Tuesday, November 13, 2012
Failure To Register: Court Of Appeals Of Texas Finds Failure To Register Conviction Has High Impeachment Value
Texas Rule of Evidence 609(a) 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.
In determining whether a conviction is admissible to impeach a witness under Rule 609(a), Texas courts generally consider five factors:
(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 past crimes and the charged offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id. We accord the trial court wide discretion in its decision.
So, what is the impeachment value for the crime of failure to register as a sex offender? Let's take a look at the recent opinion of the Court of Appeals of Texas, Houston, in Tristan v. State, 2012 WL 5285673 (Tex.App.-Houston [1 Dist.] 2012).
In Tristan, Michael Tristan was convicted of misdemeanor indecent exposure after the prosecution impeached him through evidence of his prior conviction for failure to register as a sex offender. After he was convicted, Tristan appealed, claiming, inter alia, that the trial court should have deemed this conviction inadmissible under Texas Rule of Evidence 609(a).
The Court of Appeals of Texas, Houston, disagreed, finding under the first factor mentioned above that
To register as a sex offender, a defendant must disclose statutorily required information and tender it to law enforcement....A person required to register may not fail to provide the information required for an accurate registration....The goal of registration and notification provisions is to facilitate law enforcement's monitoring of sex offenders and to alert the public, so that those who may be vulnerable to crime may take appropriate precautions that could deter further crimes....The information gathered from the registry process is public information....A convicted sex offender may desire to conceal the required information for a number of reasons, including evading tracking by law enforcement and detection by the public. We hold that failure to register as a sex offender can be a crime of deception that bears on the witness's character for truthfulness.
As support for this conclusion, the court cited Theragood v. State, 2011 WL 3848840 (Tex.App.-El Paso 2011), in which the Court of Appeals of Texas, El Paso, "agree[d] with the State that the prior crime [of failure to register as a sex offender] involves deception since Appellant, by failing to register, concealed the address at which he resided or intended to reside."