Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 19th District Court of McLennan County,
Chief Justice Valdez and Justices Longoria and Hinojosa
LETICIA HINOJOSA Justice.
Sylvester Donnell Bryant appeals his conviction for
aggravated assault with a deadly weapon, enhanced to a
first-degree felony due to appellant's prior felony
conviction. See Tex. Penal Code Ann. §§
12.42, 22.02 (West, Westlaw through Ch. 49, 2017 R.S.). A
jury found appellant guilty and assessed punishment of life
imprisonment in the Texas Department of Criminal
Justice-Institutional Division. By one issue, appellant
argues the trial court erred in overruling his objection to
the use of appellant's prior conviction as impeachment
evidence. We affirm.
trial court conducted a hearing outside the presence of the
jury to consider the admissibility of appellant's prior
conviction. Appellant's counsel argued that, in the event
appellant testified, the State should not be able to impeach
appellant with his prior aggravated assault conviction.
Appellant argued that the conviction was inadmissible under
Texas Rule of Evidence 609(b) because more than ten years had
elapsed since the date of conviction. See Tex. R.
Evid. 609(b) (providing for limits on the use of prior
convictions after ten years). The trial court ruled that the
State could introduce the prior conviction to impeach
appellant if he chose to testify. During appellant's
testimony, his counsel preemptively inquired whether
appellant was previously convicted of aggravated assault, and
appellant responded, "Yes, I was." The State did
not thereafter introduce any evidence concerning
appellant's prior conviction.
Standard of Review and Applicable Law
review the trial court's decision to admit or exclude
evidence for an abuse of discretion. Davis v. State,
329 S.W.3d 798, 803 (Tex. Crim. App. 2010); Martinez v.
State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Under
this standard, we do not disturb the trial court's
decision if the ruling was within the zone of reasonable
disagreement. Davis, 329 S.W.3d at 803; Bigon v.
State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). We
will uphold an evidentiary ruling on appeal if it is correct
on any theory of law that finds support in the record.
Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim.
Rule of Evidence 609(a) provides that witness credibility may
be attacked by admitting evidence that the witness was
previously convicted of a felony or crime of moral turpitude
if the trial court determines that the probative value of
admitting the evidence outweighs its prejudicial effect.
See Tex. R. Evid. 609(a); Meadows v. State,
455 S.W.3d 166, 170 (Tex. Crim. App. 2015). Rule 609(b)
limits Rule 609(a) by providing that evidence of a prior
conviction is inadmissible if more than ten years have
elapsed since the date of conviction or release of the
witness from the confinement imposed for that conviction,
whichever is later, "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(b) (emphasis added); see Meadows, 455 S.W.3d at
weighing the probative value of a conviction against its
prejudicial effect, we consider the following nonexclusive
list of factors: (1) the impeachment value of the prior
crime; (2) the temporal proximity of the past crime relative
to the charged offense and the witness's 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. See Leyba v. State, 416 S.W.3d
563, 572 (Tex. App.-Houston [14th Dist.] 2013, pet.
ref'd) (citing Theus v. State, 845 S.W.2d 874,
880 (Tex. Crim. App. 1992)).
not decide here whether the trial court's evidentiary
ruling was an abuse of discretion because appellant has
waived any alleged error. "[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." Ohler v. United
States, 529 U.S. 753, 760 (2000). The waiver principle
announced by the Supreme Court in Ohler has been
adopted by Texas appellate courts, including the Tenth Court
of Appeals.See Roderick v.
State, 494 S.W.3d 868, 881 (Tex. App.-Houston [14th
Dist.] 2016, no pet.) ("By testifying first on direct
examination, appellant waived any error regarding the trial
court's ruling on the admissibility of his prior
conviction."); see also Sargent v. State, No.
10-13-00158-CR, 2014 WL 505350, at *2 (Tex. App.-Waco Feb. 6,
2014, pet. ref'd) (mem. op., not designated for
publication); Thompson v. State, No. 13-00-400-CR,
2001 WL 1002415, at *2 (Tex. App.-Corpus Christi Aug. 31,
2001, no pet.) (mem. op., not designated for publication).
trial court decided, outside the presence of the jury, that
appellant's prior conviction for aggravated assault was
admissible. Appellant then elected to introduce his prior
conviction to the jury himself when he testified on direct
examination. By preemptively introducing evidence of a prior
conviction on direct examination, appellant has waived any
error regarding the trial court's ruling. See
Ohler, 529 U.S. at 760; Roderick, 494 S.W.3d at
881; see also Thompson, ...