Hill, James Edward v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Memorandum Opinion filed October 6, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00479-CR

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JAMES EDWARD HILL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 958,571

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

James Edward Hill appeals a conviction for aggravated robbery[1] on the grounds that: (1) his custodial statement was erroneously admitted into evidence because it was involuntary; (2) the evidence was factually insufficient to prove that he knew a deadly weapon would be used or exhibited during the commission of the offense; and (3) the trial court erred by not allowing him to impeach a State=s witness with eight of her nine prior convictions for prostitution. We affirm.

Admission of Custodial Statement

Appellant=s first point of error argues that his video taped confession was involuntary because the detective=s assertion that elicited it was coercive: Ado you realize you are giving up each of these rights before you make this recording?@[2]

However, this statement is not facially coercive, and appellant=s brief does not explain how or why it was coercive under the circumstances or cite to any evidence from the suppression hearing or otherwise suggesting that it was in any way coercive. Accordingly, appellant=s first point of error fails to demonstrate error in admitting the confession and is overruled.

Factual Sufficiency of Evidence

Appellant=s second point of error contends that the evidence was factually insufficient to prove that he knew a deadly weapon would be used or exhibited during the commission of the offense because, excluding the uncorroborated testimony of an accomplice-witness, the remaining proof of this element was too weak to support the verdict.

Although there must be non-accomplice evidence connecting a defendant to the crime, there need not be such evidence as to every element of the crime. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001). Thus, a deadly weapon finding may be made on the uncorroborated testimony of an accomplice. Id.

In this case, because appellant does not challenge the sufficiency of the accomplice=s testimony to support the deadly weapon finding apart from the lack of corroboration, and because such corroboration is not required, appellant=s second point of error fails to demonstrate that the evidence is factually insufficient. Accordingly, it is overruled.

 Impeachment of State=s Witness

Appellant=s third point of error argues that the trial court erred by excluding the complainant=s eight misdemeanor prostitution convictions because those convictions had substantial impeachment value.

A trial court must admit evidence of a witness=s prior conviction for any felony or crime involving moral turpitude if it determines that the probative value of admitting the evidence for impeachment outweighs its prejudicial effect to a party. Tex. R. Evid. 609(a). However, the proponent of such evidence has the burden of demonstrating that the probative value of a conviction outweighs its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). A trial court has great latitude when deciding whether to exclude or admit evidence of prior convictions and should be reversed on appeal only when a clear abuse of discretion is shown. Id. at 881. As relevant to this case, the factors considered in weighing the probative value of a prior conviction against its prejudicial effect include: (1) the impeachment value of the prior crime; (2) the temporal proximity of the prior crime; (3) the importance of the witness=s testimony to the case as a whole; and (4) the importance of the witness=s credibility. Id. at 880.

In this case, the trial court ruled that the complainant=s 1993 felony conviction for possession of a controlled substance and her 1994 misdemeanor conviction for prostitution were admissible, but not her previous eight misdemeanor prostitution convictions (dating from 1981 to 1993), concluding that those earlier convictions would be Aso cumulative [that] the prejudicial effect would far outweigh the probative value.@ Although appellant=s brief contends that the impeachment value of those convictions is high because they reflect on the complainant=s character, it does not cite authority or explain why multiple convictions for prostitution undermine the complainant=s credibility significantly more than a single such conviction. Nor does appellant=s brief even address why the complainant=s testimony and credibility are important to the case. Under these circumstances, appellant=s third point of error fails to demonstrate that the probative value of the excluded evidence outweighed its prejudicial effect. Accordingly, it is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed October 6, 2005.

Panel consists of Justices Hudson, Edelman, and Seymore.

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

[1] A jury found appellant guilty, and the trial court assessed punishment of forty years confinement.

[2] Appellant=s response to this question was, AYes, sir.@