Leticia M. Ramirez v. State of Texas--Appeal from County Court at Law No 3 of Smith County

NO. 12-00-00220-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LETICIA M. RAMIREZ, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW NO. 3 OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Leticia Mariaca Ramirez ( Appellant ) was charged by complaint and information with misdemeanor theft. A jury found her guilty and assessed her punishment at 180 days of confinement, probated for two years, and a fine of $2000. On original submission, we reversed the conviction, concluding that the correction of Appellant s name in the complaint vitiated the complaint, thereby rendering invalid the information based upon the complaint and divesting the trial court of jurisdiction. Ramirez v. State, No. 12-00-00220-CR (Tex. App. Tyler June 20, 2001, pet. granted) (not designated for publication). In reaching our conclusion, we relied on Hess v. State, 953 S.W.2d 837, 840 (Tex. App. Fort Worth 1997, pet. ref d). The State filed a petition for discretionary review challenging our holding. The court of criminal appeals granted review and held that Appellant waived any assertion that the information was defective when she failed to object to the information prior to trial. The court reversed and remanded to us for resolution of Appellant s remaining issues. Appellant raises two additional evidentiary issues. We affirm.

Background

Appellant was arrested outside a Tyler grocery store in December 1999, accused of removing groceries from the store without paying. She was charged by complaint and information with misdemeanor theft. //

At trial, the grocery store s loss and prevention officer, Joe Herrell, testified. He witnessed Appellant in the grocery store with items in a grocery cart. She caught his attention because she was going against the regular flow of traffic at the grocery store. Appellant approached the front of the store and spoke with a cashier. She then sat down on a bench at the front of the store for a minute to two minutes. Afterwards, she and the young boy who was with her left the store with the cart of unpurchased items. Upon leaving the store, she took the cart around the outside corner of the store and left it in a cubbyhole near the area where the grocery carts are stored. She then hurriedly got into her car and began to drive off. Herrell stepped in front of the car and asked that she park the car and return to the store. The prosecutor introduced a crime theft report that Herrell prepared on the day of the incident. The trial judge admitted it over Appellant s improper bolstering objections.

The State also called Johnny Smith, assistant store manager for the grocery store, and Tommy Lewis, a City of Tyler police officer. Their testimonies simply verified Herrell s testimony. The State then rested.

After the State rested, Appellant testified on her own behalf during the guilt/innocence phase of trial. She indicated her eight-year-old grandson was with her at the store. She was wanting to buy a pi ata for her nephew s birthday party. However, upon learning the price charged for the pi atas, she decided they were too expensive. Appellant then took her grandson by the hand and left the store, without ever using a grocery cart at any time. When the State cross-examined Appellant, it introduced records of two prior theft convictions. The trial court admitted them over Appellant s objections to improper impeachment.

Improper Bolstering

In her third issue, Appellant asserts the trial court erred by allowing the State to introduce the crime theft report prepared by Herrell, contending it constitutes improper bolstering.

Standard of Review

We review the trial court s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether a trial court abused its discretion, we review the trial court s ruling in light of what was before the trial court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998). This standard requires an appellate court to uphold a trial court s admissibility decisions when they are within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391 (op. on reh g).

Applicable Law and Analysis

Bolstering occurs when the proponent offers evidence solely to convince the fact-finder that a particular witness or source of evidence is worthy of credit when the credibility of that witness or source has not been attacked. Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). Bolstering does not occur when evidence or a source of evidence corroborates other evidence and is also relevant, i.e., when it contributes substantively to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. Evidence may not be excluded as bolstering simply because it corroborates other testimony. See id. at 820. Further, the witness need not have been impeached as a prerequisite to the admission of substantive evidence that might have the effect of incidentally bolstering other testimony. Id. at 820-21 (rejecting reliance on rule 403 of the Rules of Evidence as requiring impeachment predicate); Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993) (rejecting reliance on rule 702 as requiring impeaching predicate).

In the instant case, the State attempted to introduce the crime theft report prepared by Herrell while Herrell was on the witness stand. The trial judge required the State to lay a proper predicate to introduce the report as a business record. Appellant objected based on improper hearsay and bolstering. The trial judge found the report to fall within the business record exception to the hearsay rule, overruled the objections, and admitted it. This report was not included as part of the appellate record. However, Appellant asked only four direct questions pertaining to the crime theft report. Appellant s counsel, through those questions, was able to show some minor contradictions between the report and Herrell s testimony from the witness stand at trial. At most, the report merely corroborated the testimony of Herrell. As such, it does not constitute improper bolstering. We overrule Appellant s third issue.

Prior Convictions

In her fourth issue, Appellant asserts the trial court erred in allowing the State to introduce copies of prior convictions for impeachment purposes after Appellant admitted to the offenses on cross-examination.

Applicable Law and Analysis

The general rule is that a witness, by testifying, places her credibility in issue, and the opposing party may seek to impeach that credibility by proof that the witness has been convicted previously of any felony offense, or a misdemeanor involving moral turpitude. See Taylor v. State, 612 S.W.2d 566, 572 (Tex. Crim. App. 1981). It is well established that theft involves moral turpitude. Robertson v. State, 685 S.W.2d 488, 492 (Tex. App. Fort Worth 1985, no pet.).

Evidence that a witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record for the purpose of attacking the credibility of a witness. Tex. R. Evid. 609. The evidence may be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. Id. In balancing probative value and unfair prejudice, an appellate court presumes that the probative value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389 (op. on reh g). It is, therefore, the objecting party s burden to show that the probative value is substantially outweighed by the danger of unfair prejudice. Poole v. State, 974 S.W.2d 892, 897 (Tex. App. Austin 1998, pet. ref d). When a court overrules the objection, Montgomery does not require it to perform the balancing test in a formal hearing on the record. See Yates v. State, 941 S.W.2d 357, 367 (Tex. App. Waco 1997, pet. ref d).

At trial, the State asked Appellant if she had been convicted of theft previously. She admitted to a prior theft conviction, but stated that she did not actually commit the crime. The State then showed records to Appellant revealing that she had been convicted of two thefts, one in 1990 and the other in 1993. She conceded her signature appeared on both the theft conviction records. The State offered the exhibits into evidence. Appellant s counsel objected based on improper impeachment, but the trial judge overruled it and admitted the exhibits. Appellant continued to assert she did not commit the thefts.

Appellant seems to assert on appeal that Rule 609 // of the Texas Rules of Evidence allows introduction of the prior conviction records only if Appellant did not admit to the prior convictions. She contends that since she admitted to the convictions, introduction of the conviction records was improper. However, there is nothing in the language of Rule 609 that supports this assertion. Appellant testified on her own behalf and put her credibility at issue. Since Appellant s prior convictions involved moral turpitude, the State was free to introduce evidence of the theft convictions under Rule 609. See Taylor, 612 S.W.2d at 572. Further, when a witness makes statements concerning past conduct that create a false impression of law-abiding behavior, she opens the door, and opposing counsel may expose the false impression. See Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988). Although Appellant admitted to the prior convictions, she opened the door to further exposure when she maintained she did not commit the thefts. Consequently, we conclude that the trial court s decision to admit Appellant s records of prior convictions was not an abuse of discretion. We overrule Appellant s fourth issue.

Conclusion

Having overruled both of Appellant s remaining issues, the trial court s judgment is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)