Spears, Darrell Eugene v. State ( 2003 )

Affirmed and Memorandum Opinion filed April 24, 2003

Affirmed and Memorandum Opinion filed April 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00412-CR

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DARRELL EUGENE SPEARS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 876,900

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of possession of a controlled substance, and the trial court sentenced appellant to twenty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant complains that (1) the trial court erred by allowing the jury to separate once the jury charge had been read, and (2) the trial court erred by allowing the State to impeach a witness with convictions more than ten years old.  We affirm.

FACTUAL BACKGROUND

Two police officers were conducting a narcotics investigation at an apartment complex when they noticed appellant darting between cars apparently to avoid being detected.  The officers quickly approached appellant and asked whether he lived at the complex.  Appellant then dropped a “white chunk” out of his hand.  It appeared to the officers appellant was going to flee, so they arrested him.  The officers then retrieved the item appellant dropped and conducted a field test on it.  The substance tested positive for crack cocaine.

DISCUSSION

Appellant raises two issues on appeal.  In his first issue, appellant contends the trial court erred by allowing the jury to separate after they began deliberations.  Second, appellant complains the trial court erred by allowing the State to impeach a witness with convictions more than ten years old.

I.          Jury Separation

First, appellant contends the trial court erred by allowing the jury to separate after the trial court read the charge.  However, as we explain below, because appellant did not object at the earliest possible opportunity, he waived any complaint.

Texas law no longer forbids the separation of jurors after the trial court reads the jury charge.  Tex. Code Crim. Proc. Ann. art. 35.23 (Vernon 1989 & Supp. 2003); Sanchez v. State, 906 S.W.2d 176, 177 (Tex. App.CFort Worth 1995, writs dism=d & ref’d).  Texas now allows separation “unless the court or a party makes a motion to sequester the jury or a party timely objects to a request to separate.”  Sanchez, 906 S.W.2d at 177 (emphasis given).  Appellant did not file a motion to sequester, so his only alternative was a timely objection.  A timely objection to jury separation is an objection at the “earliest possible opportunity.”  Id.; Keiser v. State, 880 S.W.2d 222, 223B24 (Tex. App.CAustin 1994, pet. ref=d) (holding that because appellant waited to object to separation until after the jury reached a verdict, appellant did not preserve error).  If the defendant objects at the earliest possible opportunity, the trial court must honor the defendant=s request.  See Tex. Code Crim. Proc. Ann. art. 35.23.^[1]

Here, the trial court read the jury charge and the jury began deliberating on March 26, 2002. The trial court dismissed the jury that night and instructed them to return the next day.  It was not until the end of the day on March 27, 2002 that appellant objected to the separation of the jurors and moved for a mistrial. The trial court held that because appellant allowed the jury to separate previously without objection, he waived any error.  We agree. The earliest possible opportunity for appellant to object to the separation of the jury was March 26, 2002, before the judge allowed the jury to disperse for the first time.  Appellant did not object, and therefore he waived any future objections to separation.

II.        Impeachment of Witness

Second, appellant complains the trial court erred when it allowed the State to impeach a witness with prior convictions more than ten years old.  We find that the Theus probative versus prejudicial test was met and therefore that the trial court did not abuse its discretion.

The decision to admit remote convictions lies within the trial court=s discretion. Tex. R. Evid. 609.  Absent an abuse of discretion, we do not reverse the trial court's ruling.  Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.CFort Worth 2001, pet. ref’d).  “In reviewing the trial court’s conduct in weighing these factors and decision in admitting into evidence a prior conviction, we must accord the trial court ‘wide discretion.’”  Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).  When a trial court=s decision to admit prior convictions lies outside the “zone of reasonable disagreement,” a reversal is required.  Id.

Before the Texas rules were in place, cases generally barred evidence of convictions older than ten years to impeach a witness.  See Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.CHouston [1st Dist.]) 1998, pet. ref=d). However, those cases recognized an exception that if the evidence showed a lack of reformation, including evidence of a subsequent felony or misdemeanor involving moral turpitude, the prior convictions could be admitted in evidence.  See Lucas, 791 S.W.2d at 51; McClendon v. State, 509 S.W.2d 851, 855 (Tex. Crim. App. 1974); Crisp v. State, 470 S.W.2d 58, 59 (Tex. Crim. App. 1971). Evidence of the witness’s lack of reformation reduced prejudice from the remote conviction. See Oates v. State, 67 Tex. Crim. 488, 149 S.W. 1194, 1195B97 (1912).  The Rules of Evidence codified the general rule and limited impeachment to convictions within the past ten years “unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”  Tex. R. Evid. 609(b).

Here, Lorisa Lindsay testified for the defense that she did not witness appellant drop anything on the ground. The State then attempted to impeach Lindsay’s credibility with all of her past convictions.  One conviction, a felony theft in 1996, fell within the ten-year time limit under Rule 609.  Tex. R. Evid. 609(b).  However, the four other convictions were more than ten years old.^[2]  The trial court commented that the previous four crimes showed Lindsey had “a lack of reformation.”  The decision to admit the previous crimes was within the trial court’s discretion.

The trial court found that the probative value of the prior convictions outweighed any prejudice.  See, e.g., Hernandez, 976 S.W.2d at 756. In Theus, the Court of Criminal Appeals set out a five-part test to weigh the probative value of the conviction versus its prejudicial effect.  Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992).  The trial court should look to (1) the impeachment value of the prior crime, (2) the temporal proximity of the prior crime, (3) the similarity between the charged crime and the past crimes, (4) the importance of the witness’s testimony, and (5) the importance of the witness’s credibility. Id.  at 880.  Below we use the five Theus factors to determine whether the probative value of Lindsey=s four other convictions outweighed their prejudicial effect.  Id.

First, the impeachment value of crimes involving deception is higher than crimes involving violence.  Theus, 845 S.W.2d at 881.  Two of Lindsey’s prior convictions involved crimes of deception, namely theft.  Her other two convictions involved possession of a controlled substance, which neither favor nor disfavor admission.  Therefore, the first factor weighs toward admitting Lindsey’s two prior convictions of theft, and the first factor is neutral toward admitting Lindsey’s prior convictions of possession.

The second factor favors admission of past crimes that are recent or demonstrate that the witness has a propensity for running afoul of the law.  Id.  Even though these four crimes are not recentCall are outside the ten-year windowCthey do show Lindsey’s absence of rehabilitation, a fact the trial court itself noted.  Therefore, this second factor slightly favors admitting the four previous crimes in evidence.

Third, if the past crime and the charged crime are similar, the trial court should not admit the past crime.  See id. Because Lindsey was a fact witness, as opposed to the defendant, this factor does not apply.

Finally, the last two factors are related because both depend on the nature of the defense available to appellant.  See id.  If appellant’s credibility is an important factor to his defense, then impeaching his credibility, or the credibility of his witnesses, is also important. See id.; see also Simpson v. State, 886 S.W.2d 449, 452B53 (Tex. App.CHouston [1st Dist.] 1994, pet. ref’d) (“When a case involves the testimony of only the defendant and the State’s witnesses, the importance of the defendant’s credibility and testimony escalates; so does the State’s need for an opportunity to impeach the defendant’s credibility.”).  Here, only two police officers, appellant, and Lindsey testified. Both officers testified appellant dropped the cocaine, while appellant and Lindsey testified he did not.  Each witness=s credibility was critical to the outcome of the case. When this occurs, courts favor admitting impeaching evidence.  See Theus, 845 S.W.2d at 881; Woodall v. State, 77 S.W.3d 388, 396 (Tex. App.CFort Worth 2002, pet. ref=d). Because all the relevant Theus factors lean toward admitting the prior convictions, we do not find the trial court abused its discretion when it allowed the State to impeach Lindsey.  We overrule appellant=s last issue.

In conclusion, we overrule both of appellant’s issues, and we affirm the judgment of the trial court.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 24, 2003

Panel consists of Chief Justice Brister, Justices Fowler and Murphy.^[3]

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

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^[1]  The statute provides, in part, the following:

The court may adjourn veniremen to any day of the term.  When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury.  The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged.

Tex. Code Crim. Proc. Ann. art. 35.23 (emphasis added).

^[2]  Lindsay was convicted of one count of misdemeanor theft in 1986 and one count of misdemeanor theft in 1989.  She was convicted of two counts of possession of a controlled substance in 1985.

^[3]  Senior Chief Justice Paul C. Murphy participating by assignment.