Affirmed and Memorandum Opinion filed May 12, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00818-CR
ANTHONY EARL WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1373285
MEMORANDUM OPINION
The question in this case is whether the trial court reversibly erred when it
made a preliminary ruling that appellant could be impeached with evidence of his
prior convictions. Because appellant did not testify during his trial, the
impeachment evidence was never actually admitted. Accordingly, we conclude that
nothing was preserved for appellate review. Without reaching the merits of
appellant’s complaint, we affirm the trial court’s judgment.
BACKGROUND
Appellant was charged with aggravated assault with a deadly weapon. After
the State produced its evidence and closed its case-in-chief, appellant moved for a
Theus hearing to determine whether he could testify free from impeachment. The
trial court granted the motion, and the hearing was held outside the presence of the
jury.
During the hearing, the trial court was advised that appellant had a lengthy
criminal record, which consisted of the following convictions: (1) a 2008 felony
for possession of a controlled substance, (2) a 2007 felony for attempted assault of
a family member, (3) a 1999 felony for injury to a child, (4) a 1992 misdemeanor
for criminal mischief, (5) a 1992 felony for possession of cocaine, (6) a 1987
misdemeanor for assault causing bodily injury, (7) a 1986 misdemeanor for theft,
(8) a 1985 misdemeanor for possession of marijuana, (9) a 1985 misdemeanor for
escape, (10) a 1984 misdemeanor for DWI, (11) a 1983 misdemeanor for
possession of a controlled substance, and (12) a 1983 felony for arson.
Appellant argued that many of these convictions were inadmissible as
evidence. Starting with the 1999 felony for injury to a child, appellant argued that
this conviction was similar to the charged offense, and that it should be excluded
because of the risk of unfair prejudice. Appellant also emphasized that this
conviction predated the charged offense by more than ten years. His argument
invoked Rule 609(b) of the Texas Rules of Evidence, which provides that evidence
of a remote conviction is inadmissible unless its probative value “substantially
outweighs” its prejudicial effect.
Appellant made a similar argument with respect to his 1992 felony for
possession of cocaine. He said that this conviction was remote and that it had no
probative value. Appellant likewise argued that evidence of the 1983 felony for
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arson was inadmissible because it was too remote. Without addressing the felonies
from 2008 or 2007, appellant argued that the remaining offenses should be
excluded because they are misdemeanors and do not involve crimes of moral
turpitude.
The State responded that it would not elicit testimony of any misdemeanors
in the event that appellant decided to testify. As to the felonies, however, the State
argued that evidence of these convictions was admissible. The State acknowledged
that the felonies from 1999 and 1992 were remote, but the State explained that they
could be “tacked” onto the recent felonies from 2008 and 2007. By referencing this
tacking doctrine, the State believed that admission of the evidence was governed
by Rule 609(a), which provides that evidence of a conviction is admissible if its
probative value simply “outweighs” its prejudicial effect. The State indicated that
this standard was met. The State did not specifically address the 1983 felony for
arson.
The trial court agreed with the State and held that the tacking doctrine
applied. The court then used the standard under Rule 609(a) and found that
evidence of each of appellant’s felonies was admissible because its “probative
value does outweigh the potential for prejudice.” The court also determined that
the 1986 misdemeanor for theft was admissible because it was a crime of moral
turpitude. With these rulings, appellant elected not to testify. He made no proffer
as to what his testimony would have been had the trial court allowed him to testify
free from impeachment.
ANALYSIS
Appellant correctly argues that the trial court applied the wrong standard. In
Leyba v. State, this court held that Rule 609(b) supplanted the tacking doctrine,
meaning that tacking is no longer permitted. See 416 S.W.3d 563, 569 (Tex.
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App.—Houston [14th Dist.] 2013, pet. ref’d). We clarified that if the State intends
to impeach a witness with evidence of a conviction that is at least ten years old,
then the State must show that the probative value of that evidence “substantially
outweighs” its prejudicial effect. Id. In Meadows v. State, the Court of Criminal
Appeals embraced this analysis and held that Rule 609(b) provides the exclusive
standard for admitting evidence of a remote conviction. See 455 S.W.3d 166, 171
(Tex. Crim. App. 2015).
But even though the trial court applied the wrong standard during the Theus
hearing, its ruling was just in limine. See Luce v. United States, 469 U.S. 38, 40 n.2
(1984) (describing an in limine motion as “any motion, whether made before or
during trial, to exclude anticipated prejudicial evidence before the evidence is
actually offered”). The court did not admit any evidence of appellant’s prior
convictions during the trial itself.
A trial court’s ruling in limine is preliminary only and it preserves nothing
for appellate review. See Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App.
2003). Courts have consistently held that the defendant must testify to preserve any
complaint that the trial court erroneously admitted evidence of a prior conviction.
See Luce, 469 U.S. at 43; Jackson v. State, 992 S.W.2d 469, 479–80 (Tex. Crim.
App. 1999). Without the defendant’s testimony, a reviewing court would be forced
to speculate about (1) the precise nature of the defendant’s testimony, (2) whether
the trial court’s ruling would have remained the same or would have changed as
the case unfolded, (3) whether the State would have sought to impeach the
defendant with the prior conviction, (4) whether the defendant would have testified
in any event, and (5) whether any resulting error in permitting the impeachment
evidence would have been harmless. See Jackson, 992 S.W.2d at 479.
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Appellant acknowledges in his brief that his failure to testify waives error,
but he asks that we “reexamine this blanket rule” because we can be reasonably
sure of how he would have testified and what evidence the State would have used
to impeach him. We decline appellant’s invitation. We are in no position to
“reexamine” binding authority from a higher court. We conclude that appellant
failed to preserve error.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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