Can You Use ''Past Crimes'' Evidence to Impeach Witness Credibility ?
Texas Rule of Evidence 609 governs the admissibility of prior convictions used to impeach a witness.
Under rule 609(a), a prior conviction is admissible for the purposes of impeachment, if the prior conviction involved a felony or a crime of moral turpitude, and the court determines the probative value outweighs its prejudicial effect.
In reviewing the trial court's decision admitting into evidence a prior conviction, we must accord the trial court "wide discretion." Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).
In the case of a prior conviction and release occurring more than 10 years before trial, the probative value of that conviction must substantially outweigh its prejudicial effect. TEX. R. EVID. 609(b).
Even though appellant was released on the burglary of a habitation more than 10 years before trial in the present case, the intervening conviction for automobile theft causes us to analyze the question of admissibility as if the burglary conviction were not remote. See Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.--Houston [1st Dist.] 1999, pet. filed); Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.--Houston [1st Dist.]), pet. ref'd, 980 S.W.2d 652 (Tex. Crim. App. 1998).
Texas Rule of Evidence 609(a) provides:
(a) General rule. for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
Texas Rule of Evidence 609(b) provides:
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs the prejudicial effect.
Accordingly, in weighing the probative value of the prior convictions against prejudicial effect, we apply the nonexhaustive list of factors set forth in Theus, 845 S.W.2d at 880. See Jackson, 11 S.W.3d at 339-40.
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' subsequent history;
(3) the similarity between the past crime and the offense being prosecuted;
(4) the importance of the defendant's testimony;
(5) the importance of the credibility issue. Theus, 845 S.W.2d at 880.
The impeachment value of a crime involving deception is higher than the impeachment value of a crime involving violence. Theus, 845 S.W.2d at 881.
Theft is considered a crime of deception. See Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.--Texarkana 1999, no pet.).
The two prior convictions were for automobile theft and burglary of a habitation with intent to commit theft. the first factor weighs in favor of admission.