                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00051-CR
        ______________________________


  GREGORY MAURICE LIVINGSTON, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 202nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 10F0371-202




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                        MEMORANDUM OPINION

           Gregory Maurice Livingston was convicted and assessed punishment by a jury for the

felony offense of burglary of a habitation.1 In accordance with the jury verdict, Livingston was

sentenced       to   twelve    years‘   imprisonment   in   the   Texas   Department   of   Criminal

Justice–Institutional Division. Livingston argues the trial court erred in two respects: (1) in

allowing the State to cross-examine him concerning an aggravated assault conviction; and (2) in

admitting evidence of his alleged witness tampering. We affirm the judgment of the trial court.

I.         Background

           Livingston was arrested for a burglary committed during the afternoon hours of

November 16, 2009.            The only witness to the burglary was Ryan Leslie, who lived in the

apartment adjoining that of Jacqulyn Jackson, from which Livingston allegedly removed several

items of value.

           Around 2:00 p.m. on the afternoon in question, Livingston allegedly knocked on Leslie‘s

door and asked if a man named ―Pig‖ was there. Leslie denied knowing anyone by the name of

―Pig,‖ and Leslie did not know Livingston. A few minutes after Leslie‘s brief conversation with

Livingston, Leslie heard a commotion next door in Jackson‘s apartment. When he looked

outside, Leslie saw the same man who had just minutes earlier knocked on his door. He saw the

man, later identified as Livingston, carrying a television from the back of Jackson‘s apartment.


1
    TEX. PENAL CODE ANN. § 30.02 (West 2011).


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After Livingston put the television in the trunk of a red four-door Cadillac, he got into the back seat

of the car, and it sped off. Leslie was able to make a positive identification of Livingston from a

lineup as the man he saw loading a television into the trunk of the red Cadillac.

          Leslie further testified that in February 2011, when Livingston‘s case was initially set for

trial, he received a telephone call from an individual who identified himself as Livingston.

Livingston allegedly told Leslie that Leslie was going to court against Livingston the following

day and, ―I want to fill your pockets full of money.‖ Leslie reported the call to the district

attorney‘s office and to the local police department.

    II.   Analysis

          A.      Admission of Prior Conviction

          Prior to taking the witness stand to testify in his own defense, Livingston moved the court

to permit him to ―testify free of his prior conviction in Arkansas pursuant to Rule 609.‖ The trial

court denied the request.2 Livingston contends the trial court erred in ruling that he could not

testify free from impeachment by evidence of a prior conviction for aggravated assault. The State

argues that the balancing test under Theus weighs in favor of admission, and therefore, the trial

court did not abuse its discretion in permitting the contested cross-examination.

2
 Livingston is also critical of the trial court‘s denial of his request to testify free of his prior conviction, without
providing an explanation for its decision. While Theus concluded that ―[n]othing in Rule 609(a) requires the trial
court to make specific findings of fact and conclusions of law in weighing probative value and prejudicial effect,‖ the
better practice is to ―enunciate on the record not only whether the probative value of a conviction outweighs its
prejudicial effect, but also the rationale behind such a determination.‖ Theus v. State, 845 S.W.2d 874, 880 n.6 (Tex.
Crim. App. 1992). This Court is free to presume that the trial court conducted the necessary balancing test, which
need not be shown in the record. Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.—Texarkana1999, no pet.).

                                                           3
       Trial courts are afforded wide discretion in deciding whether to admit evidence of a

defendant‘s prior conviction. Theus, 845 S.W.2d at 881; Edwards v. State, 883 S.W.2d 692, 694

(Tex. App.—Texarkana 1994, pet. ref‘d). When considering whether a trial court‘s decision to

admit or exclude evidence is error, we apply an abuse of discretion standard. McDonald v. State,

179 S.W.3d 571, 576 (Tex. Crim. App. 2005). ―A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside that zone within which reasonable persons might

disagree.‖ Id.

       Rule 609 of the Texas Rules of Evidence addresses impeachment by evidence of

conviction of a crime, and provides, in pertinent part:

       For the purpose of attacking the credibility of a witness, evidence that the witness
       has been convicted of a crime shall be admitted if elicited from the witness or
       established by public record but only if the crime was a felony or involved moral
       turpitude, regardless of punishment, and the court determines that the probative
       value of admitting this evidence outweighs its prejudicial effect to a party.

TEX. R. EVID. 609(a). Rule 609 requires that as a prerequisite to admitting impeachment evidence

against an accused, the trial court must find that the probative value of such evidence outweighs its

prejudicial effect. Theus, 845 S.W.2d at 879–80. Although not exclusive, the following factors

should be considered: (1) the impeachment value of a prior crime; (2) the temporal proximity of

the prior crime relative to the charged offense and the defendant‘s subsequent history; (3) the

similarity between the prior offense and the charged offense; and (4) the importance of the

defendant‘s testimony and his or her credibility. Id. at 880.



                                                 4
           (1)       Impeachment Value

             ―The impeachment value of crimes that involve deception is higher than crimes that

involve violence, and the latter have a higher potential for prejudice. . . .‖ Id. at 881. Livingston

maintains this factor weighs against admission of his prior aggravated assault conviction, given

that it is not a crime of moral turpitude and its violent nature creates a higher potential for

prejudice.       The State concedes this first factor ―weighs somewhat against admissibility.‖

Although a felony, the offense of aggravated assault would not typically involve deception or bear

heavily against a witness‘ veracity. While ―all felonies have some probative value on the issue of

credibility,‖3 the impeachment value here generally weighs against admissibility.

           (2)      Temporal Proximity

           Livingston concedes that because his prior conviction occurred approximately five years

prior to the instant offense, this factor favors admissibility.4

           (3)      Similarity of Offenses

           When a defendant‘s prior offense and the charged offense are similar, a danger arises that

the jury will convict the defendant based on a perception of past conduct, rather than based on the

facts of the charged offense. Therefore, if the prior offense is similar to the charged offense, this

weighs against admission of the prior conviction.                   Id. at 881.        Livingston concedes that

3
    Theus, 845 S.W.2d at 879 n.3.
4
 Rule 609 provides that evidence of a prior conviction is not admissible if more than ten years has passed from the date
of conviction or release, subject to an exception not applicable here. TEX. R. EVID. 609(b). Livingston‘s prior
conviction falls well within that range.

                                                           5
aggravated assault and burglary are not similar offenses, which weighs in favor of admission of the

prior conviction. See, e.g., LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref‘d) (aggravated kidnapping and aggravated sexual assault are not similar to

burglary).

         (4)      Importance of Defendant’s Testimony and Credibility

         The importance of the defendant‘s testimony and his or her credibility address the nature of

the defense and the means available to prove that defense. Theus, 845 S.W.2d at 881. ―As the

importance of the defendant‘s credibility escalates, so will the need to allow the State an

opportunity to impeach the defendant‘s credibility.‖                       Id.    Livingston maintains that the

credibility of his testimony is not of critical import because, in addition to his testimony, Monica

Moton testified as an alibi witness for the defense.5

         Livingston, however, presented a second defense based on a prior relationship with Leslie,

the only witness to the burglary. Leslie testified that he did not know Livingston, and had never

seen him prior to the day of the offense. To the contrary, Livingston testified he knew Leslie, they

frequently smoked marihuana together, and Leslie owed Livingston an undisclosed amount of

money. After Livingston confronted Leslie about paying the debt, Leslie became ―really scared‖

of Livingston. Livingston testified that he believes Leslie leveled these accusations against him



5
 Moton testified that she was off work the day of the burglary and Livingston was at home with her that day. Moton
further testified that the car allegedly utilized in the burglary was at her residence the entire day, except when she took
the children to school and picked them up in the afternoon.

                                                            6
because it was the only way Leslie could ―get rid of‖ Livingston. According to Livingston, Leslie

knows Livingston and he is familiar with Livingston‘s car.

        Livingston was the sole witness in regard to his relationship with Leslie. This testimony

was characterized by counsel for Livingston as the ―crux of our defense.‖ Livingston‘s testimony

and his credibility were both important given his testimony that the sole witness to the burglary

had a motive to falsely accuse him.       These factors thus weigh in favor of admission of

Livingston‘s prior conviction.

       The trial court did not abuse its discretion in permitting the State to impeach Livingston

with his prior aggravated assault conviction. The Theus factors favor admission of the conviction

and Livingston‘s credibility was vital to his defense. See Cuba v. State, 905 S.W.2d 729, 734

(Tex. App.—Texarkana 1995, no pet.) (court acted within its discretion in determining that in trial

for delivery of cocaine, probative value of defendant‘s prior conviction for aggravated assault

outweighed prejudicial effect where defendant‘s credibility was vital to his defense).

       B.      Evidence of Alleged Witness Tampering

       In his final point of error, Livingston contends the trial court abused its discretion by

admitting evidence of Livingston‘s alleged witness tampering. The trial court‘s evidentiary

ruling must be upheld as long as it is within the zone of reasonable disagreement and is correct

under any theory applicable to the case.       Johnson v. State, 263 S.W.3d 405, 419 (Tex.

App.—Waco 2008, pet. ref‘d).



                                                7
            After Livingston testified that he knew Leslie and that Leslie had a motive to falsely accuse

him, the State moved to cross-examine Livingston about certain telephone calls he allegedly made

to Leslie, offering Leslie money not to testify against Livingston. Livingston objected to the

requested cross-examination because evidence of alleged witness tampering was not relevant, the

testimony would be substantially more prejudicial than probative, and the charges were still being

investigated.

             Livingston was then questioned outside the presence of the jury regarding telephone calls

he allegedly made to Leslie. Livingston denied calling Leslie and denied offering to pay for

favorable testimony. The State informed the trial court that both Leslie and the investigating

officer were available to testify regarding the alleged telephone calls. The trial court overruled

Livingston‘s Rule 403 objection and permitted Livingston to be cross-examined about the alleged

telephone calls. See TEX. R. EVID. 403. After Livingston denied making telephone calls to

Leslie, the trial court determined the State should be permitted to offer extrinsic evidence of the

alleged telephone calls under Rule 613 of the Texas Rules of Evidence.6


6
    Rule 613 provides, in pertinent part:

            In impeaching a witness by proof of circumstances or statements showing bias or interest on the part
            of such witness, and before further cross-examination concerning, or extrinsic evidence of, such
            bias or interest may be allowed, the circumstances supporting such claim or the details of such
            statement, including the contents and where, when and to whom made, must be made known to the
            witness, and the witness must be given an opportunity to explain or to deny such circumstances or
            statement. If written, the writing need not be shown to the witness at that time, but on request the
            same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest,
            extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence
            rebutting any evidence impeaching one of said party‘s witnesses on grounds of bias or interest.

                                                             8
         Leslie testified that he received a telephone call from a private number the night before

Livingston‘s case was originally set for trial. Leslie did not answer the call.7 The next morning,

Leslie received a telephone call from an individual who stated, ―You‘re going to court against me

tomorrow and I want to fill your pockets full of money.‖ The caller identified himself as Greg

Livingston. Leslie immediately reported the call to the district attorney‘s office and to the local

police department.

         Detective Micah Brower of the Texarkana Police Department testified that he is the lead

investigator on Leslie‘s report of witness tampering. Leslie‘s statement to Brower was that

Livingston offered him money to testify favorably for Livingston.                              Brower subpoenaed

Livingston‘s telephone records, but did not bring them to trial because they had not been fully

reviewed.

         On appeal, Livingston maintains that it is the nature of the evidence—as opposed to the

theory of admissibility—that is objectionable.8 The evidence in question, concedes Livingston,

shows consciousness of guilt. But, he maintains, it is not reliable.



TEX. R. EVID. 613(b).
7
 Leslie explained that the only call from a private number he usually received was from his father. The call shows
―Private number, Pops.‖ Leslie did not answer the call merely showing ―private number‖ because he did not know if
it was a call from his father. Leslie called his father the next morning to ask if he called on the previous evening, and
learned that he did not.
8
 Livingston concedes that ―an attempt to tamper with a witness is evidence of ‗consciousness of guilt,‘‖ and such
evidence has been held admissible pursuant to Rule 404(b) of the Texas Rules of Evidence. Johnson, 263 S.W.3d at
426 (citing Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999)); see TEX. R. EVID. 404(b).


                                                           9
         Livingston points to the jury‘s questions during deliberations as evidence of harm caused

by the admission of unreliable witness tampering evidence. During deliberations, the jury

requested the opportunity to review the telephone records for the day in question, and further

requested information indicating when Livingston learned of the identity of the witness. Finally,

the jury wondered, ―Why there were no witnesses or evidence or collaborating [sic] parties

included to prove these two parties (Greg L. & Ryan L.) knew each other?‖ 9 Obviously,

Livingston claims, the jury had questions about whether Livingston and Leslie knew each other

prior to the incident in question, and the jury should not have been forced to rely on unreliable

evidence to arrive at its verdict.

         Livingston‘s complaint, at least in part, appears to be directed not to the admissibility of the

evidence, but to its weight. The jury is the sole judge of the credibility of the witnesses and the

weight of the evidence it receives. Johnson v. State, 23 S.W.3d 1, 16 (Tex. Crim. App. 2000),

overruled on other grounds by Brooks v. State, 323 S.W.3d 893, 912–13 (Tex. Crim. App. 2010).

Accordingly, the jury was free to disregard the witness tampering evidence if it believed such

evidence was too weak or not credible. It was also within the province of the jury to believe the

witness tampering evidence if it found such evidence to be credible.

          To the extent Livingston‘s complaint is based on the notion that the witness tampering

testimony was unfairly prejudicial, his complaint implicates Rule 403. Under Rule 403 of the


9
 The trial court responded to each of the jury‘s questions by indicating that the jury would have to make its decision
based on the evidence introduced.

                                                         10
Texas Rules of Evidence, otherwise relevant evidence ―may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.‖

TEX. R. EVID. 403. In determining whether evidence is relevant, we look to the purpose for which

the evidence was offered and whether there is a direct or logical connection between the offered

evidence and the proposition sought to be proved. Goodwin v. State, 91 S.W.3d 912, 917 (Tex.

App.—Fort Worth 2002, no pet.).

       Because it constituted evidence of Livingston‘s consciousness of guilt, the witness

tampering testimony was highly relevant. See Johnson, 263 S.W.3d at 426 (evidence of witness

tampering is substantive evidence of guilt). ―[A]n attempt to tamper with a witness is evidence of

‗consciousness of guilt.‘‖ Wilson, 7 S.W.3d at 141.

       Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant

evidence will be more probative than prejudicial. Taylor v. State, 93 S.W.3d 487, 505 (Tex.

App.—Texarkana 2002, pet. ref‘d). In order for this evidence to have been unfairly prejudicial, it

must have had a tendency to suggest a decision on an improper basis. Montgomery v. State, 810

S.W.2d 372, 395 (Tex. Crim. App. 1990) (op. on reh‘g).            Stated another way, ―unfairly

prejudicial‖ evidence is evidence that ―tends to have some adverse effect upon a defendant beyond

tending to prove the fact or issue that justifies its admission into evidence.‖ Casey v. State, 215

S.W.3d 870, 883 (Tex. Crim. App. 2007). There is no indication that was the case here, and



                                                11
Livingston does not advance such an argument. The evidence in question did not require a

significant amount of time to present, and there was no argument it might impact the jury in some

irrational, but nevertheless indelible way. See Montgomery, 810 S.W.2d at 390. The witness

tampering evidence was highly probative of Livingston‘s consciousness of guilt. Livingston has

failed to show that the trial court‘s admission of this evidence was an abuse of discretion.

        Further, and to the extent Livingston complains that Rule 613 requires extrinsic evidence

of a prior inconsistent statement or bias to be independently corroborated, we find no authority in

support of this assertion.10 Under Rule 613(b), ―[p]arties are allowed great latitude to show ‗any

fact which would or might tend to establish ill feeling, bias, motive, and animus on the part of the

witness.‘‖ Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). The Rule directs

that before a witness may be impeached by extrinsic evidence of a prior inconsistent statement or

bias, he or she must be informed of the statement‘s content, the time and place at which it was

made, and the person to whom it was made. TEX. R. EVID. 613(b). If the witness denies making

the prior statement, extrinsic evidence of same is admissible. The State complied with the

requirements of Rule 613 by providing Livingston with the circumstances supporting its claim,

including the contents of the prior statement, together with the details of its making. Extrinsic

evidence of the alleged telephone calls was not admitted until after Livingston denied making

those calls. We find no error in the admission of extrinsic evidence of witness tampering under

10
 Here, Livingston claims the only evidence of alleged witness tampering came from Leslie. Brower also testified of
Leslie‘s report of tampering to him on the day of the alleged telephone call.


                                                       12
Rule 613. Having so found, we overrule this appellate point.

III.   Conclusion

       We affirm the judgment of the trial court.



                                                    Jack Carter
                                                    Justice

Date Submitted:       October 20, 2011
Date Decided:         November 15, 2011

Do Not Publish




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