Opinion issued August 7, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00301-CR
                           ———————————
                CHARLES JACQUARD TURNER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Case No. 1306666



                                 OPINION

      A jury convicted appellant, Charles Jacquard Turner, of the first-degree

felony offense of aggravated robbery and assessed punishment at sixty-five years’
confinement. 1 In his sole issue, appellant contends that the trial court abused its

discretion in limiting appellant’s cross-examination of a State witness because the

State’s questioning opened the door to admission of the witness’s complete

criminal history.

        We affirm.

                                    Background

        Celia Ochoa was at her apartment in South Houston during the late morning

hours of May 16, 2011, when she heard someone kicking her front door.

Frightened, she called her daughter-in-law, Marelyn, who lived in the apartment

above her. Marelyn opened her window and asked the man why he was kicking

Celia’s door. The man replied, “My bad, I’m in the wrong apartment,” and he then

left the area on a bicycle. Celia could not see the man’s face, but she did see the

man ride away from her apartment on a bicycle. A couple of weeks later, Marelyn

identified appellant in a photo-array as the man with whom she had spoken.

        Maria Garza lived on Iowa Street in South Houston. Around 11:00 a.m. on

May 16, 2011, a man knocked very hard on Garza’s front door. Garza did not

answer the door, but she did see a man leave her house on a bicycle. Garza later

identified appellant in a photo-array as the man who had knocked on her front

door.


1
        See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).

                                          2
       Around 11:45 a.m., Barbara Mixon returned to her house on Iowa Street and

discovered a bicycle blocking her driveway.       When she saw the bicycle, she

assumed that one of the neighborhood children had placed it there before going to

play in the Mixons’ pool, but when Barbara checked her backyard, no children

were by the pool. Barbara went inside her house and found her husband, Thomas

Mixon, the complainant, lying severely injured on the floor. Numerous items had

been stolen from the Mixons’ house, including jewelry, part of Thomas’s coin

collection, papers, tools, firearms, and Thomas’s truck, which Barbara described as

a white Chevrolet with Korean War-related stickers on it. Thomas, who was

seventy-nine at the time of the incident, stayed in the hospital for ten days as a

result of his injuries.

       The State announced its intention to call Raymond Cavitt, a “confidential

informant” in the case who encountered appellant after the incident at the Mixons’

house and subsequently contacted the police with information about the robbery.

After giving information to the police but before appellant’s trial, Cavitt had been

arrested on an unrelated charge, and he testified at appellant’s trial in his Harris

County Jail clothes. The trial court held a hearing outside the presence of the jury

to determine the admissibility of Cavitt’s prior criminal history.       The State

informed the trial court that Cavitt had five prior convictions: a 2007 conviction

for forgery, a 2007 conviction for theft, a 1989 conviction for sexual assault, a



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federal weapons conviction from the early 1980s, and a 1976 conviction for

robbery. The parties agreed, and the trial court ruled, that only the two 2007

convictions and the 1989 conviction could be used to impeach Cavitt. Defense

counsel explicitly stated, “Judge, you’ve given me three and I can go along with

the Court’s ruling.” The trial court informed Cavitt that he would only be asked

about his three most recent convictions.

      During direct-examination, Cavitt acknowledged that he currently resided in

the Harris County Jail, and he had the following exchange with the State:

      [The State]:       Now, in addition to your current predicament,
                         you’ve been in trouble with the law before; is that
                         right?
      [Cavitt]:          Yes, ma’am.
      [The State]:       Back in 2007, you were convicted of forgery?
      [Cavitt]:          Yes, ma’am.
      [The State]:       In 2007, you were also convicted of theft?
      [Cavitt]:          Yes, ma’am.
      [The State]:       And [then] in 1989, you were convicted of sexual
                         assault?
      [Cavitt]:          Yes, ma’am.

The State then resumed asking Cavitt about his encounter with appellant.

      Before cross-examining Cavitt, defense counsel requested another hearing

outside the presence of the jury. Defense counsel stated:

      My hearing was [the prosecutor] asked Mr. Cavitt at the beginning,
      you’ve been in trouble with the law before; haven’t you, Mr. Cavitt?

                                           4
      And then she named three occasions. The Defense claims that that
      opens up the door to the other occasions when he’s been in trouble
      with the law before, didn’t limit it to convictions. . . . It leaves a false
      impression with the jury. We should be able to bring out those other
      occasions he’s been in trouble with the law.

The trial court agreed with the State’s argument in response that the questions had

not opened the door to the remainder of Cavitt’s criminal history and stated, “I’m

not allowing you to go further than the three we already discussed.” Defense

counsel put on a bill of exceptions, in which Cavitt testified that he also had a

federal weapons conviction, a 1976 robbery conviction, a second forgery

conviction around 1990, and an unlawful carrying of a weapon charge.

      Cavitt testified that appellant was an acquaintance of Cavitt’s home health

care provider. On the afternoon of May 16, 2011, Cavitt was standing outside his

provider’s house when appellant drove up in a white truck that Cavitt knew did not

belong to appellant. Appellant jumped out of the truck, which he left in the middle

of the street, yelling that he could barely see because someone had sprayed his face

with something and had beaten him up. After Cavitt helped appellant wash his

face, Cavitt parked the truck by his provider’s house. When he moved the truck,

Cavitt noticed tools, paperwork, jewelry, old coins, and firearms in the truck.

      At his provider’s request, Cavitt moved the truck a second time to a nearby

parking lot. Cavitt later found out that the truck had been involved in a robbery,

and he contacted the police because his fingerprints were in the truck. Cavitt



                                           5
offered the police information regarding who owned the truck, and he assisted in

recovering some of the Mixons’ property. Cavitt overheard appellant telling a

friend that he had beaten up an old man.

      The Harris County Institute of Forensic Sciences tested several items related

to this case for DNA samples, including the bicycle found in the Mixons’

driveway, a metal box taken from the Mixons’ house, a piece of a rifle found in

Thomas Mixon’s truck, and appellant’s tennis shoes. Diana Wolfshohl, the analyst

who performed the DNA tests, determined that appellant was a “major contributor”

of the DNA recovered from the right handle of the bicycle and that he could not be

excluded as a source of the DNA found on the left handle. Appellant also could

not be excluded as a source of DNA found on the metal box, on the front door of

the Mixons’ residence, and on the piece of a rifle found in Mixon’s truck.

Wolfshohl also tested a “red brown stain” on appellant’s tennis shoes, and the tests

revealed that Mixon was a “major contributor” of DNA found on the shoes.

      The jury ultimately found appellant guilty of aggravated robbery and

assessed punishment at sixty-five years’ confinement. This appeal followed.

              Admission of Witness’s Complete Criminal History

      In his sole issue, appellant contends that the trial court erroneously limited

his cross examination of Cavitt and erroneously excluded evidence of Cavitt’s




                                           6
complete criminal history because the State opened the door to admission of this

evidence.

      We review the trial court’s ruling on the exclusion of evidence for an abuse

of discretion. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007). We will uphold the trial court’s evidentiary ruling as long as it falls within

the zone of reasonable disagreement and is correct under any theory of law

applicable to the case. See id.

      Generally, when attacking the credibility of a witness, the trial court may

admit evidence of prior criminal convictions only if the crime was a felony or

involved moral turpitude and the court determines that the probative value of the

conviction outweighs its prejudicial effect. See TEX. R. EVID. 609(a); Delk v. State,

855 S.W.2d 700, 704 (Tex. Crim. App. 1993). Rule 609 further provides that

evidence of a prior conviction is generally not admissible if more than ten years

have elapsed since the date of conviction or release from confinement, unless the

court determines that the probative value substantially outweighs the prejudicial

effect. TEX. R. EVID. 609(b). An exception to Rule 609 applies when the witness

“makes statements concerning his past conduct that suggest he has never been

arrested, charged, or convicted of any offense.” Delk, 855 S.W.2d at 704; see also

Winegarner, 235 S.W.3d at 790 (stating that exception also applies when witness

creates false impression regarding “the extent of his prior troubles with the law”).



                                         7
If the witness creates a false impression of law-abiding behavior, he “opens the

door” on his “otherwise irrelevant past criminal history and opposing counsel may

expose the falsehood.” Delk, 855 S.W.2d at 704; see also Hernandez v. State, 351

S.W.3d 156, 160 (Tex. App.—Texarkana 2011, pet. ref’d) (“In order for [the false

impression] exception to apply, however, the defense must unambiguously create a

false impression of law-abiding behavior, thereby permitting introduction of

evidence of past criminal history.”).

      In analyzing the applicability of this exception, we consider the witness’s

statement in relation to the question asked, examine how broadly the question

could be interpreted, and analyze the relationship between the question asked and

the major substantive issues in the trial. Grant v. State, 247 S.W.3d 360, 368 (Tex.

App.—Austin 2008, pet. ref’d); Paita v. State, 125 S.W.3d 708, 712 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) (noting that courts also consider whether the

witness’s answer was responsive to the question asked). If a witness voluntarily or

nonresponsively testifies concerning extraneous matters, the opposing side may

correct a false impression presented by the answer. Paita, 125 S.W.3d at 712

(citing Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d)). The scope of the impeachment must not exceed the issue that the

witness opened. Id. at 713 (citing Hammett v. State, 713 S.W.2d 102, 105–07

(Tex. Crim. App. 1986)).



                                         8
      Here, before Cavitt testified, the trial court held a hearing outside the

presence of the jury to discuss Cavitt’s prior convictions. The State informed the

trial court that, in addition to a pending unrelated charge, Cavitt had five prior

convictions: a 2007 forgery conviction, a 2007 theft conviction, a 1989 sexual

assault conviction, a federal weapons conviction from the 1980s, and a 1976

robbery conviction. The trial court, the State, and defense counsel all agreed that

the only convictions admissible for impeachment were the 2007 forgery

conviction, the 2007 theft conviction, and the 1989 sexual assault conviction.

When discussing the two earliest convictions, defense counsel stated, “Judge,

you’ve given me three and I can go along with the Court’s ruling.” The trial court

then informed Cavitt that he would only be asked about the two 2007 convictions

and the 1989 conviction.

      Cavitt testified in his jail clothes. The State acknowledged that fact in its

questioning but did not ask what he was charged with or any details about that

case. The State and Cavitt had the following exchange during direct examination:

      [The State]:         Now, in addition to your current predicament,
                           you’ve been in trouble with the law before; is that
                           right?
      [Cavitt]:            Yes, ma’am.
      [The State]:         Back in 2007, you were convicted of forgery?
      [Cavitt]:            Yes, ma’am.
      [The State]:         In 2007, you were also convicted of theft?


                                          9
      [Cavitt]:           Yes, ma’am.
      [The State]:        And [then] in 1989, you were convicted of sexual
                          assault?
      [Cavitt]:           Yes, ma’am.

Cavitt answered all of the State’s questions on this issue truthfully and

responsively. The State then resumed asking Cavitt about his encounter with

appellant after the robbery occurred.

      Before beginning cross-examination of Cavitt, outside the presence of the

jury, defense counsel stated the following:

      My hearing was [the State] asked Mr. Cavitt at the beginning, you’ve
      been in trouble with the law before; haven’t you, Mr. Cavitt? And
      then she named three occasions. The Defense claims that that opens
      up the door to the other occasions when he’s been in trouble with the
      law before, didn’t limit it to convictions. . . . It leaves a false
      impression with the jury. We should be able to bring out those other
      occasions he’s been in trouble with the law.

The trial court agreed with the State that the State’s question did not open the door.

The trial court stated, “I’m not allowing you to go further than the three we already

discussed.” The trial court overruled defense counsel’s objection, and defense

counsel perfected a bill of exception concerning the remainder of Cavitt’s criminal

history.

      Appellant cites Ex parte Carter and Reese v. State as support for his

argument that the State opened the door to Cavitt’s complete criminal history by




                                         10
asking, “[Y]ou’ve been in trouble with the law before; is that right?” 2 However,

unlike those cases, here the parties and the trial court explicitly agreed prior to

examination of Cavitt that the State would ask Cavitt about only three of his prior

convictions and that his earliest convictions were inadmissible. See Ex parte

Carter, 621 S.W.2d 786, 788 (Tex. Crim. App. 1981) (allowing impeachment of

defendant with entire criminal history of thirteen arrests that had not resulted in

convictions after defendant admitted he had previously been in trouble, but, after

counsel urged him to “get specific,” defendant admitted only to two prior

convictions and two prior extraneous offenses); Reese v. State, 531 S.W.2d 638,

641 (Tex. Crim. App. 1976) (allowing impeachment with additional offense for

unauthorized use of automobile when in response to question about “what kind of

trouble” defendant had with law, defendant admitted only one car-theft

conviction).   Defense counsel affirmatively stated on the record that limiting

impeachment of Cavitt to his three most recent convictions was acceptable. The

State abided by this agreement and prefaced its questioning of Cavitt on this issue

by stating, “[Y]ou’ve been in trouble with the law before; is that right?” Cavitt

answered this question truthfully. The State then asked Cavitt about his two 2007


2
      Appellant also cites the Court of Criminal Appeals’ unpublished opinion in Bess v.
      State, No. AP-76377, 2013 WL 827479 (Tex. Crim. App. Mar. 6, 2013) (mem.
      op., not designated for publication), as support for this argument. As the State
      notes, Bess is an unpublished case that has no precedential value and “must not be
      cited as authority by counsel or by a court.” See TEX. R. APP. P. 77.3.

                                          11
convictions and his 1989 conviction, and Cavitt testified, correctly and truthfully,

that he had those prior convictions.

      Cavitt thus responded truthfully and responsively, and in accordance with

the parties’ prior agreement, to all of the State’s questioning regarding his prior

criminal history. See Grant, 247 S.W.3d at 368 (stating that courts consider

witness’s statement in relation to question asked); Paita, 125 S.W.3d at 712

(stating that courts consider whether witness’s answer was responsive to question

asked). This was not an instance of the State’s asking an open-ended question

about Cavitt’s criminal history and Cavitt’s testifying selectively about some

previous convictions and omitting others. Cf. Ex parte Carter, 621 S.W.2d at 788;

Reese, 531 S.W.2d at 641.       Instead, Cavitt followed the trial court’s explicit

instructions, given to him at a hearing outside the presence of the jury, to answer

questions only about the three specified prior convictions.

      We conclude that the trial court reasonably could have concluded that, in

following the instructions given to it by the court, the State did not open the door to

allowing defense counsel to inquire about the remainder of Cavitt’s criminal

history. We hold that the trial court did not abuse its discretion in prohibiting

defense counsel from asking Cavitt about his earlier convictions.

      We overrule appellant’s sole issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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