                                                                   PD-0790-15
                                                 COURT OF CRIMINAL APPEALS
                PD-0790-15                                        AUSTIN, TEXAS
                                                 Transmitted 6/25/2015 1:55:10 PM
                                                   Accepted 6/29/2015 2:02:18 PM
                                                                   ABEL ACOSTA
                                                                           CLERK

    NO. _____________________________________
    Second Court of Appeals No. 02-12-00643-CR

                   TO THE
          COURT OF CRIMINAL APPEALS
                  OF TEXAS

     DONOVAN DARREN LEVOY MEADOWS
                      Petitioner,

                         V.

                THE STATE OF TEXAS,
                           Appellee.

    PETITION FOR DISCRETIONARY REVIEW


                              Paul Francis
                              State Bar No. 07359600
                              P.O. Box 13369
                              1178 West Pioneer Parkway
                              Arlington TX 76013-6367
                              (817) 543-2600 Telephone
                              (817) 460-2236 Facsimile
                              pfrancis@birch.net

                              ATTORNEY FOR PETITIONER
                              DONOVAN DARREN LEVOY
                              MEADOWS
June 29, 2015
         IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT
                   OR ORDER, AND COUNSEL

TRIAL JUDGE:                The Honorable Mark T. Price1,
                            Judge Of The 89th District
                            Court Of Wichita County,
                            Texas

APPELLANT:                  Donovan Darren Levoy
                            Meadows

COURT APPOINTED
COUNSEL ON APPEAL:          Paul Francis
                            1178 W. Pioneer Parkway
                            Arlington TX 76013

COUNSEL AT TRIAL:           S. Price Smith
                            705 Eighth St., Ste 600
                            Wichita Falls TX 76301


APPELLEE:                   The State of Texas

COUNSEL ON APPEAL:          Carey Jensen
                            Assistant District Attorney
                            Wichita County District Attorney's Office
                            900 7th St., Rm 351
                            Wichita Falls TX 76301

COUNSEL AT TRIAL:           Matt Fass, Assistant District Attorney
                            Starla Jones, Assistant District Attorney
                            Wichita County District Attorney's Office
                            900 7th St., Rm 351
                            Wichita Falls TX 76301



1 Since deceased
                              ii
                                      TABLE OF CONTENTS

IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT
OR ORDER, AND COUNSEL……………………………….…………………ii

TABLE OF CONTENTS ............................................................................ iii

INDEX OF AUTHORITIES ....................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT .................................... 1

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF PROCEDURAL HISTORY ............................................ 3

GROUNDS FOR REVIEW (ISSUES) ........................................................... 3

ARGUMENT ............................................................................................. 5

1. The Court of Appeals ignored the Trial Judge’s Finding and Substituted
its Own…………………………………………………………………………….5

2. The Court of Appeals ignored the plain text of Rule 609(b) that there
must be specific facts and circumstances to justify the admission of the
remote convictions under the “substantially outweighs” test, and case law
which places the burden on the proponent of such evidence to bring them
forth ............................................................................................................ 9

PRAYER FOR RELIEF ............................................................................ 14

CERTIFICATE OF COMPLIANCE (word count) ..................................... 15

CERTIFICATE OF SERVICE…………………………………………………16

APPENDIX ............................................................................................... 17



                                                        iii
                                       INDEX OF AUTHORITIES




Cases
Allen v. State, 108 S.W.3d 281 (Tex. Crim. App. 2003) .......................................4, 7
Berry v. State, 179 S.W.3d 175 (Tex.App.-Texarkana 2005, no pet.) ......................7
Bryant v. State, 997 S.W.2d 673 (Tex. App.—Texarkana 1999, no pet.) .................8
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)...................................8
Garcia v. State, 201 S.W.3d 695 (Tex. Crim. App. 2006) ........................................7
Greer v. State, 436 S.W.3d 1 (Tex. App.—Waco 2014, no pet.) ..............................7
Kizart v. State, 811 S.W.2d 137 (Tex. App.—Dallas 1991, no pet.) ..............10
Leyba v. State, 416 S.W.3d 563 (Tex.App.-Houston [14th] Dist.2013, pet.
ref'd) ............................................................................................................. 5, 10, 11
Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015) ......................... 2, 5, 11
Stern v. State, 922 S.W.2d 282 (Tex.App.-Fort Worth 1996, pet. ref'd) ...................8
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) .......................... 4, 5, 7, 10
United States v. Acosta, 763 F.2d 671 (5th Cir. 1985) ............................................14
Washington v. State, 14-13-00818-CR, 2015 WL 2250628, at *2 (Tex. App.—
Houston [14th Dist.] May 12, 2015, no. pet. h.) (Not designated for publication) .11
Rules
Tex.R.App.P. 66.3 ...............................................................................................4, 5
Tex.R.Evid. 609(a) ...................................................................................................10
Tex.R.Evid. 609(b) ........................................................................................ passim




                                                             iv
                           NO. _____________________

                                TO THE
                       COURT OF CRIMINAL APPEALS
                               OF TEXAS


                  DONOVAN DARREN LEVOY MEADOWS
                                   Petitioner

                                           V.

                             THE STATE OF TEXAS
                                        Appellee

                 PETITION FOR DISCRETIONARY REVIEW

To the Honorable Court of Criminal Appeals of Texas:

      Petitioner, DONOVAN DARREN LEVOY MEADOWS, submits this

petition for discretionary review and requests that the Court consider the

following issues:

                                           I.

             STATEMENT REGARDING ORAL ARGUMENT

       Petitioner waives oral argument unless the state is granted oral

argument.




Petition for Discretionary Review of Donovan Darren Levoy Meadows   -1-
                                             II.

                            STATEMENT OF THE CASE

   Petitioner was convicted of aggravated robbery (two counts) and

sentenced to 75 years in prison. (CR 207, 209, 216-218) During the

trial he testified in his defense on guilt-innocence, and the state sought

to impeach him with convictions over 10 years old. The trial court,

over objection of the defendant, allowed such impeachment because

there had been intervening convictions that, under the common law

doctrine known as “tacking” allowed the impeachment to go forward

once the trial judge determined that the probative value “outweighed”

the prejudicial effect. (5 RR 79) On appeal the petitioner attacked

this as an abuse of discretion based on error in doing so but the Fort

Worth Court of Appeals held that under the tacking doctrine it was

allowable.       The Court of Criminal Appeals reversed the Fort Worth Court

of Appeals in Cause No. PD-0175-142 and issued a unanimous opinion that

the tacking doctrine was no longer viable and remanded the case to the Fort

Worth Court of Appeals. The Fort Worth Court of Appeals in an opinion



2 Meadows   v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015)

Petition for Discretionary Review of Donovan Darren Levoy Meadows      -2-
dated April 30, 2015 affirmed the conviction. Appellant filed a motion for

rehearing on May 12, 2015 which was overruled by the Court of Appeals on

May 28, 2015.

                                          III.

                STATEMENT OF PROCEDURAL HISTORY

      The judgment (and opinion) of the Fort Worth Court of Appeals

affirming the trial court was issued April 30, 2015.                A copy of same is

attached as an Appendix to this petition.

                                          IV.

                           GROUNDS FOR REVIEW

      1.     The Court of Appeals ignored the Trial Judge’s Finding and

Substituted its Own.

      The Court of Appeals ignored the finding of the trial court that the

proof of probative value of the remote convictions only “outweighed” not

“substantially outweighed” the prejudice of those remote convictions and

substituted its own findings. This violated the standard of review which

prohibits an appellate court from substituting its opinion for that of the trial

court that is within the zone of reasonable disagreement. This conflicts with


Petition for Discretionary Review of Donovan Darren Levoy Meadows              -3-
Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim. App. 1992) and Allen v. State,

108 S.W.3d 281, 284-85 (Tex. Crim. App. 2003).          The standard of review is of

long-standing and is accepted practice in the courts of Texas, and the Court

of Criminal Appeals should not allow it to be ignored. See Tex.R.App.P.

66.3(a), (c) and (f).

2.       The Court of Appeals ignored the plain text of Tex.R.Evid. 609(b) that

there must be specific facts and circumstances to justify the admission of the

remote convictions under the “substantially outweighs” test, and case law

which places the burden on the proponent of such evidence to bring them

forth.

         The appellate court, in reviewing the admission of the remote

convictions ignored the plain text of Tex.R.Evid. 609(b) that there must be

specific facts and circumstances to justify the admission of the remote

convictions under the “substantially outweighs” test, and case law which

places the burden on the proponent of such evidence (the State in this case)

to bring them forth, thereby using an improper standard of review. This

failure to properly apply the plain text requirements of the rule in analyzing

the action of the trial court is in conflict with Theus v. State, 845 S.W.2d 874,


Petition for Discretionary Review of Donovan Darren Levoy Meadows             -4-
879-81 (Tex. Crim. App. 1992), Leyba v. State, 416 S.W.3d 563 (Tex.App.-

Houston [14th] Dist.2013, pet. ref'd) and Meadows v. State, 455 S.W.3d

166, 171 (Tex. Crim. App. 2015).                Following this court’s holding in

Meadows that the plain text of Tex.R.Evid. 609(b) be followed it would

harm the state’s jurisprudence to allow the court of appeals, on remand, in

the same case, to misapply the plain text of the rule without correction. See

Tex.R.App.P. 66.3(a), (c) and (f).

                                           V.

                                    ARGUMENT

What the Court of Appeals Did On Remand

      On April 30, 2015 the Court of Appeals affirmed the conviction of

Appellant on two counts of aggravated robbery.

The First Issue

      The Court of Appeals ignored the Trial Judge’s Finding and

Substituted its Own.

      In addressing the argument of Appellant that the trial court erred

(abused its discretion) in admitting the remote convictions the court of




Petition for Discretionary Review of Donovan Darren Levoy Meadows          -5-
appeals substituted its findings for that of the trial court, which was an

incorrect application of the standard of review.

      Tex.R.Evid. 609 (b) provides that remote convictions are not

admissible “unless the court determines, in the interests of justice, that the

probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect.”


      In considering the admissibility of the remote convictions the trial

judge made the following finding:

      The trial judge acknowledged the standard was “substantially outweighs”, (5

RR 73-74) yet did not find that the probative value substantially outweighed

prejudice, merely that it “outweighs” the prejudice. (5 RR 79)


      On the face of the record the trial court did not find that the proof rose to the

level of “substantially outweighs” because it did not make a finding to that effect.

Instead the judge found “outweighed,” and on the state’s argument that the tacking

doctrine should be applied found the convictions admissible. The court of

appeals, in its opinion on page 4, even acknowledges the trial judge’s finding. It

then goes on to state “We cannot say, on the record before us, that the trial court

could not have found that the probative value of the prior felony convictions

Petition for Discretionary Review of Donovan Darren Levoy Meadows               -6-
substantially outweighed their prejudicial effect…” at page 6, despite that fact that

the trial court made a different finding.


       An appellate court is not free to reverse a lower court's determination simply

because it disagrees with that decision. Garcia v. State, 201 S.W.3d 695, 704-05

(Tex. Crim. App. 2006) [Determination of admissibility of evidence may be

reversed only if it was outside the zone of reasonable disagreement.] A court of

appeals which does otherwise has misapplied the standard of review. Id.


       The balancing of probative value against prejudice is a determination in

which the trial court has broad discretion and should not be lightly disturbed. This

standard of appellate review is applicable to determinations under Tex.R.Evid.

609. See Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim. App. 1992) [“In

reviewing the trial court's conduct in weighing these factors and decision in

admitting into evidence a prior conviction, we must accord the trial court “wide

discretion.”]; Berry v. State, 179 S.W.3d 175, 180 (Tex.App.-Texarkana 2005, no

pet.).3 It must be presumed that the trial court properly weighed the factors when it

determined that the probative value only “outweighed” rather than “substantially


3 The same deference is used in reviewing the prejudice v. probative balancing under
Tex.R.Evid. 403. See Allen v. State, 108 S.W.3d 281, 284-85 (Tex. Crim. App. 2003); Greer v.
State, 436 S.W.3d 1, 9 (Tex. App.—Waco 2014, no pet.)

Petition for Discretionary Review of Donovan Darren Levoy Meadows                     -7-
outweighed” the prejudice. See Stern v. State, 922 S.W.2d 282, 287 (Tex.App.-

Fort Worth 1996, pet. ref'd); Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.—

Texarkana 1999, no pet.)


      The trial court already made its finding. The court of appeals did not follow

the proper standard of review when it chose to ignore the trial court’s finding and

speculate about what the trial court “could” have found.


      The trial court’s decision to admit the evidence based on the doctrine of

Tacking, which is not longer viable, does not change the efficacy or conclusiveness

of the determination the trial court made regarding the balancing of probative vs.

prejudice.


      If the trial court's evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed even if the trial judge gave the

wrong reason for his right ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.

Crim. App. 2009) However, in this case, when the tacking doctrine is ignored,

there is no correct theory of law that would allow the admission of the remote

convictions, given the trial court’s “prejudice v. probative” balancing

determination expressly set out in the record. The court of appeals does not rely on

the De La Paz rule in any event. It merely sat at the trial judge’s bench and made
Petition for Discretionary Review of Donovan Darren Levoy Meadows                 -8-
its own evaluation of the balancing between probative and prejudice.


      There is room for only one judge on a trial bench, and appellate courts

cannot take over that job.


      This was an improper application of the standard of review and the Court of

Appeals’ judgment and opinion should be set aside as the court of appeals failed to

follow the law.


The Second Issue

      The Appellate Court, in reviewing the admission of the remote

convictions ignored the plain text of Tex.R.Evid. 609(b) that there must be

specific facts and circumstances to justify the admission of the remote

convictions under the “substantially outweighs” test, and case law which

places the burden on the proponent of such evidence (the State in this case)

to bring them forth, thereby using an improper standard of review.

      Even if the court of appeals’ error addressed above is ignored, the court of

appeals failed properly to analyze the required showing under Tex.R.Evid. 609(b).


      Any proponent seeking to introduce evidence pursuant to Tex.R.Evid. 609

has the burden of demonstrating that the probative value of a conviction outweighs

Petition for Discretionary Review of Donovan Darren Levoy Meadows               -9-
its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992)

(Applying Tex.R.Evid. 609(a)) Under Tex.R.Evid. 609(b), the proponent also

carries the burden of proof. See Leyba v. State, 416 S.W.3d 563, 572 (Tex. App.—

Houston [14th Dist.] 2013), petition for discretionary review refused (May 7,

2014) Also see Kizart v. State, 811 S.W.2d 137, 141 (Tex. App.—Dallas

1991, no pet.)


       Specific facts and circumstances are required by the plain text of the

rule. The burden of producing those for the trial court’s consideration was

on the state.


       The court of appeals in the present case stated that “We cannot say, on

the record before us, that the trial court could not have found that the

probative value of the prior felony convictions substantially outweighed their

prejudicial effect or that it abused its discretion by admitting them…”4 The

Court of Appeals speculated that the trial court could have made a ruling

that would have required evidence the state failed to provide, thereby

abusing its discretion. This ignores the manner in which 609(b) is to be

applied, as set out in Leyba v. State, 416 S.W.3d 563 (Tex.App.-Houston

4 Page 6   of its opinion.

Petition for Discretionary Review of Donovan Darren Levoy Meadows           - 10 -
[14th] Dist.2013, pet. ref'd) In Leyba the court acknowledged that the

prosecution in that case did not offer any “specific facts and circumstances”

beyond the date and the type of crime to justify the admission of Leyba's prior

convictions. Leyba v. State, 416 S.W.3d at 571. Further at 572:


       After considering all five factors together, we are not convinced that
       the prosecutor satisfied her difficult burden under Rule 609(b). As we
       mentioned before, the prosecutor only established the date and type of
       the conviction. The prosecutor did not explain how the prior
       conviction had any probative value, or that this probative value was
       supported by specific facts and circumstances. Considering that Leyba
       did not deny using a weapon in the instant case, the probative value of
       this prior conviction appears to have been minimal. Because there is
       no indication that this value substantially outweighed its prejudicial
       effect, we hold that the trial court abused its discretion by allowing
       this evidence to be admitted. [Emphasis added]

       The burden was on the prosecutor to adduce specific facts and circumstances

beyond the date and type of crime to justify the admission. Also see Washington v.

State, 14-13-00818-CR, 2015 WL 2250628, at *2 (Tex. App.—Houston [14th

Dist.] May 12, 2015, no. pet. h.) (Not designated for publication)5 The requirement

of specific facts and circumstances is in the text of the rule itself. In the absence of

5 “We clarified  that if the State intends to impeach a witness with evidence of a conviction that is
at least ten years old, then the State must show that the probative value of that evidence
“substantially outweighs” its prejudicial effect. Id. In Meadows v. State, the Court of Criminal
Appeals embraced this analysis and held that Tex.R.Evid. 609(b) provides the exclusive standard
for admitting evidence of a remote conviction. See 455 S.W.3d 166, 171 (Tex.Crim.App.2015).”
(Emphasis added)


Petition for Discretionary Review of Donovan Darren Levoy Meadows                            - 11 -
the state providing such evidence the trial court abuses its discretion in admitting

the remote convictions.


      In the present case the judge recited the language of Tex.R.Evid. 609(b)

which required specific facts and circumstances, and invited the state to make its

argument, stating at 5 RR 73-74:


       THE COURT: Well, the rest of the test -- beyond the 10 years,
      though, is unless the Court determines in the interest of justice that the
      probative value of the convictions supported by specific facts and
      circumstance substantially outweighs the prejudicial effect.

      MR. SMITH: Yes, sir.

      THE COURT: So I'll hear evidence to that regard -- I'll hear
      argument to that regard


      In the present case the prosecutor’s arguments regarding the remote

convictions are set out at 5 RR 72-79. The state set out dates and types of

convictions regarding the felonies at issue here. Mention was made of the

convictions being crimes of deception but no other specific fact or circumstance

was offered by the state to support admission. The remainder of the argument was

in support of the tacking doctrine.

      The court of appeals treated the paucity of the record as being neutral and


Petition for Discretionary Review of Donovan Darren Levoy Meadows               - 12 -
engaged in a purported consideration of the Theus factors based on a record devoid

of specific facts and circumstances. In fact the lack of specific facts and

circumstances is proof of the failure of the state to discharge its burden of adducing

evidence necessary to justify admission of the remote convictions.


       By failing to require compliance with the plain text of the rule, the court of

appeals failed to correctly apply Tex.R.Evid. 609(b).


       The requirement for admissibility under the “substantially outweighed”

standard is not easy or routine. It is a difficult burden. Leyba v. State, 416 S.W.3d

at 572. In federal cases6 applying the same standard the courts have recognized the

heavy burden this places on the proponent of the admissibility. The probative

value of a conviction more than 10 years old is by definition outweighed by its

prejudicial effect, and the general rule is inadmissibility. United States v. Hamilton,

48 F.3d 149, 154 (5th Cir.1995). Substantially outweighs is found very rarely and

only in exceptional circumstances. United States v. Cathey, 591 F.2d 268, 275 (5th

Cir. 1979)      The mere fact that the defendant's credibility is in issue—a

circumstance that occurs whenever the defendant takes the stand—cannot,

6 Federalcourt interpretations of federal rule 609 is of guidance in the interpretation of the Texas
rule. Montgomery v. State, 810 S.W.2d 372, 387 n. 2 (Tex.Cr.App.1990) By adopting the
language of a federal rule it was intended to adopt the federal interpretation of the rule as well.
Ramirez v. State, 802 S.W.2d 674, 676-77 (Tex. Crim. App. 1990)

Petition for Discretionary Review of Donovan Darren Levoy Meadows                           - 13 -
by itself, justify admission of evidence of convictions over ten years old.

United States v. Acosta, 763 F.2d 671, 695 (5th Cir. 1985)


      The Court of Appeals failed by require compliance with the plain text of

Tex.R.Evid. 609(b) and its opinion and judgment should be set aside.


                                          VI.

                              PRAYER FOR RELIEF

      Based on the above and foregoing, the Petitioner respectfully requests

that the Court of Criminal Appeals, grant the Petition for Discretionary

Review, and upon consideration of the case to vacate the court of appeals’

judgment and determine that the trial court abused its discretion in admitting

the remote convictions, that same was harmful and reverse the conviction

and remand the case to the trial court. In the alternative, Petitioner requests

the Court of Criminal Appeals to vacate the court of appeals’ judgment, and

remand the case to the court of appeals with instructions consistent with its

disposition.




Petition for Discretionary Review of Donovan Darren Levoy Meadows           - 14 -
                                                Respectfully submitted,

                                                Law Office of Paul Francis
                                                P.O. Box 13369
                                                1178 W. Pioneer Parkway
                                                Arlington TX 76013-6367
                                                (817) 543-2600 Telephone
                                                (817) 460-2236 Facsimile

                                                By: /s/ Paul Francis
                                                  Paul Francis
                                                  State Bar No. 07359600

                                                ATTORNEY FOR PETITIONER
                                                DONOVAN DARREN LEVOY
                                                MEADOWS


                       CERTIFICATE OF COMPLIANCE

      The undersigned counsel certifies that the number of words in this

document, as computed in accordance with Tex.R.App.P. 9.4(i) using the

Word Count function of Microsoft Word is 2,378.



                                                /s/ Paul Francis
                                                             Paul Francis




Petition for Discretionary Review of Donovan Darren Levoy Meadows            - 15 -
                             CERTIFICATE OF SERVICE

      A true and correct copy of the above and foregoing was served upon

the following persons in accordance with Texas Rule of Appellate Procedure

9.5, on this June 25, 2015.


Carey Jensen                                            Lisa C. McMinn
Assistant District Attorney                             State Prosecuting Attorney
900 7th St., Rm 351                                     PO Box 13046
Wichita Falls TX 76301                                  Capitol Station
                                                        Austin, TX 78711




                                                  /s/ Paul Francis
                                                        Paul Francis




Petition for Discretionary Review of Donovan Darren Levoy Meadows            - 16 -
                                     APPENDIX




Petition for Discretionary Review of Donovan Darren Levoy Meadows   - 17 -
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00643-CR

Donovan Darren Levoy Meadows             §    From the 89th District Court

                                         §    of Wichita County (51,786-C)

v.                                       §    April 30, 2015

                                         §    Opinion by Justice Sudderth

The State of Texas                       §    (nfp)

                         JUDGMENT ON REMAND

      This appeal is on remand from the Court of Criminal Appeals. This court

has again considered the record on appeal in this case and holds that there was

no error in the trial court’s judgment. It is ordered that the judgment of the trial

court is affirmed.


                                     SECOND DISTRICT COURT OF APPEALS

                                     By _/s/ Bonnie Sudderth________________
                                        Justice Bonnie Sudderth
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00643-CR

DONOVAN DARREN                                                      APPELLANT
LEVOY MEADOWS

                                          V.

THE STATE OF TEXAS                                                        STATE


                                      ------------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                      ------------

               MEMORANDUM OPINION1 ON REMAND
                                      ------------

                                   I. Introduction

      A jury concluded that appellant Donovan Darren Levoy Meadows robbed

two Buffalo Wild Wings employees at gunpoint after hearing witness testimony

that he threatened to blow their heads off if they pushed the panic button, failed

to comply with his instructions to open the restaurant’s safe, or made any

movements after he left them in the restaurant’s walk-in freezer. See Meadows


      1
       See Tex. R. App. P. 47.4.
v. State, No. 02-12-00643-CR, 2014 WL 84207, at *3–4 (Tex. App.—Fort Worth

Jan. 9, 2014) (mem. op., not designated for publication), rev’d, No. PD-0175-14,

2015 WL 778556 (Tex. Crim. App. Feb. 25, 2015).2 The jury convicted Meadows

of two counts of aggravated robbery and assessed his punishment at seventy-

five years’ confinement on each count. Id. at *1.

      In a single point in his direct appeal to this court, Meadows argued that the

trial court had abused its discretion by allowing the State to cross-examine him

during the guilt-innocence phase of trial with evidence of three felony theft

convictions that were more than ten years old and a 2009 misdemeanor assault

conviction that was not a crime involving moral turpitude. See id. Regarding the

three felony convictions, Meadows asked us to revisit our application of the

tacking doctrine in Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.—Fort Worth

2001, pet. ref’d). Id. at *1–2. We declined the invitation to do so, overruled the

portion of Meadows’s sole point that pertained to the three felony convictions on

that basis, overruled the portion of his sole point that pertained to his 2009

misdemeanor conviction on a different basis, and affirmed the trial court’s

judgment. See id. at *1, *3–6.


      2
       The restaurant’s surveillance video corroborated the testimony of the
State’s witnesses; it showed the robber removing his mask after he left the
building but before he was out of surveillance range. 2014 WL 84207, at *4.
After several of Meadows’s acquaintances identified him as the culprit, Meadows
admitted that he had been the masked man but claimed that what appeared to
be a gun was actually a water nozzle spray gun, denied threatening anyone, and
contended that he had committed a theft, not a robbery. Id. at *4 & n.7, *5.

                                        2
      On February 25, 2015, the court of criminal appeals held that the

unambiguous plain language of rule 609 supplants the common-law tacking

doctrine that we relied upon in overruling the portion of Meadows’s sole point that

pertained to his prior felony convictions. Meadows, 2015 WL 778556, at *2, *4.

The court of criminal appeals reversed our judgment and remanded the case to

us, instructing us to reconsider our ruling on those convictions under the more

restrictive standard of rule 609(b). Id. As set out below, we have done so and

once more affirm the trial court’s judgment.3

                                  II. Discussion

      The trial occurred from November 26 to November 29, 2012.             Before

cross-examining Meadows and outside of the jury’s presence, the State

announced its intent to question Meadows about his convictions for, among other

things, theft by receiving and grand larceny in the early 1990s4 and his 1996

      3
        We will not revisit the portion of Meadows’s sole point in which he argued
that his 2009 misdemeanor assault-family violence conviction should not have
been admitted under the false-impression exception. With regard to that
conviction, in our original opinion, we assumed without deciding that the trial
court had erred by admitting the misdemeanor conviction but found that any such
error had no substantial or injurious effect or influence in determining the jury’s
verdict after performing the appropriate harm analysis. Meadows, 2014 WL
84207, at *3–6 (reviewing the record as a whole, including testimony and
physical evidence, the nature of that evidence, and the character of the alleged
error, along with jury instructions, the State’s theory and any defensive theories,
closing arguments, and voir dire to conclude that the error, if any, was harmless).
The court of criminal appeals did not remand the case to us to reconsider this
analysis. Cf. Meadows, 2015 WL 778556, at *4.
      4
       In 1990, Meadows was convicted of theft by receiving. He received
probation for his grand larceny conviction, but his probation was revoked in 1991.

                                         3
conviction for theft of property $20,000 to $100,000. Meadows, 2014 WL 84207,

at *1. The trial court acknowledged that the convictions were beyond ten years

old but found “that in the interest of justice, the probative value of the

conviction[s] and supported by the specific facts and circumstances outweighs

the prejudicial effect.” Id.

A. Standard of Review

       We review a trial court’s admission of evidence for an abuse of discretion,

and wide discretion is afforded to the trial court. Theus v. State, 845 S.W.2d 874,

881 (Tex. Crim. App. 1992). Only if the trial court’s decision falls outside the

“zone of reasonable disagreement” has it abused its discretion. Id.; Miller v.

State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet. ref’d).

B. Remote Convictions

       In his original appeal, Meadows argued that the admission of his three

prior felony theft convictions allowed his impeachment “merely for being a

criminal generally” and that the trial court abused its discretion by admitting them

because it improperly applied the balancing test under rule 609(b) by failing to

find that the probative value of the convictions “substantially” outweighed their

prejudicial effect.

       The pertinent portions of rule of evidence 609, which provides for

impeachment by evidence of conviction of a crime, are as follows:

       (a) In General. Evidence of a criminal conviction offered to attack a
           witness’s character for truthfulness must be admitted if:


                                         4
         (1) The crime was a felony or involved moral turpitude, regardless
             of punishment;
         (2) The probative value of the evidence outweighs its prejudicial
             effect to a party; and
         (3) It is elicited from the witness or established by public record.

      (b) Limit on Using the Evidence After 10 Years. This subdivision (b)
      applies if more than 10 years have passed since the witness’s
      conviction or release from confinement for it, whichever is later.
      Evidence of the conviction is admissible only if its probative value,
      supported by specific facts and circumstances, substantially
      outweighs its prejudicial effect.

Tex. R. Evid. 609(a)–(b).

      A nonexclusive list of factors to consider in weighing the probative value of

a conviction against its prejudicial effect includes (1) the past crime’s

impeachment value, (2) the past crime’s temporal proximity relative to the

charged offense and the witness’s 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. Theus,

845 S.W.2d at 880. The impeachment value of crimes that involve deception is

higher than those involving violence, while those involving violence have a higher

prejudicial potential. Id. at 881. Temporal proximity favors admission if the past

crime is recent and the witness has demonstrated a propensity for running afoul

of the law, while if the past crime and charged crime are similar, this weighs

against admission because similarity suggests the possibility that the jury could

convict on the perception of a pattern of past conduct rather than on the facts of

the charged offense. Id. When the case involves the testimony of only the


                                        5
defendant and the State’s witnesses, the importance of the defendant’s credibility

and testimony escalates and weighs in favor of admission. Id.

      Theft is a crime of deception. See Huerta v. State, 359 S.W.3d 887, 892

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Theft is a crime of moral

turpitude involving elements of deception.”). Therefore, Meadows’s three felony

theft convictions had a high impeachment value. See id. However, the three

theft convictions were also remote and were similar to the charged offense in that

they involved taking property that did not belong to him, weighing against their

probative value, even though none of the prior thefts involved violence. Theus,

845 S.W.2d at 880.      As the only defense witness who testified, Meadows’s

credibility was paramount, supporting the admission of the prior theft convictions.

See id. at 881. We cannot say, on the record before us,5 that the trial court could

not have found that the probative value of the prior felony convictions

substantially outweighed their prejudicial effect or that it abused its discretion by

admitting them, particularly when Meadows stated during his direct testimony

that he had intended to steal money from the restaurant but that his objective had

been to commit theft, not robbery, presenting the jury with a credibility issue to

resolve. Because we conclude that the trial court did not abuse its discretion by

admitting the three felony theft convictions, we overrule this remanded portion of

Meadows’s sole point.

      5
         See generally Meadows, 2014 WL 84207, at *3–5 (setting out a summary
of all of the testimony presented at trial).

                                         6
                              III. Conclusion

      Having overruled Meadows’s sole point on remand, we affirm the trial

court’s judgment.



                                                /s/ Bonnie Sudderth
                                                BONNIE SUDDERTH
                                                JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.6

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015




      6
       Justice Bob McCoy retired from the Second Court of Appeals before the
court of criminal appeals remanded the case.

                                     7
