Moreno v. State

KELLER, J.

delivered a dissenting opinion in which McCORMICK, P.J. and MANSFIELD, J. joined.

According to the majority opinion, the problem with the admission of the disputed evidence is that its probative value was so exceedingly low that it was far outweighed by its prejudicial effect. I disagree. The evidence that the jury heard — that appellant could go to prison for a felony if he were convicted of this misdemeanor — is *490extremely probative on the issue of his credibility. It is the fact that appellant could have gone to prison anyway that reduces the probative value of the evidence. But the jury never heard that.

The evidence, as presented, was likely to persuade the jury that appellant was not credible. The majority says that its value as to credibility was incremental (implying a small increment) because there is nothing to suggest that appellant would lie to avoid a felony but not a misdemeanor conviction. But I don’t think that we can assume that juries necessarily discount a defendant’s testimony just because his interest in obtaining an acquittal gives him a motive to lie on the stand. I think that the more reasons a defendant has to lie, the more a jury will question his credibility.

Since attacking appellant’s credibility was the legitimate purpose for which the evidence was introduced, its value in that regard must be weighed for the State rather than against it in the R. 403 balance. Its damaging nature was reason for the court to admit it, not to exclude it. In this case, not only was the probative value of the evidence high, the prejudicial effect was low.

The only prejudice to be put on the scales was the danger that the jury would use the evidence as proof of appellant’s character as a criminal generally. I think that danger was minimal. The jury was instructed to consider the evidence only for the limited purpose of showing bias or interest. Generally, we presume that a jury follows the trial court’s instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998). The evidence here was simply the bare-bones fact of a felony, ameliorated by the fact that appellant had received community supervision. If we hold that this evidence is so prejudicial that the jury would not be able to follow the limiting instruction, we might as well just go ahead and hold that limiting instructions are not effective if the extraneous offense is a felony.

The difficulty with this case is that one has a tendency to assume that the evidence about adjudication of the felony was misleading. But to whatever extent it was misleading, that effect could have been alleviated by counsel eliciting testimony that appellant could be adjudicated regardless of conviction in this case, and that appellant knew it, if that were in fact true.1 Had counsel done so, we could properly conclude that the probative value of the evidence was low. Because he did not do so, there is nothing in this record to show that the evidence presented was inaccurate. We should consider the record as it stands. The trial court was required to weigh the probative value of the evidence actually presented against its prejudicial effect. The former is high; the latter is low. I would hold that the trial court was within its discretion in admitting the evidence. I respectfully dissent.

. It could be that appellant believed that an acquittal in the present case would protect him from adjudication of the felony. If that were true, then the evidence was not misleading because appellant’s motive to lie would exist regardless of the validity of his belief. It could be that the particular felony judge would not revoke probation absent a conviction, and that appellant knew that.