No. 05-02-01650-CR
Opinion Filed June 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50098-IW. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG.
Opinion By Justice MOSELEY.
A jury convicted Vernon Wayne Gay of possession of a controlled substance-cocaine-of less than one gram. The jury assessed punishment at two years' confinement and assessed a fine of $100.00. Gay appeals. In three points of error, Gay contends (1) that the trial court erred in (a) considering hearsay evidence when determining whether to allow the State to impeach Gay by evidence of a prior conviction and (b) in permitting the state to impeach Gay with the prior conviction over ten years old without conducting a balancing test; and (2) that the evidence is factually insufficient to support Gay's conviction. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We overrule Gay's three points of error and affirm the trial court's judgment.
Background
There is evidence in the record that Dallas Police Officers Malloy and Hawthorne approached E-Z car wash on April 15, 2002 during regular duty and spotted Gay. Previously, Hawthorne and the car wash manager had warned Gay not to approach the car wash or he would be arrested for trespassing. Hawthorne and Malloy arrested Gay for criminal trespassing on car wash property. Both Hawthorne and Malloy searched Gay and found a loose rock of crack cocaine and a blue baggie of crack cocaine. They also found a glass crack pipe and a metal rod. In a hearing outside the jury's presence, the parties argued the admissibility of appellant's prior conviction under rule 609. Tex. R. Evid. 609. Gay argued that evidence of his prior conviction was inadmissible because more than ten years had elapsed since the date of the conviction. The State argued that less than ten years had elapsed since the date of Gay's release from prison on that conviction. In support of this assertion, the State offered a copy of an NCIC report, which showed that Gay had been released on parole in October 1994, within the ten year period. The trial court overruled defense counsel's hearsay objection to the NCIC report and admitted it, for record purposes, as evidence of Gay's release date from prison . The trial court concluded that the State could use the prior conviction to impeach Gay if he testified. Gay testified at trial, admitting on cross examination that he did have a prior conviction. Hearsay
In his first point of error, Gay contends the trial court erred in considering hearsay evidence-the NCIC report-in determining whether to admit Gay's prior conviction for impeachment purposes. The decision to admit or exclude evidence is a matter falling within the trial judge's sound discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); Dillard v. State, 931 S.W.2d 689, 698 (Tex. App.-Dallas 1996, pet. ref'd). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of hearsay evidence. Coffin, 885 S.W.2d at 149; Dillard, 931 S.W.2d at 698. A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1991) (op. on reh'g); McIntosh v. State, 855 S.W.2d 753, 769 (Tex. App.-Dallas 1993, pet. ref'd) (op. on reh'g). The rules of evidence afford the court broad discretion in determining admissibility. Tex. R. Evid. 104(a). Rule 104(a) states that, in making its preliminary determination on the admissibility of evidence, the court is not bound by the rules of evidence except those with respect to privileges. Id. Thus, under rule 104(a) the trial court could consider the NCIC report in determining the admissibility of Gay's prior conviction. The trial court did not abuse its discretion in considering the NCIC report to determine whether Gay's prior conviction was admissible under rule 609. Accordingly, we overrule Gay's first point of error. Impeachment
Gray argues that even if his prior conviction was admissible under rule 609(b), rule 609(a) requires the court to conduct a balancing test under Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim. App. 1992). In his second point of error, Gay contends the trial court erred in permitting the State to impeach him with the prior conviction without conducting such a balancing test. Contrary to Gay's assertion, when considering the probative effect of evidence versus its possible prejudicial effect, the appellate court may presume that the trial judge conducted the balancing test, which need not be shown in the record. Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.); see also Duckworth v. State, 833 S.W.2d 708, 710-11 (Tex. App.-Beaumont 1992, no pet.) (holding the fact that a trial judge made a proper balancing test can be implied from the record). In Theus, the court set out a list of nonexclusive factors for courts to use in conducting such a balancing test. See Theus, 845 S.W.2d at 880. These factors include: (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction to the charged offense and the witness's subsequent history; (3) the similarity between the prior conviction and the charged offense; (4) the importance of the witness's testimony; and (5) the importance of the witness's credibility. Id. In reviewing the trial court's conduct in weighing these factors and the decision to admit a prior conviction into evidence, we must accord the trial court "wide discretion." Id. at 881. A reversal will occur only upon a showing of a clear abuse of discretion. Id. Here the record indicates the trial court was aware the prior conviction was a burglary conviction, one of high impeachment value. See Theus, 845 S.W.2d at 881; see also White v. State, 21 S.W.3d 642, 647 (Tex. App.-Waco 2000, pet. ref'd) (finding burglary is a crime involving deception, and thus is a crime of high impeachment value). The trial court was also aware of the temporal proximity of the prior conviction, and the trial court heard Gay's testimony concerning his previous and continuing drug use. Although the prior conviction and the charged offense were not similar, Gay's testimony and his credibility were both important to the case. Thus, it can be inferred from the record that the trial court engaged in the balancing test required under rule 609(a). Moreover, given the above-described information in the record concerning the Theus factors, we cannot say that the trial judge abused her discretion in allowing the impeachment testimony. We overrule Gray's second point of error. Factual Sufficiency
The State must prove two elements to establish Gay's unlawful possession of the controlled substance: (1) that he exercised care, control and management over the contraband; and (2) that he knew the matter possessed was contraband Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987). In his third point of error, Gay contends the evidence is factually insufficient to support his conviction because the evidence supporting the conviction was too weak for the jury to have relied upon and the contrary evidence greatly outweighed any evidence supporting guilt. 1. Standard of Review
In determining the factual sufficiency of the evidence, we must determine whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 11, 2004 WL 840227, at * 7 (Tex.Crim.App. April 21, 2004). There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand Id. 2. Application of Law and Facts
The record contains evidence that Hawthorne searched Gay incident to his arrest by patting him down in accordance with the law and police department policy. Both officers found the suspected drugs in Gay's clothing-specifically his pants pockets. A chemist at Southwestern Institute of Forensic Scientists tested the suspected drugs and confirmed they were crack cocaine. Gay cites the following evidence as the most important and relevant to his assertion that the evidence is factually insufficient to support his conviction. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Specifically, Gay states he was unjustly targeted by the officers. He claims the drugs were offered to him in exchange for a car wash. The man offering the drugs allegedly dropped them after seeing Hawthorne and Malloy approaching Gay. Gay contends the drugs were not his, and thus he was wrongfully convicted. After reviewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, slip op. at 11, 2004 WL 840227, at *7. We cannot say the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. We need not further detail the rest of the evidence. See Sims, 99 S.W.3d at 603. Accordingly, we conclude the evidence is factually sufficient to support the conviction. We resolve Gay's factual sufficiency issues against him. Conclusion
Having overruled each of Gay's three points of error, we affirm the judgment of the trial court.