Ernest Leyba v. State

416 S.W.3d 563, 2013 WL 4070770, 2013 Tex. App. LEXIS 10067
Court of Appeals of Texas·Decided August 13, 2013·No. 14-12-00388-CR·Published·Cited by 41 cases

Opinions

OPINION

JEFFREY V. BROWN, Justice.

Appellant Ernest Leyba was convicted of first-degree murder and sentenced to a term of life imprisonment. On appeal, our review is limited to deciding whether the trial court abused its discretion by admitting evidence of Leyba’s prior convictions. We affirm.

I"

Leyba was charged with the stabbing death of Brandon Tate. Because Leyba admitted to the stabbing in the proceedings below, the only issue for the trier of fact was whether he had acted in self-defense.

The prosecution’s theory of the case was that Leyba killed Tate in the midst of a drug transaction. On the night of Tate’s death, Leyba called Mikelis Jackson, his drug dealer, to arrange a large purchase of crack cocaine. Jackson agreed to the transaction over the phone, then drove to Leyba’s hotel to finalize the deal. Tate accompanied Jackson for the ride.

Once they arrived at the hotel, Jackson and Tate remained in.their vehicle, expecting to meet Leyba in the parking lot. Leyba came around the back of the car and “thumped” on the passenger side. Jackson instructed Leyba to climb into the backseat, but Leyba opened the front passenger door instead. ■ Then, without provocation, Leyba stabbed Tate in his chest and leg. According,to Jackson, Leyba also demanded that Jackson “break” himself, meaning that he needed to empty his pockets and surrender everything he had.

Ley b a’s version of the events differed significantly. After taking the stand in his own defense, Leyba testified that Jackson called him and made threatening statements regarding a debt. Leyba agreed to pay Jackson his money, and offered to [566] meet Jackson outside his hotel room. Leyba testified that he presented the money to Tate on the passenger side of the car, anticipating that Tate would then tender it to Jackson. Tate declined to handle the money, however, so Leyba extended his arm farther inside the vehicle to deliver the money to Jackson directly. According to Leyba, Jackson then pulled him into the car and Tate held him down. Leyba testified that he somehow wrestled himself free, retrieved his knife, and stabbed Tate in the chest. He claimed the stabbing was necessary because Jackson had a gun and he feared for his life. Jackson denied having a gun though, and no firearm was ever recovered from the scene.

II

A

In his first issue, Leyba argues that the trial court abused its discretion by allowing the State to impeach him with evidence of his prior convictions. The State elicited testimony concerning a number of extraneous offenses, including a 2008 conviction for assault, a 2005 conviction for burglary, a 1996 conviction for driving under the influence, a 1994 conviction for illegal possession of a weapon, and two 1988 convictions for armed robbery and illegal possession of a weapon. The State also questioned Leyba about two other convictions, one in 2005 for battery and the other in 1997 for resisting arrest, but Leyba denied these convictions and no judgments of conviction were ever introduced.

The admissibility of a prior conviction is determined by Rule 609 of the Texas Rules of Evidence. The pertinent text from this rule provides:

(a) General Rule. 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.
(b) Time Limit. 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 the specific facts and circumstances substantially outweighs its prejudicial effect.

Tex.R. Evid. 609.

The time limit described in subdivision (b) represents a substantive departure from former article 38.29 of the Texas Code of Criminal Procedure, the statutory predecessor to Rule 609. See Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim. App.1993) (stating that article 38.29 is the predecessor to Rule 609). The Legislature repealed Article 38.29 effective September 1, 1986, when the rules of evidence, including Rule 609, first went into effect in criminal cases. Under Article 38.29, evidence that a witness had been charged with a criminal offense could not be used to impeach that witness unless a final conviction had resulted, or a suspended sentence had been given and had not been set aside, or the witness had been placed on probation and the period of probation had not expired.1 Unlike Rule 609, Article 38.29 con[567] tained no express prohibition on convictions that were too remote.

Where the statute was silent, however, common-law rulings filled in. In cases decided before the adoption of the rules of evidence, the Court of Criminal Appeals held that a witness’s credibility could be attacked with a prior conviction if the prior conviction was for a felony or a crime involving moral turpitude that was not “too remote.” McClendon v. State, 509 S.W.2d 851, 855-57 (Tex.Crim.App.1974) (op. on reh’g); Crisp v. State, 470 S.W.2d 58, 59-60 (Tex.Crim.App.1971). The Court of Criminal Appeals recognized that trial courts exercised great discretion when admitting evidence of prior convictions, and courts based their decisions on whether a conviction was too remote on the facts and circumstances of each case. See McClendon, 509 S.W.2d at 855-56; Crisp, 470 S.W.2d at 59.

Though it was not a hard and fast rule, courts generally determined that prior convictions were too remote if more than ten years had elapsed between the date of the witness’s testimony and the later of the date the witness was convicted or the date the witness was released from any confinement imposed for that conviction. See McClendon, 509 S.W.2d at 855-57; Penix v. State, 488 S.W.2d 86, 88 (Tex.Crim.App.1972); Crisp, 470 S.W.2d at 59-60. By following this guideline, courts acknowledged the idea that a witness is generally capable of reforming his character over a period of law-abiding conduct. But the guideline had one important exception: if there was evidence that the witness had failed to reform his character — for instance, by committing a subsequent felony or crime involving moral turpitude — then the taint of remoteness was destroyed and the witness could be impeached with evidence of the prior conviction. See McClendon, 509 S.W.2d at 855 (“[E]vi-dence of lack of reformation or subsequent conviction of another felony or misdemean- or involving moral turpitude causes the prior conviction not to be subject to the objection of remoteness.”); Crisp, 470 S.W.2d at 59.

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Ernest Leyba v. State, 416 S.W.3d 563, 2013 WL 4070770, 2013 Tex. App. LEXIS 10067 (Tex. Ct. App. 2013).

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