NO. 07-01-0290 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A AUGUST 27 , 2003

______________________________ JONATHAN DEWAYNE NELSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 85 TH DISTRI CT COURT OF BRAZOS COU NTY; NO. 28,214-85; HON ORABLEJ. D. LAN GLEY, JU DGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
MEM ORAN DUM OP INI ON Following a plea of not guilty, appellant Jonathan Deway ne Nelson wasconvicted bya jury of capital murder and punishm ent was assessed by the trial court at confinement for life. Presenting a sole issue, appellant contends the trial court abused its discretion2

in overruli ng his requ estto impeach a State’s witness w ith his prior criminal record. Based up on th e r at i on al e e xp re ss ed he re i n, we a ff i rm. Appellant wasindicted for causing the death of his girlfriend while in the course of
com mitting and attempting to comm it burgl ary of a habi tation. Th e State’s key w itness , Steven Johnson, testified about the co nfrontation between a ppellant and the victim which ultim ate lyresulted in her deat h. Duri n g the State’s direct exam ination of Johnson, the prosecutor i nquired as follo ws: Q. No w, Mr. Johnson, have you ever been in trouble w ith the law before? A. Yes. Q. Juvenil e proble ms? A. Yes. Q. You haven’t bee n convicted of an adult felony, have you? A. No. Q. Or a m isdemeanor of what w e call moral turpitude? A. No. * * * During cross -exa m ination, def ense co unsel asked, “[t he prose cutor] asked you a question of if yo u’ve have [ sic] some trouble with the l aw; correct”? After the witness answered affirmatively, defense counsel eng age d in a bench conference and contended the prosecutor had opened the door to questions r egardin g trouble with the law. He requested permission to question Johnson about prior arrests. The trial court denied the3

request but all owed defense counsel to m ake a bill of exception. During the offer of proof, appellant admitted to five pri or arrests, i ncl uding one f or po sse ssi on of le ss t ha n t wo ounces of marihu ana as a n adul t. The t ria l cou rt sust aine d the St at e’s obj ection to the proffered tes tim ony

rea son ing t hat

if thew itne ss had den ied b eing in tr ou bl e wi th th e l aw, it would have consi dered admission ofthe arrests. By his sole issue, appellantargues the trial court abused its discretion in denying his request to im peach Johnson w ith his prior criminal record. W e disagree. Rule 609(a) of the Texas Rules of Evidence provides that t he credibili ty of a w itness m ay be attacked byprior criminal convictions for felonies or crimesinvolving moral turpitude. An ex ception to Rule 609(a), on which appellan t relies, applies when a witness makes statem ents concerning his past conduct which create a fal se im pre ssi on of law abid ing b eha vior . D elk
v. State, 855 S .W .2d 700, 704 (Tex .Cr.App. 1993), cert. deni ed , 510 U.S. 982, 114 S.Ct. 481, 126 L.E d.2 d 43 2 (1 993 ). I n th at s itua tion , th e w itne ss “op ensthedoo r” o n his otherwise irrelevant criminal history for ex pos ureof t he f

alse hoo d by

opp osin g co uns el. Id. Specifica lly, appellant argues Joh nson op ened the door to his prior arrests by creating a false impression that his only tro ublew ith t he law

w as a s a j uve nile when his arrest for posses sion of m arihuana occurred as an adult. A witness’s response to a question cann ot be exam ined in a vacuum. Prescott v . State, 744 S .W .2d 128, 1314

(Tex.Cr.A pp. 1988). Rather, the context of the ent ire colloq uy m ust be reviewed to determ ine whether the door w as opened. Delk , 855 S.W.2d at 704.
Johnson denied being convicted of an adult felony whe n asked by theprosec utor. (Em pha sis added). The question broadened the scope of direct exam ination beyond his juvenile criminal history. Furthermore, his arrest for possession of less than tw o ounces of ma rihuana is a Class B m isdemeanor. Tex. Health & Safety Code Ann. § 481.121(b)(1) (Vernon 2003). R ea d in context, J ohnson’s testim ony did not create a false im pression thathis onl y trouble with th e law was as a j uvenil e. Also, because his response that he had never been convicted of an adult felony was not f alse, he did not open the do orto impeachm entbyhis prior arrests. Theus v. State, 845 S.W.2d 874, 878-79 (Tex.Cr.App. 1992); see also Bell v. State, 620 S .W .2d 116, 125 (Tex.C r.App. 1981) (on reh’g)(noting thatm ere arr

ests or cha rge s of

off ens es a re g ene rally

inadmissible for

impeachm ent). We conclude th e trial cou rt did not abuse its discretion in denying appellant’s request to impeach J ohnson with his prior arrests. H is sole issue is overruled. Accordingly, the j udgme nt of the trial court is affirmed.
Don H. Rea vis Justice Do not publish.