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Opinion filed April 20, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00166-CR
__________
WILBERT EARL BATTLES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 14,961-B
O P I N I O N
The jury convicted appellant of the state jail felony offense of possession of less than one gram of cocaine. The trial court assessed punishment at eighteen months confinement in the State Jail Division of the Texas Department of Criminal Justice. In his sole appellate issue, appellant argues that the trial court erred in allowing the State to impeach him with a seventeen-year-old felony conviction for credit card abuse. We reverse and remand.
Background Facts
The evidence at trial showed that, during the afternoon of June 18, 2003, Officers Rodney Smith and Tommy Pope of the Abilene Police Department were patrolling an area of Abilene known for drug activity. The officers saw appellant walking down the street, and they decided to talk with him. Officer Smith got out of the van to talk with appellant. Officer Smith testified that, after he got out of the van, he saw appellant throw a crack pipe to the ground. The evidence showed that a crack pipe is used to smoke crack cocaine. Officer Smith said that he picked up the crack pipe and placed appellant under arrest.
Officer Pope testified that he searched appellant at the scene. Officer Pope said that he found a Bic lighter and a Chore Boy B a copper scouring pad used to filter crack cocaine when smoking it B in appellant=s front right pants pocket. Officer Pope also testified that the crack pipe had a Chore Boy in it.
The officers took appellant to the Law Enforcement Center, where they processed the evidence and interviewed appellant. The officers testified that appellant asked whether he could do anything to help his case. Officer Smith said that appellant offered to assist the police as an informant in exchange for consideration on his possession charge. Based on appellant=s offer to provide information, Officer Smith said that he agreed to hold off on filing a charge against appellant. Appellant was released on the day of his arrest. Officer Smith testified that appellant failed to provide any information to the police. Therefore, on July 29, 2003, Officer Smith submitted the crack pipe to the Department of Public Safety Lab for testing.
Bill Chandley, a chemist with the DPS, tested the crack pipe for cocaine. He said that residue in the crack pipe tested positive for cocaine.
Appellant testified that he found the crack pipe in question, along with a Chore Boy, on the street in his neighborhood and that he was walking to a dumpster to throw the crack pipe away when the officers stopped him. Appellant said that he knew what a crack pipe was used for but that he had not smoked crack cocaine in the crack pipe. He said that he did not know whether there was any cocaine in the crack pipe. He said that he dropped the crack pipe on the ground after the officers stopped him. Appellant testified that the officers searched him at the scene. Appellant said that he did not have a Chore Boy in his pocket and that Officer Pope had lied to the jury when he testified about finding a Chore Boy in appellant=s pocket.
Appellant testified about the discussions at the Law Enforcement Center. Appellant said that the officers brought up the subject of him working for them as an informant. He said that the officers questioned him about three men and that the officers told him, if he could get these three men, he could go on with the rest of his life. Appellant said he believed the officers had agreed to drop the charges in exchange for his assistance. He said that, after the discussions at the Law Enforcement Center, the officers dropped him off in an alley on Pine Street. Appellant testified that, later that day, he called Officer Smith and provided him with information leading to the arrest of one of the three men.
During cross-examination of appellant, the trial court allowed the State, over appellant=s objection, to impeach appellant with a seventeen-year-old felony conviction for credit card abuse. The trial court found that the probative value of the conviction on the issue of appellant=s credibility substantially outweighed its prejudicial effect to appellant. The State questioned appellant about the conviction and introduced a copy of the pen packet relating to the conviction.
Admissibility of Remote Conviction for Impeachment
Tex. R. Evid. 609(a) provides that the credibility of a witness may be attacked by admitting evidence that the witness has been previously convicted of a felony or a crime of moral turpitude if the trial court determines that the probative value of admitting the evidence outweighs its prejudicial effect. Tex. R. Evid. 609(b) limits Rule 609(a) by providing that evidence of a prior conviction is inadmissible if more than ten years have elapsed since the later of the date of conviction or of release from confinement:
[U]nless 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.
The age of a conviction is measured from the date of the conviction or release, whichever is later, to the date the evidence of the conviction is offered at trial. Sinegal v. State, 789 S.W.2d 383, 387 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d). In this cause, appellant=s prior conviction occurred in 1988, and appellant received a five-year sentence for the conviction. The record shows that, with time credited, appellant=s sentence began to run on December 20, 1987. Although the record does not show the date of appellant=s release from prison, the latest date appellant could have been released was December 20, 1992, about twelve years before the trial date in this cause. Rule 609(b) applies to the admissibility of appellant=s prior conviction because appellant=s release occurred more than ten years before the trial date in this cause.
The trial court has wide discretion in deciding the question of admissibility of a prior conviction, and its decision will not be reversed unless an appellant shows a clear abuse of discretion. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Hankins v. State, 180 S.W.3d 177, 180 (Tex. App.CAustin 2005, pet ref=d); Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.CHouston [1st Dist.]), pet. ref=d, 980 S.W.2d 652 (Tex. Crim. App. 1998). In Theus, the Court of Criminal Appeals set forth five nonexclusive factors that trial courts must use in determining whether the probative value of a conviction outweighs its prejudicial effect. Although Theus involved Rule 609(a) and did not involve a remote conviction under Rule 609(b), we find its balancing test for probative value instructive for the purposes of a Rule 609(b) analysis. See Hankins, 180 S.W.3d at 180-81.[1] Under Theus, in weighing the probative value and the prejudicial effect of a conviction, a trial court must consider (1) the impeachment value of a prior crime, (2) the temporal proximity of the prior crime relative to the charged offense and the defendant=s subsequent history, (3) the similarity between the prior offense and the charged offense, (4) the importance of the defendant=s testimony, and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880.
Impeachment Value
The impeachment value of crimes that involve deception is higher than the impeachment value of crimes that involve violence. Theus, 845 S.W.2d at 881. Credit card abuse is a crime of deception rather than of violence; and, thus, a credit card abuse conviction may have high impeachment value. See Tex. Pen. Code Ann. ' 32.31 (Vernon Supp. 2005); LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). However, in this cause, appellant=s conviction occurred seventeen years before trial. A remote conviction must have occurred at a time sufficiently recent to have some bearing on the present credibility of the witness. Miller v. State, 549 S.W.2d 402, 403-04 (Tex. Crim. App. 1977); Hernandez, 976 S.W.2d at 761; Sinegal, 789 S.W.2d at 387. Appellant=s conviction for credit card abuse did not occur Aat a time sufficiently recent@ to have a bearing on his credibility at the time of trial. Therefore, the conviction had limited, if any, probative value on the issue of appellant=s credibility as a witness. The first Theus factor weighs heavily against admission in this cause.
Temporal Proximity
A remote conviction may be admissible when the record shows a lack of reformation: that is, if the defendant has also been convicted of a felony or crime of moral turpitude between the remote conviction and the time of trial. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Polk v. State, 865 S.W.2d 627, 631 (Tex. App.CFort Worth 1993, pet ref=d); Kizart v. State, 811 S.W.2d 137, 141 (Tex. App.CDallas 1991, no pet.); Roberts v. State, 634 S.W.2d 767, 769 (Tex. App.CFort Worth 1982, pet. ref=d). In this case, the record does not show that appellant was convicted of any felonies or crimes involving moral turpitude between the credit card abuse conviction and the time of trial.[2] Therefore, the second factor, temporal proximity, weighs against admission in this cause because the conviction occurred so long before appellant=s trial.
Similarity of Offenses
When a defendant=s prior offense and the charged offense are similar, a danger arises that the jury will convict the defendant based on a perception of past conduct rather than based on the facts of the charged offense. Therefore, if the prior offense is similar to the charged offense, the third factor weighs against admission of the prior conviction. Theus, 845 S.W.2d at 881. Here, appellant=s prior offense and the charged offense are dissimilar. Therefore, the third factor weighs in favor of admission.
Importance of Defendant=s Testimony and Credibility
The fourth and fifth Theus factors are related and address the nature of the defense and the means available to a defendant to prove that defense. If a defendant presents a defense through the testimony of other witnesses, the defendant=s credibility may not be a critical issue. However, when a case involves only the testimony of the defendant and the State=s witnesses, the importance of the defendant=s credibility and testimony escalates. As the importance of the defendant=s testimony escalates, so will the need to allow the State an opportunity to impeach the defendant=s credibility. Theus, 845 S.W.2d at 881. In this case, appellant was the only defense witness and the only witness who testified that he did not commit the offense. Appellant=s testimony contradicted the police officers= testimony. For example, appellant testified that Officer Pope did not find a Chore Boy in his pocket during the search. Appellant also said that the police officers initiated the conversation about appellant working for the police as an informant. Appellant=s defense depended almost entirely on his testimony and credibility. Therefore, the fourth and fifth Theus factors weigh in favor of admission of the prior conviction.
Conclusion
Appellant=s prior conviction happened so long ago that it had little, if any, probative value on the issue of appellant=s credibility at the time of the trial in this case. Thus, even though some of the Theus factors favor admission, the lack of probative value of the seventeen-year-old conviction overrides those factors. The State did not show that the probative value of the prior conviction substantially outweighed its prejudicial effect. Therefore, we hold that the trial court abused its discretion in admitting the evidence of appellant=s prior conviction.
Harm Analysis
When a trial court errs in admitting a prior conviction, the appellate court reviews the record to determine whether the trial court=s error affected appellant=s substantial rights. Tex. R. App. P. 44.2(b); Hernandez, 976 S.W.2d at 756. It is well established that a conviction will not be reversed for error in the admission of evidence that did not injure the defendant. Alexander v. State, 740 S.W.2d 749, 765 (Tex. Crim. App. 1987). In determining whether the error was harmless, the test is not whether a conviction could have been had without the improperly admitted evidence but, rather, whether there is a reasonable possibility that the evidence might have contributed to the conviction or affected the punishment. Id. Thus, if there is a reasonable possibility that inadmissible evidence might have contributed to either the conviction or punishment assessed, then the error in admission is not harmless error. In applying the test, the main consideration is the probable impact of the evidence on the minds of the average jury. Id.; Sinegal, 789 S.W.2d at 388.
Appellant claimed at trial that he did not intentionally or knowingly possess cocaine. Appellant testified that he planned to throw the crack pipe into a dumpster and that he did not know whether the crack pipe contained cocaine. His testimony contradicted the testimony of the police officers in many respects. For example, he testified that the officers did not find a Chore Boy in his pocket, that the officers brought up the subject of him working for the police, and that he provided information to Officer Smith that led to an arrest. Appellant=s credibility was critical to his defense that he did not intentionally or knowingly possess the cocaine.
The State emphasized the seventeen-year-old conviction during closing argument:
[PROSECUTOR]: What=s important about a case like B or a crime like credit card abuse is it=s a crime that involves fraud. It=s a crime that involves dishonesty. And it says something about the credibility of a witness. And here we have two different versions of the offense. We have B one, we have a person who=s been sent down to prison before for being dishonest. And then we have two officers.
The State also made the following comments during closing argument:
[PROSECUTOR]: And so basically, I think that this is a really simple case, and instead of treating it like a really simple case, all this other extraneous stuff is being argued to try to take away from the simplicity of it, because what it all boils down to is we have a person who=s been to prison for a crime involving dishonesty.
Given the State=s emphasis of the prior conviction during closing argument, we find that there is a reasonable possibility that admission of the prior conviction might have contributed to the jury=s decision to convict appellant. Therefore, the admission of appellant=s remote conviction constituted reversible error.
On appeal, the State argues that the admission of the prior conviction did not harm appellant, because appellant admitted in his testimony that he possessed the crack pipe. However, the State could not satisfy its burden of proof by establishing that appellant possessed a crack pipe. Rather, the State had the burden to prove that appellant intentionally or knowingly possessed the cocaine. Appellant claimed that he did not intentionally or knowingly possess the cocaine, and his testimony and credibility were important to his defense. There is a reasonable possibility that the evidence of the prior conviction contributed to the jury=s decision to convict appellant. We sustain appellant=s issue.
This Court=s Ruling
We reverse the trial court=s judgment and remand this cause to the trial court.
TERRY McCALL
JUSTICE
April 20, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]We note, in Hernandez, the court determined that, in considering admissibility under Rule 609(b), Awe look exclusively to the strictures of rule 609(b), not to the multiple factors of Theus.@ 976 S.W.2d at 755. We look to the Theus factors in this case as a guide for determining the probative value and prejudicial effect of appellant=s prior conviction on the credibility issue. Our holding in this case would be the same using the Hernandez approach.
[2]On appeal, the State asserts that appellant had an intervening conviction for unlawful carrying of a weapon. The State argues that this conviction may be used to show a lack of reformation. During trial, the prosecutor referred to a 2003 conviction for unlawful carrying of a weapon, and the prosecutor stated that appellant had received a thirty day sentence in jail and a $300 fine for the conviction. However, the State did not offer evidence of the conviction at trial. Thus, the State did not prove that the conviction was for a felony or crime of moral turpitude. In the absence of such proof, the conviction may not be used in considering a lack of reformation. See Davis v. State, 545 S.W.2d 147, 150 (Tex. Crim. App. 1976)(a conviction of a misdemeanor not involving moral turpitude is not considered a lack of reformation).