29, 2011 we notified counsel that Parker’s motions were received
on September 14, 2011 and informed counsel and Parker:
Although there is no constitutional right to self-representation in an
appellate proceeding, this Court has recognized that a criminal appellant
has a statutory right of self-representation on appeal. See Martinez v. Court
of Appeal of California, 528 U.S. 152, 163, 120 S. Ct. 684, 692, 145 L. Ed. 2d
597 (2000); Fewins v. State, 170 S.W.3d 293, 296 (Tex. App.—Waco 2005,
order) (per curiam). However, the right of self-representation “cannot be
manipulated so as to obstruct the orderly procedure in the courts or to
interfere with the fair administration of justice.” Webb v. State, 533 S.W.2d
780, 784 (Tex. Crim. App. 1976); accord Marion v. State, 936 S.W.2d 5, 6
(Tex. App.—El Paso 1996, order) (per curiam). Thus, an accused may not
wait until the day of trial to seek a change of representation. Webb, 533
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S.W.2d at 784; Long v. State, 137 S.W.3d 726, 735 (Tex. App.—Waco 2004,
pet. ref’d). In the same manner, an appellant may not wait until late in the
appellate process to assert his right of self-representation. See Hubbard v.
State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987). Further, a criminal
appellant has no right to hybrid representation. Ex parte Taylor, 36 S.W.3d
883, 887 (Tex. Crim. App. 2001); Meyer v. State, 27 S.W.3d 644, 648 (Tex.
App.—Waco 2000, pet. ref'd).
An Anders brief was initially filed in this appeal by appointed counsel, and
Parker filed his own pro se brief or other response. The Court reviewed
the record, found a potential issue, and ordered new counsel to be
appointed. New counsel has been appointed, and a new brief has been
filed.
This appeal has been delayed enough. As evident by his request for an
extension of time to file a brief, Parker’s request to represent himself will
delay this appeal even more. Accordingly, Parker’s “Motion Requesting
Permission from the Honorable Court to Self-Represent and File his own
Appeal Brief, and an Extention of Time to File Brief” will not be filed or
acted upon. See Ex parte Bohannan, No. AP-76,363, 2011 Tex. Crim. App.
LEXIS 618, *2 n.1 (Tex. Crim. App. May 11, 2011) (“Because applicant is
represented by counsel, we disregard his numerous pro se submissions
and take no action on them.”).
Not dissuaded, Parker sent this Court more motions, including another request
to represent himself, which we received on October 11, 2011 and October 13, 2011,
respectively. We notified Parker’s counsel again that we would not file or act upon the
motions for the same reasons as stated in our September 29, 2011 letter.
Parker has now sent this Court a “third” motion to represent himself and file his
own appellate brief which we received on November 9, 2011. For the same reasons as
expressed in our letter of September 29, 2011, we will not file or act upon this motion.
CONCLUSION
Having found the evidence to be insufficient to support the trial court’s
assessment of attorney’s fees, we modify the trial court's judgments to delete the order
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for payment of attorney's fees and order Parker to pay only the costs of court in the
amount of $354.00. See Mayer, 309 S.W.3d at 557. Having overruled the remainder of
Parker’s issues on appeal, we affirm the trial court’s judgments, as modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 7, 2011
Do not publish
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