EvidenceProf Blog

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

Monday, January 12, 2009

To Take The Stand Or Not?: Texas Appeal Reveals That Criminal Defendants Must Testify To Appeal Conviction Impeachment Rulings

The recent opinion of the Court of Appeals of Texas in Burks v. State, 2008 WL 5341296 (Tex.App.-Houston 2008), teaches an important lesson, which is that, in order for a criminal defendant to be able to appeal a court's ruling regarding the admissibility of his prior conviction(s) for impeachment purposes, the defendant must testify at trial.

In Burks, Devian Charles Burks appealed his conviction for assault.  And part of his argument on appeal was that "the trial court committed reversible error by ruling that the State would be allowed to impeach him with the five prior convictions if he chose to testify at trial." 

And indeed, at trial, over Burks' objection, the trial court ruled that it would allow impeachment of Burks through his prior felony convictions if he chose to testify (but the record did not show that the trial court determined whether it would permit impeachment with any misdemeanor convictions). The problem for Burks, however, was that he did not subsequently testify.

And while that might have been the best strategy at trial, it also foreclosed the possibility of Burks later appealing this evidentiary ruling on appeal.  That is because, since the United States Supreme Court's opinion in Luce v. United States, 469 U.S. 38 (1984), courts have consistently held that a criminal defendant must testify at trial to be able to challenge a trial court's decision to allow the prosecution to impeach him through prior convictions.

And that is exactly what the Court of Appeals of Texas found in Burks.  According to the court,

     "[t]o preserve error on a trial court's ruling that permits the State to impeach a defendant with prior convictions, the defendant must have testified....A reviewing court is unable to weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the appellant's testimony at trial....Without such a record, there is no impeachment evidence for prior convictions and we cannot sufficiently review for error."



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A similar rule has been in effect in Michigan for some time.

Posted by: Greg Jones | Jan 21, 2009 2:24:50 PM

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