Opinion filed August 21, 2014




                                      In The

          Eleventh Court of Appeals
                                   __________

                                No. 11-12-00229-CR
                                    __________

               ANGELA K. JONES-JACKSON, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                     On Appeal from the 358th District Court
                              Ector County, Texas
                        Trial Court Cause No. D-37,956

                                   OPINION
      Angela K. Jones-Jackson appeals her jury conviction of robbery. See TEX.
PENAL CODE ANN. § 29.02 (West 2011).              The jury assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of five years and a $5,000 fine. In two issues on
appeal, Appellant argues that the trial court abused its discretion when it excluded
the victim’s prior criminal convictions that were more than ten years old. We
affirm.
                                  Background Facts
      The indictment alleged that, while in the course of committing theft of
property and with the intent to obtain or maintain control of said property,
Appellant intentionally, knowingly, or recklessly caused bodily injury to the
alleged victim by pulling her hair, throwing her to the ground, and kicking her in
the head, face, and neck. The victim testified that, on May 22, 2010, she was
eating breakfast at the restaurant where she worked, Pojo’s in Odessa, Texas, when
a coworker asked her if she would drive Appellant home because Appellant was
intoxicated and causing a commotion. The victim then offered to drive Appellant
and her female companion home, and the women accepted her offer.
       As the victim was driving to Appellant’s house, Appellant took her cell
phone and refused to give it back. After the women arrived at Appellant’s house,
Appellant apologized to the victim, exited the vehicle, opened the driver’s side
door, and made a gesture toward the victim that the victim believed was an attempt
to hug her. That was not the case, however, because Appellant grabbed the back of
the victim’s hair, pulled her out of the car, and proceeded to kick, punch, and hit
her.   In the midst of the commotion, the victim’s purse fell to the ground.
Appellant ordered her friend to take the purse inside the house.           The victim
testified that she never recovered her cell phone or purse.
       The trial court ruled prior to trial that all convictions over ten years old were
inadmissible for the purpose of impeachment. Pursuant to the pretrial ruling, the
victim admitted on direct examination that she had been convicted of the felony
offense of possession of methamphetamine and the felony offense of bail jumping
in 2003. The victim stated that she was originally sentenced to probation in both
cases but that her probation was later revoked and she was forced to serve prison
time. Appellant subsequently asked the trial court to allow full disclosure of the
victim’s criminal history, but the trial court overruled Appellant’s request and
confirmed its prior ruling.
       Appellant testified during the guilt/innocence phase of trial. She testified
that the victim drove her and a friend home from Pojo’s on May 22, 2010.
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Appellant claimed that the victim provoked a fight with her. Appellant admitted
that she grabbed the victim by the head and punched the victim with her fist, but
she denied taking the victim’s phone or purse.
                                       Analysis
      Both of Appellant’s issues concern the admissibility of the victim’s previous
felony drug convictions. The admission of evidence is within the discretion of the
trial court, and the trial court’s ruling on admissibility will not be reversed absent
an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App.
2002). A trial court abuses its discretion only when its decision lies outside the
zone of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010). Even if the trial court gave the wrong reason for its decision,
the decision will be upheld as long as it is correct on some theory of law applicable
to the case. Osbourn, 92 S.W.3d at 538.
      In her first issue, Appellant contends that the trial court abused its discretion
when it excluded the victim’s felony drug convictions that were over ten years old.
These convictions included: a 1984 conviction for possession of marihuana with
attempt to distribute, a 1984 conviction for possession of cocaine, a 1984
conviction for possession of amphetamine, a 1984 conviction for possession of
heroin with attempt to traffic, a 1992 conviction for possession of a controlled
substance, and a 2002 conviction for possession of a controlled substance. As
noted previously, the trial court permitted evidence of the victim’s two felony
convictions that occurred less than ten years prior to trial.
      Evidence of past crimes may be used to attack the credibility of a witness
under TEX. R. EVID. 609. Rule 609(a) provides that the credibility of a witness
may be attacked by admitting evidence that the witness has been previously
convicted of a felony or a crime of moral turpitude if the trial court determines that
the probative value of admitting the evidence outweighs its prejudicial effect.
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Rule 609(b) limits Rule 609(a) by providing that evidence of a prior conviction is
inadmissible if more than ten years have elapsed since the later of the date of
conviction or of release from confinement “unless the court determines, in the
interests 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).
      Appellant argues that the older convictions were admissible under the
“tacking” doctrine. Under this doctrine, a conviction that is more than ten years
old may be “tacked” onto a subsequent conviction for remoteness purposes, which
then alters the legal standard governing its admission. See Jackson v. State, 50
S.W.3d 579, 591–92 (Tex. App.—Fort Worth 2001, pet. ref’d); Rodriguez v. State,
31 S.W.3d 359, 363 (Tex. App.—San Antonio 2000, pet. ref’d); Hernandez v.
State, 976 S.W.2d 753, 755–56 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980
S.W.2d 652 (Tex. Crim. App. 1998).            Under this approach, if a subsequent
conviction indicates a lack of reformation, then the conviction that is more than ten
years old may be analyzed under Rule 609(a)’s “outweighs” standard rather than
Rule 609(b)’s “substantially outweighs” standard. See Jackson, 50 S.W.3d at 591–
92; Rodriguez, 31 S.W.3d at 363; Hernandez, 976 S.W.2d at 755–56.
      The State argues that the tacking doctrine no longer exists under the holding
in Hankins v. State, 180 S.W.3d 177, 180 (Tex. App.—Austin 2005, pet. ref’d).
See Leyba v. State, 416 S.W.3d 563, 566–69 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d). As noted by the court in Leyba, the Austin Court of Appeals
determined in Hankins that the tacking doctrine was a common-law exception that
was abrogated by the adoption of Rule 609. 416 S.W.3d at 568. In reliance upon
Hankins, the Fourteenth Court of Appeals held in Leyba that the more rigorous
“substantially outweighs” standard set out in Rule 609(b) applies exclusively in


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determining the admissibility of convictions that are more than ten years old. Id. at
569.
       The analysis in Leyba reflects a conflict among the courts of appeals
regarding the continued viability of the tacking doctrine to permit the admission of
remote convictions under the less stringent standards of Rule 609(a).         In the
absence of controlling authority from the Texas Court of Criminal Appeals after
the adoption of Rule 609, we conclude that the holdings in Leyba and Hankins
reflect the correct view. Accordingly, we agree with the State that the tacking
doctrine no longer applies and that the “substantially outweighs” standard set out
in Rule 609(b) is the exclusive standard for determining the admissibility of the
victim’s remote convictions.
       In Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992), the Court of
Criminal Appeals set out a nonexclusive list of factors courts should use when
applying Rule 609(a) to weigh the probative value of a conviction against its
prejudicial effect. Such factors include: (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 criminal history, (3) the similarity between the past
crime and the offense being prosecuted, (4) the importance of the witness’s
testimony, and (5) the importance of the witness’s credibility. 845 S.W.2d at 880.
While not controlling under the more stringent Rule 609(b) analysis, these factors
are instructive to our review of the trial court’s ruling.
       The impeachment value of crimes involving deception is higher than for
crimes not involving deception. See Hankins, 180 S.W.3d at 181. Determining
whether or not a drug crime constituted a crime of deception typically depends on
the facts and circumstances of the offense. Id. at 181 n.2. Because no specific
facts and circumstances of the victim’s remote convictions are available in the
record, we assume that the prior drug offenses were not crimes of deception. Id.
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Additionally, most of the previous convictions were over twenty-five years old,
and an intervening gap of approximately twenty years occurred between the four
earliest convictions and the three latest convictions.     Moreover, the jury was
apprised of the victim’s drug conviction from 2003. Thus, the information that
Appellant sought to introduce pertaining to the victim’s remote drug convictions
was cumulative of information presented to the jury. While the credibility of the
victim was obviously an important factor in the jury’s consideration of the
evidence, we conclude that the trial court did not abuse its discretion when it
determined that the probative value of the victim’s remote drug convictions did not
substantially outweigh their prejudicial effect.
      Even under the less stringent Rule 609(a) standard, we conclude that the trial
court did not abuse its discretion in excluding the victim’s remote drug
convictions. In reviewing the trial court’s ruling on the admissibility of a prior
conviction, “we must accord the trial court ‘wide discretion.’” Theus, 845 S.W.2d
at 881 (quoting United States v. Oaxaca, 569 F.2d 518, 526 (9th Cir. 1978)).
Weighing all the relevant Theus factors, we hold that the trial court acted within its
discretion by excluding the victim’s remote felony drug convictions. Accordingly,
we overrule Appellant’s first issue.
      In her second issue, Appellant contends that the trial court should have
admitted the victim’s remote drug convictions because the State “opened the door”
to their admissibility. Appellant premises this issue on the following exchange
between the prosecutor and the victim during direct examination:
             Q. Have you - - I want to ask you a little bit about your prior
      history.

             A. Yes, sir.

             Q. Have you been in trouble with the law before?


                                           6
            A. Yes, I have.

            Q. Have you had some criminal convictions?

            A. Yes, I have.

            Q. Were you convicted in 2003 - - or, I’m sorry, placed on
      probation in 2003 for two felony offenses for possession of
      methamphetamine and bail jumping?

            A. Yes, I was.

             Q. And did you - - were you on probation for about six years
      until 2009, and then your, probation was revoked?

            A. Yes.

            Q. And did you end up going to prison and doing time for that?

            A. Yes, I did.

            Q. How much time did you do in prison?

           A. I accepted a three year sentence. I made my parole, I
      completed my parole and still doing good day.

            Q. Okay. Are those mistakes that you made in your past?

            A. Yes.

            Q. And did you pay your debt to society for making those
      mistakes?

            A. Yes, sir, I have.

Appellant contends that the questioning left a false impression that the victim had
only been convicted of two felonies.
      Otherwise inadmissible prior convictions can be admitted when a witness,
during direct examination, leaves a false impression as to her prior arrests,
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convictions, charges, or incidents with the police. Prescott v. State, 744 S.W.2d
128, 131 (Tex. Crim. App. 1988). Where such a false impression is given to the
jury, the opposing party is entitled to elicit testimony from the witness that will
correct the false impression. Id. We will uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. See Theus, 845 S.W.2d at 881.
         Appellant contends that the dialogue quoted above left the false impression
that the victim had only been convicted of the two felonies referenced by the State.
We disagree. The prosecutor asked the victim narrowly tailored questions about
the admissible convictions, and she answered those questions truthfully. Neither
the prosecutor’s questioning nor the victim’s answers conveyed that the two
convictions were the only offenses committed by the victim because they did not
speak to offenses committed prior to 2003. Accordingly, the trial court did not
abuse its discretion in overruling Appellant’s contention that the State had opened
the door to making the victim’s remote drug convictions admissible. We overrule
Appellant’s second issue.
         Finally, even if we were to find that the trial court erred when it excluded the
victim’s remote convictions under any theory advanced by Appellant, the error
would have been harmless. An erroneous evidentiary ruling is nonconstitutional
error.     See Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007).
Nonconstitutional error requires reversal only if it affects the substantial rights of
the accused. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93
(Tex. Crim. App. 2011). We will not overturn a criminal conviction for
nonconstitutional error if, after examining the record as a whole, we have fair
assurance the error did not influence the jury, or influenced the jury only slightly.
Barshaw, 342 S.W.3d at 93. Given the fact that the jury was aware that the victim
had a previous conviction for a drug offense, the impact on the jury of additional
drug convictions would have been very slight.
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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 21, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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