                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 OMAR AGUILAR,                                                  No. 08-11-00266-CR
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                               41st District Court
                                                 §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                        Appellee.                               (TC # 20110D02385)
                                                 §

                                          OPINION

       Omar Aguilar appeals his convictions for aggravated assault on a public servant and

evading arrest or detention with a motor vehicle. For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Appellant was charged by indictment with aggravated assault on a public servant (Count

I) and evading arrest or detention with a motor vehicle (Count II). On June 29 and 30, 2011, the

case was tried before a jury. At the start of the trial, Appellant pled not guilty as to each count.

       El Paso Police Officer Edmundo Amaya testified that on September 4, 2009 at

approximately 1 p.m., he was monitoring a school zone when he witnessed Appellant speed past

him in a minivan. Amaya pulled behind the vehicle to initiate a traffic stop and noticed that the

passenger was not wearing a seat belt. Due to a line of traffic, the vehicle stopped. Officer

Amaya dismounted his motorcycle, approached the vehicle and told Appellant the two reasons
for the stop. Appellant “immediately became sarcastic . . . and said, I wasn’t speeding.” Officer

Amaya asked Appellant for his license and insurance which Appellant admitted he did not have.

       Once the cars in front of Appellant’s vehicle moved, Officer Amaya instructed Appellant

to pull over to the side of the road. Appellant refused and said he was going home. Appellant

then “took off.” Officer Amaya mounted his motorcycle and followed. Appellant turned onto

numerous streets, and finally entered a residential street. The officer attempted to catch up by

pulling to the back left of Appellant’s minivan. His motorcycle was even with the left rear tires

and there was approximately one arm’s length between the left side of the minivan and the right

side of the motorcycle. Once Amaya got to “the back left quarter” of the minivan, Appellant

swerved the vehicle far enough to the left that the vehicle crossed the center line. To avoid being

hit, Officer Amaya performed a “brake and escape.” Based on Officer Amaya’s training and

experience, he believed Appellant intentionally caused the vehicle to veer toward him.

       Officer Amaya then repositioned himself behind the minivan. From this vantage point,

he could see Appellant’s face in the side mirror. Appellant had his left arm propped up, with his

hand under his chin and was looking directly at the officer, “smirking and laughing.”

       Appellant continued driving and led Officer Amaya to a residence where he parked in the

driveway and stepped out of the car. Amaya stopped his motorcycle and dismounted. As he

began to approach Appellant, the latter tried to flee on foot. Amaya followed Appellant through

the backyard and into an alley, but he was unable to catch him. At that point, other units arrived

to help apprehension.

       After the State rested but prior to the start of evidence in Appellant’s case-in-chief,

defense counsel asked the trial court to rule on his pretrial motion requesting that Appellant be




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allowed to testify on his own behalf free from impeachment by prior convictions.1 During the

discussion, the State identified four convictions that it intended to use, if necessary, to impeach

Appellant: one felony conviction for assault on a public servant and three misdemeanor

convictions, two for family violence assault and one for theft. Defense counsel focused his

argument on Appellant’s prior felony conviction for assault on a peace officer, arguing that

because the two offenses were so similar, the prejudicial effect outweighed the probative value.

        The prosecutor responded that the close proximity between the charged offense and

Appellant’s prior offenses indicated a propensity for breaking the law. He recognized that the

similarity between Appellant’s prior felony conviction for assault of a public servant and the

charged offense could be prejudicial, but the impact could be neutralized by an instruction to the

jury to refrain from considering the offenses for anything other than impeachment.

        With respect to Appellant’s prior felony conviction, the court then ruled as follows:

                 In looking at the law that has been presented and hearing the argument, the
        Court is going to -- and having done the balancing test and looking at all the
        factors in Theus -- the Court is going to find that the assault on a public servant --
        it is not a crime of moral terpitude. [sic]

                It is so similar to this crime. Even though it was done close and it could --
        there is a lot of credibility issues between one witness for the State and one
        witness for the defense.

1
   Appellant’s motion requested that, pursuant to Texas Rule of Criminal Evidence 609, the court prevent the State
from impeaching Appellant “by any prior convictions of which the State has given notice of an intent to use for such
purpose.” According to the motion:
                                                         I.
                  The prior convictions would so inflame the minds of the jurors that any value with
         reference to impeachment (these offenses having no particular correlation with truth-telling)
         would be outweighed by its prejudicial impact.

                                                         II.
                 To require that the jury hear the nature of [Appellant’s] prior record as a condition of his
        testimony would have a chilling effect on his right to a fair trial under both the Texas and U.S.
        Constitutions.

The motion then listed the set of factors, as set forth in Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992) and
urged that the trial court was required to consider such factors before permitting impeachment of a witness with
prior convictions.

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               At this time, I’m not going to allow the State to proffer that.

With respect to the prior misdemeanor convictions, the judge noted that a family violence assault

has been ruled a crime of moral turpitude under prior case law. Therefore, the three prior

misdemeanor convictions would be admissible for impeachment purposes. The prosecutor again

asked that the State be allowed to use the prior felony conviction for impeachment purposes,

suggesting that the State be allowed to question Appellant about whether he had ever been

convicted of a felony, without allowing the State to specify any details of the felony. The

defense countered the impact would still be unduly prejudicial and would affect Appellant’s

ability to take the stand. The trial judge ruled that she would not allow the State to ask any

questions related to the felony conviction but that based on Appellant’s testimony, she may

change her mind. Appellant did not testify.

                                IMPEACHMENT EVIDENCE

       In his sole issue for review, Appellant complains that because the trial court refused to

guarantee that he could testify free from impeachment of prior convictions, Appellant “decided

he couldn’t risk having his prior convictions used to impeach him if he testified and decided not

to testify.” Accordingly, Appellant argues that the trial court’s ruling effectively deprived him of

his constitutional right to present a complete defense and violated Appellant’s due process rights.

                                       Standard of Review

       We review a trial court’s evidentiary rulings for an abuse of discretion. Guzman v. State,

955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing a trial court’s decision to admit prior

convictions, we will reverse only upon a showing of a clear abuse of discretion. Theus v. State,

845 S.W.2d 874, 881 (Tex.Crim.App. 1992).

       Texas Rule of Criminal Evidence 609(a) provides:



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       For the purpose of attacking the credibility of a witness, evidence that the witness
       has been convicted of a crime shall be admitted if elicited from the witness or
       established by public record but only if the crime was a felony or involved moral
       turpitude, regardless of punishment, and the court determines that the probative
       value of admitting this evidence outweighs its prejudicial effect to a party.

TEX.R.CRIM.EVID. 609. The Court of Criminal Appeals has articulated a list of non-exclusive

factors to be considered in weighing the probative value of a conviction against its prejudicial

effect: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime

relative to the charged offense and the witness’ 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 881.

                                     Prejudicial v. Probative

       We begin with Theus. There, the trial court overruled the defendant’s pretrial motions to

testify free from impeachment by a prior conviction. Theus, 845 S.W.2d at 881. Theus took the

stand and testified in his own defense, and the State impeached him with evidence of a prior

felony conviction. Id. Here, Appellant chose not to take the stand and accordingly, he was never

impeached. Therefore, as the State points out, he has failed to preserve error for review.

       While the Court of Criminal Appeals has not directly addressed the issue, our sister

courts have held that to preserve a claim for improper impeachment through prior convictions, a

defendant must actually testify. Morgan v. State, 891 S.W.2d 733, 735 (Tex.App.--Houston [1st

Dist.] 1994, pet. ref’d)(“Because appellant chose not to testify, he was never actually impeached

with evidence of the prior convictions.”). Likewise, the United States Supreme Court has held

that the federal corollary to Texas Rule of Criminal Evidence 609(a) requires that a defendant

testify in order to preserve a pretrial ruling on the admissibility of prior conviction impeachment

evidence. Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984).



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The court explained that without a factual record of a defendant’s testimony, a reviewing court

cannot weigh the probative value against the prejudicial effect of impeachment. Id. at 40, 105

S.Ct. at 463. In contrast, if a defendant testifies and is impeached, the reviewing court has the

benefit of examining the defendant’s testimony, the prosecutor’s cross-examination and the jury

arguments in determining the impact of the impeachment. Id. In other words, a reviewing court

must know the precise nature of a defendant’s testimony in order to assess potential harm. Id.

        Since Appellant never testified, he was never actually impeached with evidence of prior

convictions. See Morgan, 891 S.W.2d at 735. We have no way no way of knowing whether the

trial judge would have changed her mind.              Because a conclusion of harmful error would be

speculative, we overrule Issue One.

                                           Constitutional Claims

        Though not framed as a separate issue, Appellant also asserts constitutional claims under

the United States and Texas Constitutions. Specifically, he contends that the trial court’s ruling

violated: (1) his due process right under the United State’s Constitution to present his own

witnesses to establish a defense; and (2) his right to present a defense under the due course of

law provision found in Article I, Section 10 of the Texas Constitution.2                            Appellant’s

constitutional claims have no merit.

        The record shows that Appellant was physically free to testify at trial, but chose not to do

so. Appellant has constitutional rights under both the United States and Texas Constitutions to

present a defense and to due course of law. He does not have a constitutional right to testify free

from impeachment. There is no authority to support the argument that the threat of impeachment


2
   Appellant fails to cite to the specific provisions of the United States Constitution upon which his argument is
based. However, based on the context of Appellant’s argument and the authorities relied on, it appears Appellant’s
argument is based on the right to present a defense articulated in the Sixth Amendment to the United States
Constitution, made applicable to the states by the 14th Amendment to the United States Constitution.

                                                      -6-
unconstitutionally prevented Appellant from presenting his defense. See Morgan, 891 S.W.2d at

736 (acknowledging that the appellant did not have the right to testify from impeachment and

finding that, where the appellant was physically able to testify but chose not to, no authority

exists supporting the argument that the threat of impeachment unconstitutionally prevented the

appellant from presenting his defense). We overrule Issue One in its entirety and affirm the

judgment of the court below.


August 28, 2013
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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