Opinion
No. 10-05-00040-CR
Opinion delivered and filed November 16, 2005. DO NOT PUBLISH.
Appeal fromthe 40th District Court, Ellis County, Texas, Trial Court No. 2814CR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice Vance concurring with note).
"(Justice Vance concurs with a note: Although I find it difficult to reconcile the analysis of Jackson's second issue with our decision in Moore v. State, 143 S.W.3d 305 (Tex.App.-Waco 2004, pet. ref'd), I concur in the judgment)."
MEMORANDUM OPINION
Jackson appeals his conviction for robbery. See Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). We affirm. Motion for Advance Payment of Investigator. In Jackson's first issue, he contends that the trial court erred in overruling Jackson's motions for advance payment of an investigator. The only provision for payment of investigation expenses in advance of their being incurred in the Texas Code of Criminal Procedure provides:
(f) Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state:(1) the type of investigation to be conducted;
(2) specific facts that suggest the investigation will result in admissible evidence; and
(3) an itemized list of anticipated expenses for each investigation.
(g) The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable.TEX. CODE CRIM. PROC. ANN. art. 26.052 (Vernon Supp. 2005); see id. art. 26.05(d) (Vernon Supp. 2005) (making art. 26.052(f)-(g) applicable in noncapital cases). "[T]he trial court should have discretion whether to allow" expenses for investigation, and "the trial court's denial thereof should not be reversed in the absence of a showing of an abuse of such discretion." Strange v. State, 616 S.W.2d 951, 952 (Tex.App.-Houston [14th Dist.] 1981, no pet.); see Myre v. State, 545 S.W.2d 820, 826 (Tex.Crim.App. 1977), disavowed in part on other grounds, Rabbani v. State, 847 S.W.2d 555, 560 n. 9 (Tex.Crim.App. 1992) ("It is within the discretion of the trial court whether or not to provide compensation for expenses incurred for purposes of investigation."). Jackson's motion failed to comply with the statute. The motion stated at most only general facts suggesting that the investigation would result in admissible evidence, namely that "several witnesses . . . participated and/or observed the alleged robbery"; and the motion does not state the type of investigation to be conducted nor include a list of investigation expenses. Accordingly, the trial court did not abuse its discretion in denying the motion. We overrule Jackson's first issue. Impeachment. In Jackson's second issue, he contends that the trial court erred in overruling Jackson's pretrial motion to testify free from impeachment by prior convictions. See TEX. R. EVID. 609(a)-(b); Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992). The trial court overruled Jackson's motion as to remote convictions, for which the date of conviction or release from confinement apparently occurred more than ten years before trial, for felony theft, aggravated assault on a peace officer, and unauthorized use of a motor vehicle; and as to recent convictions for burglary of a habitation and unauthorized use of a motor vehicle, for which the date of release from confinement occurred less than ten years before trial. Jackson did not testify, and evidence of Jackson's convictions was not offered. We assume without deciding that Jackson preserved his complaint. See TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11 (Tex.Crim.App. 2003). The Texas Rules of Evidence provide:
(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 specific facts and circumstances substantially outweighs its prejudicial effect.TEX. R. EVID. 609. "A non-exclusive list" of factors to be considered in weighing the probative value of a conviction against its prejudicial effect . . . includes (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880 (internal footnote omitted). "In reviewing the trial court's conduct in weighing these factors and decision in admitting into evidence a prior conviction, we must accord the trial court `wide discretion.'" Id. at 881 (quoting United States v. Oaxaca, 569 F.2d 518, 526 (9th Cir. 1978)). The impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice. Therefore, when a party seeks to impeach a party with evidence of a crime that relates more to deception than not, the first factor weighs in favor of admission. Id. (internal citation omitted). Theft, unauthorized use of a motor vehicle, and burglary are crimes of deception, so the first factor weighs in favor of admission of the convictions for those offenses. Assault is a crime of violence, so the first factor weighs against admission of the conviction for assault. Temporal proximity "will favor admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law." Id. Jackson's convictions ranged from a date of conviction twenty-five years before trial to a date of release from confinement the year of trial. Temporal proximity thus weighs in favor of admission. "If . . . the past crime and the charged crime are similar," similarity "will militate against admission." Id. The charged offense, robbery, is similar to the past crimes of theft and assault. Similarity thus weighs against admission of those offenses. "When the case involves the testimony of only the defendant and the State's witnesses, . . . the importance of the defendant's credibility and testimony elevates. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility." Id. Jackson did not testify and presented no evidence at the guilt phase of trial. The trial court did not abuse its discretion in determining that the probative value of the convictions outweighed, or substantially outweighed, their prejudicial effect. Moreover, the record does not establish harm. Any "error, defect, irregularity, or variance" other than constitutional error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). "A substantial right is affected `when the error has a substantial and injurious effect or influence in determining the jury's verdict.'" Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App. 2005) (quoting Russell v. State, 155 S.W.3d 176, 179 (Tex.Crim.App. 2005)); accord King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In evaluating harm, "the appellate court should consider everything in the record." Rich at 577; accord Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002). Jackson argues that the trial court's ruling compelled him not to testify. The record, however, does not show the reason for Jackson's failure to testify. Furthermore, the record includes eyewitness testimony and a video recording of the offense. We overrule Jackson's second issue. Motion for Continuance. In Jackson's third issue, he contends that the trial court erred in overruling Jackson's motion for continuance. See TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 1989). "The only means of preserving error in the overruling of a motion for continuance due to an absent witness is a motion for new trial." Taylor v. State, 612 S.W.2d 566, 569 (Tex.Crim.App. [Panel Op.] 1981); accord Benoit v. State, 561 S.W.2d 810, 817 (Tex.Crim.App. 1977); see TEX. R. APP. P. 21.2, 33.1(a); see generally 42 George E. Dix Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 28.56, at 532-33 (2d ed. 2001). Jackson failed to file a motion for new trial. Jackson thus forfeited his issue. We overrule Jackson's third issue. Having overruled Jackson's issues, we affirm.