      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00077-CR



                                  Otis R. Thompson, Appellant

                                                  v.

                                   The State of Texas, Appellee


              FROM COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY,
           NO. 705-081, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Otis Thompson guilty of assault with injury and family violence. The

court assessed sentence at 200 days in the county jail and a $500 fine. See Tex. Penal Code Ann.

§ 22.01 (West Supp. 2006). On appeal, Thompson argues that the trial court erred by excluding

evidence of the complaining witness Onteria Rhoden’s criminal history. See Tex. R. Evid. 609. He

contends that this exclusion violated his Sixth Amendment right to cross-examine and confront the

witness by not allowing proper impeachment. See U.S. Const. amend. VI. We affirm.

               Rhoden testified that on June 27, 2005, she and Thompson, her common-law

husband, started arguing while he was driving the two of them home. According to Rhoden, the

argument escalated into physical violence with Thompson slapping and punching her in the face and

ripping out her hair extensions. She testified that, at one point, Thompson stopped the car, continued

assaulting her, and dragged her from the car, lacerating her leg.
               Passing motorist Gloria Ann Clark and her grandson testified that they saw a man

beating a woman in a parked car. Clark drove by the scene slowly as she was stopping to pick up

her grandson, who was standing within viewing distance. According to Clark, the woman being

assaulted was on her back in the car and was kicking and screaming. Clark’s grandson said he heard

the man exclaim that the woman bit him. Clark testified that the woman fell out of the car and the

man put her back in. Clark’s grandson described the woman as “flying” out of the car and then

getting back in. Both said the assault resumed. Later, when Clark passed the scene again, she saw

the woman talking to police.

               The police officers who arrived at the scene testified that Rhoden’s injuries were

consistent with her account of the assault. Officer John Mosteller arrived first. He testified that,

when he approached the car, both Thompson and Rhoden were inside and that Rhoden appeared

upset. Mosteller separated Thompson and Rhoden for questioning. Mosteller testified that Rhoden

told him the assault began while she and Thompson were driving home after attending a family

barbecue and a concert. Mosteller also testified that Thompson first told him that Rhoden had gotten

into a fight with her sister. However, according to Mosteller, about fifteen minutes later, Thompson

claimed that Rhoden assaulted him after accusing him of infidelity. Mosteller testified that Rhoden

told him the argument started after Thompson told her he was leaving her for another woman.

Mosteller testified that, based on his investigation, he believed that Thompson had assaulted Rhoden.

Officer Paul Tronco took photographs showing Rhoden’s injuries and Thompson’s condition after

the incident. Tronco testified that he talked with both Rhoden and Thompson. Tronco identified

Thompson as the man he interviewed at the scene. Tronco also testified that Thompson described



                                                 2
an argument with Rhoden over their relationship that escalated into a physical altercation. Tronco

said that he deduced from the interviews and physical evidence that Thompson was the aggressor.

               Thompson was charged by information with assault with injury and family violence.

The case was tried to a jury. At trial, Thompson sought to impeach Rhoden with evidence of

her 1994 conviction for forgery and her 2003 conviction for theft by check, but the court excluded

the evidence on the ground that its prejudicial effect would outweigh its probative value.1 The

jury returned a guilty verdict and the court assessed punishment at 200 days in the county jail and

a $500 fine.

               On appeal, Thompson contends that the trial court erred by refusing to admit evidence

of Rhoden’s previous convictions for forgery and theft by check. He asserts that the court’s

exclusion of this evidence violated his constitutional right to confront and cross-examine a witness

against him. See U.S. Const. amend. VI; Tex. R. Evid. 609.

               The Sixth Amendment guarantees criminal defendants the right to confront and cross-

examine witnesses against them. See U.S. Const. amend. VI. While the Sixth Amendment protects

an accused’s right to cross-examine witnesses, a trial judge may limit cross-examination based on

concerns about, among other things, prejudice or confusion of the issues. Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986). The rules of evidence strike a similar balance between the right to

confront and cross-examine and the avoidance of prejudice. A defendant can use evidence of a

witness’s felony criminal convictions or crimes involving moral turpitude to attack a witness’s


       1
          Before trial, the court granted the State’s motion in limine with respect to previous
convictions of witnesses. During trial, outside the presence of the jury, Thompson’s attorney offered
documents showing Rhoden’s criminal history for the appellate record.

                                                 3
credibility, but only if the court determines that the probative value of admitting such evidence

would outweigh its prejudicial effect. Tex. R. Evid. 609(a). The erroneous exclusion of evidence

is not ordinarily of constitutional magnitude.            Fox v. State, 115 S.W.3d 550, 563

(Tex. App.––Houston [14thDist.] 2002, pet. ref’d). The exclusion of evidence will be constitutional

error only if the evidence is such a vital portion of the defense that its exclusion effectively

precludes the defendant from presenting a defense.           Potier v. State, 68 S.W.3d 657, 665

(Tex. Crim. App. 2002).

               The exclusion of the evidence of Rhoden’s criminal history did not prevent

Thompson from presenting his defense. At trial, Thompson argued that while he was involved in

an altercation with Rhoden, he acted in self-defense. He claimed Rhoden attacked him because she

was angry that he was ending their relationship.2 Photographic evidence of the wounds on the inside

of his hands provided some support for his argument that his hands were open and used in self-

defense. In addition, inconsistencies between Rhoden’s testimony at trial and her statements to

police at the scene provided Thompson the opportunity to challenge her version of the incident.3 We

are not persuaded that the exclusion of Rhoden’s criminal history, by itself, significantly constrained

Thompson’s ability to question Rhoden’s credibility. Evidence admitted by the trial court allowed

Thompson to present a case and argue that he was not the aggressor in the fight and to challenge

       2
         Thompson did not testify. He relied on the testimony of the police officers and physical
evidence for his version of events.
       3
          Police testified that Rhoden said at the scene that she and Thompson had attended a family
barbecue and a concert and that their argument was prompted by his announcement that he was
leaving the relationship. At trial, Rhoden testified that they had attended a flea market (and not the
other events), that Thompson did not tell her he was leaving her, and that she did not remember
accusing him of infidelity.

                                                  4
Rhoden’s version of the altercation. The exclusion of Rhoden’s criminal history does not, on this

record, rise to the level of a violation of Thompson’s constitutional right to confront and cross-

examine a witness against him.

                Thompson also complains that the exclusion of Rhoden’s criminal history prevented

him from challenging his identification as the assailant. He contends that Rhoden was the only

eyewitness to the assault and the only person to identify him as the person who assaulted her. He

then argues that additional evidence undermining her credibility could have caused the jury to reject

her identification. However, this argument in this Court does not square with the presentation of the

case at trial and is not supported by the record.

                Although police did not see the altercation, police found Rhoden and Thompson

together at the scene of the reported assault shortly after the report. The officers testified

that Thompson admitted to participating in the altercation with Rhoden, but claimed he did so in

self-defense. Thus, Thompson does not dispute that he was the person other than Rhoden involved

in the assault. His claim at trial was not that Rhoden’s identification of him as the person she fought

with was wrong. It was that he was the victim of assault rather than the perpetrator. In closing

argument, Thompson’s counsel did not deny that an altercation took place or that Thompson

was involved. Rather, he admitted that Thompson participated, but argued that Thompson only

participated in self-defense. The exclusion of Rhoden’s criminal history did not affect the

identification of Thompson as a participant in the altercation between he and Rhoden. Whether

he was the assailant or the victim is a matter of weighing evidence other than evidence of

his identification.



                                                    5
               Although Thompson has not demonstrated an error of constitutional magnitude with

respect to the trial court’s decision to exclude evidence of Rhoden’s criminal history, the question

of whether the trial court erred by excluding this evidence remains. When assessing whether to

admit evidence of felonies or crimes involving moral turpitude to impeach a non-defendant witness,

courts use a nonexclusive list of five factors. See Tex. R. Evid. 609; Theus v. State, 845 S.W.2d

874, 880 (Tex. Crim. App. 1992); Moore v. State, 143 S.W.3d 305, 312-13 (Tex. App.—Waco 2004,

pet. ref’d) (adapting Theus test for impeachment of non-defendant witnesses).4 The factors include:

(1) the impeachment value of the prior crime; (2) the temporal proximity of the prior conviction to

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

crime and any conduct of the witness at issue in the present trial; (4) the importance of the witness’s

testimony; and (5) the importance of the witness’s credibility. Moore, 143 S.W.3d at 312-13. An

appellate court reviews a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). Unless the trial court’s

decision was outside the zone of reasonable disagreement, an appellate court should uphold the

ruling. Id.; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

               The first three Moore factors weigh in favor of admission. First, forgery and theft by

check are crimes involving moral turpitude that have impeachment value. Hardeman v. State,

868 S.W.2d 404, 405 (Tex. App.—Austin 1993), pet. dism’d); Ludwig v. State, 969 S.W.2d 22, 28


       4
           While the Theus test assesses the similarity between the defendant’s past crime and the
offense being prosecuted, the Moore test assesses the similarity between the witness’s past crime and
the witness’s conduct during the incident at issue. Compare Theus v. State, 845 S.W.2d 874,
880 (Tex. Crim. App. 1992), with Moore v. State, 143 S.W.3d 305, 312-13 (Tex. App.—Waco 2004,
pet. ref’d).

                                                   6
(Tex. App.—Fort Worth 1998, pet. ref’d). Second, Rhoden’s convictions were recent enough to

have some probative value. Rhoden completed probation for the 1994 conviction in 2000, but was

convicted of another crime involving moral turpitude in 2003. See Tex. R. Evid. 609(c). Third, the

absence of similarities between Rhoden’s previous convictions and her conduct on the occasion in

question does not create confusion between her behavior associated with her previous convictions

and her behavior in this case. See Moore, 143 S.W.3d at 313.

               The fourth and fifth factors, however, weigh against admission of the prior

convictions. Rhoden’s version of events was corroborated by other evidence. Police testified that

Thompson admitted struggling with Rhoden but claimed that he acted in self-defense. Thompson’s

counsel also conceded the issue of identity at trial by acknowledging Thompson’s involvement in

the struggle with Rhoden. The assertion of self-defense was countered by Clark’s testimony that she

saw “a lady was getting beat up.” The police officers testified that Rhoden’s injuries were consistent

with her version of the incident and that their investigation revealed that Thompson had assaulted

Rhoden. Photographs admitted into evidence allowed the jury to assess the relative damage the

parties inflicted on one another as well as who was the most likely aggressor. Thus, the credibility

of Rhoden’s testimony was not dispositive of Thompson’s claim of self-defense or challenge to his

identification. The trial court did not err in weighing these factors and excluding the evidence of

Rhoden’s criminal history.

               Even if the trial court erred by excluding evidence of Rhoden’s criminal history

for the purpose of impeachment, we conclude the error was harmless. As discussed above, there

was ample evidence supporting the identification of Thompson as Rhoden’s assailant, including



                                                  7
testimony from police that Thompson admitted hitting Rhoden in self-defense. While that admission

may raise an excuse for the assault, it concedes identity. The self-defense claim was not affected

by the exclusion of the evidence because there was credible evidence from sources other than

Rhoden refuting Thompson’s theory of self-defense. On this record, we conclude that there is no

reasonable possibility that excluding Rhoden’s criminal history for the purpose of impeachment,

either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion with

respect to the issue in question. Nor did any error in the exclusion of that evidence affect a

substantial right. Accordingly, we find any error in the exclusion of the impeachment evidence

harmless. See Tex. R. App. P. 44.2.

               Affirmed.



                                             __________________________________________

                                             G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: June 8, 2007

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