Michael Ray Johnson v. State

Michael Ray Johnson IN THE TENTH COURT OF APPEALS No. 10-98-040-CR MICHAEL RAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee From the 54th District Court McLennan County, Texas Trial Court # 97-829-C O P I N I O N Michael Ray Johnson was convicted of felony driving while intoxicated. See Tex. Pen. Code Ann. § 49.09(b) (Vernon Supp. 1999). The indictment alleged three prior DWI offenses and an enhancement allegation that Johnson had previously been convicted of possession of a prohibited weapon. Johnson pled “true” to the enhancement allegation and the jury, having found him guilty of felony DWI, assessed punishment at twenty years’ confinement. He appeals, asserting one issue for review. Finding no abuse of discretion in allowing the State to impeach Johnson’s credibility as a witness with his prior conviction for possession of a prohibited weapon, we will affirm the judgment. On January 3, 1997, Lieutenant Danny Knight saw Johnson speeding through a residential neighborhood and weaving outside his traffic lane. Knight stopped Johnson, determined that he was intoxicated, and arrested him. Johnson testified during the guilt-innocence phase of trial. He admitted to drinking two or three beers, but denied lacking normal use of his physical or mental faculties. Johnson’s wife, Melinda, testified that she was talking with Johnson via cellular telephone when he was pulled over by Knight and that Johnson did not sound intoxicated. On appeal, Johnson complains that the court should not have allowed the State to question him about his prior felony conviction for possession of a prohibited weapon. He argues that the jury had already been made aware of his three prior DWI convictions and that this sufficiently impeached his credibility, thereby diminishing any probative value that the prohibited weapon conviction could have had. Rule of Evidence 609 allows the use of prior convictions to attack the credibility of a witness “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.” Tex. R. Evid. 609. In Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992), the Court of Criminal Appeals identified five factors to be considered in determining the admissibility of a conviction for impeachment purposes: 1) impeachment value; 2) temporal proximity to the charged offense and the witness’ subsequent history; 3) similarity to the offense charged; 4) importance of the witness’ testimony; and 5) importance of the credibility issue. Id. at 880-81; Butler v. State, 890 S.W.2d 951, 954-55 (Tex. App.—Waco 1995, pet. ref’d). Regarding the first factor, Johnson urges that evidence of this conviction has no impeachment value because it suggests violence rather than deception, and crimes suggesting violence have a high potential for prejudice while not shedding any light on a witness’ credibility. Although possession of a prohibited weapon may carry a connotation of violence, it is a victimless crime and therefore does not have the high risk of prejudice that crimes against victims have. The probative value of the evidence is that it demonstrates Johnson’s propensity to disregard the law. See Theus, 845 S.W.2d at 881 (prior conviction for arson). Johnson further suggests that, because his wife testified that he did not sound intoxicated, her testimony corroborated his, lessening the importance of his testimony and the importance of his credibility and thereby making factors four and five weigh against admitting the conviction. On the contrary, we perceive Johnson’s testimony as crucial to his defense. He was the witness most likely to refute Knight’s testimony. He testified that he was not intoxicated and was unable to perform the field sobriety test because of a bad knee. Although Melinda testified that Johnson’s speech wasn’t slurred and that he “didn’t seem to be having a problem concentrating,” she could not testify about his driving ability. Furthermore, the State’s need to impeach Johnson’s credibility increased after he testified on direct examination because his version of events was drastically different from Knight’s. His testimony put not only his credibility at issue but Knight’s as well. As a result, factors four and five weighed in favor of admitting the prior conviction. Under the second Theus factor, the court must examine the temporal proximity of the prior conviction. Johnson’s conviction for possession of a prohibited weapon was approximately six years before the State offered it to impeach his credibility. This is within the ten-year time limit set by Rule 609 of the Rules of Evidence. Tex. R. Evid. 609. Furthermore, the crime for which Johnson was being tried (DWI) is dissimilar to the crime which the State offered for impeachment (possession of a prohibited weapon) and thus created little risk that the jury would convict Johnson on the basis of his past conduct, thereby resolving the third Theus factor in favor of admissibility. See Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Because all the Theus factors weigh in favor of admitting the evidence, we cannot say that the court abused its discretion in allowing the State to impeach Johnson with his prior conviction. Issue one is overruled. The judgment is affirmed. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed March 10, 1999 Do not publish