Saturday, June 26, 2010
Off The Record: Court Of Appeals Of Texas Notes That Rule 609(b) Balancing Doesn't Need To Be Recorded
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.
And, as the recent opinion of the Court of Appeals of Texas, Beaumont, in Walker v. State, 2010 WL 2533774 (Tex.App.-Beaumont 2010), makes clear, the trial court does not need to create a record indicating that it performed the above balancing test.
In Walker, a jury convicted Steven Lee Walker of driving while intoxicated, his third or more offense, a third-degree felony. Walker was arrested for driving while intoxicated because R.V. called 911 after observing, inter alia, a truck driven by Walker being driven rather erratically, including swerving into a ditch and hitting mailboxes.
During the trial, and to impeach R.V.'s credibility, Walker offered evidence to show that R.V. had three prior criminal convictions, two for burglary of a building and one for criminal trespass. The three convictions, dated 1985, 1986, and 1988, each occurred more than ten years prior to the trial. The trial court refused to admit the convictions. Walker re-urged his request after the State recalled R.V., but the trial court again refused to allow him to introduce evidence about R.V.'s prior criminal record.
After he was convicted, Walker appealed, claiming, inter alia, that the trial court erred in precluding his proposed impeachment. The Court of Appeals of Texas, Beaumont, disagreed. It first noted that because "more than ten years had elapsed from the date of each of R.V.'s prior criminal convictions...[i]t was reasonable for the trial court to determine that more than ten years had also elapsed from the date of R.V.'s release from the confinements that had been imposed for the convictions." (The court didn't explain why this was reasonable, and I hope that I relied on more than the fact that more than ten years had elapsed since each date of conviction.). It thus noted that the admissibility of the convictions was governed by Texas Rule of Evidence 609(b).
The court the acknowledged Walker's argument "that the record show[ed] the 'trial court did not, and could not possibly have, conducted the required balancing test' required by Rule 609(b)." The court, however, responded to this argument by finding that
"[a] record of such a test is not necessary. When considering the probative effect of evidence versus its possible prejudicial effect, [we] may presume that the trial judge conducted the balancing test, which need not be shown in the record."...The trial court's refusal to allow the evidence of R.V.'s prior criminal convictions implies that the trial court rejected the "'interest of justice' exception in rule 609(b)."
Furthermore, the court found no error with the trial court's conclusion because
Other than the fact that the two burglary convictions were crimes of moral turpitude, Walker offer[ed] no argument showing that R.V.'s convictions would be probative with respect to R.V.'s testifying about what he had seen in an incident involving an intoxicated driver. Moreover, there was strong direct and circumstantial evidence from other witnesses introduced during the trial that corroborated R.V.'s account that he had seen Walker driving erratically and that Walker was intoxicated. Given the remoteness of R.V.'s prior convictions, and corroborating evidence of other witnesses, Walker fail[ed] to demonstrate that the probative value of admitting R.V.'s prior convictions substantially outweighs the prejudicial effect of doing so.
While generally I think that it is good for courts to create records of evidentiary rulings, I can see the point of the Court of Appeals of Texas. Even if the trial court found that evidence of R.V.'s prior convictions substantially outweighed their prejudicial effect, it still could have excluded them if it felt that admitting them was not in the interests of justice. Thus, unlike a typical impeachment ruling, there wasn't (really) a need for the court to record the way in which it balanced probative value and prejudicial effect.