Opinion issued February 20, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00071-CR
                          ———————————
                 MAURICE EUGENE HORTON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1346341



                      MEMORANDUM OPINION

      A jury convicted Maurice Eugene Horton for having snatched the wallet of

eighty-seven year old Ella Marquez outside of a Whataburger restaurant after she

had finished her lunch, and the trial court assessed punishment at nine years’
confinement. 1 In his sole point of error, appellant contends that the trial court

erred when it allowed the State to impeach him with his prior convictions at trial.

We affirm.

                                     Background

      Prior to trial, the State filed notice of its intent to offer evidence of

appellant’s prior convictions.2     After the State rested, trial counsel requested

outside of the presence of the jury that appellant be permitted to testify without

being impeached with his prior convictions. The trial court denied appellant’s

motion.

      Appellant testified that after he finished his meal at the Whataburger

restaurant, he walked to his car and found a wallet on the ground in the parking lot.

He testified that he picked the wallet up and took it with him with the intention of

returning it to its owner. During appellant’s testimony, the State impeached him

with evidence of five prior convictions.3




1
      See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(B), (f)(3)(A) (West Supp. 2012)
      (theft of property from elderly person).
2
      This case proceeded to trial in January 2013.
3
      Appellant’s convictions consist of a 1997 conviction for misdemeanor theft, a
      2003 conviction for making a false statement to obtain credit, a 2003 conviction
      for fraudulent use of identifying information, a 2003 conviction for felony theft,
      and a 2010 conviction for assault of a family member.
                                            2
      After the jury found appellant guilty of theft of an elderly person, the trial

court assessed punishment at nine years’ imprisonment. Appellant timely filed this

appeal.

                                     Discussion

      Appellant contends that the trial court erred when it allowed the State to

impeach him in violation of Rule of Evidence 609 with three of his prior

convictions: a 1997 conviction for misdemeanor theft, a 2003 conviction for felony

theft, and a 2010 conviction for misdemeanor assault of a family member. As

appellant failed to object to the admission of the 1997 and 2010 convictions, the

State contends that any error as to these two convictions is waived. Further, the

State argues that the trial court properly concluded that appellant’s 2003 felony

theft conviction was admissible because its probative value outweighed its

prejudicial effect, and that even if the trial court erred in admitting evidence of his

prior convictions, any error was harmless.

   A. Standard of Review

      We review a trial court’s decision regarding the admissibility of evidence of

prior convictions under a “clear abuse of discretion” standard. Theus v. State, 845

S.W.2d 874, 881 (Tex. Crim. App. 1992); Davis v. State, 259 S.W.3d 778, 780

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).         The trial court abuses its

discretion when its decision to admit evidence of a prior conviction lies outside the

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zone of reasonable disagreement. Theus, 845 S.W.2d at 881; Davis, 259 S.W.3d at

780.

   B. Applicable Law

       Rule of Evidence 609 governs the admissibility of prior convictions to

impeach witnesses. TEX. R. EVID. 609; Jackson v. State, 11 S.W.3d 336, 339 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d). Rule 609(a) provides, in relevant part:

   (a) General Rule. For the purposes of attacking the credibility of a
       witness, evidence that the witness has been convicted of a crime shall
       be admitted if elicited from the witness . . . but only if the crime was a
       felony or involves moral turpitude, regardless of punishment, and the
       court determines that the probative value outweighs its prejudicial
       effect to a party.

   (b) Time Limit. Evidence of a conviction under this rule is not
       admissible if a period of more than ten years has elapsed since the
       date of the conviction or of the release of the witness from the
       confinement imposed for that conviction, whichever is the later date,
       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.

TEX. R. EVID. 609.

       When determining whether a trial court properly weighed the probative

value of a prior conviction against its prejudicial value, we must consider the

following non-exclusive factors: (1) the impeachment value of the prior conviction,

(2) the temporal proximity of the prior conviction relative to the charged offense

and the witness’s subsequent criminal history, (3) the similarity between the past



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crime and the charged offense, (4) the importance of the witness’s testimony, and

(5) the importance of the witness’s credibility. Theus, 845 S.W.2d at 880.

   C. Appellant’s 1997 and 2010 Convictions

      Appellant argues that the trial court erred by allowing the State to impeach

him with the 2010 misdemeanor conviction for assault of a family member because

(1) as a crime of violence, an assault is far more prejudicial than a crime of

deception; (2) as the only defense witness at trial, appellant’s testimony was

critical to his defense; and (3) there were other less prejudicial convictions with

which the State could have impeached him. He also contends that the trial court

erred in permitting his impeachment with evidence of his 1997 misdemeanor theft

conviction because (1) of the similarity with the offense charged; (2) more than

fifteen years had elapsed since the date of his release for that conviction; (3) as the

only defense witness, appellant’s testimony was critical to his defense; and (4)

there was no evidence in the record to show that the probative value of the

conviction substantially outweighed its prejudice effect. Appellant concludes that

because these factors weigh against the admissibility of his 2010 and 1997

convictions under Rule 609’s balancing test, the trial court erred.

      After the State rested, the following exchange took place outside of the

presence of the jury:

      [Trial Counsel]: Your Honor, before we proceed, since the State filed
      notice that my client has some prior convictions, under 609 we would
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      ask that—my client would ask that he be allowed to testify free from
      impeachment from those convictions. One of the convictions, the one
      that is in the enhancement paragraph, is a theft conviction.

      [The Court]: Yes, ma’am.

      [Trial Counsel]: And he was released from incarceration in that case
      in June of 2006. I would argue to the Court that the prejudicial value
      of the jury knowing about that outweighs the probative value.
      Because it’s a theft case, I wouldn’t want the jury to get the
      impression just because he is convicted of theft on that occasion that
      he is a thief, and I think that would be highly prejudicial, but he needs
      to testify because he’s the only person who can tell the jury what
      happened from his point of view.

                                        ....

      [The Court]: I’m going to follow along with the Rules of Evidence
      and I will allow you to be impeached, sir, with your priors.

                                        ....

      [Trial Counsel]: And, your Honor, I guess in light of your ruling I
      would ask—I know ordinarily it wouldn’t be probative to go into the
      details or the facts of my client’s prior convictions, but in this case I
      think it would be probative for him to explain to the jury what
      happened in that other theft case so that they can understand that it’s
      not the same facts. It’s not the same situation as what happened in
      2003 that sent him to prison.

      [The Court]: I will respond if there’s an objection at the time, but you
      may ask your client any question you want to.

      [Trial Counsel]: All right. Thank you.

      This exchange constitutes the entirety of trial counsel’s objection to the

introduction of appellant’s prior convictions for impeachment purposes. As the

excerpt above demonstrates, trial counsel specifically objected to the admission of
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appellant’s 2003 felony theft conviction but not to admission of the 1997

misdemeanor theft conviction or his 2010 misdemeanor conviction for assault of a

family member.

      Before we may determine whether a trial court erred in the admission of

evidence, the error must have been preserved by a proper objection and a ruling on

that objection. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003);

Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A proper objection

is one that is timely and specific. See TEX. R. APP. P. 33.1. Here, however,

because appellant never specifically objected to the admission of his 1997 and

2010 convictions, he failed to preserve error as to these convictions. See TEX. R.

APP. P. 33.1(a)(1)(A); Leyba v. State, __ S.W.3d __, 2013 WL 4070770, at *4

(Tex. App.—Houston [14th Dist.] Aug. 13, 2013, no pet. h.) (concluding

defendant’s objection at trial only to admission of three of nine prior convictions

resulted in waiver of error as to admission of other six convictions).

   D. Appellant’s 2003 Conviction and the Theus Factors

      Appellant’s point of error as to the State’s impeachment of him with the

2003 felony theft conviction argues that, under Rule 609, the probative value did

not outweigh the prejudicial effect of this evidence. The State maintains that under

the Theus factors, allowing appellant’s impeachment with his 2003 conviction was

not an abuse of discretion.

                                          7
      Impeachment Value of Conviction

      With regard to the first factor, the impeachment value of crimes of

deception is greater than for offenses that involve violence. Theus, 845 S.W.2d at

881. Thus, a prior offense involving deception weighs in favor of admission. Id.

The offense of theft is a crime of deception. Rodriguez v. State, 129 S.W.3d 551,

559 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Thus, the first Theus factor

weighs in favor of admission of appellant’s 2003 theft conviction. See id.

      Temporal Proximity

      The second factor—temporal proximity—favors admissibility if the past

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

the law. Theus, 845 S.W.2d at 881. Convicted of felony theft in 2003, appellant

spent four years incarcerated as a result. Since, in the intervening six years

between his release and his trial for the present offense, he was convicted in 2010

for misdemeanor assault, appellant has demonstrated a propensity for, and a

history of, running afoul of the law and this favors admission of appellant’s 2003

conviction. See Jackson v. State, 11 S.W.3d 336, 340 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref’d).

      Similarity of Offenses

      The third factor weighs against admission if the prior conviction is similar to

the charged offense so that a jury’s decision is based on the facts of the present

                                         8
case rather than the perception of the past conduct. Theus, 845 S.W.2d at 881. As

his 2003 conviction was for theft, appellant argues that their similarity weighs

against admissibility. However, although both cases involve theft, the similarity

between them ends there. The 2003 conviction was based on his withdrawal of

approximately $30,000 from his Houston Police Credit Union account despite

knowing that the money did not belong to him, not a snatch-and-run wallet theft

from an elderly woman. 4 See Morris v. State, 67 S.W.3d 257, 264 (Tex. App.—

Houston [1st Dist.] 2001, pet. ref’d) (concluding third Theus factor favored

admissibility in aggravated robbery trial of defendant’s prior conviction for

burglary of habitation where defendant did not use weapon during commission of

burglary and did not commit offense while occupants were home). While both

cases are theft, they are significantly different and, thus, this factor weighs in favor

of admission.

      Importance of Appellant’s Testimony and Credibility

      Factors four and five concern, respectively, the importance of the

defendant’s testimony and credibility. LaHood v. State, 171 S.W.3d 613, 621

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). As both depend on the nature

of a defendant’s defense and the means available to him of proving that defense,

4
      Appellant testified that when he called the credit union regarding an overdraft, he
      was told that he had a balance of approximately $38,260. He testified that despite
      knowing the credit union had made an error, he withdrew the money from his
      account.
                                           9
these two factors are related. Miller v. State, 196 S.W.3d 256, 268 (Tex. App.—

Fort Worth 2006, pet. ref’d).     When the only witness for the defense is the

defendant himself or herself, the importance of the defendant’s credibility and

testimony increases.    Theus, 845 S.W.2d at 881.       As the importance of the

defendant’s credibility escalates, so, too, does the State’s need to impeach that

credibility. Id.

      Because appellant was the only defense witness, his testimony and

credibility were critical. As appellant’s credibility was important, the need to

allow the State an opportunity to impeach him was also high. Theus, 845 S.W.2d

at 881; Morris, 67 S.W.3d at 265. We conclude that the fourth and fifth factors

weigh in favor of admission of appellant’s 2003 conviction.

      In summary, appellant failed to preserve error on the admissibility of his

2010 assault conviction and his 1997 misdemeanor theft conviction. With regard

to his 2003 felony theft conviction, all of the Theus factors favor admission of this

conviction for impeachment purposes. Therefore, the trial court did not abuse its

discretion in admitting evidence of his 2003 conviction. Appellant’s point of error

is overruled.




                                         10
                                    Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




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