                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00879-CR

                                         Richard CASAREZ,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018CR2561
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Beth Watkins, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: June 19, 2019

AFFIRMED

           Richard Casarez appeals his conviction for robbery. In his sole issue, Casarez asserts the

trial court erred in admitting evidence of his prior felony convictions for impeachment purposes.

We affirm the trial court’s judgment.

                                            BACKGROUND

           The indictment charged Casarez with robbery by alleging that, “while in the course of

committing theft of property and with intent to obtain and maintain control of said property, [he]

did intentionally and knowingly threaten and place Melanie Martin in fear of imminent bodily
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injury and death.” See TEX. PENAL CODE ANN. § 29.02(a)(2). Casarez pled not guilty and

proceeded to trial before a jury. During trial, Martin testified she was the assistant manager of

Fallas, a discount retail store. On or about December 19, 2017, she observed Casarez enter the

store and hide several items inside his large jacket. Martin approached Casarez and told him to

put the items back and leave the store. Casarez initially waved her off, but Martin tugged on his

sleeve and he turned to her. Casarez opened up his jacket to display what Martin believed to be

the butt of a black handgun tucked into the waistband of his pants. Martin stepped back and yelled

at him to leave the store. Casarez walked out of the store, grabbed an armful of sweaters from a

sidewalk rack as he passed, and entered a waiting vehicle. Martin was able to take a photograph

of the license plate before he fled.

       San Antonio Police Officer Esteban Herrera testified that after speaking with Martin he put

the license plate number out over the radio and entered it into the system to obtain a registration

address for the vehicle. Officer Chase Meneley testified he drove to the registered owner’s address

and located the suspect vehicle nearby with Casarez inside. The merchandise removed from the

store was found inside the vehicle, along with a black toy handgun.

       Casarez testified and admitted he entered the store to steal some toys to give his stepson

for Christmas. He also conceded taking the sweaters from the sidewalk rack before he got into his

car and drove away. But, Casarez denied having a gun or threatening Martin with a gun. The jury

found Casarez guilty as charged in the indictment. Casarez pled true to being a repeat offender

and was sentenced to 15 years in prison. Casarez appealed.

                                            ANALYSIS

       On appeal, Casarez argues the trial court abused its discretion by permitting the State to

impeach him with two prior robbery convictions. The record shows that after the State rested and

defense counsel indicated Casarez would take the stand, the prosecutor informed the trial court


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that he intended to use two prior robbery convictions to impeach Casarez. Defense counsel

objected “under relevance and the prejudicial effect, which outweighs the probative value of [the

convictions].” The trial court noted that a defendant can be impeached with his prior felony

convictions. See TEX. R. EVID. 609. In evaluating the admissibility of the convictions, the trial

court first considered the nature and age of the prior robbery convictions, finding they were less

than ten years old. See TEX. R. EVID. 609(b). The court then stated that it had conducted a

balancing test and found “the probative value is not substantially outweighed by the danger of

unfair prejudice.” 1 The court ruled the State would be allowed to impeach Casarez with the prior

convictions and gave Casarez time to consult with his attorney in light of the ruling. During its

cross-examination of Casarez, the State impeached him with the two prior robbery convictions; he

admitted committing the offenses and serving the prison terms.

         Casarez contends the trial court failed to conduct “a valid balancing test” under Rule 609(a)

before admitting evidence of the convictions. See TEX. R. EVID. 609(a). Rule 609(a) provides in

relevant part, “[e]vidence of a criminal conviction offered to attack a witness’s character for

truthfulness must be admitted if: (1) the crime was a felony . . . regardless of punishment; (2) the

probative value of the evidence outweighs its prejudicial effect to a party; and (3) it is elicited from

the witness or established by public record.” TEX. R. EVID. 609(a). Casarez asserts the trial court

was required to weigh the probative value of the prior convictions against their prejudicial effect

under Rule 609(a)(2) by considering the following non-exclusive factors: (1) the impeachment

value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense

and the defendant’s subsequent history, (3) the similarity between the past crime and the charged



1
  The trial court referred to the balancing test as a “Rule 403 balancing test.” TEX. R. EVID. 403. Both Rule 403 and
Rule 609(a) require the trial court to weigh the probative value of the proffered evidence against its prejudicial effect
in determining whether it is admissible. C.f., TEX. R. EVID. 403, with TEX. R. EVID. 609(a)(2).


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offense, (4) the importance of the defendant’s testimony, and (5) the importance of the defendant’s

credibility. See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see also Dale v.

State, 90 S.W.3d 826, 830 (Tex. App.—San Antonio 2002, pet. ref’d) (court considers the Theus

factors when determining whether the probative value of a defendant’s previous conviction

outweighs its prejudicial effect). Casarez argues that, because the trial court made its ruling before

he testified, it could not have considered the fourth and fifth factors and thus he was deprived of a

“meaningful balancing test.”

       The State responds that Casarez failed to preserve error because his appellate issue does

not comport with his trial objection. We agree. Casarez’s complaint on appeal is not that, in view

of the Theus factors, the trial court erred in overruling his objection and admitting the prior

convictions. Rather, Casarez complains that the trial court conducted the balancing test, and ruled

on his objection, prematurely. However, after the trial court announced it had conducted the

balancing test weighing the probative value against the prejudicial effect and found the convictions

admissible, Casarez did not object that the ruling was premature because he had not yet presented

his testimony – which is the argument he raises on appeal. Casarez did not raise any further

objection or request the trial court to reconsider its ruling after his direct testimony, prior to the

State’s cross-examination. The trial court had no opportunity to cure the purported error because

it was not informed of Casarez’s complaint that all the Theus factors could not be fully considered

before he testified, i.e., at the time of his objection. An issue on appeal must comport with the

objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Because his

appellate issue does not match his trial objection, Casarez failed to preserve the issue for appellate

review. TEX. R. APP. P. 33.1(a)(1)(A).

       Moreover, even if the issue was preserved, Casarez cites no authority in support of his

contention that the Rule 609(a) balancing test cannot be conducted prior to a defendant’s


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testimony. See TEX. R. APP. P. 38.1(i). Casarez also does not state how he was harmed by the trial

court’s alleged error. See TEX. R. APP. P. 44.2.

       Accordingly, we affirm the trial court’s judgment.

                                                   Liza A. Rodriguez, Justice

DO NOT PUBLISH




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