                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00292-CR

JEREMY KYLE LESTER,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                       From the County Court at Law No. 1
                           McLennan County, Texas
                          Trial Court No. 20094875CR1


                                     OPINION


      Jeremy Kyle Lester was convicted of the misdemeanor offense of assault-family

violence and sentenced to 365 days in jail. See TEX. PENAL CODE ANN. § 22.01(a) (West

2011). Lester appealed his conviction. Because the trial court did not err in refusing to

admit evidence of the victim’s past conviction, the trial court’s judgment is affirmed.

      In his sole issue on appeal, Lester contends that the trial court erred in refusing to

allow him to impeach the victim of the offense, Samantha Shoaf, with her misdemeanor

conviction for failure to identify-fugitive. See TEX. PENAL CODE ANN. § 38.02(a) or (b),

(d) (West 2011). Texas Rule of Evidence 609 permits the credibility of a witness to be
attacked with evidence of the witness's conviction for a felony or crime involving moral

turpitude. TEX. R. EVID. 609(a). Offenses involving "dishonesty or false statement" are

crimes involving moral turpitude. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586,

589 (Tex. App.—Dallas 1989, no writ).

        In considering a trial court's ruling on the admissibility of evidence, we must

determine whether the trial court abused its discretion. Carrasco v. State, 154 S.W.3d

127, 129 (Tex. Crim. App. 2005). In other words, we must uphold the trial court's ruling

if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. Id.

        Lester argues that Shoaf's conviction for failure to identify was a crime of moral

turpitude that was admissible to attack her credibility. A person commits the offense of

failure to identify by either (i) intentionally refusing to give one's name, residence

address, or date of birth to a peace officer who has lawfully arrested the person and

requested the information or (ii) by intentionally giving a false or fictitious name,

residence address, or date of birth to a peace officer who has lawfully arrested the

person; lawfully detained the person; or requested the information from a person that

the peace officer has good cause to believe is a witness to a criminal offense. TEX. PENAL

CODE ANN. § 38.02(a)-(b) (West 2011). We agree with the Houston Court that the

offense of failure to identify by intentionally giving a false or fictitious name to a peace

officer is an offense involving moral turpitude. See Lape v. State, 893 S.W.2d 949, 958

(Tex. App.—Houston [14th Dist.] 1994, pet. ref'd). But we also agree with the Austin

Court that the offense of failure to identify by refusing to give the requested

Lester v. State                                                                       Page 2
information to a peace officer is not a crime of moral turpitude. See Jones v. State, No.

03-04-00428-CR, 2005 Tex. App. LEXIS 8720, 10-13 (Tex. App.—Austin Oct. 20, 2005, pet.

ref’d) (not designated for publication).

        Outside the jury's presence, Lester's counsel informed the trial court that he

believed Shoaf had a conviction for failure to identify for which she had served or was

currently serving jail time. But counsel did not provide the trial court with anything

that showed Shoaf’s conviction was pursuant to section 38.02(b), which involves lying

to a peace officer. See TEX. PENAL CODE ANN. § 38.02(b) (West 2011). Accordingly,

Lester failed to meet his burden of proving that Shoaf’s conviction for failure to identify

was a crime of moral turpitude. See Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim.

App. 2008) (“In our criminal justice system, the proponent of evidence ordinarily has

the burden of establishing the admissibility of the proffered evidence.”). Thus, we

conclude that the trial court did not abuse its discretion in excluding the evidence of

Shoaf's conviction for failure to identify. Lester’s sole issue is overruled.

        Having overruled the only issue raised on appeal, we affirm the trial court’s

judgment.


                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 13, 2011
Publish
[CR25]

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