No. 04-03-00250-CR
January 26, 2005.
On Appeal From the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-4415. Affirmed.
Sitting: Alma L. López, Chief Justice, Karen Angelini, Justice, Sandee Bryan Marion, Justice.
KAREN ANGELINI, Justice.
Lawrence Gage appeals his conviction of possession of cocaine. In his sole issue on appeal, Gage contends that the trial court erred in admitting evidence of his prior convictions. We overrule this issue and affirm the judgment of the trial court.
BACKGROUND
During the guilt-innocence phase of the trial and outside the presence of the jury, the State requested that the court allow cross-examination of Gage to include inquiry regarding two felony convictions for impeachment purposes. Gage objected on the grounds that the prejudicial effect of the prior convictions outweighed their probative value. The trial court overruled Gage's objection and allowed the State to elicit testimony from Gage that he had two prior convictions for possession of cocaine. PRIOR CONVICTIONS
In his sole issue on appeal, Gage contends that the trial court erred in admitting evidence of his prior convictions. Generally, a defendant's past crimes may not be used as evidence in an unrelated case. See TEX. R. CIV. P. 404(b). A defendant who testifies at trial, however, places his credibility at issue and may be impeached and contradicted like any other testifying witness. Alexander v. State, 740 S.W.2d 749, 763 (Tex.Crim.App. 1987); Dale v. State, 90 S.W.3d 826, 829 (Tex.App.-San Antonio 2002, pet. ref'd). In admitting evidence of a prior conviction to impeach the witness, two conditions must be satisfied: first, the crime was either a felony or involved moral turpitude; second, the probative value of admitting the evidence outweighs its prejudicial effect. TEX. R. EVID. 609(a); Theus v. State, 845 S.W.2d 874, 879 (Tex.Crim.App. 1992). Here, the prior convictions used to impeach Gage were his two felony convictions for possession of cocaine. Because both of these offenses were felonies, the first condition for admitting the evidence was satisfied. Turning to the second condition, the Texas Court of Criminal Appeals has suggested the following five factors to consider in weighing the probative value of the evidence 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's 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. See Theus, 845 S.W.2d at 880; see also Dale, 90 S.W.3d at 830. When reviewing a trial court's decision to admit evidence of a defendant's previous conviction, we accord the trial court wide discretion and reverse only when the court's decision lies outside the zone of reasonable disagreement. Dale, 90 S.W.3d at 830. The proponent of the evidence has the burden to demonstrate the admissibility of the evidence. Id. Impeachment Value Applying the first Theus factor, we note that crimes involving deception have a higher impeachment value than crimes involving violence, the latter having a higher potential for prejudice. Theus, 845 S.W.2d at 881. An offense of possession of cocaine, however, does not involve the elements of untruthfulness or deception that ordinarily would bear heavily against a witness's veracity. See Dale, 90 S.W.3d at 830. Thus, the first factor weighs against the admissibility of the prior conviction. Temporal Proximity
The second factor will favor admission if the past crime is recent and if the witness has demonstrated a "propensity for running afoul of the law." Theus, 845 S.W.2d at 881. A conviction is sufficiently proximate for impeachment purposes if less than ten years have elapsed since the date of conviction or the date of release, whichever is later. See TEX. R. EVID. 609(b); Pierre v. State, 2 S.W.3d 439, 442 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Here, on February 12, 1993, Gage was convicted of possessing cocaine in 1991 and again in 1993. As a result, Gage was sentenced to a concurrent term of six years imprisonment in the Texas Department of Corrections, which was set to expire in February of 1999. Evidence of Gage's prior convictions was offered by the State on February 27, 2003. The ten-year time period had not elapsed; thus, the second factor weighs in favor of admissibility. Similarity of Offenses
Under the third Theus factor, when a defendant's prior offense and the charged offense are similar, a danger arises that the jury will convict the defendant based on a perception of a pattern of past conduct rather than based upon the facts of the charged offense. Theus, 845 S.W.2d at 881. Therefore, when this circumstance exists, the law disfavors admitting evidence of the prior offense. Id. Here, the prior offenses are the same as the charged offense. Therefore, the third factor weighs against admissibility. Importance of Defendant's Testimony and Credibility
The last two factors are related because both depend upon the nature of a defendant's defense and the means available to him of proving that defense. The fourth Theus factor relates to the importance of a defendant's testimony at trial, while the fifth factor relates to the importance of a defendant's credibility as a witness. See Dale, 90 S.W.3d at 831. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility and testimony escalates. Theus, 845 S.W.2d at 881. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility. Id. Here, Gage was the sole witness in his defense; therefore, the fourth and fifth Theus factors favor the admission of Gage's prior convictions. Three of the five Theus factors weigh in favor of the admissibility of Gage's prior convictions. Therefore, the trial court did not abuse its discretion in admitting Gage's prior convictions for impeachment purposes. Accordingly, we overrule this issue on appeal. CONCLUSION
We affirm the judgment of the trial court.