Saturday, December 10, 2011
Something Old, Something New: Court Of Appeals Of Texas Opinion Reveals Differences Between Texas & FRE 609(b)
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.
But, as the recent opinion of the Court of Appeals of Texas, Waco, in Parker v. State, 2011 WL 6091248 (Tex.App.-Waco 2011), makes clear, there's an important distinction between the two rules.
In Parker, Steve Vic Parker was convicted of two counts of Theft less than $1,500 based upon stealing alcohol from a liquor store on two separate occasions. After he was convicted, Parker appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to impeach him through evidence of his nine prior convictions. While one of these convictions was for misdemeanor theft in 2003, the other convictions were more than 10 years old. Ordinarily, this would have meant that the eight older convictions only would have been admissible against Parker if their probative value substantially outweighed their prejudicial effect under Texas Rule of Evidence 609(b).
But as the Court of Appeals of Texas, Waco, noted, "the 'substantially outweighs' test does not apply to a prior conviction over 10 years old if a lack of reformation is shown by evidence that the witness has an intervening conviction for a felony or a misdemeanor involving moral turpitude." This, because Parker's 2003 conviction was for a crime involving moral turpitude, the admissibility of the 8 earlier convictions was governed by Texas Rule of Evidence 609(a), which provides 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.
And because the appellate court found that this test was satisfied, it affirmed Parker's conviction.