*1 stabbed several Applicant evidence night- the that patron another of that with a knife night on the resembling people recovered the a knife club had testimony evening. people of including the in the knife earlier and people Applicant people, who saw stab Applicant’s from knife recovered The were stabbed. who themselves the fingerprints, for and car was'tested wrapped which it was raga knife and DNA Chapter thе test- The results of No of blood. presence tested the were by clear and in this do not show ing case found, rag and the test- were fingerprints convincing ju- that no reasonable evidence However, the blood. two negative ed light him in of would have convicted ror presumptively stains on the knife tested had new evidence. Even if evidence the positive evidence for blood. No additional presented Ashley at trial that Lee’s been the or.DNA rеgarding the source of blood was knife discovered in blood not on the presented at trial. car, Applicant’s unlikely it is that such trial argues that the The State now have overcome the testimo- evidence would (cid:127) jury prosecutor represented never Applicant ny of the witnesses who saw Applicant’s car was knife, that the knife found knife, use the Applicant with saw by Ashley Applicant the knife used to stab by the injured were knife or themselves Howеver, testi- the State’s witnesses Lee. it by Applicant, wielded whether not by Applicant knife used fied that in his car after was the same knife found Appli- like the knife recovered from looked the offense. car, that officer testified police cant’s Relief of this Copies opinion is denied. car Applicant’s
the knife recovered Department be of shall sent to the Texas qualified deadly weapon, support of as a Institutions Criminal Justice-Correctional deadly-weapon allegation. the affirmative Paroles Division and Pardons and Division. that Clearly, at trial was implication car Applicant’s knife recovered from people knife he used to stab three was the
during fight.
However, Ashley the absence of the knife is Lee’s DNA from the stains on MIRELES, Appellant Carlos by Ap clearly exculpatory, argued as plicant. The -at indicated trial at two other Applicant that stabbed lеast Texas, Appellee. The of STATE people during fight suggested No. 04-12-00260-CR. have cut his wife’s hand while may he also trying to him from she was extricate Texas, Appeals Court fingerprints The absence of fight. Antonio. San possibil trial explained knife was at 27, 2013. March ity wiped that the knife had been off Review Refused discovery. cleaning Discretionary Such could also Ashley or all Lee’s 2014. have removed some Feb.
DNA from the knife. if,
Furthermore, ar- Applicant even
gues, piece “the tangible the knife was upon jury
evidence” which relied him, ample “intangible” there was
convict *3 Oltersdorf, Law, Attorney At
James C. Antonio, TX, Appellant. San Reed, Attorney, Bexar Susan D. District Antonio, TX, Appellee. County, San STONE, Sitting: Chief CATHERINE MARION, Justice, SANDEE BRYAN MARTINEZ, Justice, REBECA C. Justice.
OPINION by: Opinion SANDEE BRYAN MARION, Justice. on three jury appellant guilty
A found aggravated counts of sexual assault (his punish- daughter) child and assessed prison. ment at life in In four issues trial court asserts the appeal, appellant by admitting certain evidence at trial erred right to cross- by denying him the complainant1 the com- examine witness. Tex.R. Evid. Evidence plainant’s complainant’s mother about the “that the witness has been convicted of a MySpace page.2 We affirm. crime shall be if admitted elicited from the by public witness established record but OF CRIMINAL RECORD ADMISSION if the crime was a felony or involved issue, appellant In his first asserts the moral turpitude, regardless of punishment, by admitting trial erred into evi- .court and the court proba- determines that the dence his criminal records in two tive value of this evidence out- felоny Appellant was convict- weighs party.” effect ato. ed of of a controlled substance *4 Id. Evidence of a conviction under Rule 5, on March 1998. He was sentenced to 60g(a) “is not if period admissible a offense, years’ three confinement for this more than ten years has elapsed since the prison and released from in November date of the conviction or of the release of 2000. a time During period appel- when the witness frоm the confinement imposed parole lant was on for the first he conviction, whichever is the later a was arrested second time for date, determines, unless the court in the of a controlled substance. He was convict- justice, interests' of that the probative val- 12, ed for this second offense on October ue of the conviction supported by specific 1999, parole July and released from facts and circumstances substantially out- 2002. Appellant’s underlying trial in his weighs effect.” Tex.R. Evid. aggravated sexual assault case commenced 609(b). As the proponent of impeachment in March 2012. 609, evidence pursuant to Rule the State appeal, appellant
On
had the
asserts the
burden of demonstrating the ad-
State’s use of
prior
these
convictions to missibility
past
Theus,
of the
impeach him violated Texas Rule of Evi
dence 609 and the test set forth in Theus State, v. 845 874 (Tex.Crim.App. S.W.2d Remote generally convictions are 1992). We review a trial court’s decision inadmissible we presume because that a regarding the admission of evidence for an capable witness is of rehabilitation and State, abuse of discretion. Martinez v. 327 that his character has reformed over a 727, S.W.3d (Tex.Crim.App.2010). 736 A period law-abiding conduct. Morris trial court abuses its if discretion its State, 257, 263 (Tex.App.-Hous clearly decision is “so wrong as to lie out 2001, ton pet. ref'd). may [1st Dist.] We side the zone within which reasonable peo find, however, that, although a con ple might disagree.” Taylor v. old, viction is more than ten later (Tex.Crim.App.2008). S.W.3d convictions for felonies or misdemeanors involving moral crimes, turpitude remove the taint
“Evidence of other
wrongs or
of remoteness from the prior
acts is not admissible
prove
the charac-
conviction.
situation,
Id. In that
person
ter of a
we apply
order to show action in
the Rule
609(a)
conformity
“outweigh”
therewith.”
standard —instead of
Tex.R.
Evid.
404(b). However,
609(b)’s
past
evidence of
Rule
“substantially
crimes
outweigh”
may be used to attack the credibility standard —because “the ‘tacking1 of the in
protection
1. For the
identity
appeal,
appellant incorrectly
2.- On
refers
child,
child-complainant
minor
will be
page.
Facebook
"complainant”
referred to as
and other adults
only.
their first name
violence,
have a
and the latter
that invоlve
renders convictions
tervening convictions
at 881.
prejudice.”
Id.
longer
higher potential
no
remote.”
years, old
than 10
more
“Therefore,
impeach
seeks to
party
for felonies
when
convictions
“[I]ntervening
Id.
a crime that
with evidence of
.turpitude demonstrate
a witness
of moral
or crimes
not,
reformation,
pos
than
attenuating
deception
more to
relates
a lack of
con
by a distant
in favor of admission.”
interposed
weighs
first factor
prejudice
sible
prior convictions
appellant’s
Id.
Id. Neither of
viction.”
of violence or untruthful-
involves a crime
released
Here,
appellant
factor
the first Theus
ness.
July
1999 conviction
for his
parole
convic-
weighs against
commenced
underlying trial
and the
tions.
609(a),
Rule
our
in March 2012. Under
decision to admit
of the trial court’s
review
proximi-
temporal
next consider the
We
whether the
consider
this evidence must
crimes, the second
ty
appellant’s past
“out
this conviction
factor,
charged offense and
Theus
effect. Tex.R.
any prejudicial
weighs”
history. We must
subsequent
his
criminal
hand, appel
*5
the other
On
past crimes
appellant’s
Evid.
whether
consider
of a
possession
for
lant’s 1998 conviction
whether he has demon-
are recent and
the ten-
is outside
controlled substance
afoul of
propensity
running
strated a
in Rule 609 because
specified
year period
twо convictions oc-
the law.
Id. The
in
prison
November
he was released
completed
in
He
curred
1998 and 1999.
2000,
trial commenced
underlying
the
and
by
2002. The record
his sentence
both
However, we conclude
in March 2012.
any other
not contain evidence of
does
felony convic
intervening 1999
appellant’s
ten-year lapse
subsequent offenses. The
of remoteness from
tion removed the taint
present
the
between these convictions and
conviction,
were for
both of which
the 1998
subsequent
lack
convic-
offense and the
of-
offenses, the 1999 offense commit
similar
weigh against admitting
prior
the
tions
parole
was on
for the
'appellant
ted while
convictions.
Therefore,
apply the
we also
1998 offense.
past
In cases where a defendant’s
609(a)
to deter
“outweigh”
Rule
standard
offense,
charged
are
crimes
similar
of this conviction
mine whether admission
against
factor will militatе
the third Theus
Theus, the
of Crimi
proper.
In
Court
“The rationale behind this
admission.
Id.
a non-exclusive list of
Appeals
nal
set out
pur-
impeachment
is that the admission for
(cid:127)
applying
when
factors courts should use
crime
of a crime similar to the
poses
609(a)
Rule
the
weigh
where the
charged presents
situation
effect.
against
a conviction
the
jury
perception
would convict on
(1)
impeachment
the
Such factors include
conduct, instead of on the
past pattern of
(2)
crime,
temporal
the
prior
value of the
Here,
Id.
charged
facts of the
offense.”
crime relative to the
proximity
past
similarity between convictions
there is no
charged offense
the defendant’s subse
and
substance
of a controlled
(3)
similarity between
quent history,
child;
sexual assault of a
aggravated
and
(4)
past
charged
crime and the
therefore,
weighs
factor
in favor of
this
testimo
importance
of the defendant’s
admitting
prior
convictions.
(5)
of the defen
ny,
importance
and
credibility.
“The factors, both of crimes fourth and fifth Theus deception higher is than involving depend prosecution on the nature of a defen- both the fair which of child abuse defense the means available to protection dant’s cases and the оf children in the limited”, courtroom, prove Appellant’s that defense. Id. testi- but is “carefully mony was because he denied important reliability ensure the testimony. any inappropriate with the behavior com- State, 806, See Martinez v. 178 S.W.3d fact, plainant, being he denied ever (Tex.Crim.App.2005). The applies statute complainant. alone with the A defendant (1) only to statements made the child generally right testify should have against whom the offense was allegеdly to. being impeached by (2). without remote committed, and to the first person, However, convictions. when a case boils older, eighteen age to whom said,” here, down to a “he such said-she the child made a statement about the of importance of the defendant’s credibili- fense. Tex.Code Crim. Proc. art. 38.072 escalates, ty with the along § The outcry witness is the first impeach State’s need to the defendant’s adult to whom the how, child relates the credibility. Although appellant’s Id. fami- when, and where of the Reyes assault. v. ly members he State, was never alone 727 (Tex.App.-San daughter, appellant with his was the ref'd). Antonio pet. However, the capable denying witness the allegations statement must alleged describe the of of sexual assault. the State fense in some way discernible and amount impeach had an escalated need to his cred- to “more than give words which a general and, ibility, weigh these factors favor allusion that something in the area of child abuse was on.” going Garcia *6 88, 91 (Tex.Crim.App.1990). S.W.2d We Three of the five Theus favor factors review the trial court’s admission of an admissibility; accordingly, we cannot con- outcry witness’s testimony under an abuse clude the trial court abused its discretion standard,. Garcia, of discretion 792 in admitting convictions into evi- S.W.2d at 92. dence. Here, two witnesses testified about what OUTCRY WITNESS they by complainant. were told The first issuе,
In his appellant second asserts the witness, Jessica, was the counselor at the by admitting trial court erred the testimo- complainant’s school. Jessica testified ny outcry of two Although ap- witnesses. that a student came into her office because pellant’s issue is objecting stated as to two passing student was asking *7 oring 35 book when she was three event-specific.” Broderick 2000, 67, old, (Tex.App.-Texarkana 73 “having S.W.3d and about Patricia’s various ref'd). Thеrefore, outcry pet. “the must relationships.” Appellant points to no events, simply and not a be about different in record where he was denied where by of the same event related repetition the wit opportunity an to cross-examine Here, victim to different individuals.” Id. And, any other topics. nesses on of these the trial court could have determined the general right than a statement about his to two witnesses testified about different credibility being а a fair trial and witness’s touch inappropriate events—Jessica about cross-examination, subject ap proper Patricia about other acts of sexual ing and legal analysis sup pellant provides no including penetration abuse and oral sexu court port argument his that the trial Therefore, say we cannot al assault. erred. by allow trial court abused its discretion Procedure Appellate The Texas Rules testify ing Jessica and Patricia to both “contain a clear and require briefs outcry witnesses. the contentions argument concise DEVICE GLOBAL POSITIONING made, citations to author- appropriate with Tex.R.App. issue, and to the record.” P. ities appellant In his third as (i). 38.1(h), here has appellant Because by allowing the trial court erred not serts (5) any authority not included citation of testimony; defendant’s the im discussion of or citation to the facts to portance of the credibility. defendant’s Id. support complaint, his this issue is inade I disagree majority’s with the analysis of briefed, therefore, quately pre factors four and five under Theus. The review. appellate served State v. Ma majority concludes that both weigh factors (Tex.Crim. son, n. in favor of admitting convictions App.1998). because this case boiled down to a “he said-she said” situation which escalated the
CONCLUSION importance of Míreles’ credibility and tes- We overrule appellant’s appeal issues on timony, and in turn increased the State’s judgment. and affirm the trial court’s need to impeach credibility. his The rec- ord shows that Míreles had a two-fold Concurring Opinion by: REBECA C. defense at trial. Míreles in his MARTINEZ, Justice. own defense and denied ever abusing the MARTINEZ, Justice, REBECA C. child. presented He also alibi evidence concurring. through ex-girlfriend his who testified that I concur in the judgment, sep- but write “always” she spent night with Míreles arately with regard to the admission of during thе year even if they stayed prior felony Míreles’ two I at his mother’s house where the alleged believe the trial court erred in finding that sexual abuse occurred. She testified Mí- 10-year old reles spent night “never” at his mother’s prior drug outweighed convictions their house alone with the child complainant effect, and thus abused its dis- 2004; during year the allegations were cretion in evidence that the sexual abuse occurred at Míreles’ convictions. See Tеx.R. Evid. mother’s house at night July June and However, because I also believe that Mí- 2004. The of Míreles’ mother reles failed prove that his substantial and sister provided some corroboration of rights impaired by were the admission of defense; this alibi they both stated that evidence, this I concur the result complainant the child was never alone with reached the majority on this issue. at night Míreles at his mother’s house In considering whether the trial court because hardly Mírеles was around when abused its discretion in admitting the evi the child was visiting, and Míreles’ mother dence, guided by we are the Court of made sure the child slept in her room. Appeals’ Criminal opinion Theus v. “the nature of *8 de- [Míreles’] 880 (Tex.Crim.App. fense and the means available to prove 1992), in which it four listed non-exclusive that defense” did depend entirely factors to be considered in courts Míreles’ own testimony as it would in a weighing probative the value prior pure “hе said-she said” situation. See id. against conviction prejudicial its effect un at 881. The testimony existence of alibi 609(a). (1) der Rule The factors include: from three impor- witnesses lessens the crime; the impeachment prior value of the tance of testimony credibility Míreles’ (2) the temporal proximity of past five), and, turn, the factors {Theus four and in crime charged relative to the offense and the lessens State’s need to impeach him. (3) the defendant’s subsequent history; (noting See id. that when pres- a defendant similarity the between the past crime and ents an alibi defense based on other wit- (4) offense; charged the importance the of credibility nesses his is not likely to be a support issue). ny child victim is sufficient to that Theus factors of I believe critical conviction). strongly aggravated sexual assault weigh less five therefore four and hearing shows that after a convictions The record admitting prior the of favor the court ruled jury’s presence, the majority. outside by the than stated pled as enhance- prior the two convictions notes, addition, the determi- as Theus In inquired in the indictment could be ments value of probative the nation of whether Míreles during guilt-innocence. When into outweighs prej- its challenged evidence initially testifying, his own counsel began merely a matter of effect is not udicial convictions. On cross- prior raised the factors. Id. at 881-82. tаllying up the five examination, briefly in- prosecutor that the low im- majority The concludes The drug into the two quired crimes and prior value of the peachment convic- prior did not refer to Míreles’ State their 10-year lapse weigh against time de- during closing arguments, but tions admission, but finds no error because in his counsel did refer to them fense in favor of admission other three factors I believe the tri- closing argument. While these two factors. I believe the outwеigh al court abused its discretion 10-year value of Míreles’ old impeachment convictions, Mí- prior the evidence of that drug very slight given convictions that he was reles has failed to demonstrate drug convictions are not crimes by the error. I therefore concur harmed have minimal deception of or violence and judg- of trial court’s in the affirmance credibility apart relevance to a defendant’s ment. Sim- merely showing bad charaсter. Theus, im- ilar I believe the minimal value, sig- with the
peachment combined lapse prior
nificant of time between the
convictions and the instant over- in favor ad-
rides the other three factors of (four the five factors
mission. See id. admission, favored but the court concluded ARRINGTON, Appellant Charles value overrode impeachment the lack of factors). the rec- the other four Because ord shows that the weak Texas, Appellee. The STATE “outweigh” convictions failed to No. 04-12-00430-CR. effect, I would hold that their in ad-
the trial court abused its discretion Texas, Appeals Court under Rule mitting convictions San Antonio. 14, 2013. Aug. hold, however, I also view would whole, particularly of the record as a complainant’s
child detailed consistent sup- which alone is sufficient to *9 conviction, the error in
port not affect Míreles’ convictions did therefore was rights
substantial and was 44.2(b); Tex.R.App.
harmless. see See P. 38.07(a) also Crim. Proc. Ann. art. Tex.Code (West (uncorroborated testimo- Supp.2012) notes if the witnesses, outcry argument his on appeal complainant virgin. was a When Jessica focuses on the admission of the com- asked the student why рassing she was plainant’s testimony mother’s on the notes, the student said because the com- grounds that person, she was not the first plainant had told her appellant had older, eighteen years or to whom the com- touched her inappropriately. Jessica then plainant made a detailed statement about spoke complainant, to the who was ten or the offense. time, years eleven old at the and the com- Texas plainant Code Criminal Proce said “her dad touched her inap- dure article 38.072 provides “outcry” an propriately body all over her when she was exception general hearsay rule that younger, around five or six old” and bottom, statements are inadmissible. top, legs. touched her and She Tex.Code (West §§ Crim. PROC. Ann. art. 38.072 complainant very emotional, said the was Supp.2012). outcry provision The seeks upset, crying. and stated Jessica she did why he removed his explain to because she more details press (“GPD”). Device As a relay Positioning as much information Global child to allows a reported bond, then Jessica appellant desires. wore as the child condition of his to CPS. appeal, the incident it. He later removed On GPD. mother contends he and his appellant complain- was The second witness explain fully have been allowed to should Patricia. Patricia mother ant’s removed, and the trial why the device was “forced appellant told her complainant to elicit more request court denied his boy girl ... like a and kissing her to start tongue regarding down his removal would,” “put specific his answers appellant throat,” vagina, her Contrary he touched asser- appellant’s her the device. and “inside in her mouth penis tion, his put appellant record reflects that tes- told her mother complainant The her.” left the tified he cut off the mоnitor and years old at the time five or six she was attorney trying his house because times occurred numerous and the incidents plea bargain. him get to take house. grandmother’s complainant’s at the record, we cannot conclude the trial on this the conversation to the reported Patricia court erred. police. both wit The trial court ruled CROSS-EXAMINATION testify outcry witnesses nesses could OF WITNESSES touching testified to because Jessica issue, ap his fourth аnd final In about the Patricia testified in more detail asserts the trial court erred when pellant may nature of the sexual assault. There ability him the to cross-examine it denied outcry provided than one witness be more sister, mother complainant, his and his testify about different the witnesses complainant’s MySpace page, about Lopez v. events. incon which he contends she made several “Because of the (Tex.Crim.App.2011). statements, complainant sistent about the written, way in which is an [article 38.072] in a col drawing pictures penises of male but outcry person-specific, witness is not