                      PD-1128-15
               NO.    __________________

   TO THE COURT OF CRIMINAL APPEALS OF TEXAS



        Arthur Louis Foley, Jr., Appellant
                        v.
           The State of Texas, Appellee



                     ***************

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                     ***************

              FROM THE COURT OF APPEALS

        EIGHTH APPELLATE DISTRICT OF TEXAS

                      EL PASO, TEXAS

                    NO.   08-13-00039-CR

                    TARRANT COUNTY
               TRIAL COURT NO. 1302886R



                                            Brian K. Walker
                                       STATE BAR # 24043978
September 1, 2015                    222 W. Exchange Avenue
                                       Fort Worth, TX 76164
                                       (817) 625-2233 PHONE
                                   (817) 887-5981 FACSIMILE
                                  brian@walkerattorneys.com
                                     Attorney for Appellant


               ORAL ARGUMENT REQUESTED
                              1
                    TABLE OF CONTENTS
                                                  PAGE
TABLE OF CONTENTS    . . . . . . . . . . . . . . .    2
INDEX OF AUTHORITIES    . . . . . . . . . . . . . . 3
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . 4
STATEMENT OF PROCEDURAL HISTORY OF THE CASE . . . 4
QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . 5
ARGUMENT (IMPROPER IMPEACHMENT) . . . . . . . . . 5
PRAYER . . . . . . . . . . . . . . . . . . . . .      9
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE . . . . . . . . . . .      10




                            2
               INDEX OF AUTHORITIES

                       CASES

Bowley v. State,
    310 S.W.3d 431, 434 (Tex.Crim.App. 2010) . . 15

Delk v. State,
    481 S.W.2d 847 (Tex.Crim.App. 1972). . . . . 12

Ochoa v. State,
    481 S.W.2d 847, 850 (Tex. Crim.App. 1972)     . 15

Paschall v. State,
    285 S.W.3d 166 (Tex.App. – Fort Worth 2009). 14


                     STATUTES


Tex. R. Evid. 609(a) . . . . . . . . . . . . . . 11

Tex. R. Evid. 609(b). . . . . . . . . . . . . .    11



        STATEMENT REQUESTING ORAL ARGUMENT

    Oral argument is respectfully requested on

behalf of Appellant/Petitioner.




                         3
    All references to Texas statutes, rules, etc.
are references to the latest edition published by
West Publishing Company, unless otherwise
indicated.
ARTHUR LOUIS FOLEY, JR.,
      Appellant-Applying for Review
V.
THE STATE OF TEXAS,
      Appellee


                      ************
     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                      ************
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:

                 STATEMENT OF THE CASE

      This petition has resulted from a jury trial on

guilt/innocense and punishment of Arthur Louis

Foley, Jr. on one count of murder.     (C.R. Vol. 1,

p. 11).    Mr. Foley was tried, convicted, and

sentenced by jury to 25 years in the Institutional

Division of the Texas Department of Criminal

Justice.    (R.R. Vol. 6, p. 133).    The jury trial

began on Wednesday, November 14, 2012.      (R.R. Vol.

1, p. 3).    The trial ended after five business days

                           4
on Tuesday, November 20th.       (R.R. Vol. 1, p. 6).

The entire trial was presided over by the Honorable

Judge Robb Catalano of the Criminal District Court

#3 of Tarrant County, Texas.       (R.R. Vol. 2, p. 1).

    STATEMENT OF PROCEDURAL HISTORY OF THE CASE

    The Court of Appeals rendered its decision and

delivered its written non-published opinion on July

29, 2015.   The deadline for filing a Petition for

Discretionary Review is August 28, 2015.

            QUESTIONS PRESENTED FOR REVIEW

    In this case, a trial judge admitted a criminal

conviction that was older than ten years old for

impeachment purposes while Appellant was

testifying.   He did not do a 609(b) balancing test

on the record, and almost certainly did not do one

off the record, because he stated his reasoning for

admitting the evidence on the record which did not

comport to Rule 609.   His reasoning that was

apparently mistaken, was that the convictions were

not older than ten years even though they clearly

were. A trial judge cannot legally admit a prior


                             5
conviction that is older than ten years under Texas

Law unless the latter part of 609 is followed.      In

this case, that did not happen.       When a trial judge

clearly indicates on the record why he is admitting

a remote prior conviction, and that reasoning does

not comport with Rule 609, should the appeals court

sustain or overrule?

                       ARGUMENT

    Several pages of trial testimony is devoted to

a certified document that was sent to the Tarrant

County District Attorney (DA) from the Louisiana

Department of Corrections (DOC) in response to the

DA’s June 24, 2011 request for a “prison packet.”

(R.R. Vol. 4, p. 291-303; R.R. Vol. 5, p. 64-82;

R.R. Vol. 5, p. 154-163).       The DOC packet sent to

the DA primarily pertained to a 1996 felony theft

conviction.   (R.R. Vol. 7, p. 90-113).      That 1996

felony theft conviction was used to enhance

Appellant’s charge.    (R.R. Vol. 4, p. 291-303).        It

was also later used to impeach the credibility of

Appellant during his testimony and he did in fact


                            6
admit to it.   (R.R. Vol. 5, p. 63).   However, the

DOC packet contained a rap sheet with references to

several arrests and convictions of a Mike Ford, aka

Arthur Foley and several other aliases, that were

unrelated to the 1996 theft conviction.    (R.R. Vol.

4, p. 292-294).   During their case-in-chief, the

State made an attempt to get the entire document

admitted for all purposes.    (R.R. Vol. 4, p. 291-

293).   However, the Court only initially admitted

the entire packet marked as State’s Exhibit 62 for

record purposes (R.R. Vol. 4, p. 302).    But, also

allowed the State to redact certain parts of the

packet pertaining to extraneous offenses and

admitted a redacted version marked as State’s

Exhibit 62a for all purposes.    (R.R. Vol. 4, p.

295).   During their cross-examination of Arthur,

the State was allowed to cross examine him over

defense counsel’s objection with a 1987 burglary

conviction that was alluded to in the rap sheet

portion of Exhibit 62.   (R.R. Vol. 5, p. 79).

Finally, in their rebuttal case, the State offered

the portion, that had been previously redacted,
                          7
which alluded to the 1987 conviction as State’s

Exhibit 62b.   The Court did then admit that portion

for all purposes over Defense Counsel’s multiple

objections.    (R.R. Vol. 5, p. 154-163).

    One of the objections made by Appellant was

that the conviction was too remote to be used.

(R.R. Vol. 5, p. 79).     Texas Rules of Evidence 609

(b) states “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.”   It also says that is the case

“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(b).

    The document used by the State to bolster the

existence of the 1987 conviction itself cryptically

states “SENT TO 2 YRS DOC, SUSP & 2 YRS ACT SUPV

PROB PROB BEGINS 9-2-87 ENDS 9-2-89” and “7-9-90
                           8
PROB TERMINATED UNSATIS”.       (R.R. Vol. 7, p. 94 &

113).     It is apparent from the language contained

in the rap sheet provision that the conviction

occurred in 1987, the sentence assessed was two

years confinement probated for two years, and that

the probation was ultimately rendered unsuccesful

on July 9 of 1990.    Even if we assume a two year

sentence was assessed after the probationer was

deemed unsuccesful on probation, that sentence

would have been complete by July of 1992.       However,

there is no mention of the result in the DOC

packet.   Therefore, assuming this was proof of a

conviction for this Arthur Foley, the conviction

was too remote to be used for the purposes of

impeachment and thus violative of 609(b).

    The Eighth Court of Appeals (COA) overruled

this issue because “Appellant failed to show the

trial court erred in conducting the Rule 609(b)

balancing test” and because “the record allows for

an alternative basis of admission of the 1987

burglary conviction.”    That alternative basis


                            9
pertaining to “the false-impression exception” that

the COA brought up.    (Appeals Court Opinion p. 12).

             COA First Reason for Overruling

    In the former contention, the COA stated that

“if the trial judge applied the Rule 609(b)

balancing test, Appellant carries the burden to

show how the trial court abused its discretion.”

They went on by stating that “while Appellant

correctly states the rule encapsulated within Rule

609(b), he did not attempt to apply it to the case

at hand.”   They conclude that by not doing so,

“Appellant failed to show the trial court erred in

conducting the Rule 609(b) balancing test.”

(Appeals Court Opinion p. 12).     There are two

obvious problems with this logic.    First, the COA

doesn’t cite any authority for this proposition.

Second, the trial judge did not do a balancing test

under Rule 609(b).    Nowhere in the record does the

trial judge do a balancing test.    In fact, it is

pretty clear that the trial judge did not do a

balancing test silently or off the record.


                           10
    The judge himself stated that he reasoned, made

his decision, and overruled Appellant’s objection

because he “looked at the dates and it appears to

be within ten years.”    (R.R. Vol. 5, p. 80).

Ironically, the first words out of the prosecutor’s

mouth aimed at Appellant on cross-examination, once

the jury was brought back in the courtroom, was:

        Q.   Mr. Foley, you denied that you had

        ever been on another felony probation; is

        that correct?

        A.   Yes, Sir.

        Q.   So you deny then that you were

        arrested on September of 2nd of 1987 in

        Baton Rouge, Louisiana for burglary?

        A.   Yes, Sir.

        Q.   And you deny that on – in 1987, you

        were sentenced to two years in the

        Department of Corrections with that – the

        execution of that sentence being suspended

        for a two-year probation.

        A.   Yes, Sir.


                           11
This occurred within minutes of the judge stating

that he felt like the conviction was within ten

years.    (R.R. Vol. 5, p. 82).   However, the trial

judge did not change his ruling, and never

described any more in depth what made him think

that the conviction could have been within ten

years.    (R.R. Vol. 5, p. 82).   If there was no

balancing test done, how can Appellant meet the

standard set forth by the COA?    The COA stated that

“if the trial judge applied the Rule 609(b)

balancing test, Appellant carries the burden to

show how the trial court abused its discretion.”

However, the trial judge did not apply the rule

609(b) balancing test.

              COA Second Reason for Overruling

       In the COA’s latter reason for overruling this

issue, the COA said that an alternative theory for

overruling the issue was manifest from the record.

They began discussing what they call the “false-

impression exception”.    (Appeals Court Opinion p.

11).    The COA noted that “an exception to Rule 609

arises when the defendant ‘opens the door’ to
                           12
previously inadmissible evidence.”   Citing Delk v.

State, they state that “the exception applies when

a witness testifies regarding his past conduct and

leaves the false impression regarding his law-

abiding behavior.” (Appeals Court Opinion p. 10

citing Delk v. State, 481 S.W.2d 847 (Tex.Crim.App.

1972)).   The COA also cites Ochoa v. State and

quotes that “if a defendant testifies as to some of

his convictions but leaves the impression that

there are no others, ‘the State may refute such

testimony despite the nature of the conviction used

or its remoteness.’”   (Appeals Court Opinion p. 10-

11 citing Ochoa v. State 481 S.W.2d 847, 850 (Tex.

Crim.App. 1972)).   The COA then mentioned that

Appellant stated during direct that “he had ‘a

prior in New Orleans maybe 18- 17, 18 years ago.’”

They also mentioned that he testified during cross

that he had “committed a crime in New Orleans.”

They concluded that Appellant had left a “false-

impression” by making those statements, and

therefore, the door was opened to the 1987


                          13
conviction.     (Appeals Court Opinion p. 12).    That

is a stretch.    First, that is an absolute

subjective view of whether a false-impression was

in fact created.    Second, there is nothing about

the language used by Appellant that shows that he

was trying to mislead, nor is there any indication

that he was committing himself to only “one”

offense, as stated by the COA.      Using that language

did not necessarily amount to a “misleading

assertion” that “he had one prior conviction and

committed one crime in Louisiana” like the COA

ultimately decided.    (Appeals Court Opinion p. 12).

                       CONCLUSION

    In this case, a trial judge admitted a

conviction that was older than ten years old for

impeachment purposes.    He did not do a 609(b)

balancing test on the record and almost certainly

did not do one off the record because he stated his

flawed reasoning on the record.     His reasoning was

that the convictions were not older than ten years.




                            14
The trial judge was obviously mistaken on that

point.

    A trial judge cannot legally admit a prior

conviction that is older than ten years under Texas

Law unless the latter part of 609 is followed.     In

this case, that did not happen.   The COA mentioned

that the State argued on appeal that the balancing

test “need not be overt,” that the trial judge does

not have to ‘“expressly inform the parties that it

undertook the balancing test, describe the factors

it weighed, and issue a finding disclosing whether

those circumstances favored either the inclusion or

exclusion of the evidence.”’   (Appeals Court

Opinion p. 10).   They also mention that the State

argued that the “appellate courts are to presume

the test was perfomed” and that the ruling must be

upheld “under Bowley if it is ‘correct under any

theory of law applicable to the case… even if the

trial judge failed to give any reason or used the

wrong reason for the ruling.’”    (Appeals Court

Opinion p. 12).   The State cited Bowley for this

proposition.   Bowley v. State, 310 S.W.3d 431, 434
                          15
(Tex.Crim.App. 2010).    However, the COA did not

rest its decision on these arguments.      They rested

their decision on the two reasons mentioned above.

Regardless, the unique situation here is that the

trial judge blatantly stated his reasoning for

admitting the 1987 conviction and that decision did

not comport with Rule 609.      It is also unique

because we do not need to surmise whether a

balancing test was done off of the record because

the trial judge stated his reasoning for admitting

the evidence on the record; although the reasoning

was flawed.   In these situations, remote prior

convictions going back past ten years should not be

admitted.   The conviction was admitted in error in

this case and the issue should have been sustained

and the case remanded.    Accordingly, that is why

Appellant requests review from this honorable

court.

                         PRAYER

    WHEREFORE, PREMISES CONSIDERED, ARTHUR LOUIS

FOLEY, JR., Appellant, prays that this Petition for

Discretionary Review be granted; that this case be
                           16
submitted to the Court; that the Court of Appeals’

decision be reversed and for such other relief for

which he shows himself entitled.



                     Respectfully Submitted,

                     /s/ Brian K. Walker
                     By: BRIAN K. WALKER
                     222 W. Exchange Ave.
                     Fort Worth, Texas 76164
                     (817) 625-2233 Phone
                     (817) 887-5981 Fax
                     Attorney for Appellant
                     brian@walkerattorneys.com


              CERTIFICATE OF SERVICE
    A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W.
Belknap, Fort Worth, Texas 76196 and to the State
Prosecuting Attorney at P.O. Box 12405, Austin,
Texas 78711 on the 28th day of August, 2015.

                              /s/ Brian K. Walker
                              BRIAN K. WALKER


             CERTIFICATE OF COMPLIANCE
    I certify that this document copmplies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 2530 words, and that the document is in 14
point type.

                              /s/ Brian K. Walker
                              BRIAN K. WALKER
                         17
                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 ARTHUR LOUIS FOLEY, JR.,                      §
                                                              No. 08-13-00039-CR
                 Appellant,                    §
                                                                 Appeal from the
 v.                                            §
                                                      Criminal District Court Number Three
 THE STATE OF TEXAS,                           §
                                                            of Tarrant County, Texas
                 Appellee.                     §
                                                                (TC# 1302886R)
                                               §

                                      JUDGMENT

       The Court has considered this cause on the record and concludes there was no error in the

judgment. We therefore affirm the judgment of the court below. This decision shall be certified

below for observance.

       IT IS SO ORDERED THIS 29TH DAY OF JULY, 2015.


                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating
                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


    ARTHUR LOUIS FOLEY, JR.,                             §
                                                                            No. 08-13-00039-CR
                                 Appellant,              §
                                                                               Appeal from the
    v.                                                   §
                                                                 Criminal District Court Number Three
    THE STATE OF TEXAS,                                  §
                                                                         of Tarrant County, Texas
                                 Appellee.               §
                                                                              (TC# 1302886R)
                                                         §

                                                O P I N I O N1

         Appellant Arthur Louis Foley, Jr., was indicted on one count of murder for killing Brandon

Sibley. The State alleged three alternative means of commission in the indictment. See TEX.

PENAL CODE ANN. § 19.02(b)(1)-(3) (West 2011) Under section 19.02(b)(3), felony-murder, the

State alleged the underlying felony was unlawful possession of firearm, and the trial court’s charge

included an instruction on possession by a convicted felon.                     The charge also included a

self-defense and defense of a third person instruction. On November 19, 2012, Appellant was

found guilty and the following day sentenced to 25 years in the Institutional Division of the Texas

Department of Criminal Justice. On appeal, in three issues, Appellant challenges the trial court’s


1
 This case was transferred to this Court from the Second Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
(1) allowing the State to impeach him with a conviction that was older than ten years; (2) admitting

incomplete and unreliable criminal records of the 1987 conviction to impeach him; and (3) failing

to declare a mistrial sua sponte when defense counsel should have requested a mistrial but did not.

We affirm.

                                             FACTUAL HISTORY

           On May 23, 2011, Sibley, a former employee of Appellant’s, went to Appellant’s auto

repair shop to pick up speaker-boxes he left there. Appellant and his employee, Davis, told Sibley

the speakers had been stolen during a burglary of the shop and he would be paid for the speakers

once the insurance claim was settled. Sibley disputed Appellant’s claim of a burglary and

demanded to be paid for the speakers. Sibley drove away angry.

           Later that day, Sibley returned and again demanded the return of his speakers. Miracle,2

Appellant’s sister, and Sibley began to fight and she swung a stick at Sibley. Appellant testified

that, believing his sister could be killed, he shot Sibley. Appellant claimed he also shot Sibley in

self-defense. Appellant stated Sibley was yelling, “I’ll kill all of y’all.”

           Plumber Greg Bogan, sitting in a van parked down the street, heard Miracle and Sibley

arguing and saw her swing a stick at Sibley. Bogan observed Miracle go inside the shop. Bogan

stated Appellant came outside the shop, walked toward Sibley and shot him once. Sibley ran to

Bogan’s van and fell inside the open door. Bogan called 9-1-1 as Appellant walked calmly back

into the shop. Everyone at the shop left quickly. Sibley stopped breathing shortly after police

officers arrived.

           Appellant said he shot Sibley with a .9-millimeter gun that rolled out from Sibley’s pant

leg. According to Appellant he picked up the gun and shot Sibley as Sibley came toward him.
2
    Miracle had stopped by after a chemotherapy treatment and was deceased at the time of trial.
                                                           2
Appellant maintained the gun was not his, but that Sibley had brought it to the shop. Appellant

denied owning a gun despite the fact that ammunition for the .9-millimeter gun was found in his

office.    He admitted to buying the ammunition in anticipation of eventually purchasing a

.9-millimeter handgun. Appellant stated he intended to purchase a .9-millimeter gun under his

wife’s name if his prior felony conviction prevented him from obtaining one in his name.

          A search of Appellant’s auto shop revealed a Hi-Point .9-millimeter handgun from the

workbench in the garage area. A .9-millimeter bullet casing had been collected from Appellant’s

shop parking lot. Testing of the Hi-Point .9-millimeter handgun concluded the .9-millimeter

casing found in the parking lot came from the Hi-Point handgun found in the shop.

          A former customer of Appellant’s, Bloomer, testified he had hidden a Hi-Point

.9-millimetter handgun in the trunk of a vehicle he had left there in 2011. Later, he returned for

his vehicle and Appellant told him it was gone. Bloomer never recovered the Hi-Point .9

millimeter hand gun from his vehicle. Sibley’s father stated he saw Appellant sitting at his desk

with a black semi-automatic weapon about a week to two weeks before his son’s death.

                                  PROCEDURAL HISTORY

          The trial court admitted portions of Appellant’s criminal records from the Louisiana

Department of Public Safety and Corrections as State’s Exhibit 62A without objection from

Appellant. State’s Exhibit 62A contains an indictment out of the “Criminal District Court for the

Parish of Orleans” that states: “MIKE FORD aka ARTHUR FOLEY” committed theft of an

automobile valued at five hundred dollars or more. The records also include a “WAIVER OF

CONSTITUTIONAL RIGHTS PLEA OF GUILTY” which is signed by Arthur Foley and his

attorney. The Waiver also recites “State of Louisiana versus Mike Ford aka Arthur Foley.” It


                                                3
further indicates that Appellant pled guilty to theft over $500. The sentencing document reflects

on 9-11-1996 in the case of State of Louisiana v. Mike Ford that “[t]he above defendant…

tendered to the Court a plea of guilty as charged” in which the sentence is “Three (3) years in the

department of corrections – Suspended Two (2) years active probation $541.00 restitution.”

       Appellant elected to testify in the guilt-innocence phase of the trial.      During direct

examination he stated:

       I had every intention of buying a handgun. I went to the pawnshop. I looked at
       some guns. I was going to buy a Ruger 9-millimeter. I filled out the paperwork.
       He told me it would take two days. I told him I had a prior in New Orleans maybe
       18 – 17, 18 years ago. He say he would run the police report, and I come back
       Tuesday, he will let me know.

       On cross-examination the following colloquy followed:

       STATE: Mr. Foley, you told Detective Carroll, I don’t think I can get a gun, didn’t you?

       APPELLANT: Yes, sir. You’re right.

       STATE: There’s only one reason you would have told him that, right?

       APPELLANT: Yes, sir.

       STATE: What’s that reason?

       APPELLANT: Because I had committed a crime in New Orleans and I – I was on
       probation for it. I had got three years – three-year sentence, two years probation, which I
       completed. I was supposed to be adjudicated. So I – I actually thought I could have
       owned a gun. But I know nothing about Texas law, so I would have had to do research.

       STATE: Right. When you committed auto theft in Louisiana, you didn’t know about
       what the law for firearms would be in Texas, did you?

       APPELLANT: Exactly.

                                                    …

       STATE: Auto theft in Louisiana when you were convicted was a felony offense.


                                                4
       APPELLANT: It was an offense, I was convicted of it.

       STATE: You can’t – you can’t buy a gun because you’re a convicted felon.

                                                    …

       STATE: That’s why you can’t buy a gun because you’re a convicted felon. That’s why
       you told that to Detective Carroll.

       APPELLANT: I – I guess you could say that. I—I wasn’t sure. I would have had to do
       research on it.

       STATE: By the way, who’s Mike Ford and why were you using his name?

       APPELLANT: I wasn’t using his name. When I first got arrested on that, apparently
       somebody was using my name. And that person turned out to be Mike Ford. And it was a
       huge thing trying to separate the two. And it – it actually stuck with me to life. You can
       identify me as Arthur Foley, but when I was arrested in – in – however that Mike Ford stuff
       got in there, it—it never physically got off.

                                                    …

       STATE: Was that the only felony probation that you’ve ever been on?

       APPELLANT: Yes, sir.

Defense counsel then objected that Appellant’s “other offenses are extraneous offenses. I should

have objected to the question[.]” The State asserted that Appellant had denied his other felony

conviction which opened the door to his prior burglary conviction from the 80s.

       The trial court held a hearing outside of the jury’s presence. The State asked Appellant if

he had been placed on probation for burglary on September 2, 1987. He responded, “Not that I

recall, no.” State’s Exhibit 62B is a two-page document that appears to be a “rap sheet” according

to the trial court. State’s Exhibit 62B is a State of Louisiana Investigative Report for Arthur L.

Foley. The report also lists aliases of Mike Ford, Michael Foley, Mike Folay and Arthur L. Foley,

Jr. The original rap sheet contains eleven (11) arrests, nine (9) of which reflect the name of


                                                5
Arthur Foley and two (2) for Mike Ford. Only two convictions are recorded, one in the name of

Arthur L. Foley, Jr. which is the auto theft conviction Appellant admitted to and the second, a

conviction for simple burglary on September 2, 1987 in the name of Arthur L. Foley. Appellant

agreed with the State that his Louisiana criminal record history correctly recited his full name,

social security number, gender, race and date of birth. Appellant contended his criminal history

was not his but Mike Ford’s with the lone exception of the auto theft conviction.

       Appellant objected that proof of the second felony probation was not relevant and was an

extraneous offense. Further, Appellant argued the State did not have any information to link

Appellant to the other offenses in Appellant’s criminal history from Louisiana. The State

countered the packet sent by the State of Louisiana which included Appellant’s criminal history

and alias was certified as “true copies of the records of the Louisiana Department of Public Safety

and Corrections regarding Arthur Foley.” Additionally the State pointed out that Appellant had

admitted to veracity of the documents in the packet pertaining to the auto theft. The State also

reminded the trial court that the Appellant had stipulated to evidence from a fingerprint expert that

the fingerprints in the Louisiana criminal record packet were his. The trial court ruled the State

could cross-examine Appellant regarding any felony convictions or crimes of moral turpitude.

The State urged the admission of Appellant’s Louisiana criminal history record reflecting the

felony conviction of burglary from September 2, 1987. The State proposed Appellant’s criminal

history be admitted only if Appellant denied the conviction for burglary.

       Appellant objected to cross-examination by the State of the burglary conviction on the

basis that (1) it was not relevant; (2) it was an extraneous; (3) there was no proof of a felony

conviction; and (4) it was hearsay and a rap sheet was not a legitimate document. Appellant also


                                                 6
objected that the State could not link him to the offense, he could not cross examine the document,

that the conviction was too remote, and it was more prejudicial than probative. The trial court

responded, “I’ve looked at the dates and it appears to be within ten years.” The trial court noted

the State had no judgment or court documents to support the admission of the burglary conviction.

The State responded the criminal history was included in Arthur Foley’s certified records from

Louisiana and equivalent to a Texas pen packet. The trial court ruled that the State could

cross-examine Appellant on his prior burglary conviction of September 2, 1987. Appellant

requested a limiting instruction be given to the jury during the cross-examination and in the jury

charge.

          The jury then returned to the courtroom at 10:52 a.m. and was given the following

instruction:

          Ladies and gentlemen of the jury, you are instructed that any prior conviction that is
          alleged or proven on cross-examination, you are to consider it for credibility
          purposes only of the witness and cannot use it to – in the case-in-chief for guilt or
          innocence on the crime he’s charged with. But you can consider it for credibility
          purposes only.

The State then asked Appellant if he had another felony conviction. He responded no. Appellant

denied he had ever been convicted on September 2, 1987 for burglary in Baton Rouge, Louisiana

and that he had been placed on probation for two years.

          Immediately prior to closing argument at 1:27 p.m., the trial court admitted State’s Exhibit

62B and allowed the State to read it to the jury. The trial court redacted the rap sheet to reflect

only the arrest for burglary and conviction on September 2, 1987. The rap sheet information is as

follows:

          ARREST DATE: 09/02/1987                               LID:
          AGENCY: DOC BATON ROUGE LA                            AFIS ATN:

                                                    7
           NAME: FOLEY, ARTHUR L

         CHARGE 1                                  COUNTS 1
         R.S. 14:62 SIMPLE BURGLARY
         DISPOSITION: EBR#1-87-396, ON PROB FOR ARREST OF 11-18-87, PG 7-8-87
         9-2-87 SENT TO 2 YRS DOC, SUSP & 2 YRS ACT SUPV PROB PROB BEGINS 9-2-87
         ENDS 9-2-89 7-9-90 PROB TERMINATED UNSATIS[.]3

         Appellant objected to State’s Exhibit 62B on the basis that it was not a court record or was

a judgment, was not sufficiently tied to the Appellant, and was hearsay. Further, he contended the

admission of Exhibit 62B denies him the right to confront or cross-examine, it is not authenticated

and is more prejudicial than probative.

         The trial court inserted the following instruction in the jury charge:

         You are instructed that if there is any testimony before you in this case regarding
         the defendant having committed offenses other than the offense alleged against him
         in the indictment in this case, you cannot consider said testimony for any purpose
         unless you find and believe beyond a reasonable doubt that the defendant
         committed such other offenses, if any were committed, and even then you may only
         consider the same in determining the credibility of the defendant, and for no other
         purpose.

                                                 DISCUSSION

         On appeal, Appellant complains that the court abused its discretion in (1) allowing the

State to impeach Appellant with a conviction older than ten (10) years; and (2) allowing the State

to impeach Appellant with incomplete prejudicial records that were not reliable. Appellant’s

third complaint is the trial court erred by failing to declare a mistrial sua sponte when defense

counsel should have requested a mistrial but did not.

                                             Standard of Review

         The decision to admit or exclude evidence is a matter within the trial court’s sound

3
  Appellant’s conviction for theft over $500 on the Louisiana Report recounts the arrest date as 9/11/1996 which is
also the disposition date. This arrest and conviction follow the same pattern of his admitted felony conviction in
which it appears the arrest date is the sentencing date.
                                                         8
discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); Dillard v. State, 931

S.W.2d 689, 698 (Tex.App.—Dallas 1996, pet. ref’d).              “[A] trial court’s ruling on the

admissibility of extraneous offenses is reviewed under an abuse-of-discretion standard.” Devoe

v. State, 354 S.W.3d 457, 469 (Tex.Crim.App. 2011); Theus v. State, 845 S.W.2d 874, 881

(Tex.Crim.App. 1992). A trial court abuses its discretion if it acts without reference to guiding

rules and principles, or acts arbitrarily and unreasonably. Montgomery v. State, 810 S.W.2d 372,

390 (Tex.Crim.App. 1990) (op. on reh’g). We may not disturb the trial court’s ruling if it is

within the zone of reasonable disagreement.            Schmidt v. State, 373 S.W.3d 856, 862

(Tex.App.—Amarillo 2012, pet. ref’d). It naturally follows that this standard applies to both

Rules 404(b) and 403 rulings. Montgomery, 810 S.W.2d at 391. Appeals courts uphold the

decisions of trial courts if any legal basis exists for doing so, even where the trial court expressly

relied on an incorrect basis. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000).

                              Impeachment with Prior Conviction

       Rule 609(a) of the Texas Rules of Evidence allows impeachment of a witness by admission

of evidence of a prior conviction if the prior conviction was a felony or a crime of moral turpitude

and the trial court determines that the probative value outweighs the prejudicial effect. TEX. R.

EVID. 609(a). However, Rule 609(b) provides the conviction is not admissible if more than ten

years has elapsed since the date of the conviction unless the trial court determines, in the interests

of justice, the probative value of the conviction supported by specific facts and circumstances

substantially outweighs the prejudicial effect. TEX. R. EVID. 609(b).

       Appellant contends that the 1987 burglary conviction violates Rule 609(b), that the trial

judge did not conduct the requisite balancing test pursuant to the rule on or off the record, and that


                                                  9
the court erred in ruling the conviction “appears to be within ten years.” The State tacitly

concedes the conviction is over ten years old and argues that Rule 609(b) applies. Relying on

Chitwood, the State responds that the trial court’s application of the Rule 609 balancing test “need

not be overt” nor does it need to “expressly inform the parties that it undertook the balancing test,

describe the factors it weighed, and issue a finding disclosing whether those circumstances favored

either the inclusion or exclusion of the evidence.” Chitwood v. State, 350 S.W.3d 746, 749

(Tex.App.—Amarillo 2011, no pet.) (citing Bryant v. State, 997 S.W.2d 673, 676

(Tex.App.—Texarkana 1999, no pet.)). In addition, the appellate courts are to presume the test

was performed. Id. The State also argues the trial court’s ruling must be upheld under Bowley if

it is “correct under any theory of law applicable to the case … even if the trial judge failed to give

any reason or used the wrong reason for the ruling.” Bowley v. State, 310 S.W.3d 431, 434

(Tex.Crim.App. 2010).

       The defendant places “his character for veracity … in issue by merely taking the stand, and

thus he may be impeached in the same manner as any other witness.” Hammett v. State, 713

S.W.2d 102, 105 (Tex.Crim.App. 1986). An exception to Rule 609 arises when the defendant

“opens the door” to previously inadmissible evidence. Delk v. State, 855 S.W.2d 700, 704

(Tex.Crim.App. 1993); Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Crim.App. 1972).                   The

exception applies when a witness testifies regarding his past conduct and leaves the false

impression regarding his law-abiding behavior. Delk, 855 S.W.2d at 704. When a witness

creates a false impression as to the extent of his prior arrests, convictions, charges or trouble with

the police, he “opens the door” to his criminal history. Id.; Prescott v. State, 744 S.W.2d 128, 131

(Tex.Crim.App. 1988). If a defendant testifies as to some of his convictions but leaves the


                                                 10
impression that there are no others, “the State may refute such testimony despite the nature of the

conviction used or its remoteness.” Ochoa 481 S.W.2d at 850. If a defendant testifies to only

selective details of his prior arrests and convictions, his failure to disclose any other instances

leaves the impression with the jury that those instances he has testified about are the extent of his

prior criminal history. Reese v. State, 531 S.W.2d 638, 640-41 (Tex.Crim.App. 1976). If a

witness portrays a false impression with respect to his prior criminal history, cross-examination is

not limited to his own assertions on direct examination. Ex parte Carter, 621 S.W.2d 786, 788

(Tex.Crim.App. 1981).

        Generally, the false-impression exception does not permit opposing counsel to rely on his

cross-examination to contradict the witness and admit evidence of extraneous offenses that would

otherwise be inadmissible.      Wheeler v. State, 67 S.W.3d 879, 885 (Tex.Crim.App. 2002);

Shipman v. State, 604 S.W.2d 182, 184-85 (Tex.Crim.App. 1980). Additionally, the witness

must unambiguously create the false impression, thereby permitting the admission of evidence of

his past criminal history. Delk, 855 S.W.2d at 704-05; Hernandez v. State, 351 S.W.3d 156, 159

(Tex.App.—Texarkana 2011, pet. ref’d). However, when a defendant voluntarily testifies on

cross-examination concerning his prior criminal record, without any prompting or maneuvering on

the part of the State, and in doing so leaves a false impression with the jury, the State is allowed to

correct that false impression by introducing evidence of the defendant’s prior criminal record.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App. 2007); Martinez v. State, 728 S.W.2d

360, 362 (Tex.Crim.App. 1987); Roberts v. State, 29 S.W.3d 596, 601 (Tex.App.—Houston [1st

Dist.] 2000, pet. ref’d).

        Assuming without deciding the trial court did not conduct the Rule 609(b) balancing test,


                                                  11
the record allows for an alternative basis of admission of the 1987 burglary conviction. Appellant

testified at trial during direct examination that he had “a prior in New Orleans maybe 18 – 17, 18

years ago.” Under cross-examination he reiterated that he could not purchase a gun because “I

had committed a crime in New Orleans and I – I was on probation for it.” Appellant’s defense

was Sibley had come to his shop with the gun, it had rolled out from Sibley’s pant leg and

Appellant had killed Sibley in defense of his sister and himself. Inherent in that defense was his

assertion he did not possess or own a gun because of his prior felony conviction in Louisiana.

Appellant left a false impression with the jury that he had “a prior” and “committed a crime.” The

State properly presented evidence that contradicted Appellant’s misleading assertion he had one

prior conviction and committed one crime in Louisiana.

       If the trial judge applied the Rule 609(b) balancing test, Appellant carries the burden to

show how the trial court abused its discretion.      While Appellant correctly states the rule

encapsulated within Rule 609(b), he did not attempt to apply it to the case at hand. Therefore,

Appellant failed to show the trial court erred in conducting the Rule 609(b) balancing test.

Chitwood, 350 S.W.3d at 749.

       Issue One is overruled.

                                    Impeachment Evidence

       Appellant’s second issue complains the evidence of the 1987 burglary conviction was

insufficient, unreliable and could not be proven beyond a reasonable doubt citing Paschall,

Flowers and Blank. Paschall v. State, 285 S.W.3d 166 (Tex.App.—Fort Worth 2009, pet. ref’d);

Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App. 2007); Blank v. State, 172 S.W.3d 673

(Tex.App.—San Antonio 2005, no pet.) (op. on reh’g). He complains State’s Exhibit 62B is


                                               12
unreliable because it does not contain the identifying information of the court that entered the

judgment; lacks a cause number; does not state what occurred as a result of the probation ending

unsuccessfully; and does not contain complete sentences. Lastly, Appellant argues the evidence

should have been excluded under Rule 609(a) because the probative value does not outweigh the

prejudicial effect. The State responds the trial court did not abuse its discretion in admitting

State’s Exhibit 62B because the existence of the felony conviction was proved and sufficiently

linked Appellant to the conviction.

       Appellant’s reliance on Paschall, Flowers and Blank is misplaced. Each of these cases

involved the proof of a prior conviction for enhancement and jurisdictional purposes which must

be proved beyond a reasonable doubt. In Paschall, the defendant was charged with a felony DWI

in which two prior convictions were used to enhance a subsequent DWI. Paschall, 285 S.W.3d at

168. Flowers and Blank are similar, both defendants were charged with a DWI enhanced with

one prior conviction. Flowers, 220 S.W.3d at 920; Blank, 172 S.W.3d at 674.

       As best as we can surmise, the thrust of Appellant’s argument on appeal is the 1987

burglary conviction is not properly authenticated nor sufficiently linked to the defendant. After a

careful and through examination of Appellant’s certified records from the Louisiana Department

of Public Safety and Corrections, it is clear these records were self-authenticating pursuant to rule

902(4). TEX. R. EVID. 902(4). The trial court redacted all of Appellant’s criminal history save

the 1987 burglary conviction. The redacted criminal history record correctly identified his name,

his race, his gender, his date of birth, and social security number. The complained of burglary

conviction was listed under his name. The record shows the trial court did not abuse its discretion

in admitting State’s Exhibit 62B.


                                                 13
       Here, Appellant was impeached with the admission of evidence of a 1987 burglary

conviction. The 1987 burglary conviction was not used to enhance his conviction nor was it

necessary for jurisdictional purposes. The evidence of the 1987 burglary conviction was admitted

solely to impeach the credibility of the Appellant and the jury was given a limiting instruction by

the trial court during cross-examination and was included in the charge. Moreover, Appellant

was given ample opportunity to deny the 1987 burglary conviction and explain how the name

Mike Ford appeared in his Louisiana criminal history.

       We have found the prior 1987 burglary conviction was properly admitted. As discussed

earlier the admission and exclusion of evidence is reviewed upon the abuse of discretion standard

and will be upheld if the trial court’s decision is correct under any theory of law applicable to the

case. Montgomery, 810 S.W.2d at 391. Likewise we find the records contained in State’s

Exhibit 62B were self-authenticated and sufficiently linked to Appellant.

       We overrule Issue Two.

                                              Mistrial

       In Issue Three, Appellant asserts that his attorney erred in failing to request a mistrial and

the judge erred in not declaring a mistrial sua sponte when the State asked Appellant if he was

being investigated by the Texas Department of Insurance. On cross-examination, the prosecutor

asked Appellant if the reason Sibley doubted Appellant’s claim of a burglary was because “you’re

being investigated … by the Texas Department of Insurance.” Defense counsel immediately

objected, but did not request a mistrial. The State argued that the question went to the relationship

between Sibley and Appellant. The judge admonished the prosecutor not to go into it any further.

The judge instructed the jury to disregard the question. Appellant asserts that the court erred in


                                                 14
not declaring a mistrial.

       A party complaining of the trial court’s failure to grant a mistrial preserves error by: “(1)

object[ing] in a timely manner[;] (2) request[ing] an instruction to disregard[;] and (3) mov[ing]

for mistrial…” Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007). An essential

requirement to preserve this error for appellate review is the party must make a specific, timely

motion for a mistrial that is refused by the trial court. Id. Appellant has failed to preserve his

complaint for appellate review by not moving for a mistrial. Id.

       Historically, appellate courts have given great deference to the trial court in sua sponte

granting a mistrial based on manifest necessity or alternatively determining if an instruction to

disregard is sufficient to remediate any juror bias. Pierson v. State, 426 S.W.3d 763, 773

(Tex.Crim.App. 2014). Appellant has failed to cite to any case in which these facts support a

finding of manifest necessity by the trial court mandating a mistrial.

       Issue Three is overruled.

                                         CONCLUSION

       We find no reversible error in the case. The judgment is affirmed.


                                              YVONNE T. RODRIGUEZ, Justice
July 29, 2015

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating

(Do Not Publish)




                                                15
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   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             08/28/2015 10:21:41 PM
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   Petition for Discretionary Review
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   Lead Document                          PDR Arthur Foley.pdf                                                      [Original]
   Attachments                            Judgment.pdf                                                              [Original]
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