WILL EDWARD GREEN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 8, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01407-CR
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WILL EDWARD GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F88-85125-UH
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O P I N I O N
Before Justices Howell, Baker and Burnett
Opinion By Justice Burnett
        Will Edward Green appeals his conviction for the offense of unlawful possession with intent to deliver a controlled substance, to-wit: cocaine. A jury found appellant guilty of the offense, and the trial court assessed punishment at 18 years' confinement. In four points of error, appellant contends that the trial court erred in overruling 1) appellant's motion to suppress evidence, and in overruling his objections to 2) the introduction of certain evidence that should have been suppressed, 3) the prosecution's impeachment of appellant with prior convictions that were too remote, and 4) allowing a witness to refresh his memory from the search warrant affidavit. We disagree and affirm the judgment of the trial court.
        The record shows that, on July 13, 1988, Dallas Police Officer Bishop Spencer, acting on an informant's tip, went to an apartment building located at 1809 Grand Avenue. He entered the building and encountered a black male in the second-floor hallway outside of apartment 207. The man was wearing a straw hat, sweat pants, tennis shoes and a white shirt. As Officer Spencer walked by, the man asked him if he wanted powder, and Officer Spencer replied that he did. The man then entered apartment 207, and came out holding several clear capsules containing a white powdery substance that was later determined to be cocaine. The man sold one capsule to Officer Spencer for $4.00.
        Officer Spencer obtained a search warrant for apartment 207. When officers arrived at the apartment the next day to execute the warrant, appellant was present, along with another man. Appellant was wearing a straw hat and sweat pants. While being taken into custody, appellant's hat fell to the floor and a plastic baggie was recovered from inside the hat. The baggie contained a substance that was later determined to be crack cocaine.
        At the beginning of the trial, appellant moved to suppress the search warrant. After a hearing, appellant objected to the sufficiency of the search warrant affidavit on the sole ground that it contained only conclusory evidence. The court denied the motion.
        In his first point of error, appellant contends that the trial court erred in overruling his motion to suppress evidence. Appellant claims that the search warrant affidavit was conclusory, and failed to meet the standard for probable cause required by the 4th and 14th Amendments to the United States Constitution and by the Texas Constitution. More specifically, appellant contends that the affidavit contains no evidence to connect him with the premises sought to be searched. He claims that, because Officer Spencer did not go into the apartment with him, the Officer could not testify about what appellant did in the apartment. Appellant further claims that the affidavit did not contain facts that would justify the conclusion that the personal property that was the object of the search would probably be on the premises to be searched at the time the warrant issued.
        Officer Spencer's affidavit states that at apartment residence 207, located at 1809 Grand, there is personal property concealed and kept in violation of the laws of Texas: cocaine. He further states that the suspected premises are in the charge of and controlled by an unknown black male, whom he describes. Officer Spencer further states that the basis for his belief is a tip from a reliable confidential informant, and his receipt the previous day of cocaine from the described individual at the premises. The reviewing court must determine from the totality of the circumstances whether the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462, U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Officer Spencer clearly states the underlying facts forming the basis for his belief that cocaine would be found in apartment 207. The affidavit is not conclusory, and, at the time the warrant issued, a substantial basis existed for the conclusion that probable cause existed. We overrule appellant's first point of error.
        In his second point of error, appellant contends that the trial court erred in overruling his objection to the introduction of certain of the State's exhibits that should have been suppressed. Appellant objected to the introduction of the State's Exhibits 3 through 11 "...on the grounds we urged at the previous hearing." The objection was overruled.
        The error presented on appeal must correspond to the objection raised in the trial court. Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Otherwise, no error is preserved. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982). The sole ground urged at the hearing was that the search warrant affidavit was conclusory. Because we have found that it was not conclusory, we find that the exhibits are admissible. We overrule appellant's second point of error.
        In his third point of error, appellant contends that the trial court erred in overruling his objection to the prosecution's impeachment of appellant with prior convictions that were too remote. During the guilt/innocence phase of appellant's trial, he testified on his own behalf. During cross-examination, appellant objected to the prosecution's attempt to impeach him with his prior convictions on the basis that they were too remote and therefore inadmissible under Rule 609 of the Texas Rules of Criminal Evidence. After a hearing, the trial court overruled the objection.
        Rule 609(a) of the Texas Rules of Criminal Evidence states that, for the purpose of attacking the credibility of a witness, evidence that he has been convicted of a felony or a crime involving moral turpitude shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a party. Rule 609(b) states that evidence of such a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, 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. The record shows that appellant was convicted of robbery and felony theft, and was sentenced for the offenses on December 8, 1971. He was released from prison on parole in 1976, twelve years before the trial for this offense. He was on parole until 1981.
        Although convictions that are more than ten years old are generally inadmissible for purposes of impeachment, a trial court is permitted to admit such convictions if it determines that their probative value substantially outweighs their prejudicial effect. TEX. R. CRIM. EVID. 609(b); Allen v. State, 740 S.W 2d 81, 82 (Tex. App.--Dallas 1987, pet. ref'd). The record shows that appellant was released from prison twelve years before his trial for this offense. The offenses for which he had been convicted and imprisoned were serious. The record further shows that appellant had been on parole within the ten years preceding the trial. Appellant's convictions were not so remote as to preclude their admission under any circumstances. The implied finding by the trial court that the probative value substantially outweighed the prejudicial effect is supported by the record. The record does not show that the trial court abused its discretion in allowing the evidence of appellant's convictions to impeach his credibility. We overrule appellant's third point of error.
        In his fourth point of error, appellant contends that the trial court erred in overruling his objection to allowing a witness to refresh his memory from the search warrant affidavit. During the guilt/innocence phase of appellant's trial, the State called Officer Spencer as a rebuttal witness, and provided him with a copy of the affidavit that he had made in order to obtain the search warrant. The State asked Officer Spencer to refresh his memory with the affidavit. Appellant objected on the grounds that the State was attempting to bolster its witness. The State contended that the witness had been impeached by appellant. The trial court overruled the objection.
        Appellant contends that Officer Spencer had not been impeached, and it was therefore improper for the State to bolster its witness. However, during appellant's cross-examination of Officer Spencer, appellant pointed out that the Officer's description of appellant in his affidavit differed from the description contained in the arrest report. The trial court stated that the rebuttal testimony would be allowed because appellant had put into issue the appellant's description.
        The State introduced Officer Spencer's testimony as rebuttal testimony. It is proper on rebuttal for the State to introduce any evidence which refutes the defensive theory of the defendant. Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977). We overrule appellant's fourth point of error.        
        The trial court's judgment is affirmed.
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881407F.U05
 
 
File Date[12-08-89]
File Name[881407F]