Opinion filed August 16, 2007. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 1042871.
Panel consists of Justices ANDERSON, FOWLER, and SEYMORE.
A jury found appellant, Marvin Dale Adkins, guilty of sexual assault. The trial judge found each enhancement paragraph true and sentenced him to sixty years' confinement. In one issue, appellant contends the trial court erred by allowing the State to impeach him with prior convictions. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUNDOn September 19, 2005, appellant sexually assaulted C.B. while she worked in her family's grocery store. At trial, C.B. testified that appellant entered the store, purchased a soft drink, and told C.B. that she was beautiful. She responded that she was married and had a family, even though she was not married. Appellant remained for a few more minutes while other customers were in the store and then left. Five to ten minutes later, appellant reentered the store after the other customers had left. Appellant pushed C.B. to the ground, slid his right hand inside her shirt, squeezed her breast, and inserted two of his fingers from his left hand into her vagina. Appellant began to unzip his pants, but he stopped when he heard another customer enter the store. Appellant attempted to leave through the front door. However, C.B. locked the front door by pressing a button near the cash register. Appellant ran out the back door. C.B. called her sister, who was working at a nearby store. Her sister's husband drove from the nearby store to the grocery store. When he arrived, he observed an African-American man getting into a white car. C.B. told her brother-in-law that she had been raped by the man getting into the white car. C.B.'s brother-in-law followed the white car and wrote down the license plate number. He returned to the store and gave the license plate number to the police. The license plate was registered in appellant's name. A few days later, Detective Moreno, a Houston Police Department detective, showed C.B. a photo spread. C.B. positively identified appellant in the photo spread as the attacker. Appellant was arrested. Detective Moreno spoke with appellant while he was in jail. Appellant agreed to make a written statement about the incident. In the statement, appellant admitted that he saw an Asian female working in the grocery store. He thought she was dressed very provocatively. He assumed based on her manner of dress that "she wanted some sexual contact," so he touched her in an "inappropriate" manner. She resisted his advances, and he realized that he had "made a serious mistake." At trial, appellant testified to the same version of the incident. A jury found appellant guilty of sexual assault, and the trial judge sentenced him to sixty years' confinement.
II. AnalysisIn his sole issue, appellant contends the trial judge erred by allowing the State to impeach him with prior convictions, several of which were more than ten-years old. Specifically, appellant argues that the trial court abused its discretion in allowing the State to impeach with extraneous offenses because they were more prejudicial than probative under the Theus factors. See Theus v. State, 845 S.W.2d 874, 881-82 (Tex.Crim.App. 1992). We review a trial court's evidentiary ruling for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing a trial court's decision to admit into evidence a prior conviction, we must accord the trial court "wide discretion." Theus, 845 S.W.2d at 881. A ruling permitting use of a prior conviction to impeach will be reversed on appeal only upon a showing of a clear abuse of discretion. Id. As long as the trial court's ruling is within the zone of reasonable disagreement, we may not disturb it. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Under Texas Rule of Evidence 609, 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. See TEX. R. EVID. 609(a); LaHood v. State, 171 S.W.3d 613, 620 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). However, evidence of a conviction is not admissible under the rule if more than ten years has elapsed since the date of the conviction, or the release from confinement if later, unless the probative value substantially outweighs the prejudicial effect. See TEX. R. EVID. 609(b); LaHood, 171 S.W.3d at 620. An appellate court may find that later convictions for felonies or misdemeanors that involve moral turpitude remove the taint of remoteness from prior convictions, which are more than ten-years old. Hernandez v. State, 976 S.W.2d 753, 755 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). In that circumstance, the rule 609(a) "outweigh" standard is appropriate because "tacking" of intervening convictions ameliorates the remoteness of ten years or other convictions. Id. In determining whether the probative value of a prior conviction outweighs its prejudicial effect, courts consider the following factors adopted by the Court of Criminal Appeals in Theus v. State: (1) impeachment value of the prior crime, (2) temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) similarity between the past crime and the offense being prosecuted, (4) importance of the defendant's testimony, and (5) importance of the credibility issue. 845 S.W.2d at 880. These factors cannot be applied with "mathematical precision" because several of the factors relevant to assessing probative value cut in different directions. Id. Before trial, appellant filed a Motion to Permit Defendant to Testify Free of Impeachment with Prior Conviction. The trial court denied appellant's motion. At trial, the State questioned appellant about the following convictions and appellant admitted to them:
• Convicted in 1999 of possession of a controlled substance in the 180th District Court in Harris County;
• Convicted in 1994 of possession of a controlled substance in the 176th District Court in Harris County and received prison sentence;
• Convicted in 1989 of possession of a controlled substance in the 177th District Court in Harris County and received prison sentence;
• Convicted in 1989 of delivery of a controlled substance in the 177th District Court and received prison sentence;
• Convicted in 1991 of robbery in Wichita, Kansas, and received prison sentence;
• Convicted in 1974 of manslaughter in Oklahoma City, Oklahoma and received prison sentence.Appellant's counsel objected to each of these questions on the basis of "improper impeachment," "relevance," or both. The trial court overruled his objections regarding these listed offenses. The State asked appellant about the following convictions, and he denied them:
• Convicted in 1973 of sexual assault of a child in Harris County;
• Convicted in 1981 of grand larceny in Little Rock, Arkansas.The State asked appellant about the following convictions to which the trial court sustained appellant's objections and denied his motions for new trial:
• Convicted in 1977 of assault in Harris County in County Court 7;
• Convicted in 1958 of burglary of a motor vehicle in Oklahoma City, Oklahoma.
• Convicted in 1974 of escape in Oklahoma City, Oklahoma.Therefore, we focus our Rule 609 analysis on whether the probative value of appellant's prior convictions for possession and delivery of a controlled substance, robbery, and manslaughter outweighs its prejudicial effect.