11th Court of Appeals
Eastland, Texas
Opinion
Kevin Thomas Allison
Appellant
Vs. No. 11-01-00112-CR -- Appeal from Dallas County
State of Texas
Appellee
Appellant was convicted of the offense of possession of cocaine with intent to deliver. Appellant pleaded true to an enhancement paragraph contained in the indictment alleging a prior felony conviction. The trial court assessed appellant=s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 15 years. We affirm.
Appellant presents three issues on appeal. Each of the issues concerns the admission of evidence regarding his prior convictions during the guilt/innocence phase of the trial in violation of TEX.R.EVID. 404(b) & 609(f). Appellant filed a request for notice of the prosecution=s intent to offer evidence of extraneous conduct under Rules 404(b) and 609(f) and TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(g) (Vernon Supp. 2002) approximately one month prior to trial. Appellant contends that the State did not provide him with sufficient notice of its intent to rely on his prior convictions in response to his request.
The State did not offer any evidence of appellant=s prior convictions during its case-in-chief. Appellant raised the issue concerning his prior convictions during the case-in-chief. After calling one of the arresting officers as a witness, appellant=s counsel called appellant as a witness. Immediately after calling appellant as a witness, appellant=s counsel sought a ruling from the trial court precluding the State from offering evidence of appellant=s prior convictions because of the prosecution=s alleged failure to comply with Rule 404(b).
A hearing was held outside the presence of the jury regarding appellant=s complaint. The State argued that the enhancement paragraph in the indictment gave appellant notice that the prosecution intended to present evidence of at least one of his prior convictions. The State further relied upon a document that it filed on the morning of trial providing notice under Rule 609(f). The hearing ended with the trial court informing appellant=s counsel that it believed that the evidence was admissible. The trial court also invited appellant=s counsel to present additional authorities regarding the matter. The trial court then took a recess for the rest of the day. The next day=s proceedings commenced with appellant resting whereupon both sides closed without additional evidence being offered during the guilt/innocence phase. In other words, there is no definitive ruling from the trial court in the appellate record regarding the admissibility of appellant=s prior convictions. Furthermore, no evidence of appellant=s prior convictions was offered during the guilt/innocence phase of trial.
Rule 404(b) provides that, upon timely request by the accused in a criminal case, the prosecution must give reasonable notice in advance of trial of its intent Ato introduce in the State=s case-in-chief@ evidence of other crimes, wrongs, and acts other than that arising in the same transaction. Assuming that appellant preserved error on his Rule 404(b) notice complaint, no error occurred in the trial court under Rule 404(b). The State did not introduce any evidence of appellant=s prior convictions during its case-in-chief. Moreover, appellant did not raise his notice complaint until after the State rested its case-in-chief.
TEX.R.EVID. 609 addresses the impeachment of witnesses by evidence of prior convictions. Rule 609(f) provides that evidence of a witness=s conviction is not admissible if, after timely written request by the adverse party, the proponent fails to give to the adverse party sufficient advance written notice of its intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. The appellate record does not indicate that appellant made an objection based on inadequate notice under Rule 609(f). Additionally, the record does not indicate that the trial court made a ruling on such an objection. Furthermore, appellant did not testify. In Morgan v. State, 891 S.W.2d 733, 735 (Tex.App. - Houston [1st Dist.] 1994, pet=n ref=d), the court held that a defendant must testify in order to raise and preserve a claim of improper impeachment through prior convictions. We agree with the ruling in Morgan. We are unable to conduct a sufficient harm analysis without a record of the testimony which appellant would have offered and without the introduction of the prior convictions which appellant protests. See TEX.R.APP.P. 44.2. We find that appellant has not preserved error regarding his notice complaint under Rule 609(f). See TEX.R.APP.P. 33.1.
Moreover, even if one assumes that appellant preserved his complaint under Rule 609(f), the record does not demonstrate that the trial court committed error in this regard. A trial court=s conduct in deciding to permit impeachment with prior convictions is reviewed under an abuse of discretion standard. See Theus v. State, 845 S.W.2d 874, 881 (Tex.Cr.App.1992); Green v. State 55 S.W.3d. 633, 645 (Tex.App. - Tyler 2001, pet=n ref=d), cert. den=d, ___ U.S. ___, 122 S.Ct.1366, 152 L. Ed. 2d 360 (2002). The prosecution filed a notice under Rule 609(f) of its intent to offer evidence of prior convictions for impeachment purposes prior to appellant testifying. The court in Green held that notice is timely under Rule 609(f) if it is given in advance of the witness=s testimony even though the notice is given after the trial commences. Green v. State, supra at 645. Appellant=s three issues on appeal are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
June 20, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.