Opinion issued October 10, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00597-CR
                             NO. 01-12-00598-CR
                             NO. 01-12-00599-CR
                          ———————————
                      RUSTY LEE MARETT, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 405th District Court
                         Galveston County, Texas
          Trial Court Cause Nos. 11CR1744, 11CR1843, 11CR1844


                                OPINION

      A Galveston County grand jury indicted Rusty Marett with two counts of

aggravated sexual assault and one count of indecency with a child, each enhanced

by a prior conviction for indecency with a child. Marett pleaded not guilty and


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proceeded to trial before a jury. After hearing the evidence, the jury found Marett

guilty on all charges. Marett pleaded true to the enhancement paragraph, and the

trial court assessed his punishment at three life sentences, to run concurrently.

Marett challenges the trial court’s denial of his motion to testify in his own defense

free from impeachment. We conclude that Marett failed to preserve his complaint

for appeal, and we therefore affirm.

                                     Background

      In June 2012, in a routine search for unregistered sex offenders, Galveston

County sex offender compliance officer Paula Welch found Rusty Marett at his

brother’s house in Texas City. She arrested him for failure to register as a sex

offender. Word of Marett’s arrest spread quickly among his neighbors, and over

the next two days, three young girls accused him of molesting them at the house he

shared with his mother, Dora Hardin.

      After an investigation, the State charged Marett with two counts of

aggravated sexual assault and one count of indecency with a child, enhanced by a

prior conviction for indecency with a child. At a pre-trial hearing, Marett moved to

testify free from impeachment examination about his prior convictions for

indecency with a child and failure to register as a sex offender. The court granted

his motion as to the indecency conviction, but denied it as to the failure to register

conviction. In light of the trial court’s ruling, Marett declined to testify.


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      The jury returned a verdict of guilty, and the court assessed punishment at

three life sentences.

                                      Discussion

      In his sole issue on appeal, Marett contends that the trial court erred by

denying his motion to testify free from impeachment examination about his prior

conviction for failure to register as a sex offender (his “Theus motion”). Evidence

of a witness’s prior conviction may be admitted for purposes of impeachment if the

crime was a felony or a crime of moral turpitude, and the court determines that the

probative value of admitting the evidence of the conviction outweighs its

prejudicial effect. TEX. R. EVID. 609(a). The Texas Court of Criminal Appeals has

set out a non-exclusive list of factors courts should use to weigh the probative

value of a conviction against its prejudicial effect. See Theus v. State, 845 S.W.2d

874 (Tex. Crim. App. 1992). 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 charged offense, (4) the importance of the witness’s

testimony, and (5) the importance of the witness’s credibility. Id. Marett contends

that, according to the Theus factors, the prejudicial effect of his prior conviction for

failing to register as a sex offender outweighed its probative value for

impeachment, and thus, that the trial court denied his Theus motion in error.


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      To preserve for review a claim of improper impeachment with a prior

conviction, the defendant must testify. Jackson v. State, 992 S.W.2d 469, 479–80

(Tex. Crim. App. 1999) (following Luce v. United States, 469 U.S. 38, 105 S. Ct.

460 (1984)). In Jackson, the Court of Criminal Appeals adopted the United States

Supreme Court’s reasoning in Luce v. United States, in which the Court required

the defendant to testify. Id. Otherwise, the Court reasoned that an appellate court

“would [be] required to engage in the difficult task of speculating about (1) the

precise nature of the defendant’s testimony, (2) whether the trial court’s ruling

would have remained the same or would have changed as the case unfolded,

(3) whether the government would have sought to impeach the defendant with the

prior conviction, (4) whether the accused would have testified in any event, and

(5) whether any resulting error in permitting impeachment would have been

harmless.” Id. To avoid such difficulties, the Supreme Court held that error was

preserved only if the defendant actually testified. Luce, 469 U.S. at 43, 105 S. Ct

at 464.

      Marett responds that he supplied the trial court with an offer of proof by way

of a bill of exception, in which he denied the charges against him. A bill of

exception, however, will not preserve for appeal the trial court’s erroneous denial

of his Theus motion in this instance. In Luce, the Supreme Court anticipated that a

defendant who wished to preserve error but who was unwilling to suffer


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impeachment with a prior conviction might proffer a statement for the record on

appeal. Luce, 469 U.S. at 41, 105 S. Ct. at 463. The Court held that such a proffer

was not sufficient. Id. at 41–42, 105 S. Ct. at 463–64. Because any trial court

ruling on a motion to testify without impeachment “is subject to change when the

case unfolds,” any possible harm arising from such testimony is speculative. Id.

Without knowing the testimony presented before the jury or the trial court’s ruling

in light of that testimony, an appellate court cannot determine whether such error is

reversible. Id.

      Because it is impossible to conduct a harm analysis if the defendant has not

testified, and a rule of automatic reversal would encourage abuse, a defendant must

testify subject to cross-examination and possible impeachment to preserve error on

appeal. As Luce explains, “[r]equiring that a defendant testify in order to preserve

Rule 609(a) claims will enable the reviewing court to determine the impact any

erroneous impeachment may have had in light of the record as a whole; it will also

tend to discourage making such motions solely to ‘plant’ reversible error in the

event of conviction.” Id. at 42, 105 S. Ct. at 464.

      Marett did not testify; thus, it is impossible to determine whether the

probative value of his testimony would have exceeded its prejudicial effect. See

Jackson, 992 S.W.2d at 479–80; Luce, 469 U.S. at 463–64, 105 S. Ct. at 41–43. In




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accord with Jackson and Luce, we do not consider Marett’s challenge to the trial

court’s denial of his Theus motion.

                                      Conclusion

      We hold that Marett failed to preserve for appellate review his objection to

the admissibility of his prior conviction as impeachment evidence. We therefore

affirm the judgment of the trial court.



                                          Jane Bland
                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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