Macias v. State

• Decision Date: 07 May 2004
• Docket Number: No. 06-03-00187-CR.,06-03-00187-CR.
• Parties: Guillermo MACIAS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

136 S.W.3d 702

Guillermo MACIAS, Appellant v. The STATE of Texas, Appellee.

No. 06-03-00187-CR.

Court of Appeals of Texas, Texarkana.

Submitted March 11, 2004.

Decided May 7, 2004.

Susan Ashley, Houston, for appellant.

Joe Black, District Attorney, Al Davis, Assistant District Attorney, Marshall, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

In the early morning hours of January 10, 2003, after an argument inside a Harrison County nightclub, Guillermo Macias retrieved a handgun from his truck in the parking lot, re-entered the club, and pointed the gun at the bartender. Macias was tackled and pushed out the door, then attacked and disarmed by a group of people that had followed him outside. He escaped to his truck and began to leave as the police arrived. Despite orders to stop, Macias drove directly toward one of the officers, forcing him to draw and fire his weapon. The shots missed, and Macias continued to drive, sideswiping a patrol car and hitting another before officers managed to pull him from the truck and place him in custody.

At trial, a Harrison County jury found Macias guilty of both counts of the indictment—count one being unlawful possession of a firearm by a felon and count two being unlawful possession of a firearm on premises licensed for the sale of alcoholic beverages—assessing punishment at ten years' confinement and a $10,000.00 fine on each count. See TEX. PEN.CODE ANN. § 46.02 (Vernon 2003), § 46.04 (Vernon Supp.2004). On appeal, Macias contends (1) the trial court erred by not allowing certain evidence for the purpose of impeaching a State's witness, (2) the evidence was legally insufficient to support the allegations of the indictment's felon-in-possession count, and (3) the trial court erred by overruling his objections to the jury charge. We overrule Macias' first contention, sustain contention two, and need not reach contention three.

Impeachment

In his first point of error, Macias contends the trial court erred by excluding certain evidence he alleges would have impeached one of the State's witnesses. On direct examination, Shane Vincent testified that, after he tackled Macias and pushed him out of the nightclub, Macias struck him with the butt of the gun, bloodying him and dropping him to his knees. When Vincent recovered, Macias pointed the gun at Vincent's face, at which time the crowd, which had followed them outside, over-came Macias and knocked the gun to the ground. Macias does not complain that the evidence itself was inadmissible, but that he should have been permitted to impeach Vincent's testimony by explaining to the jury that Vincent testified to the same effect in an earlier trial arising from the same events and that the jury in that case found Macias not to have assaulted Vincent as he claimed.¹ Macias' trial counsel explained:

[DEFENSE COUNSEL]:.... What I want to show the Court is that, in response to the State's question of this witness, did he point the gun at you, did he threaten you, and were you afraid of serious bodily injury. That those particular items in the named indictment, the named victim has been presented to a jury, and a jury has found that not to be true.

THE COURT: What's your legal rationale for bringing in evidence from that other case concerning this witness?

[DEFENSE COUNSEL]: Because they opened the door and asked the direct question of an issue that a previous jury has decided. Let me cite the reason why I say that. In another cause number out of the same event, same night, the allegations in Count Two stated that he did then and there knowingly threaten[ ] Shane Vincent, this individual, with imminent bodily injury and did then and there exhibit a deadly weapon. That issue was presented to a jury, and the jury said not guilty.

THE COURT: So what? Why is that competent evidence at this trial?

[DEFENSE COUNSEL]: It wasn't until [the State] raised the issue and asked did he point the gun at you, did he threaten you. And a jury has said no, he did not. That's why it became relevant when he raised—

THE COURT: Okay. I don't think you're entitled to show what a jury found in some other case, period. Why should you?

[DEFENSE COUNSEL]: If [the State] hadn't opened the door, I [would] agree with you.

THE COURT: What do you mean open the door?

[DEFENSE COUNSEL]: All right. Let me make this simple. [The State] added the question, "Did he threaten you with a gun? Were you afraid of imminent bodily injury?" It's in the indictment. It was alleged that way. A jury said no, he didn't. Now, [the State] has come in and said that again.

THE COURT: So you're using a jury verdict in another case to impeach the witness?

[DEFENSE COUNSEL]: You bet.

THE COURT: Okay. I'm not going to allow it.

In short, Macias attempted to introduce a jury verdict in another case—in which he was the defendant—to impeach Vincent's consistent testimony in this case. Macias argues that, when the trial court refused to let him do so, it left the jury with a false impression, unduly prejudicing its members against him.

Macias' argument, however, is untenable. While the credibility of a witness may be attacked by any party, such attack must be made within the Rules of Evidence. See TEX.R. EVID. 607. Generally, this means that a witness' testimony may be impeached by showing one of three things: (1) the witness made a prior statement inconsistent with his or her current testimony, (2) circumstances or a statement indicating that the witness is biased in favor of or has some interest aligned with the opposing party, or (3) the witness has been convicted of a felony or other crime involving moral turpitude. TEX.R. EVID. 609(a), 613(a)-(b). Using a prior jury's findings to impeach Vincent's current testimony, itself consistent with his statements at Macias' earlier trial, fits none of those categories.

Macias cites Prescott v. State, 744 S.W.2d 128 (Tex.Crim.App.1988), and similar cases, to support his argument that the State "opened the door" as to the validity of Vincent's testimony when the witness left a false impression during direct examination. Macias complains he should have been allowed to inform the jury of the earlier verdict in which he was reportedly found not to have assaulted Vincent. Macias quotes language from Prescott explaining the limitations on impeaching witnesses through prior convictions.

It is well settled that "an accused puts his character for veracity (as opposed to his moral character) in issue by merely taking the stand, and thus he may be impeached in the same manner as any other witness." As with any other witness, an accused cannot be impeached by a prior offense with which he has been charged unless the charges resulted in a final conviction for either a felony offense or an offense involving moral turpitude, neither of which is too remote. An exception to this general rule arises when a witness, during direct examination, leaves a false impression as to the extent of either his prior (1) arrests, (2) convictions, (3) charges, or (4) "trouble" with the police.

Id. at 130-31 (quoting Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986)) (emphasis added; citations omitted). The quoted language does not support Macias' position.

Macias' interpretation of the exception highlighted above apparently extends to any false impression left by a witness testifying at trial. That is, if the jury in the earlier trial expressly found that Macias did not point his gun at Vincent's face, that finding should be admitted to impeach Vincent's testimony before another jury hearing Vincent testify concerning the same event. The exception, however, does not apply in this situation for a number of reasons.

First, even if the record demonstrated that another jury completely disbelieved Vincent's testimony, it would simply inform the present jury of an earlier interpretation of the evidence; the findings are not themselves relevant in that they have no tendency to make the existence of any fact that is of consequence to the determination of Macias' guilt more or less probable. See TEX.R. EVID. 401, 402. Contrary to Macias' claim, this is not comparable to a witness testifying that he does not break the law, opening the door to impeachment through the introduction of evidence that he had been convicted of two criminal offenses and charged with a third. See, e.g., Davenport v. State, 807 S.W.2d 635, 637 (Tex.App.-Houston [14th Dist.] 1991, no writ).

Second, the exception does not extend to just any impression that might be left by a witness and considered false by the party adversely affected. The witness must leave a false impression as to...