      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-04-00018-CR




                                  Lamont Hankins, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
      NO. 3031360, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                                          OPINION


               Appellant Lamont Hankins was convicted of aggravated assault with a deadly

weapon, specifically a hot iron or knife, and sentenced to eight years’ imprisonment. See Tex. Pen.

Code Ann. § 22.01 (West 2004). The trial court admitted evidence of appellant’s prior felony

conviction of manufacture and delivery of cannabis from 1989. Appellant complains that evidence

of the 1989 prior conviction was improperly admitted and claims that the admission affected his

substantial rights. He also complains of the erroneous inclusion of “scissors” as a weapon listed in

the judgment. We sustain appellant’s first issue but find the error harmless, modify the judgment

to conform to the verdict of the jury and affirm the judgment as modified.
                                           DISCUSSION

Prior Conviction

                Appellant complains in his first point of error that the trial court improperly admitted

evidence of his 1989 felony conviction for manufacture and distribution of cannabis. See Tex. R.

Evid. 609.1 Appellant argues that his prior conviction did not meet the requirements for admission

of pre-rules common law, or alternatively of the rules of evidence. See id. Appellant claims that the

error, under either analysis, affected his substantial rights and that he was harmed.

                Before the codification of the rules of evidence, common law presumed prior,

“remote” convictions were inadmissible for impeachment purposes. McClendon v. State, 509

S.W.2d 851, 853-54 (Tex. Crim. App. 1974) (generally, conviction is remote if discharge from

conviction occurred more than ten years before trial). An exception to the common-law rule allowed

the trial court the discretion to admit a remote conviction if the witness demonstrated a lack of


       1
           Rule 609. Impeachment by Evidence of Conviction of Crime

           (a) General Rule. 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 the evidence
               outweighs its prejudicial effect to a party.

           (b) Time Limit. 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, 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.

                                                   2
reformation by committing a subsequent conviction for a felony or a misdemeanor involving moral

turpitude. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989). This exception is sometimes

referred to as the “tacking” doctrine. See Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d). If a court finds that the conviction is more than 10 years

old but that subsequent convictions of felonies or misdemeanors involving moral turpitude remove

the taint of its distance, the “outweighs” standard from Rule 609(a), rather than the “substantially

outweighs” standard from 609(b), is appropriate. Id. In such a case, the "tacking" of the intervening

convictions “causes a conviction older than 10 years to be treated as not remote.” Id. (citing

McClendon, 509 S.W.2d at 853-54; Crisp v. State, 470 S.W.2d 58, 59-60 (Tex. Crim. App. 1971)).

               The rules of evidence subsequently displaced this common-law rule and its

accompanying exception by setting explicit standards for the admission of prior convictions for

impeachment purposes. See Tex. R. Evid. 609. Rule 609(a) establishes the general rule requiring

that a proof of conviction shall only be admitted if (1) it was a felony or involved moral turpitude

and (2) the probative value of admitting the conviction outweighs its prejudicial effect to a party.

Tex. R. Evid. 609(a). Rule 609(b), however, applies a more rigorous standard to convictions more

than ten years old. To admit these convictions, a court must find that “the probative value of the

conviction supported by specific facts and circumstances substantially outweighs its prejudicial

effect.” Tex. R. Evid. 609(b) (emphasis added).

               Some courts have imported the pre-rules exception from McClendon and apply it in

conjunction with Rule 609. See Jackson v. State, 50 S.W.3d 579, 591-592 (Tex. App.—Fort Worth

2001, pet. ref’d); Rodriguez v. State, 31 S.W.3d 359, 363-64 (Tex. App.—San Antonio 2000, pet.

ref’d). These courts conclude that a trial court has the discretion to ignore the fact that a prior

                                                  3
conviction is more than ten years old if the defendant demonstrates lack of reformation in the form

of intervening convictions. Under this reasoning, the court will subject the prior conviction to the

lower “outweighs” standard found in Rule 609(a) rather than the “substantially outweighs” standard

of Rule 609(b) upon a finding that the defendant was again convicted after the prior conviction.

Jackson, 50 S.W.3d at 591-92; Rodriguez 31 S.W.3d at 363-64.

               However, we do not find that the current rules tolerate this exception or that the

tacking doctrine was intended to survive the creation of the rules. Unlike the exception, Rule 609

creates two distinct categories of prior convictions—those more than ten years old and those less

than ten years old. See Tex. R. Evid. 609. Rule 609 does not include a third category of prior

convictions codifying the McClendon exception. Id. We will apply the general requirements in Rule

609(a) as well as the standard from Rule 609(b), which prohibits admission for impeachment

purposes of all prior convictions more than ten years old absent a showing that “the probative value

of the conviction . . . substantially outweighs its prejudicial effect.” Tex. R. Evid. 609(b).

               We review the admission of appellant’s 1989 conviction and will only reverse upon

a finding of clear abuse of discretion. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.

1992). The trial court abuses its discretion if its decision to admit a prior conviction lies “outside

the zone of reasonable disagreement.” Id.

               The trial court in the present case did not articulate a balancing of factors and seems

to have applied the “tacking” doctrine drawn from common law rather than Rule 609. See

Hernandez, 976 S.W.2d at 755-56. Although a trial court is not required to articulate in the record

a balancing analysis conducted under Rule 609, such a policy is good practice.



                                                  4
               The 1989 felony drug conviction satisfied the general requirement in Rule 609(a) that

a prior conviction be either a felony or crime of moral turpitude to be admissible. Rule 609(b)

further governed the admissibility of the 1989 conviction because it was more than ten years old at

the time of the trial. See Tex. R. Evid. 609(b). Thus, we next consider whether a court could have

concluded within the “zone of reasonable disagreement” that the probative value of the prior

conviction supported by facts and circumstances substantially outweighed its prejudicial effect of

the prior conviction. See Theus, 845 S.W.2d at 881.

               Courts consider various factors when balancing the probative value and prejudicial

effect of a prior conviction. The court of criminal appeals has identified the following non-exclusive

factors to be considered under Rule 609: (1) impeachment value; (2) temporal proximity of the prior

conviction to the charged offense and subsequent history; (3) similarity of the prior conviction to the

charged offense; (4) importance of the witness’s testimony; and (5) importance of the witness’s

credibility. Id. at 880. We consider these factors to determine whether the trial court’s decision to

admit the prior conviction fell within the “zone of reasonable disagreement.” Id.

               The State offered no specific facts or circumstances beyond the date and the type of

crime to justify the admission of the conviction. Thus, we are forced to rely on the bare facts of the

prior conviction in our analysis. Appellant’s 1989 drug conviction was not shown to involve a crime

of deception,2 was temporally distant from the charged offense, and was successfully discharged




       2
          Determining whether or not a drug crime constituted a crime of deception typically depends
on the facts and circumstances of the offense. Because no specific facts and circumstances are
available in the record, we will assume that the prior drug offense was not a crime of deception.

                                                  5
through probation. These facts lead to the conclusion that the conviction offered minimal probative

value.3 See Theus, 845 S.W.2d at 880.

               The State presented no argument regarding the probative value of the prior conviction

despite having the burden to do so, and simply justified the admittance of the 1989 conviction by

arguing a lack of reformation as indicated by assault convictions from 2002 and 2003. A lack of

reformation does not necessarily lead to a conclusion that the probative value of a prior conviction

substantially outweighs its prejudicial effect, but it may be considered within the balancing process

of Rule 609. See Theus, 845 S.W.2d at 881. The appellant’s later convictions for assault could

increase the probative value of the prior conviction as it may suggest lack of reformation. However,

the more than ten-year gap between the 1989 drug conviction and the later convictions diminishes

the probative value of the prior conviction.

               The importance of appellant’s credibility adds probative value. The defense asserted

that appellant was not involved in the charged assault and that the charges were entirely fabricated,

primarily offering appellant’s testimony to support this theory. The State asserted that appellant did

commit the assault and offered the testimony of the victim and two police officers. The importance

of appellant’s credibility gave rise to the State’s interest in impeaching him. However, although the

importance of appellant’s credibility weighs in favor of admission of the prior conviction, the other

factors offer only minimal indication of probative value. We cannot find facts or circumstances

suggesting that the probative value of the prior conviction substantially outweighed its prejudicial



       3
          The trial court did not describe any balancing analysis that it might have utilized in
deciding to admit the prior conviction. When discussing the prior conviction at sentencing, however,
the court commented, “I think the probative value is so slight that it’s hardly worth considering.”

                                                  6
effect, nor can we conclude that it was “within the zone of reasonableness” to find that the

importance of impeaching appellant substantially outweighed the prejudicial effect of the evidence.

                The record, including the trial court’s comment at sentencing that the prior conviction

lacked probative value, leads us to believe that even if the court had engaged in the correct analysis

under Rule 609, the State’s burden was not met. We hold that the trial court erred in admitting the

1989 drug conviction into evidence. We next consider whether this error was harmful.


Harmless Error

                Appellant claims that the erroneous admission of his 1989 conviction affected his

substantial rights, arguing that the introduction of such evidence could have motivated the jury to

convict him based on the prior drug felony rather than the charged offense of assault. We hold that

the error is harmless.

                A violation of the rules of evidence is generally non-constitutional error. See Potier

v. State, 68 S.W.3d 657, 662-63 (Tex. Crim. App. 2002) (“Erroneous evidentiary rulings rarely rise

to the level of denying the fundamental constitutional rights to present a meaningful defense.”).

Thus, in accordance with the rules of appellate procedure, we will reverse only if the erroneous

admission of appellant’s prior conviction affected his substantial rights by exerting “a substantial and

injurious effect or influence in determining the jury’s verdict.” Tex. R. App. P. 44.2(b); King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750,

776 (1946)). The error is harmless if we have “fair assurance that the error did not influence the jury,

or had but a slight effect.” Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) (citing

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). To analyze harm, we consider the


                                                   7
entire record, including testimony, physical evidence, the nature of the evidence supporting the

verdict, the character of the alleged error, the State’s theory, the defensive theory, and closing

arguments. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2001).

                 The State claimed that appellant arrived at the victim’s home and assaulted her with

both an iron and a knife, then demanded her keys and stole her vehicle. Testimony from the victim,

two police officers and others supported this theory. The State also introduced physical evidence,

including photographs of the scene and the victim’s burn injury on her face.

                 The defense theorized that the victim was a jealous and hurt ex-girlfriend seeking to

punish her ex-boyfriend by sending him to jail. Basing its case on belittling the victim’s credibility,

the defense attempted to impeach her by offering testimony from the 911 operator, appellant, and

appellant’s wife. Appellant testified that the victim had called him at Wal-Mart and informed him

that she had called the police and that they were coming to arrest him. He claims that she met him

at Wal-Mart and offered her car as a means of escape.

                 During cross-examination of appellant, the State referred briefly to his 1989 drug

conviction4 as well as his 2002 and 2003 convictions for assault. The State did not emphasize the


       4
           STATE:          On May 23rd, 1989, in cause number 89CR0235101 in the circuit court of
                           Cook County, you were found guilty of delivery of marijuana, more than
                           30 grams and less than 500 grams, and that was a felony; is that correct?

           APPELLANT: Yes.
           ...

           STATE:          And you were sentenced to a 30-month probation, a felony – you had a
                           felony conviction for that; is that correct?

           APPELLANT: Yes

                                                   8
1989 conviction or attempt to develop its probative value, but simply asked whether appellant had

been convicted of the drug felony without inquiring about the details of the offense. The State also

mentioned the 1989 conviction in closing arguments to remind the jury to question appellant’s

credibility.5

                 The defense did not object to the admission of the 2002 and 2003 assault convictions.

See Theus, 845 S.W.2d at 881 (“admission for impeachment purposes of a crime similar to the crime

charged presents a situation where the jury would convict on the perception of a past pattern of

conduct, instead of on the facts of the charged offense”). The prior drug conviction not only lacks

similarity to the charged assault but also occurred fifteen years before the trial. Considering the

nature of the evidence supporting the verdict, we conclude that the two brief references to the 1989

conviction could not have caused more than a slight influence on the jury in light of the other, more

prejudicial evidence against the appellant. The trial court’s erroneous admission of the 1989

conviction was therefore harmless. We overrule appellant’s first point of error.


Modification

                 In his second point of error, appellant alleges that the trial court erred in reciting in

the judgment that scissors were used as a deadly weapon. He asks that “scissors” be stricken from

the judgment.6




        5
            STATE:          The defendant, how credible is he? He’s been convicted of a felony,
                            delivery of marijuana . . . .
        6
         Appellant does not challenge the remainder of the judgment that appellant was guilty of
assault with a deadly weapon; he merely asks that we correct the erroneous term, “scissors.”

                                                    9
               The indictment charges appellant with aggravated assault with a deadly weapon in

the form of a hot iron and a knife. The jury’s verdict found appellant guilty of “aggravated assault

with a deadly weapon” and further found that appellant “did use or exhibit a deadly weapon, to wit:

a hot iron or a knife during the commission of the offense.” There is no evidence or finding that

appellant used scissors in the commission of the offense.

               This Court may modify the trial court’s judgment and affirm it as modified. Tex. R.

App. Proc. Rule 43.2(b). Appellant’s second point of error is sustained, and the judgment is

modified to delete any reference to “scissors” as a deadly weapon. The judgment should reflect the

jury’s verdict that in committing aggravated assault with a deadly weapon, appellant used or

exhibited a hot iron or a knife.


                                         CONCLUSION

               We cannot conclude within the zone of reasonableness that the probative value of

appellant’s 1989 drug conviction substantially outweighed its prejudicial effect, but find that the

error was harmless. We order that the judgment be modified to conform to the jury’s verdict and

affirm the judgment as modified.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: August 10, 2005

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