                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-10-00505-CR


MARCOS ANTONIO CELIS                                         APPELLANT

                                       V.

THE STATE OF TEXAS                                                STATE


                                    ----------

         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                    ----------

                         MEMORANDUM OPINION1

                                    ----------

                                  Introduction

     Appellant Marcos Antonio Celis appeals his conviction for aggravated

kidnapping. We affirm.




     1
      See Tex. R. App. P. 47.4.
                  Background Facts and Procedural History

      Sherry Maldonado testified at Appellant’s trial that she had a couple of

vodka drinks before she started driving Valeria Torres and Valeria’s boyfriend,

Appellant, to the hospital to visit Valeria’s brother.       According to Sherry,

Appellant––who was in the backseat with a sawed-off shotgun––ordered her to

drive elsewhere, assaulted her when she refused, threatened to kill her, forced

her car into “park” while she was driving at high speed, and discharged the

shotgun through the windshield after she jumped out of the car.

      Valeria testified that she had asked Sherry for a ride to the hospital

because she was sick. She testified that Appellant was also sick and that he

rode in Sherry’s car in the back seat on the passenger side. Appellant told

Sherry to drive to East Side, but Sherry refused. When Sherry turned into her

driveway, Appellant threatened and hit her with the shotgun.           Valeria also

testified that Appellant and Sherry struggled, that Sherry lost control of the wheel,

and that Valeria pulled the car over and put it in “park.” She said that the gun

discharged as Sherry and Appellant fought for it, putting a hole through the

windshield. Valeria admitted that she had pled guilty to kidnapping Sherry.

      Appellant denied that he kidnapped Sherry but admitted that he repeatedly

struck her with his fist and the shotgun. He claimed he had to in order to avoid

imminent harm because she was drunk, would not stop at the hospital, and was

driving wildly and erratically. According to Appellant, he had to fight with Sherry

to escape from the car that she was driving dangerously.


                                         2
      Sherry admitted that she had a drinking problem, had been drinking her

whole life, still drank regularly, preferred vodka––which she bought by the half-

gallon and kept on hand at home or in her car––and that she had a history of

criminal convictions for DWI. Appellant had judgments admitted documenting

prior DWIs Sherry committed going back to 1998.

      The jury convicted Appellant of aggravated kidnapping, enhanced by a

prior felony conviction, and assessed his punishment at twenty-five years’

confinement. The trial court sentenced him accordingly.

                                  The Issues

      In two points, Appellant contends that by prohibiting him from impeaching

Sherry with evidence that she had seven prior felony convictions and two

probation revocations the trial court abused its discretion under rule 609 of the

Texas Rules of Evidence and denied him his due process, confrontation, and

cross-examination rights under the Sixth and Fourteenth Amendments.

      The record shows that Appellant offered the following defense exhibits in

evidence:

      Defense Exhibit 1: a judgment revoking probation imposed for an
      August 21, 1982 DWI, showing as grounds for the revocation a
      felony DWI repetition committed on February 24, 1988;

      Defense Exhibit 2: a nunc pro tunc order dated August 9, 1988,
      indicating that Appellant was serving a prison sentence after having
      probation revoked as shown in Defense Exhibit 1;

      Defense Exhibit 3: a judgment on a guilty plea for a DWI committed
      on February 24, 1988;



                                       3
      Defense Exhibit 4: a judgment on a guilty plea ordering probation
      for a DWI committed on March 30, 1990;

      Defense Exhibit 5: a judgment revoking the probation shown in
      Defense Exhibit 4 for a subsequent DWI committed on August 4,
      1991;

      Defense Exhibit 6: a judgment on a guilty plea imposing a two-year
      prison term for the August 4, 1991 DWI;

      Defense Exhibit 7: a judgment on a guilty plea imposing a three-
      year prison term for a DWI committed on October 30, 1992;

      Defense Exhibit 8: a judgment on a guilty plea imposing a four-year
      prison term for a DWI committed on March 12, 1994;

      Defense Exhibit 9: a judgment on a guilty plea ordering ten years’
      community supervision for a DWI committed on February 2, 1998;

      Defense Exhibit 10: a judgment on a nolo contendere plea ordering
      five years’ community supervision for possession of cocaine
      committed on February 2, 1998;

      Defense Exhibit 11: a judgment revoking the community supervision
      shown in Defense Exhibit 10 for a subsequent DWI committed on
      March 31, 2002;

      Defense Exhibit 12: a judgment on a guilty plea ordering 83 days in
      jail for the DWI committed on March 31, 2002;

      Defense Exhibit 13: a judgment revoking community supervision
      shown in Defense Exhibit 9 for the March 31, 2002 DWI shown in
      Defense Exhibits 11 and 12.

      The trial court admitted exhibits 11 through 13 but excluded exhibits 1

through 10, finding that their probative value did not outweigh their potential for

prejudicial effect. At trial and in his first point on appeal, Appellant relies on rule

of evidence 609 to assert that the trial court abused its discretion by excluding

these exhibits.


                                          4
        The Trial Court Properly Excluded Remote Prior Convictions

      Rule 609 provides that evidence of prior crimes may be admitted against a

witness only if the crime was a “felony or involved moral turpitude” and if not

“more than [a period of] ten years has elapsed since the date of the conviction or

of the release of the witness.” Before the evidence may come in, its proponent

must show the trial court that the probative value of the prior conviction

“outweighs its prejudicial effect.” Theus v. State, 845 S.W.2d 874, 880 (Tex.

Crim. App. 1992); see Tex. R. Evid. 609(a).

      The trial court determined that Defense Exhibits 1 through 10 were too

remote and that their probative value would not outweigh their potential for

prejudice. The trial court did, however, admit Defense Exhibits 11, 12, and 13.

Appellant complained that by excluding the other exhibits the trial court denied

his client “an opportunity to present a defense.”

      To the extent that Appellant’s points concern the exclusion of Defense

Exhibit No. 3––a judgment of misdemeanor DWI repetition––we overrule both

points because DWI is not a crime of moral turpitude. See Shipman v. State, 604

S.W.2d 182, 184 (Tex. Crim. App. 1980).

      As to the other exhibits that the trial court excluded, this court has

recognized the court of criminal appeals’ exception to rule 609’s prohibition of

remote convictions when an intervening conviction shows that the convicted

person has not reformed the behavior that led to the prior convictions.      See

Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.––Fort Worth 2001, pet. ref’d)


                                         5
(citing McClendon v. State, 509 S.W.2d 851, 855–57 (Tex. Crim. App. 1974) (op.

on reh’g)).   But even under this exception, sometimes called the “tacking”

doctrine, a trial court must determine whether the probative value of the

convictions outweighs their prejudicial effect. Hankins v. State, 180 S.W.3d 177,

179 (Tex. App.––Austin 2005, pet. ref’d); see Jackson, 50 S.W.3d at 592. Here,

because the trial court determined that the exhibits’ probative value did not

outweigh their potential for prejudice, we need not determine whether the tacking

doctrine applies. What we do need to determine, however, is whether the record

supports the trial court’s determination that the exhibits’ probative value did not

outweigh any prejudicial effect.

      In conducting a balancing test to determine whether the probative value of

a defendant’s prior convictions outweighs their prejudicial effect, the court of

criminal appeals set out a list of nonexclusive factors in Theus, 845 S.W.2d at

880. Adapting these factors to prior convictions of a witness, we will consider (1)

the prior convictions’ impeachment value; (2) their temporal proximity to the

incident at issue in the trial; (3) the similarity between the prior offenses and the

present incident; (4) the importance of the complainant’s testimony; and (5) the

importance of the credibility issue. See id.; see Jackson, 50 S.W.3d at 592.

Impeachment Value

      In Theus, the court of criminal appeals stated that “when a party seeks to

impeach a witness with evidence of a crime that relates more to deception than

not, the first factor weighs in favor of admission.” Theus, 845 S.W.2d at 881. We


                                         6
agree with the State that DWI is not a crime of deception, so its impeachment

value is low. The impeachment value of judgments showing a history of DWI

convictions would be higher in this case if Sherry had denied that she had such a

history, or if she had denied that she had been drinking. But although Appellant

claims in his brief that Sherry denied that she was intoxicated, our review of the

record, particularly in the places cited by Appellant, does not support this claim.2

Because DWI is not a crime of deception and because Sherry admitted she had

a drinking problem that included a long history of DWI convictions, we hold that

this factor weighs against admission.

Temporal Proximity

      The court documents that Appellant complains the trial court erred by

excluding date from the eighties and nineties. But as the State points out, the

trial court admitted the more recent convictions. Moreover, Sherry admitted to a

lifetime of drinking and to having a problem with it. We agree with the State that

the temporal proximity factor weighs against admitting the more remote

judgments.

Similarity

      Evidence that Sherry had prior convictions for DWI is similar to Appellant’s

claim that she was drinking while driving during the incident at issue in his trial.

The court of criminal appeals weighs this factor against admission due to the

      2
       An officer that Sherry ran up to after she got out of the car testified that
Sherry was panicked, scared, and crying, but that she did not appear intoxicated.


                                         7
potential that the remote DWIs could be considered more to prove a pattern of

conduct than for impeachment purposes.          See id. (citing United States v.

Jackson, 627 F.2d 1198, 1210 (D.C. Cir. 1980); United States v. Hayes, 553 F.2d

824, 828 (2d Cir.), cert. denied, 434 U.S. 867 (1977)).

Importance of the Witness’s Testimony and Credibility

      Sherry testified that Appellant ordered her to drive to specific locations and

threatened her with a shotgun. Appellant admitted striking Sherry with his fist

and with the shotgun but denied kidnapping her. Had he and Sherry been the

only eyewitnesses, Sherry’s testimony and credibility would have been more

important. But the importance of her testimony and credibility were mitigated

because Valeria, Appellant’s girlfriend at the time of the offense, corroborated

Sherry’s testimony that Appellant ordered her at gunpoint to drive as he directed,

and although she agreed with him that Sherry was drunk and driving a little over

the speed limit, she did not feel that the driving was dangerous enough to ask to

be let out.

Application of the Five Factors

      In reviewing the trial court’s weighing of these factors and its ruling on the

admissibility of a prior conviction, “we must accord the trial court ‘wide

discretion.’” Theus, 845 S.W.2d at 881 (citing United States v. Oaxaca, 569 F.2d

518, 526 (9th Cir.), cert. denied, 439 U.S. 926 (1978)).

      In Theus, the court of criminal appeals held that the trial court abused its

discretion by admitting a prior conviction when its lack of impeachment value


                                         8
overrode the other factors. Id. at 882. Here, as in Theus, we have held that

Sherry’s excluded prior convictions lack impeachment value.        In addition, we

have held that the temporal proximity and similarity factors weigh against

admission. Weighing all these factors, we hold that the trial court acted within its

discretion by excluding the exhibits.     See id.   Accordingly, we overrule the

remainder of Appellant’s first point.

                              Constitutional Claims

      In his second point, Appellant contends that the trial court denied him his

due process and confrontation rights by limiting cross-examination of Sherry

regarding her prior felony convictions.      The State contends that Appellant’s

argument on appeal does not comport with his complaint at trial.

      Appellant argued below that excluding the impeachment evidence to show

the jury the full extent of Sherry’s prior convictions prevented him from presenting

a defense. Here, he argues that he was improperly denied his right to full cross-

examination to reveal the full extent of Sherry’s previous convictions and her

motive to lie.

      The constitutional right to present a defense includes the right to

compulsory process and the rights to confront and cross-examine witnesses.

See Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2009) (op. on reh’g)

(citing Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727 (2006)).

Because the right to present a defense is a composite of several rights,

Appellant’s trial objection could have more precisely alerted the trial court to the


                                         9
complaint he now presents on appeal. Nevertheless, we shall assume without

deciding that the objection sufficiently encompassed the claims he now raises on

appeal, that is, that he was denied his constitutional right to confront and cross-

examine his accuser. Whether or not Appellant sufficiently preserved his claim,

we need not address the merits because even if we were to hold that the claim

was preserved and that the trial court erred by excluding evidence of the

complainant’s thirty-year history of DWI, the other evidence admitted at trial

would compel us to hold that beyond a reasonable doubt the trial court’s ruling

did not affect the verdict.

      Sherry’s drinking was no secret to the jury. The State mentioned it in its

opening statement.      The trial court allowed Appellant to present to the jury

judgments showing that she had prior DWI convictions for offenses going back to

February 1998. Defense Exhibit 13 shows that Sherry was put on probation for a

DWI–repetition offense committed on February 2, 1998.           Defense Exhibit 11

shows that she also possessed cocaine on that date. Defense Exhibits 11 and

12 both show that Sherry had violated the terms of her probation by committing

another DWI on March 31, 2002, which she pled guilty to. Further, after Sherry

admitted that she had a drinking problem and a history of DWI convictions,

Appellant had the opportunity to cross-examine her regarding that impeachment

evidence. Consequently, after carefully reviewing the record and performing the

required harm analysis under rule 44.2(a), we hold that beyond a reasonable

doubt the trial court=s error, if any, did not contribute to Appellant=s conviction or


                                         10
punishment. See Tex. R. App. P. 44.2(a). We therefore overrule the remainder

of Appellant’s second point.

                                 Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.



                                              LEE GABRIEL
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: May 24, 2012




                                      11
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00505-CR

                                                                         APPELLANT
MARCOS ANTONIO CELIS

                                        V.

THE STATE OF TEXAS                                                           STATE


                                     ----------

          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                     ----------

                          DISSENTING OPINION1

                                     ----------

      Appellant contends that the trial court abused its discretion under rule 609

of the Texas Rules of Evidence and denied him his rights of due process and of

confrontation   and   cross-examination      under   the   Sixth   and    Fourteenth

Amendments by prohibiting his impeaching his accuser with seven prior felony

convictions and two revocations of community supervision. Appellant’s issue as

framed was not addressed by the trial court or the majority in this court. Instead,

      1
       See Tex. R. App. P. 47.4.
both the trial court and the majority have reframed his issue and addressed that

reframed issue, which is not Appellant’s issue, thereby denying Appellant his

constitutional right to present his defense. I must therefore respectfully dissent

from the majority’s opinion analyzing Appellant’s issue as reframed by the State

and the trial court rather than analyzing Appellant’s issue as actually presented

by Appellant both here and below.

      The majority analyzes the arguments of the State and Appellant and the

trial court’s ruling under Theus2 rather than under Fielder.3 In Fielder, the Texas

Court of Criminal Appeals explained that “[t]he theory of the prosecution and the

defensive theory or theories determine the ‘material’ issues in each individual

case.”4 Fielder raised a battered-wife defense.5 When she attempted to offer

expert evidence in support of her defensive theory, her defense was recast by

both the State and the trial court as traditional self-defense. The Texas Court of

Criminal Appeals explained,

             The trial judge told counsel he had tried to relate the evidence
      to the issue of whether the defendant had acted in protecting herself
      under Texas self defense law and found the evidence had “no
      relevance”. Thereafter, the testimony of an associate of Dr. Shupe,


      2
       Theus v. State, 845 S.W.2d 874, 879 (Tex. Crim. App. 1992).
      3
       Fielder v. State, 756 S.W.2d 309, 318 (Tex. Crim. App. 1988).
      4
       Id.
      5
       Id. at 317.



                                        2
      William A. Stacy, Ph.D., was excluded upon the State’s objection
      that it was hearsay and irrelevant. 6

      The traditional self-defense analysis was a non-starter because Fielder

had discovered her husband with his new girlfriend shortly before killing him by

shooting him seven times when he was unarmed.7

      In the instant case, Appellant couched his theory as impeaching

Maldonado’s ability accurately to recall and recount the events of the night in

question that the State argued constituted kidnapping and offering evidence to

support his necessity defense because of her reckless, intoxicated driving.

Contrary to the State’s and trial court’s constructs, Appellant’s theory of the case

was not that Maldonado lacked credibility merely because she was a convicted

criminal but, rather, because of her long history of substance abuse and driving

recklessly while under the influence of intoxicants.

      Appellant testified that he had eaten some bad food the night before the

events in question, was ill, and had asked Maldonado to drive him to the hospital.

His girlfriend, Torres, sat in the front seat of Maldonado’s car. Appellant admitted

that he carried his shotgun. According to Appellant, Maldonado was drinking

heavily, had an opened bottle of vodka in the backseat of the car, and removed

from her bra and threw away a crack pipe. Appellant claimed that instead of

going to the hospital, Maldonado drove to her house to get more alcohol.

      6
       Id.
      7
       See id. at 310–12.


                                         3
Appellant stated that he had fought with her because of his need to get Torres

and himself out of her car safely and because, in her highly intoxicated state,

Maldonado was acting wildly and erratically and driving dangerously.

      Torres testified that she asked Maldonado for a ride to the hospital

because she was sick. Torres confirmed that Appellant sat in the back seat of

Maldonado’s car on the passenger side and that he was also sick. Torres also

testified that Appellant told Maldonado to drive to the East Side, but she refused.

Torres testified that as Maldonado tried to turn onto the street where her house

was located, Appellant had his gun out and threatened her. Torres also testified

that Appellant had hit Maldonado with his gun. Torres testified that ultimately,

Appellant and Maldonado struggled, Maldonado lost control of the wheel, and

Torres pulled the car over and put it in “Park.” Torres testified that the gun went

off as Maldonado and Appellant fought for it, shooting a hole through the front

windshield. Torres admitted that she had pled guilty to kidnapping Maldonado.

      Appellant’s theory of the case was that because of her intoxication and her

history of substance-abuse convictions, Maldonado was not a reliable witness

and that his version of the facts raising his necessity defense was rational in light

of her long history of abusing alcohol and drugs while driving.           Appellant,

therefore, wanted the jury to know about Maldonado’s many prior convictions for

driving while intoxicated, a reasonable strategy in light of his necessity defense.

The State, viewing Appellant’s attempt to offer Maldonado’s prior convictions as

traditional impeachment, argued that most of the prior convictions were


                                         4
inadmissible because they were more than ten years old.           The trial court

sustained the State’s objections to all convictions more than ten years old,

despite the tacking doctrine that clearly made them admissible even under

traditional notions of impeachment.8

      Appellant contends that the trial court erred by limiting cross-examination

of Maldonado regarding prior felony convictions such that his right of due process

and his right to confront and cross-examine under the Sixth Amendment were

denied. That is, the State and the trial court were allowed to recast his defense

and in so doing denied him his right to put on his defense, just as Fielder was

denied her right to put on her defense when her battered-wife defense was

recast as traditional self-defense.

      The Fielder court explained,

             [Fielder’s] theory of the case was that she had suffered
      tortuous physical, emotional and sexual abuse at the hands of her
      husband; that this violent prior relationship convinced her he could
      and would kill her if she disclosed his sexual proclivities to anyone
      else; that on the night of the homicide, when she revealed she had
      discussed their relationship with an attorney, she tried to run away,
      but he pulled a firearm and indicated verbally he would make good
      on past threats to kill her; that because of her fear and belief he
      would kill her, when given the opportunity, she grabbed the gun and
      shot him to death.

             The State’s theory was that [Fielder] was a competent
      professional woman who was madly in love with her husband; that
      even though Darwin went a bit too far in his sex “games”, [she]
      willingly participated in and enjoyed most of them. Thus, [Fielder’s]

      8
        See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson
v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort Worth 2001, pet. ref’d).


                                        5
      prior relationship with Darwin did not produce in her a fear of him as
      she claimed, but rather, when she found out he was involved with
      another woman, she pulled a gun and shot her husband in a jealous
      rage.

              Thus, of the four “condition of mind” issues which were raised
      by the parties’ respective theories, the only one which was contested
      was the reasonableness of [Fielder’s] apprehension of fear that
      Darwin was about to use deadly force against her at the time of his
      killing. This was the main contested issue in the case.

              Viewed in this context and in light of the trial testimony as a
      whole, it is clear that the inference the State sought to have the jury
      draw from the questioned cross and re-cross-examination was that
      [Fielder], in fact, was not afraid of Darwin as a result of his violent
      acts during the marriage, or that her fear was not of a degree to
      warrant the inference that she reasonably believed he was going to
      kill her at the time of the shooting.

             In order to establish her “fear” (apparent danger from her
      standpoint) at the time of the offense, [Fielder] produced past violent
      encounters with the deceased. This is an established method of
      proof in self-defense cases, because the law recognizes the fact that
      future conduct may be reasonably inferred from past conduct.9

      In the instant case, Appellant argued below that excluding the

impeachment evidence of Maldonado’s convictions for continuous substance

abuse prevented him from presenting a defense. Here, he argues that he was

improperly denied his right for full cross-examination to reveal the full extent of

Maldonado’s intoxication and intoxicated, dangerous driving.         There is no

substantial difference between the complaint below and the complaint on appeal.




      9
       Fielder, 756 S.W.2d at 319 (citation omitted).


                                        6
      In Irby v. State,10 the Texas Court of Criminal Appeals, relying on decisions

of the United States Supreme Court, explained,

             The constitutional right of confrontation includes the right to
      cross-examine the witnesses and the opportunity to show that a
      witness is biased or that his testimony is exaggerated or
      unbelievable. Nonetheless, the trial judge retains wide latitude to
      impose reasonable limits on such cross-examination “based on
      concerns about, among other things, harassment, prejudice,
      confusion of the issues, the witness’ safety, or interrogation that is
      repetitive or only marginally relevant.”11

      The Irby court relied in part on United States v. Abel,12 in which the United

States Supreme Court held that evidence that both the bank robbery defendant

and the defense witness belonged to the same prison gang, whose tenets

required its members to lie, cheat, steal, and kill to protect each other, was

admissible because it was probative of the defense witness’s possible bias

toward the defendant.13 The Irby court also relied on Delaware v. Van Arsdall,14

in which the United States Supreme Court held that it was error to prohibit any

cross-examination of a State’s witness concerning the possibility that he might be




      10
          327 S.W.3d 138 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 904
(2011).
      11
          Id. at 145 (citations omitted).
      12
          469 U.S. 45, 105 S. Ct. 465 (1984).
      13
          Id. at 49, 105 S. Ct. at 467.
      14
          475 U.S. 673, 106 S. Ct. 1431 (1986).


                                            7
biased in favor of the State because of dismissal of his pending public-

drunkenness charge.15

      The right to present a complete defense is rooted in the constitutional

rights to due process under both the Fifth and Fourteenth Amendments to the

United States Constitution; the right to due course of law under article one,

section nineteen of the Texas Constitution; the Sixth Amendment right to confront

and cross-examine witnesses; and the same right under article one, section ten

of the Texas Constitution.16 The Texas Court of Criminal Appeals has reminded

us of the importance of a defendant’s being allowed to present a complete

defense, stating,

             In Holmes v. South Carolina, the Supreme Court stated,
      “Whether rooted directly in the Due Process Clause of the
      Fourteenth Amendment or in the Compulsory Process or
      Confrontation Clauses of the Sixth Amendment, the Constitution
      guarantees criminal defendants ‘a meaningful opportunity to present
      a complete defense.’” In the case before us, the trial court’s ruling
      disallowing cross-examination of the State’s expert witness violated
      the defendant’s fundamental rights to a fair trial. The Supreme Court
      said in Pointer v. Texas:

                   There are few subjects, perhaps, upon which this
            Court and other courts have been more nearly
            unanimous than in their expressions of belief that the
            right of confrontation and cross-examination is an
            essential and fundamental requirement for the kind of
            fair trial which is this country’s constitutional goal.
            Indeed, we have expressly declared that to deprive an
            accused of the right to cross-examine the witnesses

      15
        Id. at 678–79, 106 S. Ct. at 1435.
      16
        See U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.


                                        8
             against him is a denial of the Fourteenth Amendment’s
             guarantee of due process of law.

      Because the denial of the right to present a defense is a violation of
      due process and results in constitutional error, we now turn to the
      harm analysis.17

      The trial court abused its discretion by refusing to admit evidence of

Maldonado’s prior convictions and revocations, Defense Exhibits 1, 4, 5, 6, 7, 8,

9, and 10. Because the trial court refused to admit the evidence upon which

Appellant’s entire defense was predicated, he was denied his due process right

to present his defense.     Constitutional error requires analysis under rule of

appellate procedure 44.2(a).18 The question is therefore whether the trial court=s

error was harmless beyond a reasonable doubt.19 In applying the Aharmless

error@ test, the primary issue is whether there is a Areasonable possibility@ that the

error might have contributed to the conviction.20

      In determining constitutional harm, we must evaluate the entire record in a

neutral, impartial, and even-handed manner, not Ain the light most favorable to




      17
         Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2009) (op. on
reh’g) (citations omitted).
      18
        Tex. R. App. P. 44.2(a).
      19
        See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
      20
        Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert.
denied, 526 U.S. 1070 (1999).


                                          9
the prosecution.@21 The error here was exacerbated by the fact that the prior

convictions involved substance abuse, and significant issues at trial were

whether Maldonado was intoxicated, the degree of her intoxication, and its effect

on her judgment and on her driving. The remoteness of some of the convictions

does not make them less probative. Rather, they show that the duration of her

addiction was long-term and severe.

      The majority points out that when the State offered the evidence that had

been excluded when Appellant offered it, the evidence was admitted.

Consequently, the majority concludes that because that evidence was eventually

admitted, the trial court’s error, if any, did not contribute to Appellant’s conviction.

But the issue becomes whether the State may recast Appellant’s defensive

issues.    Appellant sought to present the evidence of the prior convictions to

support his defense of necessity based on Maldonado’s dangerous and

intoxicated driving and to support his argument that Maldonado’s intoxication and

addiction prevented her ability accurately to recount the events of that night. The

State recast the issues as simple impeachment based on prior felony convictions

and crimes of moral turpitude.




      21
        Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed
with in part on other grounds by Snowden v. State, 353 S.W.3d 815, 820–22
(Tex. Crim. App. 2011).


                                          10
      Because the majority does not analyze the issues in the context of

Appellant’s actual defensive theory but rather as a question of general

admissibility of any prior conviction, I must respectfully dissent.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PUBLISH

DELIVERED: May 24, 2012




                                          11
