Enriquez v. State

¶1dissenting and concurring.

¶2Enriquez contends that the trial court erred in admitting evidence of his prior drug-related convictions. I would find the trial court did not abuse its discretion in admitting the evidence. Accordingly, I would uphold the trial court’s decision to allow the State to impeach appellant with his three prior convictions.

¶3During cross-examination by defense counsel, Officer Lopez testified, without objection, regarding appellant’s out-of-court statements. After these statements were elicited, the State moved to impeach appellant’s credibility pursuant to rule 806 of the Texas Rules of Evidence. Rule 806 provides, in relevant part, “[w]hen a hearsay statement ... has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.” Tex.R. Evid. 806. The court heard argument outside the presence of the jury regarding the admission of appellant’s prior drug-related convictions for the purpose of impeachment. After considering the question of admissibility and whether the prejudicial effect of admitting the evidence outweighed its probative value, the trial court allowed the introduction of appellant’s three prior convictions. The court instructed the jury to consider the convictions for impeachment purposes only.

¶4Appellant appears to argue that rule 806 does not apply because his statements were introduced by a State’s witness. Appellant attempts to distinguish Appling v. *604State, 904 S.W.2d 912, 916 (Tex.App.—Corpus Christi 1995, pet. ref'd), wherein this Court held that the State was entitled to attack appellant’s credibility as if the appellant had testified when the hearsay statement was admitted through appellant’s own witnesses. See id.The State contends, however, that neither Applingnor the language of rule 806 limits the admission of a declarant’s hearsay statement in this manner. I agree.

¶5In the present case, accepting each party’s assertion that the testimony at issue is hearsay,2 appellant opened the door to the issue of his credibility during his own cross-examination of a State’s witness.3 It is arguable that the statements were brought forward in an attempt to demonstrate how the accident happened, or that there may have been another cause for the accident other than appellant’s intoxication. Thus, I would conclude, when appellant’s statements were elicited from the State’s witness on cross-examination, the State was entitled to attack appellant’s credibility with any evidence which would be admissible for those purposes, as if appellant had testified as a witness. See id.at 916-17 (citing Davis v. State, 791 S.W.2d 308, 310 (Tex.App.—Corpus Christi 1990, pet. ref'd)); see also Tex.R. Evid. 806.

¶6Appellant further argues that the convictions did not legitimately relate to appropriate impeachment and were inflammatory. The State contends that the trial court properly determined that the probative value of the prior convictions for impeachment purposes outweighed any prejudicial effect. Generally, a witness may be impeached by evidence of a prior felony conviction or a conviction involving moral turpitude once the trial court decides that the probative value of the conviction outweighs its prejudicial effect. See Tex.R. Evid. 609; Theus v. State, 845 S.W.2d 874, 879 (Tex.Crim.App.1992). Appellant’s prior drug-related offenses are felony convictions. See 21 U.S.C. § 841 (2001); Tex. Health & Safety Code Ann. §§ 481.120(b)(4) & 481.121(b)(3) (Vernon Supp.2001). Therefore, I would conclude these convictions are admissible for impeachment purposes and should have been admitted if their probative value outweighs the prejudicial effect. See Theus, 845 S.W.2d at 879.

¶7When weighing the probative value of a conviction against its prejudicial value, the court examines, among other factors: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. See id.In reviewing the trial court’s conduct in weighing these factors, and its decision in admitting evidence of prior convictions, the trial court must be accorded wide discretion and should be reversed only upon a clear abuse of discretion. See id. at 881 (citation omitted). However, if the trial court’s decision to admit prior *605convictions lies outside the “zone of reasonable disagreement,” an appellate court should not hesitate to reverse its determination. Id.(citation omitted).

¶8Looking to the Theusfactors, crimes involving deception have a higher impeachment value than crimes that involve violence. See id.Appellant contends that convictions for possession and delivery of marijuana are not crimes of deception and have no great impeaching value. The State argues that, although the crimes do not involve deception or violence directly, they tend to lean more toward deception and moral turpitude rather than violence. “Moral turpitude” has been defined as the quality of a crime involving grave infringement of the moral sentiment of the community. See (Hardeman v. State, 868 S.W.2d 404, 405 (Tex.App.—Austin 1993), pet. dism’d as improvidently granted, 891 S.W.2d 960 (Tex.Crim.App.1995)). Drug offenses, specifically the delivery of marijuana, involve “a grave infringement of moral sentiment of the community” and thus would arguably be crimes of moral turpitude. Cf. In the Matter of Lock, No. 99-0976, 2001 Tex. LEXIS 70, at * 7-8 (Tex.Jan.17, 2001) (in context of attorney discipline, elements of possession of controlled substance, without the intent to distribute or sell, do not satisfy definition of moral turpitude) (publication pending). Although not rising to the level of deception, the crimes involved in this case are much higher in impeachment value than crimes involving violence. Therefore, I would conclude the first factor weighs in favor of admission.

¶9Second, the temporal proximity of appellant’s offenses relative to the current offenses was within the ten-year limit set by rule 609. See Tex.R. Evid. 609. Appellant concedes that the convictions, which occurred between approximately seven years and four months of the State offering the convictions to impeach appellant’s credibility, favor admission.

¶10Third, appellant’s prior convictions were for possession of, delivery of, and intent to deliver marijuana. The State contends that the prior crimes of drug possession and distribution are clearly dissimilar to the current crimes of manslaughter and assault. It is arguable, however, that appellant’s prior convictions are similar to the present offenses of intoxication manslaughter and intoxication assault in that they all involve intoxicating substances. See 21 U.S.C. § 841 (2001); Tex. PeN.Code Ann. §§ 49.07 & 49.08 (Vernon Supp.2001); Tex. Health & Safety Code Ann. §§ 481.120(b)(4) & 481.121(b)(3) (Vernon Supp.2001). This is particularly significant in this case because the charge allowed the jury to find that appellant was intoxicated if he did not have “the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body....” Nonetheless, even if the similarity factor were to weigh against the admission of the evidence, the trial court instructed the jury to consider the previous convictions for impeachment purposes only. See, e.g., White v. State, 21 S.W.3d 642, 647 (Tex.App.—Waco 2000, pet. ref'd). We presume the jury followed the court’s instruction. See id.(citing Gamez v. State, 737 S.W.2d 315, 324 (Tex.Crim.App.1987)).

¶11The fourth and fifth Theusfactors, the importance of the defendant’s testimony and the importance of the credibility issue, are related. See Theus, 845 S.W.2d at 881. As the importance of a defendant’s credibility escalates, so does the need to allow the State an opportunity to impeach his credibility. See id.Appellant’s testimony and his credibility were important because the defense asserted that contact with an*606other car rather than appellant’s intoxication caused the accident. The defense presented an alleged eyewitness who testified another car was involved in the accident. The defense also called a second witness who allegedly informed another that he was aware a second car was involved but later testified he had not seen the accident. Therefore, appellant’s credibility was an issue in the defense of his case at the guilt/innocence phase. I would conclude that the fourth and fifth Them factors weigh in favor of admission.

¶12Four of the five factors clearly weigh in favor of admission of the prior convictions. With regard to the fifth factor, the similarity between the past crimes and the instant offense, I would find the offenses sufficiently similar because each involves the use of intoxicating substances. However, even if this factor were to be construed to weigh against admission of the prior offenses, the court gave a limiting instruction on the “similarity” factor which arguably weighs against admission. Therefore, I would conclude the trial court did not abuse its discretion when it allowed the State to impeach appellant with his three prior convictions. I would overrule appellant’s first point of error.

¶13Accordingly, I dissent to the majority’s decision that the trial court abused its discretion in allowing the State to introduce evidence of the convictions. I concur with the remainder of the Court’s opinion.

¶14I would affirm the judgment of the trial court.