                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-15-00181-CR
                              _________________

                      BOBBY ERNEST SMITH, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 75th District Court
                            Liberty County, Texas
                          Trial Cause No. CR31219
________________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Bobby Ernest Smith appeals his conviction for first-degree felony

murder. In two issues on appeal, Smith asserts that his trial counsel did not provide

him with effective assistance of counsel. In his first issue, Smith contends his trial

counsel was ineffective for failing to litigate the admissibility of six prior

convictions, which he contends were inadmissible because of their age and because

no specific facts and circumstances linked the offenses with the charge in this case.

In his second issue, Smith contends his trial counsel was also ineffective by
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eliciting testimony from Smith about the six prior convictions during his direct

examination of Smith. Smith filed a motion for new trial wherein he raised the

ineffective assistance of counsel issues he now raises on appeal. After a hearing on

Smith’s motion for new trial, the trial court denied Smith’s motion. We affirm

Smith’s conviction.

                               Motion for New Trial

      We analyze Smith’s ineffective assistance of counsel issues as a challenge to

the trial court’s denial of his motion for new trial. See Riley v. State, 378 S.W.3d

453, 457 (Tex. Crim. App. 2012). We review the trial court’s denial of a motion

for new trial under an abuse of discretion standard. Colyer v. State, 428 S.W.3d

117, 122 (Tex. Crim. App. 2014). Under this deferential review, we will reverse

the trial court’s denial of the defendant’s motion for new trial only if the trial

court’s decision is clearly erroneous and arbitrary. Riley, 378 S.W.3d at 457. We

view the evidence in the light most favorable to the trial court’s ruling and defer to

the trial court’s credibility determinations. State v. Thomas, 428 S.W.3d 99, 104

(Tex. Crim. App. 2014). “A trial court abuses its discretion if no reasonable view

of the record could support the trial court’s ruling.” Riley, 378 S.W.3d at 457.




                                          2
                         Ineffective Assistance of Counsel

      To prevail on a claim of ineffective assistance of counsel, a defendant must

prove (1) counsel’s representation fell below the objective standard of

reasonableness, and (2) there is a reasonable probability that, but for counsel’s

deficiency, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984); Hernandez v. State, 726 S.W.2d

53, 55, 56-57 (Tex. Crim. App. 1986) (applying Strickland standard to ineffective-

assistance claims under the Texas Constitution). “This two-pronged test is the

benchmark for judging whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a reliable result.” Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim.

App. 1999). An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. Perez v. State, 310 S.W.3d 890, 893

(Tex. Crim. App. 2010). When it is shown that “no reasonable trial strategy could

justify the trial counsel's conduct, counsel's performance falls below an objective

standard of reasonableness as a matter of law, regardless of whether the record

adequately reflects the trial counsel's subjective reasons for [his actions].” Andrews

v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).



                                          3
      In our determination of the effectiveness of counsel, we are “highly

deferential to trial counsel and avoid the deleterious effects of hindsight.”

Thompson, 9 S.W.3d at 813. An appellate court must indulge a strong presumption

that counsel’s conduct fell within the wide range of reasonable professional

assistance and that counsel’s conduct was the result of sound trial strategy.

Strickland, 466 U.S. at 689. We review the totality of counsel’s representation, and

do so in light of the circumstances of each case. Lopez v. State, 343 S.W.3d 137,

143 (Tex. Crim. App. 2011). An allegation of ineffectiveness will be sustained

only if it is firmly founded in the record and if the record affirmatively

demonstrates the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

                     Admissibility of Remote Prior Offenses

      Several months prior to trial, defense counsel filed a request for notice of the

State’s intent to introduce evidence of Smith’s other crimes, wrongs, or bad acts. In

response, the State filed a notice of intent to use evidence of Smith’s prior

convictions and extraneous offenses, and specifically identified the following: (1)

theft in 1987; (2) burglary of a habitation in 1989; (3) burglary of a habitation in

1988; (4) possession of cocaine in 1988; (5) burglary of a habitation 1991; (6)

forgery in 1991; (7) a second forgery in 1991; and (8) driving while intoxicated in

2007. The trial of this matter occurred in April 2015. Smith chose to testify in his

                                          4
own defense. However, prior to Smith taking the stand, and outside the presence of

the jury, both the court and defense counsel apparently warned Smith that he

would be subject to impeachment by the State on his prior convictions should he

choose to testify. Thereafter, the State announced its intent to question Smith about

his prior felony convictions for impeachment purposes.

      During the direct examination of Smith, defense counsel elicited testimony

about Smith’s six prior felony convictions. Smith testified that he was convicted

for burglary of a habitation in 1986; burglary of a habitation in 1988; felony

possession of cocaine in 1988; burglary of a habitation in 1991; felony forgery in

1991; and a second forgery conviction in 1991. The State did not cross-examine

Smith regarding his prior offenses.

      On appeal, Smith first complains that his counsel was ineffective for not

challenging the admissibility of the six prior offenses that were each more than ten

years old. In his second issue, Smith contends that his counsel was ineffective for

subsequently introducing testimony about these prior remote offenses during his

direct examination of Smith. Both of Smith’s issues are premised upon Smith’s

contention that the prior offenses were inadmissible pursuant to Rule 609(b) of the

Texas Rules of Evidence. We therefore analyze the admissibility of these offenses

pursuant to Rule 609(b).

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      Generally, the trial court must admit evidence of a criminal conviction

offered to impeach a witness’s character for truthfulness if: “(1) the crime was a

felony or involved moral turpitude . . . ; (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.” Tex. R. Evid. 609(a). For criminal convictions that

are more than ten years old or when it has been more than ten years since the

witness’s release from confinement for the conviction, Tex. R. Evid. 609(b)

provides that evidence of such a remote criminal conviction is only admissible if it

is shown that “its probative value, supported by specific facts and circumstances,

substantially outweighs its prejudicial effect.” Id.

      There is no dispute that the six prior convictions at issue in this case were

felony convictions. There is also no dispute that more than ten years had passed

since Smith’s prior convictions or his release from confinement for such

convictions. Thus, Smith’s prior convictions are subject to the heightened standard

of admissibility set forth in Rule 609(b). See Tex. R. Evid. 609(b). Evidence of

Smith’s prior convictions was inadmissible unless the trial court determined the

probative value of the evidence, supported by specific facts and circumstances,

substantially outweighed the prejudicial effect. See id.



                                           6
      The Court of Criminal Appeals set out a non-exclusive list of factors that we

should consider when determining whether the probative value of a prior

conviction outweighs its prejudicial effect, including: (1) the impeachment value of

the prior crime; (2) the temporal proximity of the past crime relative to the charged

offense and the witness’s subsequent history; (3) the similarity between the prior

conviction and the offense being prosecuted; (4) the importance of the witness’s

testimony; and (5) the importance of the credibility issue. Theus v. State, 845

S.W.2d 874, 880 (Tex. Crim. App. 1992); see Leyba v. State, 416 S.W.3d 563, 571

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (considering the Theus factors

in determining admissibility under Texas Rule of Evidence 609(b)).

      The impeachment value of crimes that involve deception is higher than those

involving violence, while crimes involving violence have a higher potential for

prejudice. Theus, 845 S.W.2d at 881. If the prior conviction at issue relates more to

deception, then the first factor weighs in favor of admission. Id. However, if the

prior conviction involves violence, then this factor weighs in favor of exclusion.

See id.

      Temporal proximity “favor[s] admission if the past crime is recent and if the

witness has demonstrated a propensity for running afoul of the law.” Id. However,

if the past crimes are similar to the current charge, then this factor disfavors

                                         7
admission because the similarity presents a situation in which the jury might

convict on the perception of a past pattern of conduct instead of on the facts of the

charged case. Id.

      The last two factors are related and favor admission when the case involves

only the testimony of the defendant and the State’s witnesses because this escalates

the importance of the defendant’s credibility and testimony. Id. The Theus factors

are not exclusive and “[t]he application of these factors . . . cannot be performed

with mathematical precision[.]” Id. at 880. Recently, the Court of Criminal

Appeals explained that “[i]n deciding whether, in the interests of justice, the

probative value of a remote conviction substantially outweighs its prejudicial

effect, a court may consider all relevant specific facts and circumstances, including

whether intervening convictions dilute the prejudice of that remote conviction.”

Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015).

      Smith’s three convictions for burglary of a habitation and his two

convictions for forgery are convictions for crimes of deception. See Woodall v.

State, 77 S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d) (forgery);

White v. State, 21 S.W.3d 642, 647 (Tex. App.—Waco 2000, pet. ref’d) (burglary

of a habitation). Thus, the impeachment value of these convictions is high and

favors admission. See Woodall, 77 S.W.3d at 395; White, 21 S.W.3d at 647.

                                         8
      Smith’s conviction for possession of cocaine, however, is generally not a

crime involving deception, but it is also not a crime involving violence. See Miller

v. State, 196 S.W.3d 256, 268 (Tex. App.—Fort Worth 2006, pet. ref’d) (mem.

op.) (concluding that possession of a controlled substance does not involve

deception); Denman v. State, 193 S.W.3d 129, 136 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (concluding that a conviction for delivery of cocaine is not a

crime of moral turpitude or a crime of violence). The first factor does not weigh in

favor of or against the admission of evidence of the possession of cocaine

conviction.

      As mentioned above, there seems to be no dispute that the past convictions

were not recent in that the date of the prior convictions or release dates all precede

the date of the charged offense by more than twenty years. This factor weighs in

favor of exclusion of evidence concerning the past offenses. The third factor

requires that we consider the similarity, if any, between the past offenses and the

offense for which Smith is now on trial. Smith’s current charge is murder. The

State alleged that Smith intentionally or knowingly caused the victim’s death by

shooting the victim with a firearm. There are no facts in the record before us that

reveal any similarities between Smith’s current charge and his prior convictions for



                                          9
burglary of a habitation, forgery, and possession of cocaine. Accordingly, the third

factor would weigh in favor of admission.

      Regarding the fourth and fifth Theus factors, Smith was the only witness to

testify in support of his theory that he killed the victim in self-defense. As the only

defense witness who testified, Smith’s credibility and testimony were crucial. See

Theus, 845 S.W.2d at 881. As the importance of the credibility of the witness

increases, so, too, does the relevancy of any evidence that tends to impeach his

credibility. See id. These two final factors weigh in favor of admission. See id.

      Given that four factors weigh in favor of allowing the State to impeach

Smith on his forgery and burglary convictions and three factors weigh in favor of

allowing the State to impeach Smith on his possession conviction, we are unable to

conclude that it would have been an abuse of discretion for the trial court to have

determined that the probative value substantially outweighed the prejudicial effect

and to overrule an objection under Rule 609 had defense counsel made one.

Consequently, in the context of an ineffective-assistance claim, Smith has not

shown his counsel was deficient by failing to challenge the admissibility of

Smith’s prior convictions.

      Smith also complains that his counsel was deficient in eliciting testimony

from Smith about his prior offenses. At the motion for new trial hearing, defense

                                          10
counsel testified that he had filed a request for notice of prior convictions and bad

acts and that the State notified him of its intent to introduce evidence of Smith’s

prior convictions. He testified that the State made it clear to him that it intended to

impeach Smith with his prior convictions if Smith chose to testify. He explained

that from a strategic standpoint, he believed the State would be allowed to impeach

Smith with his prior convictions and that if Smith did not tell the jury about the

convictions first, then it would appear that Smith was trying to hide something,

which he believed would have a negative impact on the jury’s evaluation of

Smith’s credibility.

      Defense counsel testified that he informed Smith that he believed the prior

convictions would be admissible to impeach him should Smith choose to testify.

Defense counsel did not discuss Rule 609 with Smith because he did not think the

Rule 609 challenge would be successful. However, defense counsel discussed with

Smith many times that the State had a right to impeach him with his prior offenses.

Defense counsel explained that his extensive legal experience coupled with his

experience with the trial judge led him to believe the trial judge would have found

the prior convictions admissible. Defense counsel testified that because Smith

claimed he was defending himself when the victim was shot, it was of paramount

importance that Smith appear truthful and open with the jury. Defense counsel

                                          11
testified that because he wanted to establish Smith as a credible person, he brought

the prior convictions out during his direct examination of Smith.

      Being mindful that we are to be “highly deferential to trial counsel and avoid

the deleterious effects of hindsight,” we conclude that counsel made a strategic

decision to not object to the admissibility of the prior convictions and to elicit the

testimony about Smith’s prior convictions during his direct examination of Smith

because he believed the court would ultimately admit evidence about Smith’s prior

convictions. Thompson, 9 S.W.3d at 813; see Ohler v. United States, 529 U.S. 753,

757-58 (2000) (explaining that defense counsel must make a strategic decision

whether to introduce prior convictions on direct examination to “remove the sting

or to take [his] chances with the prosecutor’s possible elicitation of the conviction

on cross-examination”). Smith has failed to show that his defense counsel’s

performance fell below an objective standard of reasonableness. 1 See Strickland,

466 U.S. at 687-88. Neither has he shown that no reasonable trial strategy could

justify defense counsel's conduct. See Andrews, 159 S.W.3d at 102. Therefore, we

hold the trial court did not err in denying Smith’s motion for new trial.



      1
        Because Smith has not shown that defense counsel’s performance was
deficient, we need not reach the prejudice prong of Strickland. See Strickland v.
Washington, 466 U.S. 668, 697 (1984); Mallett v. State, 65 S.W.3d 59, 68 (Tex.
Crim. App. 2001).
                                       12
Accordingly, we overrule Smith’s two issues and affirm the judgment of the trial

court.

         AFFIRMED.


                                               ______________________________
                                                      CHARLES KREGER
                                                           Justice
Submitted on May 19, 2016
Opinion Delivered July 13, 2016
Do not publish

Before Kreger, Horton, and Johnson, JJ.




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