Theus v. State

• Decision Date: 02 December 1992
• Docket Number: Nos. 1113-91,1114-91,s. 1113-91
• Citation: 845 S.W.2d 874
• Parties: Joe Louis THEUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 874

845 S.W.2d 874

Joe Louis THEUS, Appellant, v. The STATE of Texas, Appellee.

Nos. 1113-91, 1114-91.

Court of Criminal Appeals of Texas En Banc.

Dec. 2, 1992.

Rehearing Denied Jan. 27, 1993.

DeEdward J. Greer, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Linda A. West and Elsa Alcala, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

In a single trial, a jury found appellant guilty of both possessing and delivering less than twenty-eight grams of cocaine. See Tex.Health & Safety Code § 481.001 et seq. The trial court assessed appellant's punishment at thirty-five years imprisonment for possession of the controlled substance and twenty-five years imprisonment for its delivery. The court of appeals affirmed appellant's convictions. Theus v. State, 816 S.W.2d 773 (Tex.App.--Houston [14th Dist.] 1991). We granted appellant's petitions for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(5), to decide whether the court of appeals erred in holding that the trial court correctly overruled appellant's impeachment motion, which resulted in the admission in evidence of appellant's prior felony conviction for arson. We will reverse the judgments of the trial court and the court of appeals and remand the cause to the court of appeals for a harm analysis.

The Fourteenth Court of Appeals held that the trial court did not err in admitting evidence of appellant's arson conviction at the guilt phase of the trial, asserting: "The determination of the admissibility of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Theus v. State, 816 S.W.2d at 774. The court of appeals reasoned that since appellant offered evidence that he was a respectable businessman and had a reputation for being "anti-drugs," the State had the right to correct any false impression created by such testimony by bringing appellant's arson conviction to the jury's attention. Id.

Justice Sears, in a dissenting opinion, argued that the evidence of the arson conviction had no purpose other than to prove the bad character of appellant, and had no relevance to appellant's credibility. According to the dissent, the trial court erred both in failing to find that the extraneous offense evidence was irrelevant to credibility and in failing to undertake the requisite balancing test of probative value of the extraneous offense versus its prejudicial effect. Theus v. State, 816 S.W.2d at 775-76 (Sears, J., dissenting).

Prior to trial, appellant filed a "Motion to Testify Free From Impeachment With Prior Conviction." In pertinent part, the motion read as follows:

Defendant moves the Court to allow him to testify at the guilt stage of the trial free from impeachment by any and/or all of the prior convictions that the State has given notice of an intent to use for such purpose, for the following reasons:

* * * * * *

The particularly unique facts surrounding the felony arson probation and subsequent revocation are such that the prejudicial value to the Defendant substantially outweighs its probative value as well. In addition, this conviction has virtually no bearing on truth and veracity either.

At the hearing on appellant's motion, the trial judge heard arguments from both the State and appellant on the admissibility of the prior conviction, pursuant to Texas Rule of Criminal Evidence 609(a). ¹

At this hearing, appellant contended that the facts underlying the arson conviction (there was no monetary damage and it was not done for pecuniary gain) had absolutely no bearing on his credibility. Appellant additionally argued that the jury would not be told of the relatively inconsequential nature of the crime, and would be left to conjure up images of "a burning building with people inside burning or babies inside burning, or [a] burning building with thousands and maybe even millions of dollars of damage." Appellant urged the trial judge to suppress the evidence pertaining to the arson conviction because the admission thereof would prejudice the jury; because the conviction bore little relevance to his credibility as a witness; and because the resulting prejudice would completely undermine appellant's defense of mistaken identity. In the alternative, appellant asked the judge to make specific findings of fact and conclusions of law as to his ruling on appellant's motion, in order to preserve the record for appellate review.

In response, the State argued at the hearing that Rule 609 makes clear that, for the purpose of admissibility, the Legislature had equated felonies with crimes of moral turpitude. The State argued that evidence of appellant's conviction was particularly pertinent to the issue of credibility, because the conviction had been imposed after appellant violated the terms of his probation. The State contended that, by swearing under oath to comply with the probationary terms and then violating that oath, appellant had demonstrated that "he is not to be trusted as a truth-teller." In addition, the State argued that appellant had failed to meet his burden of proving that the prejudicial effect of the conviction outweighed its probative value. The State argued further that the trial judge was not under any obligation to make the requested findings of fact and conclusions of law, and that the appellate courts would defer to whatever ruling he made regardless of the existence of such findings. Finally, the State urged that it would be too time consuming for the trial judge to attempt to analyze the facts underlying the arson conviction. At this point, the trial judge overruled appellant's motion without making any findings of fact or conclusions of law.

At trial, appellant testified in his own defense and was impeached with evidence of the prior arson conviction. In addition, at the guilt phase of the trial appellant put on four character witnesses who testified as to their personal knowledge that appellant did not use illegal drugs and as to appellant's reputation for being "anti-drugs." The State impeached these witnesses with evidence of appellant's prior conviction for arson. The State also referred to appellant's status as an ex-convict in various portions of its final argument. The trial court instructed the jury to consider appellant's prior conviction for impeachment purposes only.

I. Correction of a False Impression

In his brief to this Court, appellant first argues that the court of appeals erred in holding that, based on Hinojosa v. State, 780 S.W.2d 299 (Tex.App.--Beaumont 1989, pet. ref'd), the arson conviction was admissible to correct any false impression given to the jury. The basis of appellant's argument is that the holding in Hinojosa does not stand for the proposition that the State can introduce prior convictions whenever a witness portrays himself as a law-abiding citizen. Id. at 302. Appellant, adopting Justice Sears' dissenting opinion, contends that since the arson conviction had no relevance to his credibility, the State's only purpose in introducing it was to assail his character. Appellant further contends that the admission of the evidence was fundamental error, or, in the alternative, not harmless beyond a reasonable doubt.

The State argues to the contrary that, "[b]ecause final felony convictions have traditionally been admissible for purposes of impeachment, and because appellant created a false impression with the jury, the Fourteenth Court of Appeals did not err in holding that the evidence was properly admitted." The State further contends that the trial judge did not abuse his discretion, since the factors contemplated by the Rule 609(a) balancing test militated in favor of admitting the arson conviction. Finally, the State asserts that the trial judge did not err by failing to set forth in the record his findings of fact and conclusions of law in overruling appellant's motion to exclude the arson conviction.

A brief examination of the holding in Hinojosa is appropriate. In Hinojosa, a co-defendant testified at trial against the defendant. When the prosecutor asked the co-defendant if he had ever been convicted of a felony offense or of an offense involving moral turpitude, he stated that he had not. 780 S.W.2d at 302. The trial court refused to let the defendant cross-examine the co-defendant "concerning his previous arrest and conviction in federal court for the offense of unlawfully transporting illegal aliens into the United States." Id. On appeal, the State argued that the trial court had committed no error in limiting the cross-examination. The conviction was not ordinarily usable for impeachment due to the fact that the co-defendant had successfully completed his probationary period. The Beaumont court disagreed with the State's position, because the witness's answer on direct examination "left the impression he had never been convicted of a felony." Id. (emphasis in original). Therefore, the Beaumont court held that the trial court erred in excluding the cross-examination of the co-defendant concerning his prior conviction. Id. at 302-303.

In making this determination, the Beaumont court relied on language from Prescott v. State, 744 S.W.2d 128 (Tex.Cr.App.1988). The holding in Prescott was predicated upon the impeachment of a witness with the use of a prior conviction which had not become final. Id. at 130. While such impeachment was not normally allowed, see Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App.1972), in Prescott we reiterated that an exception to the general rule exists "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 131. The Beaumont court quoted this language from Prescott before...