Jeremy Kyle Lester v. State , 366 S.W.3d 214 ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00292-CR
JEREMY KYLE LESTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 20094875CR1
OPINION
Jeremy Kyle Lester was convicted of the misdemeanor offense of assault-family
violence and sentenced to 365 days in jail. See TEX. PENAL CODE ANN. § 22.01(a) (West
2011). Lester appealed his conviction. Because the trial court did not err in refusing to
admit evidence of the victim’s past conviction, the trial court’s judgment is affirmed.
In his sole issue on appeal, Lester contends that the trial court erred in refusing to
allow him to impeach the victim of the offense, Samantha Shoaf, with her misdemeanor
conviction for failure to identify-fugitive. See TEX. PENAL CODE ANN. § 38.02(a) or (b),
(d) (West 2011). Texas Rule of Evidence 609 permits the credibility of a witness to be
attacked with evidence of the witness's conviction for a felony or crime involving moral
turpitude. TEX. R. EVID. 609(a). Offenses involving "dishonesty or false statement" are
crimes involving moral turpitude. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586,
589 (Tex. App.—Dallas 1989, no writ).
In considering a trial court's ruling on the admissibility of evidence, we must
determine whether the trial court abused its discretion. Carrasco v. State, 154 S.W.3d
127, 129 (Tex. Crim. App. 2005). In other words, we must uphold the trial court's ruling
if it is reasonably supported by the record and is correct under any theory of law
applicable to the case. Id.
Lester argues that Shoaf's conviction for failure to identify was a crime of moral
turpitude that was admissible to attack her credibility. A person commits the offense of
failure to identify by either (i) intentionally refusing to give one's name, residence
address, or date of birth to a peace officer who has lawfully arrested the person and
requested the information or (ii) by intentionally giving a false or fictitious name,
residence address, or date of birth to a peace officer who has lawfully arrested the
person; lawfully detained the person; or requested the information from a person that
the peace officer has good cause to believe is a witness to a criminal offense. TEX. PENAL
CODE ANN. § 38.02(a)-(b) (West 2011). We agree with the Houston Court that the
offense of failure to identify by intentionally giving a false or fictitious name to a peace
officer is an offense involving moral turpitude. See Lape v. State, 893 S.W.2d 949, 958
(Tex. App.—Houston [14th Dist.] 1994, pet. ref'd). But we also agree with the Austin
Court that the offense of failure to identify by refusing to give the requested
Lester v. State Page 2
information to a peace officer is not a crime of moral turpitude. See Jones v. State, No.
03-04-00428-CR, 2005 Tex. App. LEXIS 8720, 10-13 (Tex. App.—Austin Oct. 20, 2005, pet.
ref’d) (not designated for publication).
Outside the jury's presence, Lester's counsel informed the trial court that he
believed Shoaf had a conviction for failure to identify for which she had served or was
currently serving jail time. But counsel did not provide the trial court with anything
that showed Shoaf’s conviction was pursuant to section 38.02(b), which involves lying
to a peace officer. See TEX. PENAL CODE ANN. § 38.02(b) (West 2011). Accordingly,
Lester failed to meet his burden of proving that Shoaf’s conviction for failure to identify
was a crime of moral turpitude. See Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim.
App. 2008) (“In our criminal justice system, the proponent of evidence ordinarily has
the burden of establishing the admissibility of the proffered evidence.”). Thus, we
conclude that the trial court did not abuse its discretion in excluding the evidence of
Shoaf's conviction for failure to identify. Lester’s sole issue is overruled.
Having overruled the only issue raised on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
Publish
[CR25]
Lester v. State Page 3