Porter, Floyd Matthew v. The State of Texas--Appeal from 155th District Court of Austin County

Affirmed and Memorandum Opinion filed November 25, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01109-CR

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FLOYD MATTHEW PORTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2001R-0108

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M E M O R A N D U M O P I N I O N

Appellant Floyd Matthew Porter appeals his conviction for unlawful possession of a firearm by a felon. In a single issue, appellant contends the trial court erred in admitting evidence of two misdemeanor convictions for impeachment purposes during the guilt/innocence phase of trial. We affirm.

I. Procedural and Factual Background

Austin County Sheriff s Department Investigator Charles Holmes responded to a domestic disturbance at a residence on or about September 21, 2001. When he arrived, Officer Holmes saw appellant s wife, April Porter, crying, and observed bleeding from her mouth and bruises on her hand and forehead. Appellant was arrested for the incident. After receiving information about a possible firearm on the premises, Officer Holmes obtained permission from appellant s wife to search the residence and found a gun case containing a .22-rifle in the bedroom. At trial, appellant denied living at the residence or possessing the rifle on that day.

Appellant was charged by indictment with the offense of possession of a firearm before the fifth anniversary of his release from confinement following conviction of a felony. See Tex. Pen. Code Ann. 46.04(a)(1) (Vernon Supp. 2002). In June 1999, appellant pled guilty to the offense of retaliation and was sentenced to two years confinement. He was released on parole in December 2000, and discharged in July 2001, just over two months before his arrest for possession of the rifle. A jury found appellant guilty of unlawful possession of a firearm by a felon and the trial court assessed punishment at seven years confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issue Presented

  In his single issue, appellant contends the trial court erred by allowing evidence of two misdemeanor convictions for impeachment purposes during the guilt/innocence phase of trial. Specifically, appellant argues the offenses convictions for driving while intoxicated and criminal trespass in 1994 and 1995, respectively were inadmissible because neither crime was a felony nor involved moral turpitude. See Tex. R. Evid. 609(a).

III. Analysis and Discussion

Once a defendant testifies, he places his credibility at issue and may thereafter be impeached like any other testifying witness. Dale v. State, 90 S.W.3d 826, 829 (Tex. App. San Antonio 2002, pet. ref d). Texas Rule of Evidence 609(a) provides that, for the purpose of attacking the credibility of a witness, evidence that a person was convicted of a crime shall be admissible if the prior conviction was a felony or a misdemeanor involving moral turpitude and the court determines the probative value of admitting the prior conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). The State concedes that the trial court erred in admitting appellant s two prior misdemeanor convictions. Therefore, this court will proceed to a determination of whether the error was harmless.

To determine whether the erroneous admission of evidence amounts to reversible error, we look to Texas Rule of Appellate Procedure 44.2, governing reversible error in criminal cases. See Tex. R. App. P. 44.2. In this analysis, we must first determine whether the error is constitutional. See Tex. R. App. P. 44.2(a). A constitutional error within the meaning of Texas Rule of Appellate Procedure 44.2(a) is an error that directly offends the United States Constitution or the Texas Constitution, without regard to any statute or rule that might also apply. See Fox v. State, 115 S.W.3d 550, 563 (Tex. App. Houston [14th Dist.] 2002, pet. ref d). With respect to the erroneous admission or exclusion of evidence, constitutional error is present only if the correct ruling was constitutionally required; a misapplication of the rules of evidence is not constitutional error. Id. In this case, the parties agree that the trial court misapplied Texas Rule of Evidence 609 when it admitted appellant s two prior misdemeanor convictions. In addition, excluding this evidence was not directly required by either the Texas Constitution or the United States Constitution. See Lopez v. State, 990 S.W.2d 770, 777 (Tex. App. Austin 1999, no pet.) (stating that trial court s error in admitting prior convictions under Rule 609 is non-constitutional error). Because the error was not a constitutional one, we analyze harm under Texas Rule of Appellate Procedure 44.2(b).

Appellant does not indicate how he was harmed by the admission of the two prior misdemeanor convictions. However, neither appellant nor the State bears the burden of demonstrating whether appellant was harmed by the trial court s error. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Rather, it is this court s responsibility to assess, from the context of the error, whether the judgment requires reversal because the error affected appellant s substantial rights. See id.; Tex. R. App. P. 44.2(b). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury s verdict. Johnson, 43 S.W.3d at 3 4. In assessing the likelihood that the error adversely affected the jury s decision, we consider everything in the record, including all testimony and evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, the character of the error, and how the error might have been considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We may also consider the jury instructions, the State s theory of the case, any defensive theories, closing arguments, and voir dire. Id. at 355 56. Whether the State emphasized the error can also be a factor. Id. at 356. In addition, the presence of overwhelming evidence of guilt may be considered. Id. at 357.

In this case, the jury heard testimony from the officer who discovered the rifle, appellant s wife, appellant s parole officer, and appellant himself. The State s theory of the case focused on the fact that appellant resided at the residence and possessed the firearm. The testimony from the witnesses and the evidence admitted for the jury s consideration rested largely on these two disputed facts. Appellant s wife testified that the rifle belonged to appellant and that she had seen him fire the weapon. She also testified that she and appellant lived together at the residence. After viewing photographs taken at the scene, appellant s wife stated that several articles found in the same room where the firearm was recovered belonged to appellant. In addition, appellant admitted to having referred to the residence as my home in a statement to the officer and stated during his testimony that he paid the rent. All of this evidence supports the jury s verdict.

The offense with which appellant was charged requires a showing that appellant was a felon. See Tex. Pen. Code Ann. 46.04(a)(1). In addition to admitting on direct examination that he was a convicted felon, appellant confirmed on cross examination that he previously had been convicted of theft, burglary, and retaliation. Appellant does not complain that the trial court erred in admitting evidence of these prior convictions. Notably, the burglary and retaliation convictions are more recent than the two misdemeanors (for driving while intoxicated and criminal trespass) that are the subject of this appeal. It is unlikely that the jury would have placed greater weight, if any at all, on two misdemeanor convictions when presented with at least two more serious and more recent felony convictions, one of which was the underlying felony used to prove the offense. See King v. State, 953 S.W.2d 266, 273 (Tex. Crim. App. 1997) (holding error harmless with regard to admission of appellant s fighting and traffic violations as well as marijuana and amphetamine use in pen packet when evidence paled in comparison to properly admitted evidence of theft, burglary, and cocaine use).

Additionally, the State did not emphasize appellant s convictions for the two misdemeanors. Unlike its questioning about the felonies, the State did not inquire about the misdemeanors beyond appellant s acknowledgment that he had been convicted of the offenses and the years in which he was convicted. Moreover, the State did not mention the two misdemeanors during voir dire. During jury argument, the State referred to appellant as a convict and implored the jury to think about the other things he talked about doing in the past in relation to appellant s character for truthfulness. However, the State did not specifically point to the two misdemeanors nor ask the jury to specifically consider them. There was no documentation of the misdemeanor convictions before the jury; the only written evidence of appellant s convictions were the judgment for the felony offense of retaliation and the judgment revoking probation in connection with appellant s theft conviction. Because appellant s criminal history also included convictions for at least three felonies, there is no reason to conclude that the jury placed any measurable significance on these two misdemeanors.

Finally, when reviewing how the error might have been considered in connection with other evidence, the jury s written questions during deliberation are instructive. The questions went to testimony about the residence where the firearm was found and the police report, presumably referring to the one made when the officer arrived at the residence. The jury did not request any information pertaining to the two prior misdemeanor convictions.

For all of these reasons, it is unlikely that the trial court s erroneous admission of the two misdemeanor convictions adversely affected the jury s decision-making process or resulted in a substantial and injurious effect or influence in determining its verdict. Therefore, we find the error harmless.

IV. Conclusion

Having concluded from a thorough review of the record that the trial court s error in admitting evidence of appellant s two prior misdemeanor convictions was harmless, we overrule appellant s sole issue for review.

The judgment of the trial court is affirmed.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed November 25, 2003.

Panel consists of Justices Yates, Fowler, and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).