AFFIRMED; Opinion Filed May 15, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00284-CR

                        LARRY TADUEEN BELLO, Appellant
                                                V.
                           THE STATE OF TEXAS, Appellee

                        On Appeal from the Criminal District Court No. 6
                                     Dallas County, Texas
                             Trial Court Cause No. F-1251038-X

                               MEMORANDUM OPINION
                          Before Justices Lang, Stoddart, and Schenck
                                  Opinion by Justice Stoddart

       A jury convicted Larry Tadueen Bello of possession of cocaine. After a punishment

hearing, the trial court assessed punishment at two years’ confinement, suspended the sentence,

and placed Bello on community supervision for two years. In a single issue, Bello argues the

trial court abused its discretion by overruling his evidence rule 609 objection to the admission of

his prior convictions to impeach his credibility. We affirm the trial court’s judgment.

                                          BACKGROUND

       Officer Wener Perez testified he was responding to complaints of drug activity in an Oak

Cliff neighborhood the evening of the offense when he noticed a suspicious vehicle with

“temporary tags.” After running the vehicle’s information, Perez found multiple regional hits

indicating several outstanding warrants. Perez initiated a stop of the vehicle. As he spoke to the

driver, Larry Bello, Perez noticed a small green bag in Bello’s mouth and believed Bello was
trying to swallow it. Suspecting that the bag contained cocaine, Perez told Bello to spit it out,

but Bello refused. Perez opened the car door, forced Bello to the ground, and repeatedly

requested that Bello spit the bag out.      Eventually, Bello complied.       Perez recognized the

substance in the bag as crack cocaine and arrested Bello. A field test of the substance was

positive for crack cocaine.

       Bello offered a different version of the arrest. Bello explained he did not know why he

was stopped and denied ever using cocaine. According to Bello, as he reached for his driver’s

license, Perez “jerked” Bello out of the car and onto the street, face down. Perez asked what was

in Bello’s mouth and told him to spit it out and not to swallow it. Bello opened his mouth to

show Perez nothing was inside. The first time Bello saw the drugs was in Perez’s hand. Perez

said, “I found this in your mouth. This came out of your mouth.”

       Before cross-examining Bello, the State informed the trial court it planned to use Bello’s

prior convictions for felony theft and false identification to impeach his credibility. The State

argued the 1998 felony theft conviction was admissible because Bello’s four intervening

convictions for false identification showed a lack of reformation.         The State argued false

identification was a crime of moral turpitude because it involves lying to the police. Bello’s

counsel objected, asserting the prior convictions were not admissible under rule 609 of the rules

of evidence because false identification and felony theft are not crimes of moral turpitude and the

prejudicial value of the theft conviction outweighed its probative value. The trial court overruled

the objection.

                                        LAW & ANALYSIS

       In a single issue, Bello argues the trial court abused its discretion by overruling his

objection to the use of his prior convictions to impeach his credibility. Specifically, Bello asserts

the prejudicial value of the evidence outweighed any probative value, rendering the convictions


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inadmissible under rule 609. See TEX. R. EVID. 609(a), (b), 60 TEX. B.J. 1129 (1998, amended

2015). 1

           We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We

reverse only when the trial court’s decision was so clearly wrong as to fall outside the zone of

reasonable disagreement. Id. We uphold the trial court’s ruling if it was correct on any theory

reasonably supported by the evidence and applicable to the case. See Willover v. State, 70

S.W.3d 841, 845 (Tex. Crim. App. 2002).

           Rule 609(a) of the Texas Rules of Evidence allows a defendant’s credibility to be

impeached by evidence of a felony conviction or conviction for a crime of moral turpitude when

the probative value of the evidence outweighs its prejudicial effect. TEX. R. EVID. 609(a);

Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

However, if more than ten years have elapsed since the date of the conviction, evidence of the

conviction is not admissible unless the trial court determines, in the interest 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).                                      The burden of demonstrating the

admissibility of the evidence rests on the proponent. Theus v. State, 845 S.W.2d 874, 880 (Tex.

1992).

           In deciding whether, in the interests of justice, the probative value of a remote conviction

substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and

circumstances, including whether intervening convictions dilute the prejudice of that remote

conviction. Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015).                                          The court

considers several non-exclusive factors: (1) the impeachment value of the prior offense; (2) the

           1
               Unless otherwise noted, any mention of Rule 609 references the 1998 version of the rule.



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passage of time between the prior conviction and the date the defendant testifies; (3) the

similarity between the prior conviction and any conduct of the defendant at issue in the present

trial; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility

issue. Theus, 845 S.W.2d at 880. The trial court is afforded wide discretion in weighing these

factors. Id. at 881.

       Bello concedes that felony theft and misdemeanor false identification are crimes of moral

turpitude. He also concedes that three of the convictions for false identification were recent,

within five years of the trial in this case. He contends, however, that because of its remoteness,

the prejudicial effect of the felony theft conviction outweighed any probative value.

       The first factor attaches higher impeachment value to a crime that involves deception or

moral turpitude and, therefore, favors admission of evidence of a crime that “relates more to

deception than not.” Theus, 845 S.W.2d at 881. In the present case, theft is a crime of moral

turpitude because it involves deception. See Rodriguez, 129 S.W.3d at 559. Accordingly, this

factor weighs in favor of admission.

       The second factor, temporal proximity, favors admission if the past crime is recent and

the defendant has demonstrated a propensity for running afoul of the law. Theus, 845 S.W.2d at

881. Bello’s theft conviction was sixteen years old at the time of trial. However, Bello’s four

intervening convictions for false identification show a lack of reformation and continuing

disobedience of the law.     The intervening    convictions dilute the prejudicial effect of the

otherwise remote conviction. See Meadows, 455 S.W.3d at 170. This factor weighs in favor of

admission.

       The third factor, lack of similarity with the present offense, weighs in favor of

admissibility. Similarity of past offenses to a present offense weighs against admissibility

because a jury is more likely to convict based upon perceived compliance with a previous

                                               –4–
pattern of similar conduct. Theus, 845 S.W.2d at 881. Theft and possession of cocaine involve

dissimilar conduct. See Scope v. State, No. 01–08–00824–CR, 2010 WL 3220627, at *7 (Tex.

App.—Houston [1st Dist.] Aug. 12, 2010, pet ref’d) (mem. op., not designated for publication)

(finding aggravated robbery, which contains an element of theft, and possession of a controlled

substance dissimilar). This factor favors admission. See id.

       The fourth and fifth factors, the importance of defendant’s testimony and the importance

of credibility, are related and favor admission if the defendant’s credibility is a critical issue,

escalating the State’s need to impeach the defendant’s credibility. Theus, 845 S.W.2d at 880–81.

In the present case, Bello testified that the first time he saw the bag of cocaine was in officer

Perez’s hand. Accordingly, Bello’s credibility was a critical issue and the State’s need to

impeach Bello was heightened. See Woodall v. State, 77 S.W.3d 388, 396 (Tex. App.—Fort

Worth 2002, pet. ref’d) (“where the case boils down to a ‘he said, she said’ situation between

two witnesses, with little evidence to tip the scale in either party’s favor, each witness’

credibility becomes critical to the outcome of the case”). The fourth and fifth factors weigh in

favor of admission.

       After evaluating appellant’s case under all the Theus factors, we cannot conclude the trial

court abused its discretion by overruling his objection to the prior convictions. We overrule

Bello’s single issue.

       We affirm the trial court’s judgment.


                                                     / Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
140284F.U05



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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

LARRY TADUEEN BELLO, Appellant                       On Appeal from the Criminal District Court
                                                     No. 6, Dallas County, Texas
No. 05-14-00284-CR        V.                         Trial Court Cause No. F-1251038-X.
                                                     Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                         Justices Lang and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 15th day of May, 2015.




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