Edwin James Kenneth McGee v. The State of Texas--Appeal from 209th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-109-CR

No. 10-93-110-CR

EDWIN JAMES KENNETH McGEE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 209th District Court

Harris County, Texas

Trial Court Nos. 612,068 & 612,069

O P I N I O N

This is an appeal by defendant McGee from his convictions in two separate cases of aggravated sexual assault. The two cases were tried together and he was assessed punishment in each case at 25 years in prison.

Mica Crowder and Shauntel Crowder are sisters and under fourteen years of age. Defendant was the live-in boyfriend of the girls' mother. Defendant was indicted in separate indictments for aggravated sexual assault of the two complainants, each indictment further alleging defendant's prior felony conviction in 1987 for burglary of a habitation.

Each girl testified unequivocally that defendant had sexual intercourse with her in their home. Dr. Micheaux testified that he examined both girls prior to the time they were fourteen years of age and found that each girl had been sexually assaulted or abused.

A jury found the defendant guilty in each case and then found the enhancement paragraph true and assessed his punishment in each case at 25 years confinement in the Institutional Division of the Texas Department of Criminal Justice (to run concurrently).

Defendant appeals on three points of error.

Point one asserts "the trial court erred reversibly in failing to undertake the requisite balancing test of probative value of [defendant's] prior felony conviction versus its prejudicial effect."

Point two asserts "the trial court abused its discretion in ruling [defendant's] prior felony conviction admissible."

Prior to trial defendant filed a motion to testify free of impeachment with prior convictions. The court held a hearing on such motion, at which defendant argued that the prejudicial effect of the prior conviction outweighed any probative value. The trial court denied defendant's motion and ruled that if defendant testified, the State would be allowed to impeach him with his prior felony conviction.

At trial defendant took the stand and denied ever having sexual intercourse with either girl, after which the court permitted the State to introduce evidence of defendant's prior felony conviction for burglary of a habitation (and a prior conviction for theft of which no complaint is made).

Texas Criminal Evidence Rule 609-Impeachment by Evidence of Conviction of Crime provides: "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him 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."

In reviewing the trial court's conduct in balancing the probative value versus the prejudicial effect, a reviewing court must accord the trial court wide discretion, and a ruling permitting use of a prior conviction to impeach will be reversed only upon a showing of clear abuse of discretion. Theus v. State, (Tex. Crim. App. 1992) 845 S.W.2d 874, 881.

Defendant asserts his request for the trial court to conduct the balancing test mandated by Rule 609 was denied. Rule 609 does not mandate that a trial judge enunciate on the record either whether the probative value of a conviction outweighs its prejudicial effect, or the rationale behind such a determination. Theus, 845 S.W.2d 880, n.6. Defendant did not request the trial court to make such findings on the record, nor did he object to the lack of such findings on the record. The record does not indicate that the trial court refused to conduct the balancing test; it reflects only that the trial court did not enunciate its findings on the record. A trial judge implicitly makes findings of fact and conclusions of law when the admissibility of evidence is determined. McFarland v. State, (Tex. Crim. App. 1993) 845 S.W.2d 824, 842. In the absence of affirmative evidence to the contrary, we must presume the trial court conducted the requisite balancing test under Rule 609.

Defendant's prior conviction for burglary was a felony and thus was admissible for impeachment purposes and was properly admitted if its probative value outweighed its prejudicial effect. Theus, supra, lists five non-exclusive factors to be considered in weighing the probative value of a conviction against its prejudicial effect: (1) the impeachment value of the prior crime.

The impeachment value of a crime involving deception is higher than a crime involving violence and the latter has a higher potential for prejudice; (2) the temporal proximity of the past crime and the witness subsequent history. This factor favors admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law; (3) the similarity between the past crime and the offense being prosecuted. If the past crime and the charged offense are similar this factor will militate against admission. The rationale behind this is that the admission for impeachment purposes of a crime similar to the crime charged presents a situation where the jury would convict on the perception of a past pattern of conduct instead of on the facts of the charged offense; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue. Factors 4 and 5 are closely related. When the case involves the testimony by the defendant and the State's witness, the importance of the defendant's credibility escalates as well as the need to allow the State to impeach the defendant's credibility.

Here, as to Factor 1, the impeachment value of the prior crime, burglary, is probably minimal. As to Factor 2, the previous crime, burglary, occurred in March 1987, and the instant offense was committed in September 1991. Defendant's misdemeanor conviction for theft, which the trial court admitted without objection, occurred in February 1991. Factor 2 thus favors the admission as it was only four years old and the defendant, by his 1991 theft conviction, has demonstrated a propensity for running afoul of the law. Factor 3 favors admission as there is no similarity between the offenses of burglary and sexual assault of a child. Factors 4 and 5 favor admission. Defendant testified he did not have sexual intercourse with either girl. Because there were no other witnesses to give direct evidence to defendant's defense, his credibility was a critical issue, thus increasing the State's need to impeach his credibility.

Defendant asserts the admission of the prior felony conviction was harmful, especially since there was no instruction to the jury limiting use of the conviction to an assessment of the credibility of the defendant.

The defendant did not request such an instruction, or object to the charge on this ground, and cannot claim error now for the first time on appeal. Wilson v. State, (Tex. App. Beaumont 1992, pet ref'd) 835 S.W.2d 278, 281.

We think the probative value of defendant's burglary conviction outweighed its prejudicial effect and that the trial judge did not abuse his discretion in admitting same

Points one and two are overruled.

Point three asserts "the trial court erred reversibly in overruling [defendant's] objection to the State's comment on his failure to produce evidence of previous sexual behavior of the complainants since Rule 412 prevented such evidence from being admitted."

The State on final jury argument at the guilt-innocence phase of the trial stated:

"There is no other person who has been alleged as an accused. The only person who has been identified is this defendant. Had it been someone else, they would have been here."

Defendant's counsel objected that the State's argument was improper since the defense could not bring into court other persons who had sexual intercourse with the complainants (because they were under fourteen years of age). The trial court overruled the objection.

To be appropriate, jury argument must fall under one of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of apposing counsel; or (4) a plea for law enforcement. Hightower v. State, (Tex. Crim. App. 1981) 629 S.W.2d 920, 926.

The prosecutor's argument here was proper because it was both a response to argument of opposing counsel and a summation of the evidence. Defendant's attorney stated in his closing argument:

"It's a reasonable inference that -- although someone had sexual intercourse with the children -- and that's all Dr. Micheaux's testimony, really, when you get down to it, proves that somebody had sexual intercourse with these two children. But it does not prove, or even connect Kenneth McGee with it."

In the complained-of argument, the prosecutor merely responded to defendant's attorney's argument by reminding the jury that defendant had been identified by the girls as the perpetrator of the instant offenses. They had accused no other person of these offenses. The prosecutor did not insinuate that defendant could have, but did not, call into court any witness who had sexual intercourse with either of the complainants.

Point three is overruled.

The judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed December 22, 1993

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