                         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 ON REMAND
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                                   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
