EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, November 2, 2008

Ten Years Have Got Behind You: Court Of Appeals Of Texas Ignores Plain Text Of Its Felony Impeachment Rules In DWI Appeal

The recent opinion of the Court of Appeals of Texas in Myers v. State, 2008 WL 4722974 (Tex.App.-Amarillo 2008), is yet another indication of how courts have played fast and loose with the rules regarding felony impeachment.  In Myers, George Myers appealed from his conviction of driving while intoxicated and the resulting sentence of 180 days in county jail and a $1,000 fine.  Myers testified in his defense at his trial, and the prosecution thereafter impeached him through his prior convictions:  a 1982 conviction for burglary of a vehicle and a 1988 conviction for burglary of a habitation.

On appeal, Myers claimed, inter alia, that the trial court erred in allowing him to be impeached through the 1982 conviction.  The Court of Appeals disagreed, finding that it was admissible under Texas Rule of Evidence 609(a), which states that:

     "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."

But what about Texas Rule of Evidence 609(b)?  That Rule states that:

     "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 of 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 its prejudicial effect."

Well, according to the Court of Appeals, Texas "case law holds that a remote prior conviction may be treated as less than ten years old if, during the intervening period, the witness has been convicted of a felony or a misdemeanor involving moral turpitude, indicating the witness had not reformed following the remote conviction... In such an instance, the remote conviction may be admitted for impeachment purposes under the general rule of 609(a) rather than the more stringent standard under Rule 609(b)."

Therefore, according to the court, Myers' 1988 burglary of a habitation conviction "'remove[d] the taint of ... distance,'  allowing the 1982 conviction to be treated as 'not remote....'  Admissibility of both appellant's prior convictions for impeachment purposes was governed by the general rule under 609(a).

To me, this seems like a fairly remarkable conclusion (not in a good way), and one that finds no basis in Texas Rule of Evidence 609(b).  Of course, this shouldn't come as a surprise because, as I note in my forthcoming article, Impeachable Offenses?, courts have ignored virtually every subsection of their felony impeachment rules.  That said, Texas courts have probably been the worst, especially with regard to the ten year time limit, and Myers is merely the latest in a long line of improperly decided cases.



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