AFFIRMED; Opinion Filed May 15, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00284-CR
LARRY TADUEEN BELLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F-1251038-X
MEMORANDUM OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Stoddart
A jury convicted Larry Tadueen Bello of possession of cocaine. After a punishment
hearing, the trial court assessed punishment at two years’ confinement, suspended the sentence,
and placed Bello on community supervision for two years. In a single issue, Bello argues the
trial court abused its discretion by overruling his evidence rule 609 objection to the admission of
his prior convictions to impeach his credibility. We affirm the trial court’s judgment.
BACKGROUND
Officer Wener Perez testified he was responding to complaints of drug activity in an Oak
Cliff neighborhood the evening of the offense when he noticed a suspicious vehicle with
“temporary tags.” After running the vehicle’s information, Perez found multiple regional hits
indicating several outstanding warrants. Perez initiated a stop of the vehicle. As he spoke to the
driver, Larry Bello, Perez noticed a small green bag in Bello’s mouth and believed Bello was
trying to swallow it. Suspecting that the bag contained cocaine, Perez told Bello to spit it out,
but Bello refused. Perez opened the car door, forced Bello to the ground, and repeatedly
requested that Bello spit the bag out. Eventually, Bello complied. Perez recognized the
substance in the bag as crack cocaine and arrested Bello. A field test of the substance was
positive for crack cocaine.
Bello offered a different version of the arrest. Bello explained he did not know why he
was stopped and denied ever using cocaine. According to Bello, as he reached for his driver’s
license, Perez “jerked” Bello out of the car and onto the street, face down. Perez asked what was
in Bello’s mouth and told him to spit it out and not to swallow it. Bello opened his mouth to
show Perez nothing was inside. The first time Bello saw the drugs was in Perez’s hand. Perez
said, “I found this in your mouth. This came out of your mouth.”
Before cross-examining Bello, the State informed the trial court it planned to use Bello’s
prior convictions for felony theft and false identification to impeach his credibility. The State
argued the 1998 felony theft conviction was admissible because Bello’s four intervening
convictions for false identification showed a lack of reformation. The State argued false
identification was a crime of moral turpitude because it involves lying to the police. Bello’s
counsel objected, asserting the prior convictions were not admissible under rule 609 of the rules
of evidence because false identification and felony theft are not crimes of moral turpitude and the
prejudicial value of the theft conviction outweighed its probative value. The trial court overruled
the objection.
LAW & ANALYSIS
In a single issue, Bello argues the trial court abused its discretion by overruling his
objection to the use of his prior convictions to impeach his credibility. Specifically, Bello asserts
the prejudicial value of the evidence outweighed any probative value, rendering the convictions
–2–
inadmissible under rule 609. See TEX. R. EVID. 609(a), (b), 60 TEX. B.J. 1129 (1998, amended
2015). 1
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We
reverse only when the trial court’s decision was so clearly wrong as to fall outside the zone of
reasonable disagreement. Id. We uphold the trial court’s ruling if it was correct on any theory
reasonably supported by the evidence and applicable to the case. See Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002).
Rule 609(a) of the Texas Rules of Evidence allows a defendant’s credibility to be
impeached by evidence of a felony conviction or conviction for a crime of moral turpitude when
the probative value of the evidence outweighs its prejudicial effect. TEX. R. EVID. 609(a);
Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
However, if more than ten years have elapsed since the date of the conviction, evidence of the
conviction is not admissible unless the trial court determines, in the interest of justice, that the
probative value of the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect. TEX. R. EVID. 609(b). The burden of demonstrating the
admissibility of the evidence rests on the proponent. Theus v. State, 845 S.W.2d 874, 880 (Tex.
1992).
In deciding whether, in the interests of justice, the probative value of a remote conviction
substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and
circumstances, including whether intervening convictions dilute the prejudice of that remote
conviction. Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015). The court
considers several non-exclusive factors: (1) the impeachment value of the prior offense; (2) the
1
Unless otherwise noted, any mention of Rule 609 references the 1998 version of the rule.
–3–
passage of time between the prior conviction and the date the defendant testifies; (3) the
similarity between the prior conviction and any conduct of the defendant at issue in the present
trial; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility
issue. Theus, 845 S.W.2d at 880. The trial court is afforded wide discretion in weighing these
factors. Id. at 881.
Bello concedes that felony theft and misdemeanor false identification are crimes of moral
turpitude. He also concedes that three of the convictions for false identification were recent,
within five years of the trial in this case. He contends, however, that because of its remoteness,
the prejudicial effect of the felony theft conviction outweighed any probative value.
The first factor attaches higher impeachment value to a crime that involves deception or
moral turpitude and, therefore, favors admission of evidence of a crime that “relates more to
deception than not.” Theus, 845 S.W.2d at 881. In the present case, theft is a crime of moral
turpitude because it involves deception. See Rodriguez, 129 S.W.3d at 559. Accordingly, this
factor weighs in favor of admission.
The second factor, temporal proximity, favors admission if the past crime is recent and
the defendant has demonstrated a propensity for running afoul of the law. Theus, 845 S.W.2d at
881. Bello’s theft conviction was sixteen years old at the time of trial. However, Bello’s four
intervening convictions for false identification show a lack of reformation and continuing
disobedience of the law. The intervening convictions dilute the prejudicial effect of the
otherwise remote conviction. See Meadows, 455 S.W.3d at 170. This factor weighs in favor of
admission.
The third factor, lack of similarity with the present offense, weighs in favor of
admissibility. Similarity of past offenses to a present offense weighs against admissibility
because a jury is more likely to convict based upon perceived compliance with a previous
–4–
pattern of similar conduct. Theus, 845 S.W.2d at 881. Theft and possession of cocaine involve
dissimilar conduct. See Scope v. State, No. 01–08–00824–CR, 2010 WL 3220627, at *7 (Tex.
App.—Houston [1st Dist.] Aug. 12, 2010, pet ref’d) (mem. op., not designated for publication)
(finding aggravated robbery, which contains an element of theft, and possession of a controlled
substance dissimilar). This factor favors admission. See id.
The fourth and fifth factors, the importance of defendant’s testimony and the importance
of credibility, are related and favor admission if the defendant’s credibility is a critical issue,
escalating the State’s need to impeach the defendant’s credibility. Theus, 845 S.W.2d at 880–81.
In the present case, Bello testified that the first time he saw the bag of cocaine was in officer
Perez’s hand. Accordingly, Bello’s credibility was a critical issue and the State’s need to
impeach Bello was heightened. See Woodall v. State, 77 S.W.3d 388, 396 (Tex. App.—Fort
Worth 2002, pet. ref’d) (“where the case boils down to a ‘he said, she said’ situation between
two witnesses, with little evidence to tip the scale in either party’s favor, each witness’
credibility becomes critical to the outcome of the case”). The fourth and fifth factors weigh in
favor of admission.
After evaluating appellant’s case under all the Theus factors, we cannot conclude the trial
court abused its discretion by overruling his objection to the prior convictions. We overrule
Bello’s single issue.
We affirm the trial court’s judgment.
/ Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140284F.U05
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LARRY TADUEEN BELLO, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-14-00284-CR V. Trial Court Cause No. F-1251038-X.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 15th day of May, 2015.
–6–