                                                                                                      ACCEPTED
                                                                                                 13-14-00257-CR
        FILED                                                                      THIRTEENTH COURT OF APPEALS
                                                                                         CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS
                                                                                            1/14/2015 4:14:15 PM
        CORPUS CHRISTI                                                                         DORIAN RAMIREZ
                                                                                                          CLERK
          1/14/15
DORIAN E. RAMIREZ, CLERK                  13-14-00257-CR
BY DTello
                                                                     RECEIVED IN
                                     IN THE COURT OF APPEALS13th COURT OF APPEALS
                                                            CORPUS CHRISTI/EDINBURG, TEXAS
                               FOR THE THIRTEENTH                1/14/2015 4:14:15 PM
                                                      JUDICIAL DISTRICT
                                                                  DORIAN E. RAMIREZ
                                                                         Clerk
                                      CORPUS CHRISTI, TEXAS

                               _________________________________

                                      RUBEN ANDRES BALDEZ,
                                                Appellant

                                                vs.

                                       THE STATE OF TEXAS,
                                                   Appellee

                               _________________________________

                          ON APPEAL FROM COUNTY COURT AT LAW NO. 2

                                    OF VICTORIA COUNTY, TEXAS

                                     CAUSE NUMBER: 2-102358
                               _________________________________

                                     BRIEF FOR THE APPELLANT
                                       RUBEN ANDRES BALDEZ
                                ________________________________

                                               EDWARD F. SHAUGHNESSY, III
                                               ATTORNEY-AT-LAW
                                               206 E. LOCUST
                                               SAN ANTONIO, TEXAS 78212
                                               (210) 212-6700
                                               (210) 212-2178 (fax)
                                               SBN 18134500
                                               Shaughnessy727@gmail.com


         ORAL ARGUMENT WAIVED                  ATTORNEY FOR THE APPELLANT
                     TABLE OF CONTENTS



                                                  PAGE(S)


Table of Contents………………………………………………………………………………….……..i

Table of Interested Parties……………………………………………………………………………ii

Table of Authorities………………………………………………………………………………….…iii

Brief for the Appellant………………………………………………………………………….………4

Summary of the Argument…………………………………………………………………………...5

Appellant’s Point of Error……………………………………………………………………..……..6

Conclusion and Prayer……………………………………………………………………….……….10

Certificate of Service…………………………………………………………………………….……..11

Certificate of Compliance……………………………………………………………………….…….11




                             i
                        TABLE OF INTERESTED PARTIES




Ms. Timothy Poynter                         State’s Trial Counsel
Assistant District Attorney
205 N. Bridge Street
Floresville, Texas 77901

Mr. Edward Bartolomei                       Trial Counsel
Attorney at Law
420 Baltimore
San Antonio, Texas 78215

Honorable Daniel F. Gilliam                 Trial Court Judge
Judge Presiding
County Court at Law No. 2
Victoria County, Texas

Edward F. Shaughnessy, III                  Appellant’s Counsel
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212
(210) 212-6700
Bar No: 18134500

Stephen B. Tyler                             Appellee’s Counsel
District Attorney
205 N. Bridge St.
Victoria, Texas 77901




                                     ii
                          TABLE OF AUTHORITIES


                                                                  PAGE

STATE CASE(S)

Hankins v. State, 180 S.W.3d 177 (Tex. App.-Austin, 2005, pet. ref’d)……………...9

Hernandez v. State, 976 S.W.3d 753 (Tex. App. –Houston [1st Dist.], 1998, pet.
ref’d)………………………………………………………………………………………………………..…9

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010)……………………….……..8

Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008)………………………………….8

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)………………………………..8,9

RULE(S)

Rule 609, Tex. R. Evid…………………………………………………………….……………passim

Sect. 12.44(a), Tex. Penal Code Ann. (West 2014)…………………………………..……….7




                                      iii
                              NO. 13-14-00257-CR




RUEBN ANDRES BALDEZ,                     §            IN THE COURT OF
Appellant
                                         §            APPEALS, THIRTEENTH

v.                                       §            JUDICIAL DISTRICT

THE STATE OF TEXAS,                      §            CORPUS CHRISTI, TEXAS
Appellee


                            BRIEF FOR THE APPELLANT
                             RUBEN ANDRES BALDEZ


To the Honorable Thirteenth Court of Appeals:


      Now comes, Ruben Andres Baldez, appellant in the case herein, by and

through Edward F. Shaughnessy, III, and Attorney-at-Law, and files this brief in

cause number 13-14-00257-CR. The appellant was charged by way of an

information with the offense of Driving While Intoxicated in cause number 2-

102358. Following a jury trial in County Court at Law No. 2, Victoria County the

appellant was found guilty of the offense as charged in the information. The trial

Court assessed punishment at one (1) year of confinement in the Victoria County

Jail. Notice of appeal was filed and this appeal, alleging a single point of error,

has followed.




                                        4
                        SUMMARY OF THE ARGUMENT
                        ON BEHALF OF THE APPELLANT

      The appellant contends that the trial Court erred in admitting evidence of

the appellant’s prior criminal conviction in violation of Rule 609(a) of the Texas

Rules of Evidence. The evidence presented to the jury was improperly admitted

because the proponent of the evidence failed to demonstrate that the probative

value of the evidence in dispute outweighed the undue prejudice inherent to the

evidence in question.




                                        5
                                 APPELLANT’S
                             SOLE POINT OF ERROR

      In his sole point of error the appellant asserts that the trial Court erred in

admitting evidence of the appellant’s prior criminal conviction in violation of

Rule 609(a) of the Texas Rules of Evidence.



                      SUMMARY OF APPLICABLE FACTS

      As noted above, the appellant was tried by a jury for the misdemeanor

offense of Driving While Intoxicated. Following the close of the prosecution’s

case the appellant testified on his own behalf. The gist of the evidence presented

by the appellant was that he was not intoxicated at the time of the two-car

collision that resulted in his arrest by members of law-enforcement officers in

Victoria on the morning of September 29, 2013. (R.R.5-20 thru 40) Following

the conclusion of the appellant’s direct examination the appellant was passed for

purposes of cross-examination. (R.R.5-41) The initial inquiry posed by the

prosecution to the appellant was whether the appellant was a convicted felon.

The appellant replied that he was not. At that point the trial Court excused the

jury to resolve the issue of the admissibility of what the State sought to

demonstrate regarding a prior judgment against the appellant. (R.R.5-42) What

occurred thereafter, was an extensive colloquy between the parties and the trial

Court that revolved the issue of what precisely the appellant had previously been

convicted of, and whether or not that prior conviction was admissible as

                                         6
impeachment evidence against the appellant. (R.R.5-45 thru 55) The discussion

revolved around the question of whether a prior conviction out of Harris County

had in fact been a felony conviction as opposed to a misdemeanor. The Court

reasoned that the conviction in question was in fact a felony conviction with a

misdemeanor punishment as provided by Sect. 12.44(a), Tex. Penal Code Ann.

(West 2014).1 (R.R.5-47) At that point the appellant objected to the admission of

any evidence tending to show that the appellant had been convicted of a felony

level drug possession case on the grounds, among other things, that to do so

would violate Rule 609, Tex. R. Evid. (R.R.5-52, 53, 54) The appellant’s

objection was overruled and the prosecution was allowed to demonstrate before

the jury that the appellant had previously been convicted of the felony offense of

possession of methadone less than one gram on November 3, 2008. (R.R.5-56,

57)



                           ARGUMENT AND AUTHORITIES

       The appellant asserts in his sole point of error that the trial Court erred in

allowing the prosecution to impeach the appellant with evidence of his 2008

possession of methadone conviction because the probative value of that evidence

was outweighed by the danger of unfair prejudice to the appellant.




1
 A court may punish a defendant who is convicted of a state jail felony by imposing the
confinement permissible as punishment for a Class A misdemeanor….
                                              7
                            STANDARD OF REVIEW

      In reviewing the propriety of a trial Court’s ruling on the admissibility of

evidence a reviewing court is required to employ the abuse of discretion analysis.

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) A decision regarding

the admission of evidence amounts to an abuse of discretion when it is so

incorrect as to be outside the zone of reasonable disagreement. Taylor v. State,

268 S.W.3d 571 (Tex. Crim. App. 2008)

                                   RULE 609(A)

      The evidentiary rule in question is Rule 609(a) of the Texas Rules of

Evidence, which provides in part that a witness can be impeached with evidence

of a prior felony conviction. However there exists a limitation on the

admissibility of such evidence contained within the language of the rule itself. In

order for a witness to be impeached with evidence of a prior felony conviction

the proponent of the evidence (in this case the State of Texas) must demonstrate

that the probative value of the prior conviction outweighs its prejudicial effect.

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) In determining whether

the probative value of the evidence outweighs the potential for undue prejudice

the trial court must engage in a “balancing test” utilizing the following four

factors: 1) impeachment value, 2) temporal proximity to the offense in question,

3) similarity between the charged offense and the prior offense, and 4) the

importance of the testimony of the witness and the credibility of that witness.

Theus v. State, supra. The trial court engaged in no such balancing test.

                                         8
Moreover the State made no effort to present any theory as to why the

employment of a Theus balancing test would demonstrate that the use of the

conviction in question would comply with the dictates of Theus and Rule 609(a).

      The State, as the proponent of the evidence, failed to demonstrate that the

probative value of the evidence in dispute outweighed the potential for undue

prejudice. Consequently the trial Court erred in allowing for the admission of

the evidence. Theus v. State, supra; Hernandez v. State, 976 S.W.3d 753 (Tex.

App. –Houston [1st Dist.], 1998, pet. ref’d); Hankins v. State, 180 S.W.3d 177

(Tex. App.-Austin, 2005, pet. ref’d).

      The erroneous admission of the evidence in question amounted to an

abuse of discretion on the part of the trial Court and requires a reversal of the

conviction and a remand of the cause for a new trial.




                                         9
                         CONCLUSION AND PRAYER



      Wherefore premises considered the appellant, Ruben Andres Baldez,

would respectfully request that this Court reverse the judgment of the trial Court

and remand the cause for a new trial.



                                             Respectfully submitted,



                                    ___/S/Edward F. Shaughnessy, III___

                                             Edward F. Shaughnessy, III
                                             Attorney at Law
                                             206 E. Locust
                                             San Antonio, Texas 78212
                                             (210) 212-6700
                                             (210) 212-2178 (fax)
                                             SBN 18134500
                                             Shaughnessy727@gmail.com
                                             Attorney for the appellant




                                        10
                         CERTIFICATE OF SERVICE

      I, Edward F. Shaughnessy, III, attorney for the appellant hereby certify

that a true and correct copy of the instant brief was delivered to Stephen B.

Tyler, District Attorney, 205 N. Bridge Street No. 301, Victoria Texas, 77901,

counsel for the appellee, by use of the United States Postal Service on the _14__

day of January, 2015.



____/S/Edward F. Shaughnessy, III___

Edward F. Shaughnessy, III




                     CERTIFICATE OF COMPLIANCE

      I, Edward F. Shaughnessy, III hereby certify that the instant brief contains

1522 words.

____/S/Edward F. Shaughnessy, III_______
Edward F. Shaughnessy, III
Attorney for the appellant




                                        11
