Cross Examination Impeachment Based on Past Crimes
A defendant does not have the right to testify free from impeachment. Morgan v. State, 891 S.W.2d 733, 736 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).
When a criminal defendant takes the stand, he or she is subject to the same rules that govern any other witness and may be impeached, contradicted, made to give evidence against himself or herself, cross-examined on new matters, and treated in every respect as any other witness, except where there are overriding constitutional or statutory provisions. Sanchez v. State, 707 S.W.2d 575, 577 (Tex. Crim. App. 1986).
Under Texas Rule of Evidence 609(a):
for the purpose of attacking the credibility of a witness, evidence that the witness 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. TEX. R. EVID. 609(a).
Determining the admissibility of impeachment evidence under Rule 609 is a two-step process.
First, we must determine whether the conviction sought to be used for impeachment purposes is a felony or a crime involving moral turpitude. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).
If the conviction is for a felony or crime of moral turpitude, the second step is for the court to determine whether the probative value of the conviction outweighs its prejudicial effect. Id.
Several factors are employed in this determination:
(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 offense being prosecuted;
(4) the importance of the defendant's testimony;
(5) the importance of the credibility issue. Id.
The burden of demonstrating that the probative value of a conviction outweighs its prejudicial effect is on the proponent seeking to introduce the evidence. Id.
Wide latitude is given to the trial court in weighing these factors and its decision will be reversed only if there is a clear abuse of discretion. Id. at 881.