Wednesday, December 30, 2020
Federal Rule of Evidence 609(e) states that
A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Conversely, Texas Rule of Evidence 609(e) states that
A conviction for which an appeal is pending is not admissible under this rule.
So, what does this rule mean and what doesn't it mean?
First, in terms of what it means, Rule 609 is the rule dealing with impeachment, i.e., showing that a witness's testimony is not trustworthy based on her criminal record. So, imagine that Dana is charged with murder and Eric is an eyewitness for the prosecution who was convicted of fraud six months ago. If, at the time of Dana's trial, Eric is appealing his fraud conviction (e.g., claiming the jury instructions were flawed), Eric's fraud conviction would still be admissible to impeach him under the federal rule (and the prosecutor could introduce evidence of Eric's pending appeal.
Conversely, under the Texas rule, Eric's fraud conviction would be inadmissible to impeach him due to his pending appeal.
But, the Texas limitation only applies to impeachment. In yesterday's opinion in Pentland v. Pentland, 2020 WL 7703073 (Tex.App. 2020), the Court of Appeals of Texas found that the trial court properly admitted evidence of the appellant's convictions that he was appealing because the evidence was not offered to impeach and was instead offered "to establish the facts around his unavailability to have possession of the children."