                                                                        ACCEPTED
                                                                   13-14-00257-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                           CORPUS CHRISTI, TEXAS
                                                              2/2/2015 11:51:57 AM
                                                                  DORIAN RAMIREZ
                                                                            CLERK



             NO. 13-14-00257-CR
                                     RECEIVED IN
                               13th COURT OF APPEALS
                            CORPUS CHRISTI/EDINBURG, TEXAS
        IN THE COURT OF APPEALS2/2/2015 11:51:57 AM
FOR   THE THIRTEENTH DISTRICT OF DORIAN
                                  TEXASE. RAMIREZ
                                       Clerk
            AT CORPUS CHRISTI


         RUBEN ANDRES BALDEZ,
                         Appellant,
                  v.

           THE STATE OF TEXAS,
                           Appellee.


 On Appeal from the County Court at Law #2
        Of Victoria County, Texas
            Cause No. 2-102358


  BRIEF FOR THE STATE OF TEXAS


                         Stephen B. Tyler
                         Criminal District Attorney
                         State Bar No. 24008186
                         205 N. Bridge Street, Suite 301
                         Victoria, TX 77901
                         Telephone: (361) 575-0468
                         Facsimile: (361) 576-4139

                         Brendan W. Guy
                         Assistant District Attorney
                         State Bar No. 24034895
                         Attorneys for the State of Texas

 ORAL ARGUMENT NOT REQUESTED
                                    TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS ......................................................................... ii

INDEX OF AUTHORITIES ...............................................................iii-iv

STATEMENT OF THE FACTS .......................................................... 2-8

SUMMARY OF ARGUMENT ............................................................. 8-9

ARGUMENT ...................................................................................... 10-25

     I. The trial court acted well within its discretionary
        authority in allowing the State to impeach the Appellant
        with evidence of his prior felony conviction ........................ 10-21

    II. In the alternative, any error in the admission of
        Appellant’s prior conviction was harmless ......................... 21-25

PRAYER .................................................................................................. 25

SIGNATURE ........................................................................................... 25

CERTIFICATE OF COMPLIANCE ................................................... 26

CERTIFICATE OF SERVICE ............................................................. 27
                                             INDEX OF AUTHORITIES

                                                  Texas Cases

Bagheri v. State, 119 S.W. 3d 755 (Tex. Crim. App. 2003) .................. 22

Bryant v. State, 997 S.W. 2d 673
(Tex. App.-Texarkana 1999, no pet) ..................................................... 20

Castro v. State, 2006 WL 1868438
(Tex. App.-Houston [1st Dist.] 2006, pet. ref’d)
(mem. op. not designated for publication) ...................................... 11, 18

Denman v. State,193 S.W. 3d 129
(Tex. App.-Houston [1st Dist.] 2006, pet. ref’d) .................................... 11

Hankins v. State, 180 S.W. 3d 177
(Tex. App.-Austin 2005, pet. ref’d) ....................................................... 25

Herring v. State, 147 S.W. 3d 390 (Tex. Crim. App. 2004) .................. 24

King v. State, 953 S.W. 2d 266 (Tex. Crim. App. 1997) .................. 21-22

Leyba v. State, 416 S.W. 3d 563
(Tex. App.-Houston [14th Dist.] 2013, pet. ref’d) ................................. 24

Mireles v. State, 413 S.W. 3d 98
(Tex. App.-San Antonio 2014, pet. ref’d) ....................................... 16, 19

Motilla v. State, 78 S.W. 3d 352 (Tex. Crim. App. 2002) ..................... 22

Nolen v. State, 872 S.W. 2d 807
(Tex. App.-Ft. Worth 1996, pet. ref’d).................................................. 20

Poiter v. State, 68 S.W. 3d 657 (Tex. Crim. App. 2002) ....................... 21

Smith v. State, 439 S.W. 3d 451
(Tex. App.-Houston [1st Dist.] 2014, no pet) ......................................... 14

Brief of Appellee                                     iii
Victoria County Criminal District Attorney
No. 13-14-00257-CR
Theus v. State, 845 S.W. 2d 874 (Tex. Crim. App. 1992) ......... 10-12, 15,
........................................................................................................ 16-18, 20

Yanez v. State, 199 S.W. 3d 293
(Tex. App.-Corpus Christi 2006, pet. ref’d) ......................................... 23

Yates v. State, 917 S.W. 2d 915
(Tex. App.-Corpus Christi 1996, pet. ref’d) .................................... 20-21


                                               Texas Statutes

TEX. HEALTH & SAFETY CODE § 481.115 (West 2010) ............... 13

TEX. PENAL CODE ANN. §49.04 (West 2014) .................................. 13


                                                 Texas Rules

TEX. R. APP. 9.4..................................................................................... 26

TEX. R. APP. P. 33.1 .............................................................................. 21

TEX. R. APP. P. 44.2 .............................................................................. 22

TEX. R. EVID 609 ................................................................... 9-10, 14, 20




Brief of Appellee                                       iv
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                NO. 13-14-00257-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

RUBEN ANDRES BALDEZ….…………………………………..Appelant

v.

THE STATE OF TEXAS,…..……………………………………...Appellee

                                                    * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            On February 11, 2014, Appellant’s driving while intoxicated case was

called for trial. [RR-III-1, 6].

            The State’s first witness was Officer Robert Rogers of the Victoria

Police Department. [RR-III-142]. Officer Rogers testified to investigating a

car accident involving Appellant and to how Appellant disregarded police

instructions to stay by his vehicle four or five times. [RR-III-148-151].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                        2
Officer Rogers also described how in his initial contact with Appellant, he

noted the Appellant had an odor of alcoholic beverages on his breath and

glassy eyes. [RR-III-148]. Officer Rogers then described Appellant trying

to leave the scene of the investigation entirely which led to the police putting

Appellant in handcuffs. [RR-III-151]. Officer Rogers then testified that

Appellant never reported being injured to him. Id. Officer Rogers then

described locating a beer can next to Appellant’s vehicle. [RR-III-152].

Officer Rogers also sponsored the admission of a video tape of his

investigation of the accident scene. [RR-III-153; State’s Exhibit 1]. The

video in question did not contain a working audio track.          [RR-III-154;

State’s Exhibit 1].

            The State then called Officer Isaac Ramirez of the Victoria Police

Department. [RR-III-229]. Officer Ramirez testified to being called out to

the accident scene on September 29, 2013, where he found the Appellant

yelling and refusing to listen to the police about staying near his vehicle.

[RR-III-230-232]. Officer Ramirez also described the Appellant as having a

“very unsteady balance”, bloodshot eyes, and “acting very aggressive”.

[RR-III-232]. Officer Ramirez then described locating a beer can next to the

driver’s side door of Appellant’s vehicle. [RR-III-237; State’s Exhibit 2].

Officer Ramirez would also testify to the presence of gouge marks and
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             3
vehicle fluid located in the street that would have been caused by two

vehicles being in an accident. [RR-III-245; IV-8-9; State’s Exhibit 28].

Officer Ramirez then described how the damage to Ms. Hernandez’s vehicle

was consistent with it having been struck from behind [RR-IV-11-12], and

how the damage observed to both her vehicle and the Appellant’s was

inconsistent with the damage that would have occurred from two vehicles

merging together. [RR-IV-50-51].

            The State would subsequently call Officer Manny Cordova of the

Victoria Police Department. [RR-IV-64]. Officer Cordova also described

being called out to Appellant’s accident scene the night of September 29,

2013. [RR-IV-65]. Officer Cordova testified to Appellant having a “strong

odor of alcohol”, of Appellant’s walking as being “unbalanced, staggering”,

[RR-IV-67]. and of Appellant having slurred speech. [RR-IV-69]. Officer

Cordova also described transporting Appellant to the hospital where

Appellant refused treatment. [RR-IV-70]. Officer Cordova then reaffirmed

that Appellant had spoke with slurred speech and discussed how Appellant

refused to do a blood draw. [RR-IV-84-85]. Officer Cordova then again

described detecting the odor of alcohol on the Appellant and described how

the Appellant had “very glassy eyes” and was walking in a “staggered,

unbalanced” manner. [RR-IV-86].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             4
            The State then called Officer Bryan Dowden of the Victoria Police

Department. [RR-IV-129]. Officer Dowden also testified to being called

out to Appellant’s accident scene and to observing Appellant walking with

“a staggered walk.”                          [RR-IV-133].       Officer Dowden also described the

Appellant stating that “he was fucked up.” [RR-IV-134]. Officer Dowden

then confirmed that Appellant spoke in a “slurred fashion” [RR-IV-135],

refused to do the field sobriety tests or to accept medical treatment, had a

strong odor of alcohol on his breath, bloodshot eyes, unsteady balance, and

was uncooperative. [RR-IV-137],

            The State then called Ms. Mary Jane Hernandez (also known as Marie

Juanita Salazar). [RR-IV-184, 198]. Ms. Hernandez testified to the events

of September 28, 2013, and how when she was driving home her vehicle

was struck from behind by another vehicle. [RR-IV-189-190, 192]. She

further testified that she was driving “straight” when the accident occurred.

[RR-IV-205].

            After the State rested its case, Appellant elected to testify in his own

behalf. [RR-IV-241]. Appellant testified at length about how the motor

vehicle accident in his case occurred.                               [RR-IV-248-254].   Appellant

described the accident as being the fault of the other involved vehicle. [RR-

IV-252]. Appellant continued his testimony the next day where he provided
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                            5
additional details concerning the car accident. [RR-V-6, 10-16]. Appellant

then reaffirmed his earlier testimony that the other vehicle was responsible

for the accident by coming into his lane of travel while he was attempting to

pass her. [RR-V-11-14].                       Appellant also insisted that he did not hit Ms.

Salazar’s vehicle and speculated that she had fallen asleep while driving.

[RR-V-16-17].

            Appellant also testified that he was not intoxicated on the night in

question. [RR-V-18]. Appellant then claimed that his staggered walk was

due to an injury caused by him tripping over debris in the immediate

aftermath of the accident. [RR-V-23]. The Appellant then characterized

Ms. Salazar’s description of the accident as “far-fetched” and suggested that

she changed her account of what happened at the prompting of the

investigating police officer. [RR-V-24-25]. Appellant then testified that he

lost his temper that night due to the officer coaching Ms. Salazar on what to

say. [RR-V-26]. The Appellant also insisted he did not attempt to leave the

scene.           [RR-V-26-27].               The Appellant then described how after being

arrested and transported by the police he requested help getting out of the

backseat of the vehicle due to his height and injury. [RR-V-29-30]. The

Appellant also argued that his injury was the cause of his confrontational

attitude and inability to keep his balance on the video. [RR-V-30-31].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                      6
            Appellant then testified that his cousin, a physical therapist, examined

him after he was released from jail and that his cousin believed that

Appellant had injured a muscle in his groin area. [RR-V-37-38]. This

cousin did not testify at the hearing. [RR-V-38].

            Appellant then claimed that the beer cans the State had indicated were

found in his vehicle were never in his vehicle. [RR-V-39]. Appellant

further insisted he had no alcohol in his vehicle on the night of the suspected

offense. [RR-V-40]. Appellant then admitted that he had consumed several

beers earlier in the evening of the date of the charged offense but again

denied that he was intoxicated at the time of the offense. [RR-V-40-41].

            Once Appellant’s direct examination was concluded, the State begin

its cross-examination.                       [RR-V-41].         The State’s first question was if

Appellant was a convicted felon.                          Id.     Appellant denied that he was a

convicted felon and a lengthy bench conference was held. [RR-V-41-55].

During that conference Appellant argued against permitting the State to

introduce the specific nature of his prior felony conviction, claiming it was

irrelevant and unfairly prejudicial. [RR-V-48-52]. The court ultimately

decided the State would be permitted to introduce evidence of Appellant’s

prior felony for purposes of impeachment. [RR-V-52-53].



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                          7
            The jury was then recalled, the State asked the Appellant if he was

convicted on November 3, 2008 of possession of methadone, and Appellant

objected, arguing that evidence of the prior conviction was unfairly

prejudicial. [RR-V-56]. In that argument, Appellant conceded that the prior

conviction was for a “totally unrelated type of offense.” Id. The trial court

overruled the Appellant’s objection. Id. The trial court did not make any

verbal or written findings in support of its ruling. Id. Appellant did not

request such findings or object to them not being provided. Id. Appellant

also did not request a limiting instruction on what purpose the evidence of

the prior conviction could be used for by the jury. Id. Appellant admitted to

his prior felony conviction. [RR-V-56-58].

            After each side had rested, Appellant’s closing argument repeatedly

discussed testimony that Appellant had provided. [RR-V-163-167, 170, 172,

174]. Nevertheless, Appellant was found guilty of driving while intoxicated.

[RR-V-194].

                                     SUMMARY OF THE ARGUMENT

            The trial court acted well within its discretion in admitting the

evidence of Appellant’s prior felony conviction. That prior conviction for

possession of a methadone was a recent conviction for an offense that was

not closely related to the charged offense, and given that the Appellant
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                8
testified and was in fact the primary witness for the defense, his credibility

was a critical issue in this trial thus giving the State a compelling need to be

able to impeach his testimony, while the prejudicial effect of a prior

conviction for a non-violent drug offense was slight. Thus the trial could

could reasonably conclude that the probative value of the prior conviction

outweighed its prejudicial effect, and that conclusion should not be

disturbed.

            Nor was the trial court under any obligation to announce its findings

of fact and conclusions of law on the admissibility of the prior conviction.

Texas law does not require a trial court to summarize the results of it

performing the Rule 609 balancing test, and the Appellant did not request to

have such results recorded.

            In the alternative, even if it was error for the trial court to admit the

prior conviction into evidence that error was harmless because the State had

substantial evidence showing the Appellant was intoxicated, and the prior

conviction itself was not of a type of offense likely to inflame the jury or

otherwise to cause them to convict the Appellant for an improper reason. As

such there is no reason to believe that the introduction of the prior conviction

had any substantial impact on the verdict in this case, and therefore any error

from its admission was harmless.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             9
                                             ARGUMENT

    I. The trial court acted well within its discretionary authority in
       allowing the State to impeach the Appellant with evidence of
       his prior felony conviction.

            Texas Rule of Evidence 609 permits evidence of prior felony

convictions to be used to attack a witness’s credibility when the trial court

determines that the probative value of admitting this evidence outweighs its

prejudicial effect to a party. Furthermore, in balancing the probative value

of the evidence versus its prejudicial effect, the trial court must be accorded

“wide discretion.” Theus v. State, 845 S.W. 2d 874, 881 (Tex. Crim. App.

1992). A ruling permitting the use of a prior conviction to impeach should

only be disturbed upon a showing of “a clear abuse of discretion.” Id. No

such clear abuse of discretion occurred in this case, and thus the trial court’s

ruling should stand.

            The Court of Criminal Appeals has provided a non-exhaustive list of

five factors to consider in weighing the probative value of a prior conviction

against its prejudicial effect: 1) the impeachment value of the prior crime; 2)

the temporal proximity of the past crime to the current charged offense; 3)

the similarity between the past crime and the current charged offense; 4) the

importance of the defendant’s testimony; and 5) the importance of the



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                10
credibility issue. Id. at 880. In the present case these five factors weigh

heavily in favor of the admission of the Appellant’s prior felony conviction.

              As to first Theus factor in this case, the impeachment value of the

prior conviction, drug possession offenses are not considered to be a “crime

of deception” and thus have relatively low impeachment value. See Denman

v. State,193 S.W. 3d 129, 136 (Tex. App.-Houston (1st Dist.) 2006, pet.

ref’d). That said drug possession offenses are also not “crimes of violence.”

See Castro v. State, 2006 WL 1868438 at 4 (Tex. App.-Houston (1st Dist.)

2006, pet. ref’d)(mem. op. not designated for publication.)              This is

significant because crimes that involve violence are recognized to have a

higher potential for prejudice than non-violent offenses. Theus, 845 S.W. 2d

at 881. As such at least one Court of Appeals (albeit only in a memorandum

opinion) has held that a conviction for a drug offense that is neither a high

impeachment value “crime of deception” nor a high prejudice risk “crime of

violence” is neutral in a Theus analysis favoring neither admission nor

exclusion. See Castro, 2006 WL 1868438 at 4. That reasoning seems

logical, and thus the State would argue it should be adopted in this case as

well.           Thus the first Theus factor is neutral here, supporting neither

admission nor exclusion of the evidence.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             11
            As to the second Theus factor, the temporal proximity of the past

conviction, that factor favors admission of the evidence.                  When a past

conviction is recent it has greater probative value and thus more strongly

supports admission. Theus, 845 S.W. 2d at 881. Appellant’s prior felony

conviction occurred slightly over five years before his testimony in the

present case: Appellant was convicted of his felony offense on November 3,

2008 [RR-V-56] and testified in this trial on February 12, 2014. [RR-IV-1,

241].          In the Theus case the Court of Criminal Appeals found that a

conviction that became final five years before the current charged offense

was “recent.”                       Id. at 881.   Since Appellant’s prior conviction is

approximately the same age as the conviction at issue in Theus, it stands to

reason that the conviction in this case also qualifies as being a “recent”

conviction and therefore the temporal proximity factor favors admission in

this case.

            As to the third Theus factor, the similarity of the past conviction to the

current charged offense, that factor also favors admission. When the past

crime and the present one are similar that militates against admission of the

past offense. Id. at 881. However, here Appellant’s past conviction is not

closely related to the charged offense, a point that even the Appellant



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                    12
conceded at trial when his trial counsel argued that Appellant’s prior

conviction was “totally unrelated to this type of crime.” [RR-V-49].

            Appellant’s past offense was a felony conviction for possession of a

controlled substance, methadone, [RR-V-56] while in the present trial he

was facing charges for a misdemeanor offense of driving while intoxicated.

Now it is true that both of those offenses involve substance abuse but that is

where their similarity ends. Beyond that they are very different types of

crime. Possession of a controlled substance primarily puts the offender

themself at risk, whereas driving while intoxicated puts not only the offender

but everyone who shares a roadway with them at risk. And of course these

two offenses have very different elements: most notably the requirement in

the driving while intoxicated statute that you be operating a motor vehicle,

but also that it requires you to actually be intoxicated by introduction of a

substance into your body and that all of this must occur while you are in a

public place whereas possession of a controlled substance does not require

that you even utilize the contraband substance but rather merely that you

have possession of it and does not place any special restrictions on where the

offense can occur. See TEX. PENAL CODE ANN. § 49.04(a) (West 2014);

TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2010). Thus



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             13
the two offenses are not closely related and thus should not be treated as

being similar for Rule 609 purposes.

            A clear example of this principle came from the Houston Court of

Appeals (1st Dist.) in the Smith case where that court found that indecent

exposure and aggravated sexual assault of a child were not similar crimes for

purposes of Rule of Evidence 609 balancing, even though both offenses

involve “sexual elements.” See Smith v. State, 439 S.W. 3d 451, 459 (Tex.

App.-Houston (1st Dist.) 2014, no pet).           The Smith court found major

differences between those two offenses based upon which part of the Penal

Code they were located in and what elements they contained. Id. at 458-

459.          If two offenses that both involve “sexual elements” can still be

regarded as distinctive for Rule 609 purposes then that same logic should

apply with equal force to two offenses that both involve substance abuse

elements. The differences in the elements between driving while intoxicated

and possession of a controlled substance are sufficient enough for them to be

very different types of offenses, and thus they should be considered to not be

similar offenses for Rule 609 purposes.

            Admittedly, this analysis might be different if the means of

intoxication suspected in Appellant’s driving while intoxicated case

involved the same controlled substance, methadone, that was at issue in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             14
Appellant’s prior conviction. It might even be different if Appellant was

suspected of being intoxicated on a different controlled substance than

methadone. However, that was not the case. The State did not present any

evidence suggesting Appellant was intoxicated on methadone or on any

other controlled substance to support its driving while intoxicated case.

Rather the State’s case focused entirely on the Appellant being intoxicated

solely due to the introduction of alcohol into his body. The State’s witnesses

testified to finding an alcoholic beverage near Appellant’s vehicle [RR-III-

152, 237] and to Appellant having a strong odor of alcohol on his breath,

person, and vehicle. [RR-III-202, 227, 233; IV-67, 86, 115, 133, 137].

Likewise the Appellant himself admitted to consuming three of four beers.

[RR-V-40].                 No evidence was ever presented suggesting Appellant was

intoxicated on any substance other than alcohol. The case against Appellant

was simply not about controlled substances and therefore there was no

danger of the jury improperly utilizing Appellant’s past conviction. As such

this factor supported admission of the evidence.

            The fourth and fifth Theus factors, the importance of the witnesses’

testimony and the importance of the credibility issue, are closely related and

thus best analyzed together, and in the present case they both weighed

heavily in favor of the admission of Appellant’s past felony. Appellant’s
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                               15
testimony was obviously of critical importance in this case. While the

Appellant was not the only defense witness called to testify in this case, he

was the only defense witness present at the time and place of the charged

offense. As such he was the only defense witness that could truly present

the defense’s version of events. When the defendant is the only defense

witness, the importance of his testimony and credibility escalates. Theus,

845 S.W. 2d at 881. This standard applies even when the defendant is not

the only defense witness, so long as he is the only defense witness capable of

denying the allegations against him. See Mireles v. State, 413 S.W. 3d 98,

103 (Tex. App.-San Antonio 2013, pet. ref’d).              Therefore since the

Appellant was the only defense witness capable of denying he was driving

while intoxicated, his testimony was of major importance, and the State had

an escalated need to impeach his credibility.

             The Appellant’s testimony addressed a wide range of issues where he

challenged the State’s evidence. The Appellant disputed Ms. Hernandez’s

account of how the entire accident happened with him claiming that she was

the one who caused the accident and suggesting that she changed her story

after being coached by the police. [RR-IV-189-190, 192, 252; V-11-14, 16-

17, 24-25]. The Appellant also denied he was intoxicated at the time of the

charged offense [RR-V-18, 41], and provided explanations other than
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             16
intoxication for his “staggered walk” (supposedly caused by an injury) [RR-

V-23], and his belligerence and refusal to comply with police instructions

(caused by him being upset that the police were coaching Ms. Hernandez on

what to say) [RR-V-24-25]. The Appellant also claimed that despite the

police finding a fresh beer can right next to his vehicle [RR-III-152, 237],

that he had no alcohol in his vehicle on the night in question. [RR-V-39-40].

           All of this testimony by the Appellant turned on his credibility, and

this testimony, if believed, would obviously have done great harm to the

State’s case. The best evidence the State had of Appellant’s intoxication

was the evidence that he had caused a car accident, the evidence that he was

showing physical signs of intoxication (most significantly having trouble

keeping his balance), the evidence that he was showing mental signs of

intoxication (most significantly irrational belligerence and an inability or

unwillingness to comply with police instructions), and the evidence that he

had alcohol with him. Appellant’s testimony attacked all of these points and

by also suggesting improper police conduct (when he accused the police of

coaching Ms. Hernandez) [RR-V-24-26] also attacked the integrity of the

remainder of the State’s case. Therefore, Appellant’s credibility was of vital

importance for the resolution of his case.          When the importance of a

defendant’s credibility escalates, so does the need to allow the State the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             17
opportunity to impeach the defendant’s credibility. Theus, 845 S.W. 2d at

881. As such since both the Appellant testimony and the credibility issue

were of high importance in this case, both of those factors strongly

supported permitting the State to introduce evidence of Appellant’s past

felony conviction.

            Four of the five Theus factors thus clearly favored admission of the

prior conviction, and the State believes the remaining factor, the

impeachment value of the prior conviction, should be regarded as neutral on

the question of the admissibility of the prior conviction. With so many

factors favoring admission, the trial court acted well within its discretion in

ruling that the prior conviction was admissible. Furthermore, even if this

Honorable Court rejects the reasoning of Castro and concludes that the first

Theus factor is not neutral in this case but instead favors exclusion, the

balance of the remaining factors is still sufficiently weighed towards

admission that the trial court’s ruling should be upheld. Indeed this would

be the case even if this Honorable Court also rejects the reasoning of Smith

and concludes that the third Theus factor also favors exclusion of the prior

conviction in this case as other courts have concluded that even with just

three of the Theus factors supporting admission while the remaining two

factors supported exclusion that was still enough to find that a trial court did
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             18
not abuse its discretion in allowing evidence of a prior conviction to be

admitted. See Mireles, 413 S.W. 3d at 103 (holding that even when the

impeachment value of the prior conviction and the temporal proximity of the

prior conviction both supported exclusion of the prior, the remaining factors

favoring admission was enough to sustain the trial court’s decision.)

             Here the State had an obvious, highly elevated need to impeach

Appellant’s credibility since his testimony was the linchpin of the entire

defense case, and the value of the Appellant’s testimony depended entirely

on whether or not the jury found it credible. The prior conviction to be used

to impeach Appellant was recent in time, was not especially similar to the

charged offense, and was not the type of offense likely to inflame a jury and

put them at risk of convicting a defendant for an improper purpose. As such

there was high probative value and little danger of unfair prejudice and thus

the trial court acted well within its discretion in concluding that the

probative value of Appellant’s prior evidence outweighed its prejudicial

effect. That is a conclusion well within the zone of reasonableness and thus

the trial court’s ruling should be upheld.

             Nor does it matter that the trial court did not list on the record or in

writing its findings of fact and conclusions of law concerning why it

concluded the evidence of Appellant’s past conviction was more probative
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             19
than prejudicial in this case. [RR-V-56]. Texas trial courts are encouraged

but not required to make specific findings of fact and conclusions of law

when admitting a prior offense for impeachment under Texas Rule of

Evidence 609. See Theus, 845 S.W. 2d at 880 n.6; Yates v. State, 917 S.W.

2d 915, 920 (Tex. App.-Corpus Christi 1996, pet. ref’d). And when the trial

court does not announce for the record that it has performed the required

balancing test, the appellate courts should presume the trial court conducted

the required balancing. See Bryant v. State, 997 S.W. 2d 673, 676 (Tex.

App.-Texarkana 1999, no pet); Nolen v. State, 872 S.W. 2d 807. 812 (Tex.

App.-Ft. Worth 1996, pet. ref’d).

             In this case the trial court held a lengthy hearing outside of the

presence of the jury concerning the admissibility of the prior conviction

[RR-V-41-55], and made a reasoned decision, permitting the State to

introduce the fact of the Appellant’s prior felony conviction [RR-V-56] but

not allowing the State to introduce documentary evidence of that conviction

after the Appellant had already admitted to the prior. [RR-V-58]. Thus

from the record it is clear the trial court did conduct the proper balancing

test.

              Furthermore, Appellant failed to object at trial to the trial court not

announcing its findings of fact and conclusions of law on the admissibility
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             20
of Appellant’s prior conviction. [RR-V-56]. As such Appellant has waived

any claim of error on that point. See Yates, 917 S.W. 2d at 920; TEX. R.

APP. P. 33.1(a).

                Therefore since the trial court can be presumed to have conducted

the proper balancing test, and since its conclusion upon performing that test

that the evidence of Appellant’s prior felony conviction was admissible was

a reasonable conclusion on the facts of this case, that conclusion was not an

abuse of the trial court’s discretion and thus the trial court ruling should be

upheld.

         II. In the alternative, any error in the admission of Appellant’s
             prior conviction was harmless.

                  In the alternative, even if there was error in the admission of

Appellant’s prior felony conviction, that error would be harmless given the

strength of the State’s case against Appellant, and the low prejudicial effect

of that type of prior conviction.

                   A violation of the rules of evidence is generally non-constitutional

error. See Poiter v. State, 68 S.W. 3d 657, 662-663 (Tex. Crim. App. 2002).

Thus reversal from such errors is only required if the erroneous admission of

the Appellant’s prior conviction affected his substantial rights by exerting a

“substantial and injurious effect or influence in determining the jury’s

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                              21
verdict.” See King v. State, 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997);

TEX. R. APP. P. 44.2(b). Such error will therefore be deemed harmless so

long as we have fair assurance that the error did not influence the jury or if it

did influence the jury only had but a slight effect. Bagheri v. State, 119

S.W. 3d 755, 763 (Tex. Crim. App. 2003). To analyze harm, the reviewing

court must consider the entire record. Motilla v. State, 78 S.W. 3d 352, 355

(Tex. Crim. App. 2002).

                   That record shows that the State had a very strong case against

Appellant. The State presented testimonial evidence of Appellant having

caused a car accident [RR-IV-189-190, 192], of Appellant acting in a very

aggressive manner towards the officers [RR-III-232-233, IV-44], of

Appellant refusing to follow police instructions [RR-III-151, 232], of

Appellant walking with a very unsteady balance [RR-III-232, IV-86, 116,

137], of Appellant having bloodshot/glassy eyes [RR-III-148, 156, 232-233;

IV-86, 137], of Appellant having slurred speech [RR-IV-69, 84, 116, 133,

135], of Appellant having a strong odor of alcohol on his breath/person [RR-

III-148; 156, IV-67, 86, 115, 133, 137], of Appellant refusing to do the field

sobriety tests [RR-IV-137], of Appellant refusing medical treatment [RR-IV-

137], of Appellant refusing to submit to a blood test [RR-IV-84-85], and of

the Appellant himself describing himself as in a bad condition. [RR-IV-
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             22
134]. The Appellant himself likewise admitted on the stand that he had

consumed alcohol earlier in the evening. [RR-V-40]. The State was also

able to present evidence of a fresh beer that was located in the immediate

vicinity of Appellant’s front door [RR-III-152, 237], and the physical

condition of the vehicles was consistent with the accident occurring in the

manner described by Ms. Hernandez rather than in the account provided by

the Appellant. [RR-IV-50-51, 189-190, 192, 248-254].

                  Thus the State had a strong case to show that Appellant was driving

while intoxicated. And when the State’s other evidence is compelling that

renders it much less likely that improperly admitted evidence of a prior

conviction will compromise a defendant’s rights. See Yanez v. State, 199

S.W. 3d 293, 306 (Tex. App.-Corpus Christi 2006, pet. ref’d). And

compared to all the evidence the State did have, the effect of a prior felony

drug conviction would have a negligible impact on the jury’s deliberations.

A conviction for possession of methadone (which was only punished as a

misdemeanor) is not the kind of violent or sexual offense that is going to

irrationally inflame a jury. Nor is the type of offense that suggests a general

propensity to commit other types of crimes. If Appellant’s prior had been

another driving while intoxicated conviction than obviously there would be a

substantial risk of a jury seeing propensity from the conviction, but since
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                             23
Appellant’s prior offense did not involve driving while intoxicated the risk

of the jury imputing a generalized criminal propensity from his prior

conviction was slight. See Herring v. State, 147 S.W. 3d 390, 396 (Tex.

Crim. App. 2004).

                   It is also important that the State did not inquiry into detail about

the specifics of the prior offense. [RR-V-56-58]. Rather the State simply

elicited the fact of the conviction and briefly referenced the existence of that

conviction in its closing argument to remind the jury to question Appellant’s

credibility. [RR-V-56-58, 178, 180, 184]. And the State certainly was not

pursuing an improper motive in attempting to introduce evidence of a recent

felony conviction to impeach a defendant who testified, and whose

testimony was the critical component of the defense case. See Leyba v.

State, 416 S.W. 3d 563, 574 (Tex. App.-Houston [14th Dist.] 2013, pet.

ref’d)(holding that the improper admission of a defendant’s prior aggravated

robbery conviction was harmless in part because the court could not

determine that the prosecutor elicited the inadmissible evidence for an

inflammatory purpose.)

                   Given the strength of the State’s case against Appellant, and the

relatively inoffensive nature of Appellant’s prior felony, it is implausible

that a handful of brief references to that prior conviction could have caused
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                               24
more than a slight impact on the jury in light of all of the other evidence the

State presented. As such any error from the admission of Appellant’s prior

conviction would have been harmless and can be disregarded. See Hankins

v. State, 180 S.W. 3d 177, 183 (Tex. App.-Austin 2005, pet. ref’d).

                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                  25
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s Brief submitted on

February 2, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,046.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                  26
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

Edward Shaughnessy, III, Attorney for the Appellant, by depositing same in

the United States Mail, postage prepaid on the day of February 2, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00257-CR
                                                        27
