Sabino Alarado Duarte v. State ( 2012 )

Opinion issued January 26, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00885-CR

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Sabino Alarado Duarte, Appellant

V.

The State of Texas, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1237019

MEMORANDUM OPINION

          A jury convicted appellant, Sabino Alarado Duarte, of the felony offense of possession with the intent to deliver between 200 and 400 grams of a controlled substance, cocaine, and assessed punishment at twelve years’ confinement and a $7,000 fine.[1]  In one issue, appellant contends that the trial court erred in refusing to allow defense counsel to impeach a State witness with a remote prior conviction for misdemeanor forgery.

          We affirm.

Background

          On October 13, 2009, Houston Police Department (“HPD”) Narcotics Division Officer M. Valles worked with Rene Garcia, a confidential informant, in an attempt to purchase a half kilogram of cocaine.  Garcia had previously negotiated the potential transaction with Jonathan Luna, his neighbor and appellant’s co-defendant.  Officer Valles met Garcia at his house and waited for Luna to arrive.  After Luna arrived, Officer Valles and Garcia asked him whether he could obtain a half kilogram of cocaine, and he replied, “Yes.  I just got to make a call.”  After Luna confirmed that he could obtain the requested amount of cocaine, Officer Valles told him that they would have to go somewhere else to see the money for the purchase.  Officer Valles drove Garcia and Luna to a nearby Fiesta parking lot and summoned another undercover officer who provided the funds for Luna to inspect.  After Luna counted the money, he made a phone call to an unknown person and stated, “Hey, the money, it’s all here.  It is good.  They are asking for half a kilo.”

          Officer Valles then drove Garcia and Luna to a Valero station off of Loop 610 and parked directly in front of the entrance to the convenience store.  After waiting for a few minutes, both Officer Valles and Garcia got out of the car.  They then saw another car, driven by appellant, pull into the gas station.  Officer Valles was standing outside the entrance to the gas station when appellant arrived, and he walked inside as appellant parked next to his vehicle.  Officer Valles stood inside the store by a window, which allowed him to view the entire parking lot of the gas station.  He testified that he had a “good view” of his car and appellant’s car.

          After appellant parked, Luna climbed into the front passenger seat of appellant’s car.  From inside the store, Officer Valles observed appellant pull the radio out from the center console of his car.  Appellant reached into the dashboard, pulled out a light-colored bag, and handed it to Luna, who looked inside the bag.  Luna then called Garcia over to appellant’s car, and Garcia looked into the bag.  Garcia gave Officer Valles the “bust signal,” and Valles notified the backup units.  After Officer Valles notified the other officers, he saw Luna hand the light-colored bag back to appellant, who put the bag back inside the dashboard and replaced the radio.  Once appellant and Luna were in custody, Garcia told Valles, “It’s behind the radio.”

          Two other officers, Officer M. Sinegal and Officer B. Davis, searched appellant’s car, removed the radio, and discovered the light-colored bag, which held a plastic bag containing what appeared to be cocaine.  Officer Valles testified that Officer Sinegal handed him the light-colored bag, and he opened the bag and observed the substance, which later field-tested positive as cocaine.[2]  He identified one of the State’s exhibits, a light-colored bag, as the same bag that he observed Luna handling before the raid and that Officer Sinegal handed to him after the search of appellant’s car.

          Officer Sinegal testified that he arrived at the Valero station as other officers were removing appellant and Luna from appellant’s vehicle.  His duty at the scene was to locate the narcotics in appellant’s vehicle. Officer Valles informed him that the drugs were possibly located behind the radio.  Officer Sinegal testified that, after he and Officer Davis removed the radio in appellant’s car, they discovered a flap in the dashboard.  They opened the flap and found a “beige to gold colored bag” inside.  Officer Sinegal removed the bag, opened it, and “observed a white chunk substance that appeared to be cocaine.”  He then handed the bag over to Officer Valles.

          Garcia testified that he has been a confidential information for HPD and other law enforcement agencies for over eight years.  Several days before October 13, 2009, the date the officers arrested appellant and Luna, Garcia approached Luna, whom he knew from around his neighborhood, and told him that he had a friend who was interested in purchasing a half kilogram of cocaine.  Luna responded that he had a friend who could obtain the drugs and told Garcia that he would contact his friend and let Garcia know about a price.  Garcia testified that Luna spoke to an unidentified person on the phone and then informed Garcia that a half kilo would cost $14,000 and that the transaction would occur at Garcia’s house the next day, October 12, 2009.  Garcia stated that Luna, appellant, and two women arrived at his house on the evening of October 12 with the requested cocaine.  That day, Garcia was working with officers other than Officer Valles, and no transaction actually occurred on October 12.  Garcia testified that the cocaine was contained in a light brown bag and that, before Luna and appellant left his house, he saw them “maneuvering” with the bag around the dashboard of appellant’s car. Garcia spoke with Luna later that evening, and Luna told him that the police had stopped appellant’s vehicle but failed to find any contraband.  The next day, on October 13, Garcia saw Luna and they agreed to conduct the transaction later that afternoon.

          Garcia testified that, when Luna arrived at his house, Luna spoke with Officer Valles about the transaction and they agreed to meet at another location so Luna could count the money. Garcia testified similarly to Officer Valles regarding the events that occurred at the Fiesta parking lot.  After Luna counted the money, Garcia heard him make a call to an unidentified person and ask where to meet.

          When they arrived at the Valero station, all three men got out of Officer Valles’s car to wait. Garcia testified that, after appellant arrived, Luna climbed into the front passenger seat and Garcia stood next to the front passenger window of appellant’s car.  He stated that he asked appellant if “he had brought the material,” and, after appellant responded that he had, appellant began removing the radio. Appellant then reached into the dashboard and pulled out a brown cloth bag.  Appellant opened the bag, and Garcia observed cocaine inside the bag.  Garcia asked appellant to put the bag back in the dashboard “because [Garcia] wanted to see exactly how [appellant] had [removed it from the dashboard].”  Garcia then gave Officer Valles the pre-arranged bust signal.  After the officers arrived, Garcia informed them of where the drugs were located in appellant’s car.

After a recess during his cross-examination of Garcia, defense counsel asked the trial court to allow him to impeach Garcia using a 1999 conviction for misdemeanor forgery, a crime of moral turpitude.  Defense counsel acknowledged that Garcia was released from confinement for the conviction more than ten years before appellant’s trial, but he argued that the conviction was admissible “because it is so crucial to [Garcia’s] credibility in this case.”

The trial court responded:

If [Garcia] has gone 10 years without a conviction, I don’t find [the forgery conviction] relevant.  That’s not very probative.  So, I find that the prejudicial value to the State outweighs the probative value.

The trial court refused to allow defense counsel to question Garcia about his prior forgery conviction.

          Appellant called only one witness on his behalf: Alberto Gonzales, a childhood friend. Gonzales testified that he was with appellant and Luna on the night of October 12, 2009.  According to Gonzales, he, appellant, Luna, one of Luna’s male friends, and an unidentified woman all drove to Garcia’s house to drink a few beers.[3]  Gonzales testified that he did not see appellant in possession of any cocaine on this evening and that they did not converse about drugs while at Garcia’s house. Gonzales did not testify regarding any events that occurred on October 13, 2009, the day appellant and Luna were arrested at the Valero station.

          The jury found appellant guilty of possessing, with the intent to deliver, between 200 and 400 grams of a controlled substance and assessed punishment at twelve years’ confinement and a $7,000 fine. This appeal followed.

Standard of Review

          We review a trial court’s decision to exclude evidence for an abuse of discretion.  Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).  A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.”  Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court does not abuse its discretion if any evidence supports its decision.  See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). If the trial court’s decision is correct on any theory of law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

Admissibility of Remote Prior Conviction

          In his sole issue on appeal, appellant contends that the trial court erred in refusing to allow defense counsel to impeach the credibility of Rene Garcia with his 1999 conviction for misdemeanor forgery because, although Garcia’s conviction was remote, the probative value of this conviction substantially outweighed its prejudicial effect because of the importance of Garcia’s testimony.

          Texas Rule of Evidence 609(a) provides that evidence of a witness’s prior conviction shall be admitted for impeachment purposes if the crime was a felony or a crime of moral turpitude and the court determines that the probative value of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a); Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).  This evidence is not admissible, however, if more than ten years have passed from the date of conviction or the date of the witness’s release from confinement, whichever is later, unless the court determines, in the interest 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) (emphasis added); Morris, 67 S.W.3d at 263; Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).  A proponent of impeachment evidence pursuant to Rule 609 “has the burden of demonstrating that the probative value of a conviction outweighs its prejudicial effect.” Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).

          Remote convictions are generally inadmissible because we presume that a witness is capable of rehabilitation and that his character has reformed over a period of law-abiding conduct.  Morris, 67 S.W.3d at 263.  We may find, however, that, although a prior conviction is more than ten years old, later convictions for felonies or misdemeanors involving moral turpitude remove the taint of remoteness from the prior conviction.  Id. (citing Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)).  In that situation, we apply the Rule 609(a) “outweigh” standard—instead of Rule 609(b)’s “substantially outweigh” standard—because “the ‘tacking’ of the intervening convictions renders convictions more than 10 years old no longer remote.” Id.  “[I]ntervening convictions for felonies or crimes of moral turpitude demonstrate a lack of reformation, attenuating the possible prejudice interposed by a distant conviction.”  Id.

          Here, the record contains no indication that Garcia has any convictions other than his 1999 conviction for misdemeanor forgery, and both parties agreed that Garcia was released from confinement for this offense more than ten years before appellant’s trial.  Thus, because Garcia does not have any “intervening” convictions for felonies or misdemeanors involving moral turpitude, we determine whether the trial court abused its discretion in excluding the evidence of his 1999 misdemeanor forgery conviction under Rule 609(b)’s “substantially outweighs” standard.  See Jackson, 11 S.W.3d at 339 (“Under rule 609(b), if the prior conviction was more than 10 years before trial, the probative value of the prior conviction must substantially outweigh the prejudicial effect and not simply outweigh the prejudicial effect, as under rule 609(a).”).

          In Theus, the Court of Criminal Appeals set forth a non-exclusive list of factors to use when weighing the probative value of a conviction against its prejudicial effect:  (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 criminal history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the witness’s testimony, and (5) the importance of the witness’s credibility.  845 S.W.2d at 880.

          Past crimes that involve deception have greater impeachment value than past crimes involving violence, which have a higher potential for prejudice.  Id. at 881; Morris, 67 S.W.3d at 264.  Thus, when a party “seeks to impeach a witness with evidence of a crime that relates more to deception than not, the first factor weighs in favor of admission.”  Theus, 845 S.W.2d at 881; see also Urtado v. State, 333 S.W.3d 418, 428 (Tex. App.—Austin 2011, pet. ref’d) (“In identifying non-violent crimes that constitute moral turpitude, courts have typically focused on whether the crime involved deception, as past deceptive conduct is relevant to a witness’s credibility.”).  Forgery is a crime of deception and not of violence.  Woodall v. State, 77 S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d); see also Solis v. State, 611 S.W.2d 433, 434 (Tex. Crim. App. 1981) (holding that necessary element of forgery is that defendant have “intent to defraud or harm another”).  Here, Garcia was previously convicted of misdemeanor forgery, a crime involving deception.  Thus, this factor weighs in favor of admitting evidence of the prior conviction. See Woodall, 77 S.W.3d at 395.

          The second Theus factor, temporal proximity, favors admissibility “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.  Here, Garcia was convicted of misdemeanor forgery in 1999, more than ten years before appellant’s trial.  The record contains no indication that Garcia had any “intervening” convictions after his forgery conviction.  Thus, because the past crime was not recent and Garcia has not “demonstrated a propensity for running afoul of the law,” this factor weighs against admission of the prior conviction.  See Woodall, 77 S.W.3d at 395 (noting that two parts of this Theus factor “have been set forth in the conjunctive, rather than the disjunctive,” and, thus, because witness had several prior convictions, demonstrating a “propensity for running afoul of the law,” but conviction at issue was not recent, this factor weighed against admission).

          The third Theus factor weighs against admissibility if the past crime and the charged offense are similar because the similarity “presents a situation where the jury would 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.  When, as here, the witness sought to be impeached is not the defendant, we modify this factor to examine the similarity between the past crime and any conduct of the witness at issue in the present trial. Moore v. State, 143 S.W.3d 305, 313 (Tex. App.—Waco 2004, pet. ref’d).  Here, Garcia’s past crime involved forgery, while, in the present case, he acted as a “middle man” by arranging the drug transaction at issue with Luna, and he was an eyewitness to appellant’s possession of the drugs during the attempted transaction.  Because there is little similarity between Garcia’s past crime and his conduct here, admission of the prior forgery conviction carries little danger of unfair prejudice on this basis.  This factor, therefore, weighs in favor of admission of the prior conviction.  See id. (“The third factor focuses on the potential for unfair prejudice due to similarity of past conduct with the conduct at issue in the present litigation. The absence of similarities between Hauerland’s theft convictions and his conduct on the occasion in question indicates no significant danger of unfair prejudice on this basis.”).

          The final two Theus factors, the importance of the witness’s testimony and the importance of the witness’s credibility, 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.  As the importance of the witness’s testimony increases, so does the need to allow the opposing party to impeach the witness’s credibility. Id.  A witness’s credibility is less important where other evidence or testimony corroborates the witness’s testimony.  Woodall, 77 S.W.3d at 396 (citing Theus, 845 S.W.2d at 881); Moore, 143 S.W.3d at 313 (“Hauerland’s testimony was important to the State’s case but not essential because other witnesses corroborated much of his testimony.  For the same reason, Hauerland’s credibility was important but not a critical issue at trial due to the presence of other witnesses who provided similar testimony.”).  “[W]here the case boils down to a ‘he said, she said’ situation between two witnesses, with little evidence to tip the scale in either party’s favor, each witness’ credibility becomes critical to the outcome of the case.” Woodall, 77 S.W.3d at 396.  In these situations, courts favor the admission of the impeaching evidence.  Id.

          Here, Garcia was not the only State’s witness who testified regarding the attempted drug transaction on October 13, 2009. Officer Valles also testified, and his testimony corroborated Garcia’s account of events.  Both men testified that they met Luna at Garcia’s house, drove to a Fiesta parking lot to allow Luna to count the money, and drove to a Valero station to wait for appellant to arrive with the cocaine.  Officer Valles and Garcia also both testified that, as they waited for appellant, all three men got out of Valles’s car and Valles was standing near the doors to the convenience store when appellant arrived.  They both testified that, after appellant parked next to Valles’s car, Luna climbed into the front passenger seat of appellant’s car, and appellant removed the car’s radio, reached into the dashboard, and pulled out a light brown bag.  Officer Valles testified that he saw appellant and Luna show the contents of the bag to Garcia, and Garcia testified that the bag contained cocaine.  Officer Valles and Garcia both testified that Garcia gave the bust signal, appellant placed the bag containing the cocaine back inside the dashboard and replaced the radio, and, after appellant and Luna were in custody, Garcia told the raid-team officers that the drugs were behind the radio. Both Officer Valles and Officer Sinegal, who searched appellant’s car, confirmed that a cloth bag containing cocaine was located behind the radio in appellant’s car.[4]

          Because Garcia’s testimony regarding the transaction was corroborated by the testimony of both Officer Sinegal and Officer Valles, who was also an eyewitness to the events leading up to the attempted transaction, and because appellant’s only witness did not contradict Garcia’s account of the events of October 13, Garcia’s testimony and credibility is less important than if he were the sole State witness and if his testimony was disputed by appellant.  See Woodall, 77 S.W.3d at 396, 397 (“The case was not a ‘swearing match’ between witnesses for each side.”).  Because the importance of Garcia’s testimony and credibility “was not as critical as it might otherwise have been,” we conclude that the fourth and fifth Theus factors weigh against admission of Garcia’s prior conviction.  See id. at 397.

          Thus, although the first and third Theus factors—the impeachment value of Garcia’s prior conviction and the dissimilarity of Garcia’s conduct in the past crime and the current case—both weigh in favor of admission, the remaining Theus factors weigh against admission.  We therefore conclude that appellant has not established that the probative value of Garcia’s prior conviction substantially outweighs the prejudicial effect of the conviction, as he is required to prove under Rule 609(b).  See Tex. R. Evid. 609(b); Jackson, 11 S.W.3d at 339 (requiring proponent of remote conviction to prove, when witness does not have “intervening” convictions, that probative value of prior conviction substantially outweighs, as opposed to just outweighs, prejudicial effect).  We hold that the trial court did not abuse its discretion by refusing to allow appellant to impeach Garcia with his remote prior conviction for misdemeanor forgery.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                      Evelyn V. Keyes

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]         See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(e) (Vernon 2010).

[2]         HPD criminalist Jackeline Hamelius testified that the bag removed from appellant’s car contained 243.9 grams of cocaine, including adulterants and dilutants.

[3]         Gonzales testified that he did not know Garcia and that they were not specifically introduced.

[4]         Alberto Gonzales, appellant’s only witness, did not contradict the State’s account of what occurred on October 13, 2009.