ACCEPTED
13-14-00257-CR
FILED THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS
1/14/2015 4:14:15 PM
CORPUS CHRISTI DORIAN RAMIREZ
CLERK
1/14/15
DORIAN E. RAMIREZ, CLERK 13-14-00257-CR
BY DTello
RECEIVED IN
IN THE COURT OF APPEALS13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH 1/14/2015 4:14:15 PM
JUDICIAL DISTRICT
DORIAN E. RAMIREZ
Clerk
CORPUS CHRISTI, TEXAS
_________________________________
RUBEN ANDRES BALDEZ,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
_________________________________
ON APPEAL FROM COUNTY COURT AT LAW NO. 2
OF VICTORIA COUNTY, TEXAS
CAUSE NUMBER: 2-102358
_________________________________
BRIEF FOR THE APPELLANT
RUBEN ANDRES BALDEZ
________________________________
EDWARD F. SHAUGHNESSY, III
ATTORNEY-AT-LAW
206 E. LOCUST
SAN ANTONIO, TEXAS 78212
(210) 212-6700
(210) 212-2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
ORAL ARGUMENT WAIVED ATTORNEY FOR THE APPELLANT
TABLE OF CONTENTS
PAGE(S)
Table of Contents………………………………………………………………………………….……..i
Table of Interested Parties……………………………………………………………………………ii
Table of Authorities………………………………………………………………………………….…iii
Brief for the Appellant………………………………………………………………………….………4
Summary of the Argument…………………………………………………………………………...5
Appellant’s Point of Error……………………………………………………………………..……..6
Conclusion and Prayer……………………………………………………………………….……….10
Certificate of Service…………………………………………………………………………….……..11
Certificate of Compliance……………………………………………………………………….…….11
i
TABLE OF INTERESTED PARTIES
Ms. Timothy Poynter State’s Trial Counsel
Assistant District Attorney
205 N. Bridge Street
Floresville, Texas 77901
Mr. Edward Bartolomei Trial Counsel
Attorney at Law
420 Baltimore
San Antonio, Texas 78215
Honorable Daniel F. Gilliam Trial Court Judge
Judge Presiding
County Court at Law No. 2
Victoria County, Texas
Edward F. Shaughnessy, III Appellant’s Counsel
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212
(210) 212-6700
Bar No: 18134500
Stephen B. Tyler Appellee’s Counsel
District Attorney
205 N. Bridge St.
Victoria, Texas 77901
ii
TABLE OF AUTHORITIES
PAGE
STATE CASE(S)
Hankins v. State, 180 S.W.3d 177 (Tex. App.-Austin, 2005, pet. ref’d)……………...9
Hernandez v. State, 976 S.W.3d 753 (Tex. App. –Houston [1st Dist.], 1998, pet.
ref’d)………………………………………………………………………………………………………..…9
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010)……………………….……..8
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008)………………………………….8
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)………………………………..8,9
RULE(S)
Rule 609, Tex. R. Evid…………………………………………………………….……………passim
Sect. 12.44(a), Tex. Penal Code Ann. (West 2014)…………………………………..……….7
iii
NO. 13-14-00257-CR
RUEBN ANDRES BALDEZ, § IN THE COURT OF
Appellant
§ APPEALS, THIRTEENTH
v. § JUDICIAL DISTRICT
THE STATE OF TEXAS, § CORPUS CHRISTI, TEXAS
Appellee
BRIEF FOR THE APPELLANT
RUBEN ANDRES BALDEZ
To the Honorable Thirteenth Court of Appeals:
Now comes, Ruben Andres Baldez, appellant in the case herein, by and
through Edward F. Shaughnessy, III, and Attorney-at-Law, and files this brief in
cause number 13-14-00257-CR. The appellant was charged by way of an
information with the offense of Driving While Intoxicated in cause number 2-
102358. Following a jury trial in County Court at Law No. 2, Victoria County the
appellant was found guilty of the offense as charged in the information. The trial
Court assessed punishment at one (1) year of confinement in the Victoria County
Jail. Notice of appeal was filed and this appeal, alleging a single point of error,
has followed.
4
SUMMARY OF THE ARGUMENT
ON BEHALF OF THE APPELLANT
The appellant contends that the trial Court erred in admitting evidence of
the appellant’s prior criminal conviction in violation of Rule 609(a) of the Texas
Rules of Evidence. The evidence presented to the jury was improperly admitted
because the proponent of the evidence failed to demonstrate that the probative
value of the evidence in dispute outweighed the undue prejudice inherent to the
evidence in question.
5
APPELLANT’S
SOLE POINT OF ERROR
In his sole point of error the appellant asserts that the trial Court erred in
admitting evidence of the appellant’s prior criminal conviction in violation of
Rule 609(a) of the Texas Rules of Evidence.
SUMMARY OF APPLICABLE FACTS
As noted above, the appellant was tried by a jury for the misdemeanor
offense of Driving While Intoxicated. Following the close of the prosecution’s
case the appellant testified on his own behalf. The gist of the evidence presented
by the appellant was that he was not intoxicated at the time of the two-car
collision that resulted in his arrest by members of law-enforcement officers in
Victoria on the morning of September 29, 2013. (R.R.5-20 thru 40) Following
the conclusion of the appellant’s direct examination the appellant was passed for
purposes of cross-examination. (R.R.5-41) The initial inquiry posed by the
prosecution to the appellant was whether the appellant was a convicted felon.
The appellant replied that he was not. At that point the trial Court excused the
jury to resolve the issue of the admissibility of what the State sought to
demonstrate regarding a prior judgment against the appellant. (R.R.5-42) What
occurred thereafter, was an extensive colloquy between the parties and the trial
Court that revolved the issue of what precisely the appellant had previously been
convicted of, and whether or not that prior conviction was admissible as
6
impeachment evidence against the appellant. (R.R.5-45 thru 55) The discussion
revolved around the question of whether a prior conviction out of Harris County
had in fact been a felony conviction as opposed to a misdemeanor. The Court
reasoned that the conviction in question was in fact a felony conviction with a
misdemeanor punishment as provided by Sect. 12.44(a), Tex. Penal Code Ann.
(West 2014).1 (R.R.5-47) At that point the appellant objected to the admission of
any evidence tending to show that the appellant had been convicted of a felony
level drug possession case on the grounds, among other things, that to do so
would violate Rule 609, Tex. R. Evid. (R.R.5-52, 53, 54) The appellant’s
objection was overruled and the prosecution was allowed to demonstrate before
the jury that the appellant had previously been convicted of the felony offense of
possession of methadone less than one gram on November 3, 2008. (R.R.5-56,
57)
ARGUMENT AND AUTHORITIES
The appellant asserts in his sole point of error that the trial Court erred in
allowing the prosecution to impeach the appellant with evidence of his 2008
possession of methadone conviction because the probative value of that evidence
was outweighed by the danger of unfair prejudice to the appellant.
1
A court may punish a defendant who is convicted of a state jail felony by imposing the
confinement permissible as punishment for a Class A misdemeanor….
7
STANDARD OF REVIEW
In reviewing the propriety of a trial Court’s ruling on the admissibility of
evidence a reviewing court is required to employ the abuse of discretion analysis.
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) A decision regarding
the admission of evidence amounts to an abuse of discretion when it is so
incorrect as to be outside the zone of reasonable disagreement. Taylor v. State,
268 S.W.3d 571 (Tex. Crim. App. 2008)
RULE 609(A)
The evidentiary rule in question is Rule 609(a) of the Texas Rules of
Evidence, which provides in part that a witness can be impeached with evidence
of a prior felony conviction. However there exists a limitation on the
admissibility of such evidence contained within the language of the rule itself. In
order for a witness to be impeached with evidence of a prior felony conviction
the proponent of the evidence (in this case the State of Texas) must demonstrate
that the probative value of the prior conviction outweighs its prejudicial effect.
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) In determining whether
the probative value of the evidence outweighs the potential for undue prejudice
the trial court must engage in a “balancing test” utilizing the following four
factors: 1) impeachment value, 2) temporal proximity to the offense in question,
3) similarity between the charged offense and the prior offense, and 4) the
importance of the testimony of the witness and the credibility of that witness.
Theus v. State, supra. The trial court engaged in no such balancing test.
8
Moreover the State made no effort to present any theory as to why the
employment of a Theus balancing test would demonstrate that the use of the
conviction in question would comply with the dictates of Theus and Rule 609(a).
The State, as the proponent of the evidence, failed to demonstrate that the
probative value of the evidence in dispute outweighed the potential for undue
prejudice. Consequently the trial Court erred in allowing for the admission of
the evidence. Theus v. State, supra; Hernandez v. State, 976 S.W.3d 753 (Tex.
App. –Houston [1st Dist.], 1998, pet. ref’d); Hankins v. State, 180 S.W.3d 177
(Tex. App.-Austin, 2005, pet. ref’d).
The erroneous admission of the evidence in question amounted to an
abuse of discretion on the part of the trial Court and requires a reversal of the
conviction and a remand of the cause for a new trial.
9
CONCLUSION AND PRAYER
Wherefore premises considered the appellant, Ruben Andres Baldez,
would respectfully request that this Court reverse the judgment of the trial Court
and remand the cause for a new trial.
Respectfully submitted,
___/S/Edward F. Shaughnessy, III___
Edward F. Shaughnessy, III
Attorney at Law
206 E. Locust
San Antonio, Texas 78212
(210) 212-6700
(210) 212-2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
Attorney for the appellant
10
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III, attorney for the appellant hereby certify
that a true and correct copy of the instant brief was delivered to Stephen B.
Tyler, District Attorney, 205 N. Bridge Street No. 301, Victoria Texas, 77901,
counsel for the appellee, by use of the United States Postal Service on the _14__
day of January, 2015.
____/S/Edward F. Shaughnessy, III___
Edward F. Shaughnessy, III
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III hereby certify that the instant brief contains
1522 words.
____/S/Edward F. Shaughnessy, III_______
Edward F. Shaughnessy, III
Attorney for the appellant
11