                                    NUMBER

                                13-14-00257-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

RUBEN ANDRES BALDEZ,                                                   Appellant,


                                        v.


THE STATE OF TEXAS,                                                    Appellee.


              On appeal from the County Court at Law No. 2
                       of Victoria County, Texas.


                       MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria

      By one issue, appellant Ruben Andres Baldez appeals his conviction for driving

while intoxicated, second offense. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw
through 2013 3d C.S.). We affirm.

                                       I. BACKGROUND

       At approximately 2:00 a.m. on September 28, 2013, Officer Robert Rogers

investigated a two-car accident that occurred on John Stockbauer Drive in Victoria,

Texas. Rogers testified that he spoke to appellant, the driver of one of the vehicles

involved in the accident. Rogers further testified that he observed that appellant had

glassy eyes and exuded an odor of alcohol. Marie Salazar, the driver of the other vehicle,

was trapped in the car because the driver’s side door would not open. Appellant helped

Rogers force open the door of Salazar’s vehicle. Afterwards, Rogers directed appellant

to stay beside his car so that Rogers could speak to Salazar without appellant

overhearing. Rogers testified that he told appellant to stay beside his own vehicle five

times; appellant would comply for a minute or less and then leave the vicinity of his car.

Rogers and Officer Issac Ramirez, who arrived to assist Rogers, found appellant walking

away from the scene along Stockbauer Drive. Ramirez handcuffed appellant and placed

him in Ramirez’s vehicle.

       Ramirez testified that he observed that appellant had an unsteady balance,

bloodshot eyes, and acted aggressively. Ramirez also testified, without objection, that

the damage to Salazar’s car was consistent with being struck from behind by another

vehicle. Officer Manny Cordova and Officer Bryan Dowden, who transported appellant

to the hospital, confirmed the observations of Rogers and Ramirez. They added that

appellant’s speech was slurred, he refused medical treatment, and refused to provide a

sample of his blood for testing. Ramirez further testified that he found a discarded beer

can near the driver’s side door of appellant’s vehicle. Salazar testified at trial regarding



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the accident and the events leading up to it. She testified that she was driving “straight”

and that she was struck from behind by appellant’s vehicle.

       Appellant testified in his own defense. On direct examination, appellant denied

that he was intoxicated on the night of the accident and further testified that the accident

was Salazar’s fault because she came into his lane of traffic while he was trying to pass

her. Appellant speculated that Salazar caused the accident because she fell asleep while

driving. The State began its cross-examination by asking appellant if he was a convicted

felon. Appellant answered that he was not. The State attempted to impeach appellant

with a judgment of conviction for possession of less than one gram of methadone, a state

jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West, Westlaw through

2013 3d C.S.). Appellant’s counsel objected that the potential prejudice of admitting the

conviction outweighed its probative value. The trial judge overruled appellant’s objection

following a lengthy discussion with counsel outside of the presence of the jury.

       The jury returned a verdict of guilty. Appellant elected to have the trial judge

assess punishment. The trial judge assessed a term of imprisonment for one year in

county jail, a $4,000 fine, and court costs. Appellant timely filed a notice of appeal.

                                         II. RULE 609

       Appellant argues in his sole issue that the trial court erred in overruling his

objection to admitting the conviction for impeachment purposes because the prejudicial

effect outweighed its probative value. See TEX. R. EVID. 609.




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    A. Applicable Law and Standard of Review

        Rule 609 provides that evidence of a witness’s prior conviction for a felony 1 or a

crime of moral turpitude are admissible for impeachment purposes if the convictions are

less than ten years old and the probative value substantially outweighs the prejudicial

effect. Id. The Texas Court of Criminal Appeals has set out five non-exclusive factors for

courts to consider when making this determination: (1) the impeachment value of the

prior offense; (2) the temporal proximity of the past offense to the charged offense and

the witness’s subsequent history; (3) the similarity between the past offense and the

charged offense; (4) the importance of the defendant’s testimony; and (5) the importance

of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (en

banc). As the proponent of the evidence, the State bears the burden to demonstrate that

the prejudicial effect does not outweigh the probative value. Dale v. State, 90 S.W.3d

826, 830 (Tex. App.—San Antonio 2002, pet. ref'd).

        The trial court possesses wide discretion in deciding whether to admit evidence

under Rule 609. Theus, 845 S.W.2d at 881. We will uphold the trial court’s ruling so long

as it is within the zone of reasonable disagreement. Dale, 90 S.W.3d at 830.

    B. Discussion

        Appellant argues that the State failed to carry its burden as to why appellant’s

conviction for possession of a small amount of methadone satisfied the Theus balancing

test. We disagree.2


        1 Texas courts treat a state jail felony as a “felony” for purposes of Rule 609. See, e.g., Schmidt v.

State, 373 S.W.3d 856, 862–63 (Tex. App.—Amarillo 2012, pet. ref'd).

        2 Appellant also argues that the there is no evidence that the trial judge actually performed the

balancing test, but appellate courts “presume that the trial court conducted the necessary balancing test;
the court's reasoning does not need to be announced for the record.” Medina v. State, 367 S.W.3d 470,
475 (Tex. App.—Texarkana 2012, no pet.).

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       The first factor, the evidence’s impeachment value, is relatively low because

possession of a controlled substance does not involve deception and is not a crime of

moral turpitude. See Denman v. State, 193 S.W.3d 129, 136 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref'd) (concluding that a conviction for delivery of cocaine is not a crime

of moral turpitude or a crime of violence); see also White v. State, No. 14-93-00908-CR,

1995 WL 321599, at *3 (Tex. App.—Houston [14th Dist.] May 25, 1995, no pet.) (mem.

op, not designated for publication) (holding that a conviction for possession of crack

cocaine had low impeachment value because it was neither a crime of violence nor of

moral turpitude).

       The second factor “favors admission if the crime in question is recent and the

witness has a demonstrated pattern of running afoul of the law.” Tristan v. State, 393

S.W.3d 806, 812 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Appellant was convicted

of possession of less than a gram of methadone on November 3, 2008, and his trial in

this case began on February 11, 2014. The relatively recent date of conviction favors

admission. See id. (holding that a six-year gap between the conviction and the charged

offense favored admission); see also Livingston v. State, No. 06-11-00051-CR, 2011 WL

5535332, at *2 (Tex. App.—Texarkana Nov. 15, 2011, no pet.) (mem. op., not designated

for publication) (holding that conviction which became final approximately five years

before the trial was admissible under Rule 609). The second factor weighs in favor of

admission.

       The third factor militates against admission if the prior crime is similar to the

charged offense. Morris v. State, 67 S.W.3d 257, 264 (Tex. App.—Houston [1st Dist.]

2001, pet. ref'd). The reason for this rule is to avoid “a situation where the jury would



                                             5
convict on the perception of a past pattern of conduct, instead of on the facts of the

charged offense.” Theus, 845 S.W.2d at 881. Here, however, the offenses of driving

while intoxicated and possession of a controlled substance contain dissimilar elements

and present little danger of the jury convicting based on a perceived pattern of conduct.

See id. The third factor weighs in favor of admission.

       We consider the fourth and fifth factors together because they are related. See id.

When the case involves only the testimony of the defendant, the importance of the

defendant’s credibility and the State’s resulting need to impeach it is heightened. Schmidt

v. State, 373 S.W.3d 856, 863 (Tex. App.—Amarillo 2012, pet. ref'd); White v. State, 21

S.W.3d 642, 647 (Tex. App.—Waco 2000, pet. ref'd). Appellant was the only witness to

testify for the defense in this case. Appellant’s testimony provided the only evidence

contradicting the police officers’ testimony that he exhibited multiple signs of intoxication

on the night of the accident. His testimony also directly contradicted Salazar’s testimony

regarding the circumstances surrounding the collision. The role of appellant’s testimony

in this case and the importance of the credibility issue weigh strongly in favor of

admission. See Schmidt, 373 S.W.3d at 863; White, 21 S.W.3d at 647.

       Based on the foregoing, especially the role of appellant’s testimony in the case

and the importance of his credibility, see Schmidt, 373 S.W.3d at 863, we conclude that

the trial court did not abuse its discretion in permitting the State to cross-examine

appellant regarding his prior conviction. See Theus, 845 S.W.2d at 881. We overrule

appellant’s sole issue.




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                                       III. CONCLUSION

       We affirm the judgment of the trial court.




                                                    NORA L. LONGORIA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of April, 2015.




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