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. 05-88-01408-CR
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WILL EDWARD GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from Criminal District Court
Dallas County, Texas
Trial Court Cause No. F88-84723-JH
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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 delivery of 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 two points of error, appellant contends that the trial court erred in overruling his objections to 1) the prosecution's impeachment of appellant with prior convictions that were too remote, and 2) 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.
In his first 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 conducting 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 circumstance. 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 first point of error.
        In his second 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 had 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 appellant's description.
The State introduced Officer Spencer's testimony as rebuttal testimony to refute appellant's theory of mistaken identity. 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 second point of error.         The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881408F.U05
 
 
 
 
 
File Date[12-08-89]
File Name[881408F]