Opinion
No. 05-04-01391-CR
Opinion Filed November 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th District Court of Collin County, Collin County, Texas, Trial Court Cause No. 401-81612-02. Affirmed.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
OPINION
Sameer Praveen Sethi appeals his conviction for aggravated assault with a deadly weapon. A jury found him guilty and assessed punishment at four years in prison. He argues that the trial court erred in excluding evidence of the complainant's prior family violence assault. We affirm the trial court's judgment.
Background
The factual background of this case is well known to the parties and will not be repeated at length in this opinion. Appellant was charged with aggravated assault with a deadly weapon, and the indictment accused him of stabbing his ex-wife's fiancé, Raihan Ahmed, in the chest with a knife. Ahmed testified that the trouble started during a July 3, 2002 telephone conversation with appellant, during which appellant told him that he had talked to his ex-wife, Farhana Chowdhury, and that she had told him she did not want to get married. At appellant's invitation, Ahmed and Chowdhury agreed to meet appellant later that night at his house to talk. After he got off work Ahmed drove from Duncanville to Plano to pick up Chowdhury, then drove to appellant's home in Murphy, where there was an altercation involving appellant, Ahmed and two other individuals, Vearsna Sim and Sopheak Sithi. Ahmed testified that after the telephone call with appellant he was "really angry," but that during the long drive to appellant's house he had time to calm down, and that by the time he arrived at appellant's house he was not angry; he just wanted an apology. Outside the presence of the jury, Ahmed testified that on August 3, 2003, he got into an argument with Chowdhury and held her mouth down on the carpet because she was screaming too loudly and he did not want the neighbors to hear. The police were called and Ahmed was arrested. Chowdhury obtained an emergency protective order against Ahmed but later signed an affidavit of non-prosecution, and the Collin County District Attorney's Office did not pursue the case. Appellant's counsel argued that this evidence was admissible to test the credibility of Ahmed's testimony that he had calmed down during the drive to appellant's house. The trial court disagreed, however, sustaining the State's objection under rules 608 and 404(a)(2) of the Texas Rules of Evidence.Discussion
We review a trial court's ruling admitting testimony under an abuse of discretion standard, meaning that we will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App. 2001). As a general rule, when attacking the credibility of witnesses, evidence of prior criminal convictions shall be admitted only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value outweighs its prejudicial effects to a party. Tex. R. Evid. 608(b), 609(a). An exception applies, however, when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Prescott v. State, 744 S.W.2d 128, 131 (Tex.Crim.App. 1988). If a witness "creates a false impression of law abiding behavior, he `opens the door' on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood." Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993). However, courts construe the "false impression" exception narrowly. See James v. State, 102 S.W.3d 162, 181 (Tex.App.-Fort Worth 2003, pet. ref'd). "In order to open the door to use of prior crimes for impeachment, the witness must do more than simply imply that he abides by the law; he must in some way convey the impression that he has never committed a crime." Id. Applying these principles to the facts of this case, we conclude that the "false impression" exception does not apply. Ahmed did not make any sort of general or blanket statement about his past conduct suggesting he had never been arrested, charged or convicted of any offense, or that he had never been in trouble with the law. Ahmed testified on direct that he was very angry with appellant after the telephone conversation, but that during the drive to appellant's house he had time to calm down. By the time he got there he was not angry; he just wanted an apology. The relevant portion of Ahmed's direct testimony is as follows:I was really angry. I mean, who wouldn't be. I really was angry. But, I mean, we had a long drive. I mean, I was in Duncanville to Plano. That's pretty far with the traffic and everything. I had time to calm down. You know, when I went over there I just — basically what I wanted was an apology, but he was just laughing. He wasn't taking anything seriously.This is a very specific statement concerning the facts leading up to the offense. It is not the sort of statement that courts have found to open the door to impeachment. See Prescott, 744 S.W.2d at 132 n. 4. Appellant also argues that the evidence was admissible under rule 404(a)(2). Rule 404(a) provides that evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same; (2) or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. Tex. R. Evid. 404(a)(2). Appellant argues that the 2003 incident involving Chowdhury was admissible under rule 404(a)(2) because it was "evidence of character for violence of [Ahmed] offered on the issue of self-defense by a party accused of the assaultive conduct." Rule 405, however, provides that evidence of a person's character or character trait may be offered only through testimony about the person's general reputation or the testifying witness's opinion of the person. Tex. R. Evid. 405(a); Martinez v. State, 17 S.W.3d 677, 687 (Tex.Crim.App. 2000); Tate v. State, 981 S.W.2d 189, 192 n. 5 (Tex.Crim.App. 1998). Appellant did not attempt to introduce opinion or reputation testimony about Ahmed's character. Rule 405(b) also permits evidence of specific acts as character evidence when the "person's character or character trait is an essential element of a charge, claim or defense." Tex. R. Evid. 405(b). However, to the extent appellant is claiming that the evidence should have been admitted under rule 405(b), he is mistaken. A victim's character is not an essential element of a claim of self-defense. Tate, 981 S.W.2d at 192 n. 5. We therefore agree with the State that the trial court did not abuse its discretion when it ruled that evidence of the 2003 incident was not admissible under rules 608(b) and 404(a)(2). Appellant's sole issue is overruled, and the judgment of the trial court is affirmed.