In analyzing the applicability of this exception, we consider the witness's statement in relation to the question asked, examine how broadly the question could be interpreted, and analyze the relationship between the question asked and the major substantive issues in the trial. Grant v. State, 247 S.W.3d 360, 368 (Tex.App.-Austin 2008, pet. ref'd); Paita v. State, 125 S.W.3d 708, 712 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (noting that courts also consider whether the witness's answer was responsive to the question asked). If a witness voluntarily or nonresponsively testifies concerning extraneous matters, the opposing side may correct a false impression presented by the answer.
In analyzing the applicability of this exception, we consider the witness's statement in relation to the question asked, examine how broadly the question could be interpreted, and analyze the relationship between the question asked and the major substantive issues in the trial. Grant v. State, 247 S.W.3d 360, 368 (Tex.App.-Austin 2008, pet. ref'd) ; Paita v. State, 125 S.W.3d 708, 712 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (noting that courts also consider whether the witness's answer was responsive to the question asked). If a witness voluntarily or nonresponsively testifies concerning extraneous matters, the opposing side may correct a false impression presented by the answer.
Hardeman v. State, 868 S.W.2d 404, 405 (Tex.App.-Austin 1993, pet. dism'd) (internal quotation marks and citation omitted). Examples of crimes that are not considered crimes of moral turpitude include driving while intoxicated, Shipman v. State, 604 S.W.2d 182, 184 (Tex.Crim.App. 1980), gambling, Miller v. State, 67 Tex.Crim. 654, 150 S.W. 635, 636-37 (Tex.Crim.App. 1912), drug trafficking, Denman v. State, 193 S.W.3d 129, 136 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd), and interference with public duties, Paita v. State, 125 S.W.3d 708, 713 n. 1 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). In identifying non-violent crimes that constitute moral turpitude, courts have typically focused on whether the crime involved deception, as past deceptive conduct is relevant to a witness's credibility.
That these statements were repeated several times demonstrates appellant did not inadvertently make the statements. See Paita v. State, 125 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Though denying the commission of one crime does not generally allow admission of evidence a different crime, see Theus, 845 S.W.2d at 879 (testimony that appellant was not involved with drugs did not open door to prior arson conviction), we think that, here, the trial court could have reasonably concluded that appellant's statements, considered in context, left the jury with a false impression that appellant had never committed a crime involving taking another's property.
By his volunteered assertions of his law-abiding behavior, appellant opened the door to the later cross-examination regarding his three misdemeanor convictions for failure to comply with his duties to stop and provide the required information after colliding with and damaging an unattended vehicle. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993) (noting when a witness creates a false impression of law abiding behavior, he opens the door on his otherwise irrelevant past criminal history); see also Daggett v. State, 187 S.W.3d 444, 452 (Tex.Crim.App. 2005) (blanket statement of good conduct like "I would never have sex with a minor" opens the door to proof of relevant act); see Wheeler, 67 S.W.3d at 885 (defendant presented picture he was not the type of person to commit the charged offense, allowing cross-examination on similar extraneous offenses); Paita v. State, 125 S.W.3d 708, 713 (Tex.App.—Houston [1st Dist.] 2003, pet. ref'd) (defendant's self-serving remarks about respect for police placed his attitude toward public servants into issue and were thus properly subject to impeachment). The State's cross-examination continued:
Absent evidence to the contrary, a jury is presumed to follow the instructions set forth in the court's charge. Paita v. State, 125 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996)). Haro does not challenge the sufficiency of the evidence supporting his convictions.
Absent evidence to the contrary, a jury is presumed to follow the instructions set forth in the court's charge. Paita v. State, 125 S.W.3d 708, 715 (Tex. App.— Houston [1st Dist] 2003, pet. ref'd) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Haro does not challenge the sufficiency of the evidence supporting his convictions.
Although the trial court sustained appellant's objections, we hold that the State's argument that the jury could consider appellant's prior convictions in assessing his credibility was permissible argument. See Paita v. State, 125 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (finding that "State's closing argument concerned the credibility of appellant's testimony in light of his previous conviction" and was "proper as a reasonable deduction" from evidence); Caballero v. State, 881 S.W.2d 745, 750 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (finding State's argument emphasizing that jury could consider defendant's prior conviction in assessing credibility of his testimony was proper). Here, in its closing argument, the State did not ask the jurors to consider appellant's prior convictions in determining his guilt.
However, once the door was opened to appellant's prior convictions by his counsel, the State was entitled to develop testimony to fully explain these convictions, even if such evidence might ordinarily have been inadmissible. See King v. State, 773 S.W.2d 302, 303 (Tex.Crim.App. 1989); Paita v. State, 125 S.W.3d 708, 713 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Counsel is not ineffective for failing to make objections that have no legal basis.
Nonetheless, it is not the province of this Court when conducting a factual sufficiency review to substitute its assessment of witness credibility for the jury's assessment. See, e.g., Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Paita v. State, 125 S.W.3d 708, 716-17 (Tex.App.-Houston [1st Dist] 2003, pet. ref'd); Crutcher v. State, 969 S.W.2d 543, 545 (Tex.App.-Texarkana 1998, pet. ref'd). Instead, we are to consider all the evidence and weigh the evidence supporting the jury's verdict against the contrary evidence.