Theus v. State, s. C14-90-717-C

• Decision Date: 22 August 1991
• Docket Number: Nos. C14-90-717-C,C14-90-720-CR,s. C14-90-717-C
• Citation: 816 S.W.2d 773
• Parties: Joe Louis THEUS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 773

816 S.W.2d 773

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

Nos. C14-90-717-CR, C14-90-720-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 22, 1991.

Discretionary Review Granted

Nov. 20, 1991.

DeEdward J. Greer, Houston, for appellant.

Linda A. West, Houston, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

MAJORITY OPINION

ROBERTSON, Justice.

Appellant was indicted for possession and delivery of less that twenty-eight grams of cocaine, and was found guilty on both counts by a jury. Punishment was assessed by the trial court at thirty-five years imprisonment for possession of the controlled substance and twenty-five years for its delivery. Although originally brought as separate appeals, we have consolidated the causes since appellant's point of error and the facts are the same in both cases. We affirm.

Since appellant does not contest the sufficiency of the evidence to support his convictions, only a short recitation of the facts is necessary to understand the current appeal. In early February, 1990, an undercover officer of the Houston Police Department purchased a ten-dollar rock of crack cocaine from appellant as he worked in a tire shop on Clinton Drive. As subsequent officers moved in for an arrest, appellant threw down a matchbox and a brown pill bottle, both of which contained cocaine.

Appellant's sole point of error in both appeals asserts that the trial court erred in overruling his impeachment motion and allowing the admission of his prior felony conviction for arson. In both cause numbers, appellant filed a "Motion To Testify Free From Impeachment With Prior Conviction" in which the probative value and prejudicial effect of appellant's prior misdemeanor convictions were challenged. In these motions, appellant also made the following assertion:

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

Appellant had been convicted of arson in 1985 and given probation; he did not successfully complete its terms and served two years in prison. Prior to trial, the state filed a notice to use, for punishment or impeachment purposes, five prior convictions of the appellant including the arson conviction. The state later used the arson conviction to impeach appellant during cross-examination.

Appellant's points of error involve TEX.R.CRIM.EVID. 609(a), which provides as follows:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

The appellant argues that the probative value of admitting the impeaching evidence was outweighed by its prejudicial effect. 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. Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); Jordan-Maier v. State, 792 S.W.2d 188, 190 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd).

On direct examination, appellant denied ever selling cocaine to the officer and presented the picture of a model citizen. He attempted to portray himself as a respectable businessman and even testified that he had become involved in the drug problem in his neighborhood by reporting a drug dealer to the police. Additionally, a customer of the tire store testified that appellant had a reputation in the neighborhood as being "anti-drugs." The state had a right to correct any false impression given the jury during direct examination by bringing the appellant's prior conviction to light. See Hinojosa v. State, 780 S.W.2d 299 (Tex.App.--Beaumont 1989, pet. ref'd). The trial court did not abuse its discretion in allowing the cross-examination of the appellant to include his prior arson conviction. Appellant's point of error in each appeal is overruled, and the judgment of the trial court is affirmed.

SEARS, Justice, dissenting.

I respectfully dissent from the majority opinion.

The trial court allowed the State to use appellant's prior conviction for arson against him in the guilt or innocence phase of his trial for possession and delivery of cocaine. The majority opinion condones the action of the trial court and finds: "The State had a right to correct any false impression given the jury during direct examination by bringing the appellant's prior conviction to light." The majority finds that the State had a right to use the prior conviction because the appellant "attempted to portray himself as a respectable businessman." Therefore, the majority must have found the evidence of the extraneous offense was admissible to show that he was not a respectable businessman. This is the precise evil that results when evidence is admitted to attack the character of the accused, and has no relevance to prove any element of the offense with which the accused is charged. Texas Rules of Criminal Evidence, Rule 404, specifically prohibits the use of evidence of other crimes to prove the character of the accused.

In a recent opinion, the Texas Court of Criminal Appeals, goes into great detail in setting out the guidelines under which evidence of an extraneous offense may be admissible. See Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1991). In Montgomery, the accused was tried simultaneously under two indictments for indecency with a child,...