Affirmed and Memorandum Opinion filed April 14, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00568-CR

                        MARCUS BROOKS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1408106

               MEMORANDUM OPINION
      Appellant Marcus Brooks challenges his conviction for injury to a child.

      Appellant was in a dating relationship with the complainant’s mother. The
complainant’s mother terminated her relationship with appellant.                 The
complainant, a twelve-year-old child, was present during an episode in which his
mother and appellant began fighting. Appellant punched the complainant in the
head and stomach several times. The complainant suffered injuries.
       Appellant was charged with injury to a child.                 Appellant pleaded “not
guilty.” The State alleged two prior felony convictions as enhancements, to which
appellant pleaded “true.”

       Appellant filed a motion in the trial court to testify free from impeachment
by prior convictions. Appellant had eight prior convictions, ranging over a twenty-
two year period:
          burglary of a motor vehicle (1988),
          burglary of a habitation (1989),
          burglary of a habitation (1990),
          burglary of a habitation (1993),
          theft (2002),
          failure to identify (2002),
           forgery (2003), and
          felony tampering (2011).
In his motion to testify free from impeachment, appellant asserted that the
probative value of admitting evidence of his prior convictions for the purposes of
determining his credibility did not outweigh the prejudicial effect.

       After the State closed its case-in-chief, the trial court held a Theus hearing1
to determine whether appellant could testify free from impeachment.                      At the
hearing, appellant requested that the State not be allowed to use any of the
convictions other than the forgery conviction and the felony tampering conviction,
because those convictions occurred more than ten years before trial. With respect
to the forgery conviction and the felony tampering conviction, appellant argued

       1
         See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (holding the party
seeking to introduce evidence of a prior conviction under Texas Rule of Evidence 609(a) must
prove that the probative value of the conviction outweighs its prejudicial effect; to make this
determination the trial court must consider factors including, but not limited to, (1) the
impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the
charged offense and the witness’ subsequent history, (3) the similarity between the past crime
and the offense being prosecuted, (4) the importance of the defendant’s testimony, and (5) the
importance of the credibility issue).

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that the prejudicial effect of those convictions outweighed their probative value.

      The trial court ruled that the prejudicial effect of the convictions did not
outweigh their probative value. The trial court explained that, although some of
appellant’s convictions were remote, they could be “tacked” onto the recent
felonies. Applying the tacking doctrine, the trial court determined that the State
could question appellant regarding tampering, forgery, the failure-to-identify, and
theft convictions dating back to 1988. The theft convictions included appellant’s
1989 and 1990 convictions for burglary of a habitation and appellant’s 1988
conviction for burglary of a motor vehicle. Appellant did not testify and the
convictions never came into evidence. Appellant made no proffer as to what his
testimony would have been had the trial court allowed him to testify free from
impeachment.

      The jury found appellant guilty and assessed punishment at sixty years’
confinement. In four issues, appellant now challenges the trial court’s denial of his
motion to testify free from impeachment by prior convictions.

      Failure to Preserve Error

      Appellant asserts that Texas Rule of Evidence 609(b) has supplanted the
tacking doctrine and tacking convictions together is no longer permitted. See
Meadows v. State, 455 S.W.3d 166, 171 (Tex. Crim. App. 2015).

      To preserve error on appellant’s claim that the trial court erred in denying
his motion to exclude evidence of his prior convictions, appellant was required to
take the stand and testify at trial. See Jackson v. State, 992 S.W.2d 469, 479 (Tex.
Crim. App. 1999); Whitaker v. State, 909 S.W.2d 259, 262 (Tex. App.—Houston
[14th Dist.] 1995, no pet.). In Jackson, the Court of Criminal Appeals explained
that to review the trial court’s ruling, an appellate court would be required to


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engage in

      the difficult task of speculating about (1) the precise nature of the
      defendant’s testimony, (2) whether the trial court’s ruling would have
      remained the same or would have changed as the case unfolded, (3)
      whether the government would have sought to impeach the defendant
      with the prior conviction, (4) whether the accused would have
      testified in any event, and (5) whether any resulting error in permitting
      impeachment would have been harmless.
Jackson, 992 S.W.2d at 479. Appellant did not testify and so did not preserve error
on his complaint that the trial court erred in denying his motion to testify free from
impeachment.

      Appellant acknowledges that he waived the error by failing to submit
himself for cross-examination because appellate courts cannot weigh the probative
value of the prior convictions against their prejudicial impact without the
defendant’s testimony. Appellant asks, however, that we “re-examine the blanket
rule” and hold that in this case the record provides sufficient certainty that the State
would have impeached appellant using his prior convictions and that the substance
of appellant’s testimony would have been that his vision problems provided a
defense to the allegations and thereby cast doubt on his intent to commit the
offense. This court, being bound to follow precedent from the Court of Criminal
Appeals, lacks the authority to reexamine and overrule the precedent set by the
high court in Jackson. See Gardner v. State, 478 S.W.3d 142, 147 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).          We, therefore, decline appellant’s
invitation. See id.




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      Appellant did not preserve error on his arguments that the trial court erred in
denying his motion to testify free from impeachment by prior convictions. See
Jackson, 992 S.W.2d at 479. Accordingly, we overrule appellant’s issues and
affirm the trial court’s judgment.




                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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