No. 14-10-00196-CR
Opinion filed April 21, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause No. 1217530.
Panel consists of Chief Justice HEDGES and Justices FROST and CHRISTOPHER.
ADELE HEDGES, Chief Justice.
Appellant, Eugene Marell Hayes, was convicted of theft and sentenced to fifteen years' confinement. In his sole issue, appellant contends that the trial court's admission of his prior convictions for the purpose of impeaching his testimony was erroneous. We affirm.
I. Factual and Procedural Background
On May 25, 2009, the complainant, Margaret Murillo, was sitting in her car in front of an apartment complex when appellant approached and tried to open the passenger side door. When appellant could not open it, he jumped over the hood to the driver's side and reached into Murillo's car to take her purse. At trial, Murillo testified that in the struggle over her purse, appellant hit her head and hand approximately eight times. After appellant took her purse, he ran into the apartment complex. Police officers subsequently apprehended appellant, and Murillo identified him as her assailant. After appellant was arrested, Officer Vu transported him to the police station. While he was in Officer Vu's patrol car, appellant admitted to robbing Murillo. Officer Vu testified that appellant told him, "I didn't mean to do what I did. I was high on crack. The crack caused me to do it." At trial, the court charged the jury on the offense of robbery and the lesser included offense of theft from person. The jury found appellant guilty of the lesser included offense of theft from person. Appellant subsequently pleaded true to two enhancement paragraphs: a 1992 felony conviction for delivery of a controlled substance, and a 1995 conviction for aggravated robbery. At the conclusion of the punishment phase, the jury assessed appellant's punishment at fifteen years' confinement. This appeal followed. II. Analysis
In his sole issue, appellant complains about the trial court's ruling that the State could impeach his testimony with two prior convictions. Appellant argues that the trial court should have prohibited impeachment with these prior convictions because their probative value does not outweigh their prejudicial effect. We will not reverse a trial court's decision regarding admissibility of evidence of a prior conviction unless a clear abuse of discretion is shown. Morris v. State, 67 S.W.3d 257, 262 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). Thus, a trial court's decision will not be overruled unless it lies outside the zone of reasonable disagreement. Id.; Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The record reflects that, prior to trial, appellant filed a motion requesting to be allowed to testify free of impeachment from his prior convictions. The trial court conducted a brief hearing on appellant's motion and ruled that appellant's 2001 felony theft conviction and 2007 misdemeanor theft conviction were admissible. Appellant did not testify at trial. Under Rule 609 of the Texas Rules of Evidence, evidence that a witness has been convicted of a crime is admissible to attack the witness's credibility if the crime was a felony or involved moral turpitude and the court determines that the probative value of the evidence outweighs its prejudicial effect. Tex. R. Evid. 609(a); LaHood v. State, 171 S.W.3d 613, 620 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). Here, the 2001 conviction was for a felony offense, and the 2007 misdemeanor conviction was for theft which is a crime of moral turpitude. See LaHood, 171 S.W.3d at 620. In Theus v. State, the Court of Criminal Appeals set out a non-exclusive list of factors that courts should use to weigh the probative value of a conviction against its prejudicial effect. Theus, 845 S.W.2d at 880. These factors include (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 charged offense, (4) the importance of the witness's testimony, and (5) the importance of the witness's credibility. Id.; LaHood, 171 S.W.3d at 620. With regard to the first factor, the impeachment value of crimes that involve deception is greater than for offenses that involve violence. Theus, 845 S.W.2d at 881. Therefore, when the prior offense is one involving deception, the first factor weighs in favor of admission. Id. The offense of theft is a crime of deception. Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Thus, the first Theus factor weighs in favor of admission of appellant's prior convictions. See id. The second factor — temporal proximity — favors admissibility if the past crimes are recent and the witness has demonstrated a propensity for running afoul of the law. Theus, 845 S.W.2d at 881. Appellant's theft convictions in 2001 and 2007 are recent, and appellant's criminal record, which includes four total prior convictions, demonstrates that he has a propensity for, and a history of, running afoul of the law. See Jackson v. State, 11 S.W.3d 336, 340 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Consequently, this factor favors admission of appellant's prior convictions. The third factor militates against admission if the prior conviction is similar to the charged offense. Theus, 845 S.W.2d at 881. This is so because the admission for impeachment purposes of a crime similar to that charged presents a situation where the jury could convict based on the perception of the past conduct rather than the facts of the present case. Id. Appellant argues that because the jury convicted him of the lesser included offense of theft from person, and his prior convictions were for theft, the offenses are similar. But appellant's prior convictions were for theft and the present charged offense is robbery. See id. And although theft is necessarily included in the alleged elements of the greater offense of robbery, when, as here, the indictment alleges "in the course of committing theft," the offense of robbery requires an additional element — bodily injury or the threat of imminent bodily injury or death. See Earls v. State, 707 S.W.2d 82, 84-85 (Tex. Crim. App. 1986). Consequently, this factor is neutral and weighs neither in favor of nor against admission of appellant's prior convictions. Factors four and five concern, respectively, the importance of the defendant's testimony and the importance of the credibility issue. LaHood, 171 S.W.3d at 621. These two factors are related because both depend on the nature of a defendant's defense and the means available to him of proving that defense. Miller v. State, 196 S.W.3d 256, 268 (Tex. App.-Fort Worth 2006, pet. ref'd). When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility and testimony increases. 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, the only disputed issue at trial was whether appellant injured the complainant during the commission of the theft. The complainant testified that appellant hit her; appellant intended to testify that he took her purse but that he did not hit her. Although one of the officers testified to seeing a red mark on the complainant's head, none of them witnessed the incident, and there was no other evidence of injury. Therefore, appellant's testimony and his credibility were important because his theory pitted his testimony and the lack of evidence of injury against the complainant's testimony. See id.; Berry v. State, 179 S.W.3d 175, 180 (Tex. App.-Texarkana 2005, no pet.) (finding appellant's testimony and credibility were very important where appellant and complainant were only witnesses at time of offense). The fourth and fifth factors weigh in favor of admission of appellant's prior convictions. In summary, the first, second, fourth and fifth Theus factors favor admission of appellant's 2001 and 2007 convictions for impeachment purpose. Therefore, the trial court did not abuse its discretion in admitting evidence of these convictions. Appellant's sole issue is overruled. III. Conclusion
We affirm the trial court's judgment.