                         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


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      A jury convicted Appellant Donovan Darren Levoy Meadows of two counts

of aggravated robbery and assessed his punishment at seventy-five years’

confinement on each count. In a single point, Meadows argues that the trial

court 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


      1
       See Tex. R. App. P. 47.4.
were more than ten years old and a misdemeanor conviction that was not a

crime involving moral turpitude. We affirm.

                                 II. Discussion

      Prior to cross-examination and outside of the jury’s presence, the State

announced its intent to question Meadows about his convictions for theft by

receiving and grand larceny in the early 1990s2 and his 1996 conviction for theft

of property $20,000 to $100,000; his two 1998 misdemeanor ―assault on female‖

convictions and his 2007 failure-to-identify conviction as crimes involving moral

turpitude; and his 2009 assault-family violence conviction to impeach Meadows’s

statement during his direct examination that he would never harm anybody.

When Meadows objected that the prior felony convictions exceeded the ten-year

time limit, the State responded that the ten-year test did not apply when there

were intervening crimes of moral turpitude. The trial court acknowledged that

most of the convictions were beyond ten years 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.‖ The trial court agreed

that the assault-family violence conviction could be used because Meadows had

opened the door by suggesting that he would never hurt anyone.




      2
       In 1990, Meadows was convicted of theft by receiving. He received
probation for his grand larceny conviction, but his probation was revoked in 1991.

                                        2
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. Tacking

      Whether to admit remote convictions lies within the trial court’s discretion

and depends on the facts and circumstances of each case. Jackson v. State, 50

S.W.3d 579, 591 (Tex. App.—Fort Worth 2001, pet. ref’d). If more than ten years

have elapsed, a prior conviction will not be held remote if the witness’s lack of

reformation is shown by evidence of an intervening conviction for a felony or a

misdemeanor involving moral turpitude. Id. Misdemeanor assault on a female is

a crime of moral turpitude.    Id. at 592.   The crime of failure to identify that

involves lying to a police officer is a crime of moral turpitude because it involves

dishonesty.3 Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth

1985, no pet.).

      Meadows argues that the admission of his prior convictions allowed his

impeachment ―merely for being a criminal generally‖ and asks that we revisit

Jackson with regard to the ―tacking‖ of felony convictions that are out-of-date

      3
        Meadows admitted that he had pleaded guilty to intentionally giving a
false or fictitious name to a police officer.

                                         3
under rule of evidence 609. See 50 S.W.3d at 591. However, as we recently

reiterated, ―[T]his court has recognized the court of criminal appeals’[s] exception

to rule 609’s prohibition of remote convictions when an intervening conviction

shows that the convicted person has not reformed the behavior that led to the

prior convictions.‖ Celis v. State, 369 S.W.3d 691, 695 (Tex. App.—Fort Worth

2012, pet. ref’d) (citing Jackson, 50 S.W.3d at 591). We decline Meadows’s

invitation to revisit Jackson, and we overrule this portion of his sole point.

      Meadows further argues that the trial court abused its discretion by

admitting the out-of-date felony theft convictions 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. However, as

we noted in Celis, under the tacking doctrine that this court continues to follow, ―a

trial court must determine whether the probative value of the convictions

outweighs their prejudicial effect,‖ which is the test under rule 609(a), not rule

609(b). See id.; see also Jackson, 50 S.W.3d at 592 (explaining that subsequent

misdemeanor convictions involving moral turpitude remove the taint of

remoteness from out-of-date convictions and place them under the rule 609(a)

standard). Therefore, we overrule this portion of Meadows’s sole point as well.

      Meadows also contends that his substantial rights were affected because

the introduction of his convictions showed that he had a lengthy criminal history

with a ―propensity to commit felony crimes.‖ However, before we reach whether

Meadows was harmed by the admission of the felony convictions, we must

                                          4
review whether the record supports the trial court’s determination that their

probative value outweighed their prejudicial effect. See Tex. R. Evid. 609(a);

Jackson, 50 S.W.3d at 592.

      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. Jackson, 50 S.W.3d at 592 (citing Theus, 845 S.W.2d 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. at

592–93. When the case involves the testimony of only the defendant and the

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

escalates and weighs in favor of admission. Id. at 593.

      Theft is a crime of deception. See id. at 592. Therefore, Meadows’s three

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

                                          5
three theft convictions were also more 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. See id. at 592–93. As the only defense witness, Meadows’s credibility

and testimony was very important, supporting the admission of the prior theft

convictions. See id. at 593. We cannot say, on the record before us, that the

trial court abused its discretion by admitting Meadows’s prior felony theft

convictions, 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, and the trial court included a lesser-included offense

instruction on theft in the jury charge. Because we conclude that the trial court

did not abuse its discretion by admitting the three felony theft convictions, we

overrule this portion of Meadows’s sole point.

C. Assault-Family Violence Misdemeanor

      Meadows argues that his misdemeanor assault-family violence conviction

should not have been admitted because he did not open the door to its

admission under the false-impression exception.4         We will assume without


      4
       This exception

      arises when a defendant testifies and leaves a false impression as
      to the extent of his prior arrests, convictions, charges against him, or
      ―trouble‖ with the police generally. In such a case, the defendant is
      deemed to have ―opened the door‖ to an inquiry into the veracity of
      his testimony, and evidence of the defendant’s prior criminal record
      is admissible to correct the false impression.
                                         6
deciding that the trial court erred by admitting this misdemeanor conviction and

review the record to determine whether the error had a substantial and injurious

effect or influence in determining the jury’s verdict. See Tex. R. App. P. 44.2(b);

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert.

denied, 526 U.S. 1070 (1999); King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,

1253 (1946)).    An error does not affect a substantial right if we have ―fair

assurance that the error did not influence the jury, or had but a slight effect.‖

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.




West v. State, 169 S.W.3d 275, 278–79 (Tex. App.—Fort Worth 2005, pet. ref’d)
(citations omitted).

                                        7
      1. Voir Dire

      In voir dire, the State asked potential jurors whether they would require

seeing the actual alleged deadly weapon, and Meadows’s counsel asked about

witness credibility assessments and warned the potential jurors that things were

not always as they initially appear.

      2. Opening Statements

      In its opening statement, the State described the case as one about terror,

violent intimidation, and selfish choices, while Meadows’s counsel described the

case as one involving a plan to commit theft, staged to look like a robbery.

      3. Evidence

      Lacy Nabors, who had been the manager of the Buffalo Wild Wings on the

date of the robbery, testified that she entered the restaurant through the front

door around 7:35 a.m. and unlocked the back door for Daniel Holliman, the cook.

She stated that it had been a common, widely-known practice among the

employees to leave the back door open. Holliman agreed that other employees

would have known about leaving the side door unlocked and stated that he had

left the door open for other employees who would arrive later.

      While Nabors was in the office, Holliman came by to let her know he was

there. While Holliman was prepping in the kitchen, he saw a man in a Scream

mask, who asked him where the manager was.5            Holliman told him that the

      5
       Holliman said that when he first saw the man in the mask, he thought it
was a joke until he saw the gun.

                                         8
manager was in the office; when the man raised his right hand, Holliman saw his

gun.

       Holliman returned to the office and told Nabors not to freak out.           The

masked man pointed a gun at them and demanded that Nabors open the safe.

Nabors said that he told her that if she did not do what he said, he would blow

Holliman’s head off and that if she pressed the panic button, he would blow her

head off. Holliman did not remember whether the man made any threats.

       Nabors opened the safe, took the bag that the man handed to her, and put

all of the money—―around a couple of thousand‖ dollars—in the bag. Nabors

said that the man kept his hand around her neck, pushing her down to make sure

she would not go anywhere and that he had Holliman on the ground with his

knee on Holliman’s back. The man then took them to the restaurant’s walk-in

freezer and ordered them to get into it, get on their knees, face the back wall, and

not to make any movements or he would blow their heads off. He then shut the

freezer and left.

       Nabors said that she feared for her life throughout the encounter and that

she and Holliman did not move for five minutes before Holliman pressed the

freezer’s panic button. Holliman said that they waited to press the panic button in

case the man was still out there and that he had feared for his life. They stayed

in the freezer until the police arrived.       State’s Exhibit 1, which the trial court

admitted and published to the jury, is the restaurant’s surveillance video, which



                                           9
corroborates Nabors’s testimony.6 After the robbery, Nabors saw David ―Tito‖

Alayon, another Buffalo Wild Wings cook, outside, and she recalled Tito asking

her on the previous shift if she was opening the store as manager that day.

Nabors said that any of the cooks, including Tito, would know about leaving the

side door open. Holliman said that Tito had not been scheduled to work that day

and that he thought Tito had ultimately been fired for stealing a customer’s wallet.

      Wichita Falls Police Detective John Laughlin testified that police were able

to obtain from the surveillance video several images of the robbery suspect

removing his mask. After the suspect’s images were disseminated to the media,

some of Meadows’s acquaintances recognized him and gave statements to the

police. Detective Laughlin, a certified firearms instructor and an armorer who

had built and repaired a variety of guns, testified that having reviewed the

surveillance video, and based on his training and experience, he believed the

suspect to have brandished a semiautomatic handgun.



      6
       The surveillance video shows Nabors enter the restaurant and then enter
the room with the side door and open it; several minutes later, Holliman enters
through the side door. Around fifteen minutes after Holliman’s arrival, a man
wearing a Scream mask enters through the side door. In the restaurant office,
Nabors works; Holliman enters the office and then leaves again until he and the
masked man enter together. The masked man holds both employees at
gunpoint. He hands Nabors a bag and forces Holliman to his knees, with his
hand on Holliman’s neck. Then, keeping Holliman between his legs, the masked
man puts his hand on Nabors’s neck and keeps the gun trained on her while she
opens and empties the safe. Before the masked man exits the building through
the side door, he puts Holliman and Nabors in the walk-in freezer at gunpoint.
He removes the Scream mask as he leaves the building.

                                        10
      Meadows admitted that he was the masked man. He testified that Tito had

approached him a few days before the robbery, alleging a conspiracy with

Holliman and Nabors to steal money from the restaurant. Meadows was to ―act

out a robbery,‖ making it look as real as possible for the surveillance cameras.

Tito picked him up on the day of the robbery, gave him the mask, an item that

looked like a weapon,7 a bag, and additional directions, and told him not to worry

about anything.

      Meadows said that when they arrived at the restaurant, he put on the

mask, and as Tito had told him, the side door was unlocked. He went through,

and Holliman led him to the office. Meadows testified that he did not pull out his

pretend weapon until he arrived at the office and acted out the ―whole entire

ordeal.‖   He told Nabors, ―[Y]ou know what I’m here for. . . [.]    Don’t panic.‖

Nabors opened the safe and put the money in the bag.

      Meadows denied that he had threatened Nabors or Holliman and said that

he told them to give him some time to get away before they called the police.

Meadows said that he had intended to steal money from Buffalo Wild Wings but

as a theft, not a robbery, and stated, ―I didn’t threaten anyone in that door. I

didn’t tell anyone I was going to kill them, blow their heads off or any other form

decapitation, hurt, anything, nothing like that. Nobody’s harm was ever intended

and I would not do that to no one.‖

      7
       Meadows said that the item given to him by Tito was a contraption pieced
together from a water nozzle spray gun and that it was not a firearm.

                                        11
         During cross-examination, Meadows admitted to his prior convictions, said

that Tito had pressured him into going along with the plan, and admitted that he

had never seen nor spoken with Nabors or Holliman prior to the robbery. He

denied that he had told Holliman and Nabors to get on their knees in the freezer

or that he had threatened to kill them if they moved. Meadows agreed that he

never mentioned Tito during his police interview and that he had lied when he

told Detective Laughlin that he had an alibi and that he was not involved in the

robbery.

         During his redirect examination, Meadows stated that his assault-family

violence conviction had involved his stepson, ―a pretty good sized guy‖ with

whom he had had a disagreement. Meadows described it as ―a wrestling match‖

that had occurred because Meadows had been ―battling an up and down

relationship with [his] wife,‖ that he and his stepson ―just kind of bumped heads

with each other,‖ and that he might have pleaded guilty to it ―just to get it over

with.‖       The amended information for the offense alleged that Meadows had

intentionally, knowingly, and recklessly caused bodily injury to his stepson by

choking him.

         Detective Laughlin testified as the State’s rebuttal witness and explained

why he believed Meadows had used a firearm.8 Detective Laughlin pointed out


         8
       Specifically, Detective Laughlin indicated that there appeared to be an
ejection port, which functions on a semiautomatic handgun to remove an empty
casing from the chamber so that the next live round can be chambered into the
barrel on the right-hand side of the slide of the receiver. He also stated that it
                                         12
that the weapon’s trigger guard and distinct muzzle could be seen from the

surveillance video.

      4. Closing Arguments

      The prosecutor’s closing argument focused on the parts of Meadows’s

testimony that were ―believable‖—that Meadows was at Buffalo Wild Wings and

took the money and that Tito was involved—and he argued that the dispute was

over whether Meadows had intentionally and knowingly threatened Nabors or

Holliman and placed them in fear of imminent bodily injury or death during the

robbery and whether he had used a deadly weapon.

      Meadows’s counsel agreed that the focus should be on Meadows’s mental

state and pointed out that the jury could convict Meadows of theft because he

had already admitted to it. He argued that if Meadows believed that Nabors and

Holliman were in on the deal, then he could not have committed robbery or

aggravated robbery and that Meadows could have believed what he had been

told about staging the robbery was true because the door was open and the

people he had been told would be there had been there.

      The prosecutor responded that Nabors and Holliman were not involved in

Tito and Meadows’s plan, that the weapon was a gun and not a spray nozzle,




appeared to have the scalloped design used for a good grip on the firearm at the
rear of the slide and a rear front-post sight and rear sight on the back of the slide,
which are used to aim the weapon.

                                         13
and that the video showed that this was a violent encounter involving a man

sticking a gun in the victims’ faces. He did not mention the prior convictions.

      5. Analysis

      As highlighted by both the State and Meadows throughout the case, the

primary issues were Meadows’s mens rea at the time he committed the theft and

whether the item he had brandished during the offense was a deadly weapon in

light of the surveillance video, his testimony, and Nabors’s and Holliman’s

testimonies.   In contrast, the misdemeanor assault-family violence conviction

involving Meadows’s stepson arose from a domestic disagreement. Meadows

described the incident as ―a wrestling match,‖ and the information described it as

―choking.‖ Neither description involved the use of a per se deadly weapon, and

neither party emphasized the conviction. Therefore, we conclude that, in the

context of the entire case against Meadows, the trial court’s error, if any, in

admitting the assault-family violence misdemeanor conviction did not have a

substantial or injurious effect on the jury’s verdict and did not affect Meadows’s

substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the error

and overrule the remainder of Meadows’s sole point.          See Tex. R. App. P.

44.2(b).




                                        14
                             III. Conclusion

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

judgment.



                                               PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

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

DELIVERED: January 9, 2014




                                   15
