Dustin Lee Miller v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 31, 2025
• Docket: 10-24-00171-CR
• Status: Published

Opinion

Court of Appeals Tenth Appellate District of Texas

10-24-00171-CR

Dustin Lee Miller, Appellant

v.

The State of Texas, Appellee

On appeal from the 82nd District Court of Robertson County, Texas Judge Bryan F. Russ, Jr., presiding Trial Court Cause No. 21-04-21347-CR

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Dustin Lee Miller appeals from his conviction for injury to a child. After

finding him guilty, the jury assessed punishment at five years of confinement

in the Texas Department of Criminal Justice but suspended the sentence and

placed him on community supervision for five years. In his sole issue, Miller

asserts the trial court erred in allowing evidence of a twenty-four-year-old

misdemeanor conviction. We affirm, as modified. BACKGROUND

Prior to the beginning of the trial, the State filed its Notice of Intent to

Introduce Extraneous Conduct. Among the extraneous conduct listed, is a

2000 conviction for the misdemeanor offense of making a false report to a police

officer. Just before Miller took the stand to testify, the State explained that,

although the convictions were more than ten years old, the State wanted to use

them for “impeachment on credibility,” “especially the false report where he

was lying to a police officer.” Miller objected that the conviction was too

remote, not probative, and highly prejudicial. The trial court overruled Miller’s

objection and said it would allow the State to present evidence of that

conviction.

However, the State did not present evidence of that conviction or

mention it before the jury. When Miller was testifying on direct, his counsel

asked: “Now, Mr. Miller, you were arrested in 2000 on a charge of making a

false statement to the police; is that right?” Miller responded affirmatively and

assured the jury he was telling the truth now.

EXTRANEOUS OFFENSE EVIDENCE

In his sole issue, Miller contends the trial court abused its discretion by

ruling that a twenty-four-year-old misdemeanor conviction for making a false

statement to a police officer could be used to impeach his character.

Miller v. State Page 2 The admissibility of prior convictions for witness impeachment purposes

is governed by Rule of Evidence 609. See TEX. R. EVID. 609. Evidence of a

prior criminal conviction is inadmissible if more than ten years has elapsed

since the later of the date of conviction or release of the witness from the

confinement imposed for that conviction unless the court determines that the

probative value of the conviction supported by specific facts and circumstances

substantially outweighs its prejudicial effect. Id. A trial court’s ruling on

admissibility of evidence pursuant to Rule 609 is reviewed for abuse of

discretion. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992) (en

banc).

Although the State filed a notice of intent to use Miller’s prior

convictions, and the trial court ruled that one of the convictions is admissible,

the State never attempted to present evidence of the conviction. In presenting

his defense, Miller stated on direct that he had been arrested in 2000 on a

charge of making a false statement to the police in an apparent attempt to

control its negative effect before the jury. A defendant who preemptively

introduces evidence of a prior conviction on direct examination may not on

appeal claim that the admission of such evidence was error. See Roderick v.

State, 494 S.W.3d 868, 881 (Tex. App—Houston [14th Dist.] 2016, no pet.). By

testifying about his arrest first on direct examination, Miller waived any error

Miller v. State Page 3 regarding the trial court’s ruling on the admissibility of his prior conviction.

See id. We overrule Miller’s sole issue.

This Court has the power to correct and reform a trial court’s judgment

to make the record speak the truth when we have the necessary information

to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.

Crim. App. 1993) (en banc). In open court, Miller entered a plea of not guilty.

Yet, the judgment indicates that he pled guilty. We modify the judgment to

reflect a plea of not guilty.

As modified, we affirm the trial court’s judgment.

STEVE SMITH Justice

OPINION DELIVERED and FILED: July 31, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do not publish CR25

Miller v. State Page 4