Affirmed and Memorandum Opinion filed June 26, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-00-01282-CR
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RICHARD LATOOD CRAIG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 836,874
M E M O R A N D U M O P I N I O N
Appellant was convicted by a jury for forgery and sentenced to two years= confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains in one issue that allowing the State to impeach a defense witness regarding his prior convictions was error. We affirm the trial court=s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant devised a plan involving the passing of forged checks using fake identifi-cation. His accomplice, LaShonda Henderson, would present the checks and split the proceeds with appellant. Eventually, both Henderson and appellant were arrested for forgery by attempting to use bad checks at a department store.
At trial, appellant=s girlfriend, Valencia Johnson, who was with appellant at the department storeCbut unaware of the schemeCtestified. She said she overheard appellant tell Henderson “[b]uy whatever you want to buy. It’s your money.” The trial court then allowed the State to impeach the appellant through Johnson, specifically asking Johnson whether she knew of his four prior forgery convictions. Johnson denied knowledge of each prior forgery. Appellant was then found guilty of one count of felony forgery. Appellant appealed.
STANDARD OF REVIEW
We review a trial court’s evidentiary ruling under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A trial court must be given wide latitude to admit or exclude evidence as it sees fit. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). As long as the trial court=s ruling was within the zone of reasonable disagreement, an appellant court may not disturb it. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
DISCUSSION
In appellant=s only issue, he complains it was error to allow the State to impeach him by introduction of his prior convictions through a defense witness. The State defended its position by citing to Texas Rules of Evidence 806. That Rule states in part the following:
When a hearsay statement, or a statement defined in Rule 801(e)(2)(C), (D), or (E) . . . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Tex. R. Evid. 806. The intent of Rule 806 is to “permit impeachment and rehabilitation by any means that could be used if the declarant were a witness.” Bee v. State, 974 S.W.2d 184, 190 (Tex. App.CSan Antonio 1998, no pet.).
The purpose of Rule 806 is “to establish a standard for attacking the credibility of a hearsay declarant.” United States v. Graham, 858 F.2d 986, 990 (5th Cir. 1988).[1] When appellant=s counsel allowed Johnson to testify to hearsay statements, counsel put appellant=s credibility at issue, see United States v. Lawson, 608 F.2d 1129, 1129 (6th Cir. 1979), just as if appellant had taken the stand. See id. Rule 806 can “set a trap for criminal defense counsel. A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions.” United States v. Montana, 19 F.Supp.2d 873, 876 (N.D. Ill. 1998) (citing Jack Weinstein & Margaret Berger, Weinstein=s Federal Evidence ' 806.04[2][b], at 806B1 to 806B12 (Joseph McLaughlin ed., 2d ed. 1998)). The general reason for this rule is to prevent one side from trying a case based largely on hearsay statements, and then objecting when the other side attempts to impeach the declarant of the hearsay statements. See Marcel v. State, 64 S.W.3d 677, 679 (Tex. App.CHouston [1st Dist.] 2001, pet. denied).
A. Rule 806
For Rule 806 to apply, first a witness must testify to a hearsay statement. Tex. R. Evid. 806. When Johnson took the stand, she described in detail the activities she witnessed in the department store. She said that when Henderson approached appellant, appellant stated, “[b]uy whatever you want to buy. It=s your money.” The defense introduced this statement for the truth of the matterCto show that he was not associated with this woman, and it was all her money to spend as she chose. Under Rule 806, once this hearsay statement is admitted in evidence, the credibility of the appellant can be attacked. Here, the declarant was the appellantCalthough his statement was conveyed through JohnsonCso the State could confront Johnson as if appellant himself had taken the stand.
If appellant had taken the stand, the State would have been allowed to impeach his credibility with prior felony convictions. Tex. R. Evid. 609. Therefore, once the hearsay statement was admitted, the State could impeach the appellant with prior convictions through Johnson. Griffith v. State, 983 S.W.2d 282, 290 (Tex. Crim. App. 1998) (holding credibility of declarant can be impeached by prior convictions under Rule 806); see also Appling v. State, 904 S.W.2d 912, 916 (Tex. App.CCorpus Christi 1995, writ ref=d) (holding credibility of declarant can be attacked when the declarant is the non-testifying defendant). Here, the State asked a series of “did you know” questions regarding appellant=s four prior felony convictions. Johnson answered she did not have personal knowledge of any of the prior forgery convictions. The State did not delve into these prior convictions any further. This was a perfectly acceptable method of impeachment. See Griffith, 983 S.W.2d at 290 (holding that if the declarant would have testified, the State would have been allowed to impeach his credibility with a prior criminal conviction); see also Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002) (holding that witnesses testifying to the character of appellant may be asked “did you know” questions). In short, under Rule 806, the State could ask about the prior convictions, but before it actually did that, the judge was required under Rule 609(a) to consider whether their probative value outweighed their prejudicial value. We explain below.
B. Probative versus Prejudicial Test
Before prior convictions are admitted in evidence, the court must determine “that the probative value of admitting this evidence outweighs its prejudicial effect to a party.” Tex. R. Evid. 609(a). After a trial court conducts the balancing test, wide discretion is given to the trial court, and the court’s decision should only be reversed for a clear abuse of discretion. See Theus, 845 S.W.2d at 881; see also Montgomery, 810 S.W.2d at 390. A record that the trial court conducted the balancing test is not neededCit is presumed the trial court conducted this analysis. Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.CTexarkana 1999, no pet.).
Even though a record is not needed, this record clearly shows the trial court did not perform the balancing test. Because the court did not perform the test, error occurred. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 2001); Colvin v. State, 54 S.W.3d 82, 85 (Tex. App.CTexarkana 2001, no pet.). However, rather than reversing, we can apply the balancing test and, having done so, we conclude that the probative value of the impeachment questions outweighs the prejudicial value.[2]
In Theus, the Texas Court of Criminal Appeals set out a nonexclusive list of five factors to assist trial courts when determining whether the proponent of evidence has met his burden. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The five factors are (1) the impeachment value of the prior offense, (2) the temporal proximity of the past crime relative to the charged offense, (3) the similarity between past crimes and the offense being charged, (4) the importance of the defendant=s testimony, and (5) the importance of the credibility issue. Id.
First, we look at the impeachment value of the prior offenses. Id. Appellant’s prior four convictions are for forgery, and weigh in favor of admission. See White v. State, 21 S.W.3d 642, 647 (Tex. App.CWaco 2000, pet. ref’d) (holding the court favors admission because theft is a crime of deception and the impeachment value of a crime involving deception is higher than the impeachment value of a crime involving violence). Courts favor admitting prior offenses involving deception, as opposed to violence. Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). “Between prior offenses involving violence and those involving deception, the former have a greater potential to prejudice the defendant, while the latter are more probative of the defendant=s credibility.” See id. The first Theus factor favors admissibility of appellant=s prior offenses.
Second, the law favors admitting evidence of a witness=s prior offenses “if the offenses are recent and the witness has demonstrated a propensity for breaking the law.” Id. When examining the Texas Rules of Evidence, Rule 609(b) provides that a conviction is sufficient for impeachment if “less than 10 years has elapsed since the date of the prior conviction.” See Tex. R. Evid. 609(b). Here, appellant=s four convictions for forgery all occurred on November 23, 1993, well within ten years. Further, appellant=s multiple convictions demonstrated his propensity for lawlessness. The second Theus factor favors admissibility.
Third, the law disfavors admitting evidence of prior offenses if the offenses are similar. See id.; see also Theus, 845 S.W.2d at 881. If the defendant=s prior offenses and the charged offense are similar, a danger arises “that the jury will convict that defendant based on a perception of a pattern of past conduct rather than based upon the facts of the charged offense.@ Pierre, 2 S.W.3d at 443; but see Peters v. State, 93 S.W.2d 347, 352 (Tex. App.CHouston [14th Dist.] 2002, pet. ref’d) (holding that evidence of an extraneous offense is admissible, in certain cases, to show motive, intent, or a common plan or scheme). Here, appellant=s prior offenses and the charged offense are the same; all involve forgery, but there was no showing at trial that the forgeries fell into any exception to the rule. The third Theus factor favors inadmissibility.
Finally, the last two factors pertain to the defendant=s testimony and credibility. “When a case involves the testimony of only the defendant and the State=s witnesses, the importance of the defendant=s testimony escalates. As the importance of the defendant=s testimony escalates, the State=s need for an opportunity to impeach the defendant=s credibility also escalates.” Pierre, 2 S.W.3d at 443; see also Theus, 845 S.W.2d at 881. Henderson, the woman who actually passed the forged check, testified appellant was the mastermind behind the forgery scheme. Appellant claimed Henderson was the only person involved in the crime and appellant was simply an innocent bystander. Appellant did not testify, so the fourth Theus factor is irrelevant here. However, appellant=s credibility was a central issue in this case. Whom the jury should believe was important, and the fifth factor weighs in favor of admitting the prior offenses so the jury can fully assess credibility. Therefore, the fourth factor is irrelevant and the fifth factor favors admissibility.
Even though the third factor weighs against admissibility, the other three relevant Theus factors favor admitting the prior offenses. After examining the factors, we conclude the evidence concerning the prior convictions had high probative value, and, although the evidence may have been prejudicial to appellant, we conclude it was not so unduly prejudicial as to outweigh the probative nature of the evidence. Thus, the trial court did err in not conducting a probative versus prejudicial test. However, having conducted the test ourselves, we conclude that the probative value of the questions outweigh any possible prejudicial value.
For these reasons, we overrule appellant=s issue and affirm the trial court=s judgment.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed June 26, 2003.
Panel consists of Chief Justice Brister, Justices Hudson and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The commentary to Texas Rule of Evidence 806 states the following:
Texas Rule 806 is the federal rule with two minor changes. The cross-references have been renumbered to conform to the Texas numbers, and to include a reference to a pertinent Texas provision for which there is no federal counterpart. Additionally, in the sentence dispensing with the requirement ‘opportunity to deny or explain,’ the phrase ‘offered to impeach the declarant= has been used in place of >inconsistent with his hearsay statements,’ so that it is made clear that the sentence covers impeachment by means other than inconsistent statements, such as evidence of bias or interest.
Tex. R. Evid. 806, cmty 806.1. Therefore, this Court can look to federal cases for interpretation and the purpose of Rule 806.
[2] We have not found a case involving prior convictions in which the trial court did not conduct a Rule 403 balancing test. However, in Montgomery, the Texas Court of Criminal Appeals stated “the appellate court must measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is to be made.” Montgomery, 810 S.W.2d at 392; see also Colvin v. State, 54 S.W.3d 82, 85B86 (Tex. App.CTexarkana 2001, no pet.) (holding that the trial court did not conduct the requisite Rule 403 balancing test regarding character evidence, and the four Montgomery factors were used to analyze harm). Because the trial court should have looked at these past transgressions as prior convictionsCnot 404(b) character evidenceCwe will apply the appropriate balancing test by applying the Theus factors. Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992).