Opinion filed July 11, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00196-CR

__________

JAMES MAURICE WISE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 24040A

M E M O R A N D U M O P I N I O N

The jury convicted James Maurice Wise of aggravated robbery. Appellant 

pleaded true to two enhancement allegations. The trial court found that the 

enhancement allegations were true, and it assessed Appellant’s punishment at 

confinement for thirty years. The trial court also found that Appellant used or 
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exhibited a deadly weapon in the commission of the offense. We modify and 

affirm.

Background

The indictment contained an aggravated robbery count (Count One) and a 

robbery count (Count Two). The aggravated robbery count alleged that, on or 

about November 22, 2009, Appellant, “while in the course of committing theft of 

property and with intent to obtain and maintain control of said property, used and 

exhibited a deadly weapon, to-wit: A HANDGUN” and that Appellant “did then 

and there intentionally and knowingly threaten and place LACY DANIEL in fear 

of imminent bodily injury and death by the use of said deadly weapon.” The 

robbery count did not contain deadly weapon allegations. Otherwise, the 

allegations in the robbery count were the same as the allegations in the aggravated 

robbery count. Both counts in the indictment contained two enhancement 

allegations.

Appellant raised the affirmative defense of insanity. The case proceeded to 

trial on April 25, 2011. The State waived the robbery count. The trial ended in a 

mistrial. The case again proceeded to trial on July 5, 2011. The trial court 

instructed the jury on Appellant’s insanity defense. The jury convicted Appellant 

of the offense of aggravated robbery.

Issues on Appeal

Appellant presents three issues for review. In his issues, Appellant 

complains of three evidentiary rulings by the trial court. In his first issue, 

Appellant contends that the trial court erred when it admitted the book-in 

photographs of Appellant and his codefendant into evidence. In his second issue, 

Appellant contends that the trial court erred when it admitted the transcript of a 

witness’s testimony from the earlier trial in this case. Specifically, Appellant 

asserts that the prior testimony constituted hearsay and that the admission of the 
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testimony violated the Texas Rules of Evidence and the Confrontation Clause of 

the United States Constitution. In his third issue, Appellant contends that the trial 

court erred when it admitted extraneous offense evidence during the 

guilt/innocence phase of trial.

The Evidence at Trial

On November 22, 2009, at about 10:00 p.m., Larry Franklin was inside his 

house on College Street in Abilene. The Allsup’s store at South 14th Street and 

Grand Street is behind Franklin’s house. The back of Allsup’s faces Franklin’s 

backyard. Franklin heard his dog barking outside. Franklin went to the window of 

his house that faces Grand Street. He said that it was very dark outside. Through 

the window, Franklin saw a large vehicle that he believed was a van or an SUV. 

The vehicle was parked. Franklin saw two individuals standing outside the van. 

Franklin thought that the individuals were about to commit a theft. Therefore, 

Franklin called 9-1-1. He described the situation to the dispatcher. Franklin stayed 

on the phone with the dispatcher and described events as they occurred. 

Franklin testified that one of the individuals walked toward Allsup’s with his 

hands in his pockets. Franklin said that the individual was wearing dark clothing. 

Franklin testified that he could not tell whether the individual was “white, Hispanic 

or black” because “[i]t was too dark.” The other individual waited outside the 

vehicle. Franklin could not see the front doors of Allsup’s from his house. He said 

that the individual who approached Allsup’s turned left as if to go into the front of 

the store. Less than a minute later, the individual came back toward the vehicle, 

almost in a run. Franklin said that one of the individuals opened the driver’s side 

door of the vehicle. The dome light in the vehicle came on. At that time, Franklin 

said that the individual who had waited by the vehicle jumped into it and appeared 

to crawl into the backseat. With the help of the dome light, Franklin saw that this 

individual was wearing “something brightly colored,” which Franklin thought was 
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either an orange or a red vest or sweater. Franklin said that the individual who had 

approached Allsup’s got into the driver’s seat and then drove away. The driver did 

not turn on the vehicle’s lights until he was at least a block away from the scene.

During the night of November 22, 2009, Lacy Daniel worked her shift at 

Allsup’s. She testified that, at about 10:00 p.m., a man held her up at gunpoint. 

She said that the man was wearing what she believed was a black leather jacket. 

The man was also wearing something that covered his face from the nose down. 

Daniel said that he had “something pulled over his face to the bridge of his nose,” 

which Daniel thought was a turtleneck sweater, and that he had “something over 

his head like a toboggan.” The man said, “Give me your money. I’m serious.” 

Daniel said that the man held a silver handgun on her. The man threw a ziplock 

bag down onto the counter. Daniel put money into the bag. She turned around to 

get more money. At that time, the man ran out of Allsup’s. Daniel locked the door 

and then called 9-1-1.

Following Daniel’s testimony, the State introduced into evidence a recording 

of the 9-1-1 call that Franklin made and a recording of a 9-1-1 call that a 

representative of the alarm company for Allsup’s made. The recordings were 

played for the jury. Due to a technical problem, Daniel’s 9-1-1 call was not 

recorded.

Abilene Police Officers Christopher Bisbee and Gabe Thompson worked as 

partners the night of November 22, 2009. They were dispatched to a robbery call 

at Allsup’s on South 14th Street. As they traveled to Allsup’s, Officer Thompson 

observed a van that fit the description of the vehicle that was used in connection 

with the robbery. The van was near the intersection of South 14th Street and 

Amarillo Street. Officer Bisbee turned the patrol car around and followed the van. 

The driver of the van pulled into a driveway at 1041 South 15th Street. Officer 
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Bisbee activated his overhead lights. Officer Anthony Joeris also responded to the 

scene.

The officers directed the van’s driver and passenger to sit on the ground at 

the rear of the van. The officers determined that Appellant was the driver and that 

Jerrod Flores was the passenger. The officers saw a brown leather jacket between 

the two front seats of the van. They found a black shirt or cloth under the jacket. 

The officers also found a ziplock bag that contained money under the front 

passenger seat. They also found a pistol under the driver’s side floor mat.

The officers arrested Appellant and Flores and transported them to the law 

enforcement center. Book-in photographs of Appellant and Flores were taken. 

Over Appellant’s objection, the trial court admitted the book-in photos into 

evidence. Appellant was wearing a short-sleeved T-shirt in his photo. Flores was 

wearing a University of Texas hoodie in his photo. 

Flores testified in the earlier trial of this case. Over Appellant’s objections, 

the trial court ruled that Flores’s testimony from the earlier trial was admissible. 

The parties presented parts of Flores’s testimony to the jury.

Flores testified that Appellant was married to Flores’s aunt, Marla Wise. 

Flores said that Marla and Appellant lived at 1041 South 15th Street and that Marla

owned the van in question. Flores said that, on November 22, 2009, he and his 

wife, Rochelle Ramirez, were walking to Marla’s house. As they walked, 

Appellant drove up in Marla’s van. Appellant told Flores that he was going to buy 

“weed.” At that time, Flores was wearing a University of Texas hoodie. Flores 

got into the van with Appellant. Appellant drove away. Ramirez walked to 

Marla’s house. Flores testified that Appellant parked the van. Appellant told 

Flores that he was going to meet a guy so that he could get some marihuana.

Flores testified that Appellant walked away from the van. Flores said that he 

stayed at the van. Flores said that Appellant ran back to the van, hopped in it, and 
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drove away. The next thing Flores knew, the police pulled them over. Flores said

that he believed something had gone wrong with the drug deal. Flores said that 

Appellant threw him something and that he put it under the seat. Flores saw 

Appellant put something on the floor. Flores testified that he did not know that 

Appellant was going to rob a store. Flores said that he did not ask Appellant what 

had happened.

Flores testified that he had seen Appellant about two days before the offense. 

Flores said that, at that time, Appellant was “like spaced out like he didn’t know 

what was going on” and was talking to himself.

Appellant’s counsel cross-examined Flores at the earlier trial. During that 

cross-examination, Flores said that Appellant took medications for some kind of 

mental problem. According to Flores, on the night of the incident, Appellant acted 

"[s]omewhat" in the same way that he had acted two days earlier. Flores said that 

he had seen Appellant talk to himself on numerous occasions. The State rested 

after the conclusion of Flores’s testimony.

Appellant presented John D. Crowley, M.D., a psychiatrist, as a witness. 

The record shows that, upon a motion by Appellant, the trial court appointed 

Dr. Crowley to examine him. Dr. Crowley testified that he had examined 

Appellant a few times. Dr. Crowley first saw Appellant in April 2010. At that 

time, Dr. Crowley diagnosed Appellant with “major depression with psychotic 

features.” Dr. Crowley explained that psychotic features consist of either auditory 

or visual hallucinations or fixed false beliefs known as delusions. Appellant told

Dr. Crowley that he heard voices even though no one was actually present and 

talking to him. Dr. Crowley was aware that Appellant had received treatment for 

his mental condition at the Betty Hardwick Center in Abilene and that Appellant 

took prescription medications for his condition. Appellant told Dr. Crowley that 

he had not taken his medications for some time before the date he was arrested in 
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this case. Dr. Crowley said that a patient’s hallucinations may worsen if the 

patient does not take his medication.

On cross-examination, Dr. Crowley testified that, in his opinion, Appellant 

was sane at the time of the alleged offense in this case. Dr. Crowley testified that

Appellant knew right from wrong and that Appellant would have known that his 

conduct was wrong.

Katy Young was a counselor and a case manager at the Betty Hardwick 

Center. She said that Appellant was one of her clients. She first saw Appellant in 

August 2009. Young said that Appellant complained of hearing voices. She said 

that Appellant took prescription medications for treatment of his mental condition. 

Young said that Appellant attempted to get his medications refilled in November 

2009 but that he was arrested before he got the refills.

Marla testified that Appellant took Wellbutrin and Zyprexa for his mental 

condition but that his medications were stolen about two weeks before he was 

arrested in this case. Marla said that Appellant had an appointment set up for the 

beginning of December to obtain more medicine. Marla said that she noticed 

changes in Appellant during the two-week period that he did not take his 

medications. She said that Appellant moped around, seemed to talk to himself, and 

complained about hearing voices. She said that Appellant’s condition worsened in 

the three days leading up to his arrest. She said that, during Appellant’s lifetime, 

he had been hospitalized a number of times for treatment of his mental condition.

Appellant testified that he heard the voice of “Brett,” a man Appellant had 

known in the past. Brett was deceased. Appellant said that Brett talked to him and 

that he sometimes saw Brett. Appellant testified that he took medications for 

treatment of his condition. The medications minimized the number of times that 

Appellant heard Brett’s voice. Appellant said that he had not taken his 

medications for two weeks when he was arrested in this case. He said that his 
8

medications had been stolen in Dallas. Appellant testified that he had scheduled an 

appointment for the first of December to refill his medications.

Appellant said that, after being without his medications for a week, the 

“voices” started bothering him, he could not eat or sleep, and he did not want to be 

around anyone. He said that Brett told him to rob a store so that he would have 

money to buy his medications. Appellant said that Brett told him to go into the 

store, ask for the money, and then leave the store. Appellant said that he went into 

the store and robbed it. He remembered going into the store with the gun and 

leaving the store with the money. Appellant testified that he did not know robbing 

Allsup’s was wrong but, instead, believed that it was the right thing to do. He said 

that he just did what Brett told him to do.

Appellant testified that he wore a brown leather jacket when he robbed the 

store. He said that he drove home after he committed the robbery. Appellant said 

that he was not in his right state of mind that night. He said that his mind got 

better after he got back on his medications. 

During cross-examination, Appellant testified that Brett “passed away”

twenty-three years ago. The prosecutor then asked Appellant, “Isn’t it true you 

murdered him?” Appellant’s counsel stated, “Objection.” The trial court 

overruled the objection. Appellant then testified that he murdered Brett because 

Brett tried to rape him. Appellant testified that he was convicted for the murder of 

Brett in 1989 and that he served twenty years in prison for the offense.

Admissibility of Evidence Standard of Review

In each of his three issues, Appellant complains that the trial court 

improperly admitted evidence. We review a trial court’s decision to admit 

evidence under an abuse of discretion standard and will not reverse that decision 

absent a clear abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. 

Crim. App. 2010); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). 
9

A trial court abuses its discretion only when its admissibility decision lies outside 

the zone of reasonable disagreement. Apolinar, 155 S.W.3d at 186.

Book-in Photographs

In his first issue, Appellant contends that the trial court erred when it 

admitted the book-in photographs of Flores and him. The State sought to introduce 

the photographs during Officer Bisbee’s testimony. Officer Bisbee identified the 

photographs, which were marked as State’s Exhibit Nos. 18 and 19. State’s 

Exhibit No. 18 was the photograph of Appellant, and State’s Exhibit No.19 was the 

photograph of Flores. Officer Bisbee said that State’s Exhibit No. 18 was a picture 

of the driver of the van and that State’s Exhibit No. 19 was a picture of the 

passenger. The State offered the photographs. Appellant’s counsel objected to the 

admission of the photographs on the ground that they were prejudicial. The trial 

court overruled the objection and admitted the photographs. The State published 

them to the jury.

On appeal, Appellant contends that the trial court abused its discretion when 

it admitted the photographs because they were not relevant and because they were 

more prejudicial than probative. Appellant did not raise a relevancy objection at 

trial. To preserve error for appellate review, the complaining party must make a 

timely, specific objection in the trial court and obtain a ruling on the objection. 

TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 

2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Therefore, 

Appellant did not preserve his relevancy complaint for review. 

We note that the book-in photographs were relevant to prove that Appellant 

entered Allsup’s and robbed Daniel at gunpoint. Franklin testified that the 

individual who walked toward Allsup’s wore dark clothing and that the person 

who remained at the vehicle wore an orange or red vest or sweater. Franklin also 

testified that the individual who approached Allsup’s drove away after he returned 
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to the vehicle. The officers found a brown leather jacket in the van. The evidence 

showed that Appellant took off the jacket after he committed the robbery. 

Appellant was wearing a T-shirt in his book-in photograph. Flores was wearing a 

University of Texas hoodie in his book-in photograph. Officer Bisbee testified that 

State’s Exhibit No. 18, which was the picture of Appellant, depicted the driver of 

the van. Thus, the book-in photographs tended to show that Appellant entered 

Allsup’s.

Under Rule 403, relevant evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. 

Rule 403 favors admission of relevant evidence and carries a presumption that 

relevant evidence will be more probative than prejudicial. Hayes v. State, 85 

S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State, 347 S.W.3d 905, 921 

(Tex. App.—Eastland 2011, pet. ref’d). Evidence is unfairly prejudicial when it 

has an undue tendency to suggest an improper basis for reaching a decision. 

Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render, 347 S.W.3d at 

921. In reviewing a trial court’s determination under Rule 403, a reviewing court 

is to reverse the trial court’s judgment “rarely and only after a clear abuse of 

discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). 

The book-in photograph of Appellant consisted of a front-view of him. The 

photograph showed him standing up and wearing a light-colored T-shirt. The 

book-in photograph of Flores consisted of a front view of him. The photograph

showed him standing up and wearing a University of Texas hoodie. The 

photographs were relevant to prove Appellant’s identity and to prove that he 

entered Allsup’s. The photographs were relatively innocuous pictures of two 

individuals who had recently been arrested. Nothing depicted in the photographs 

was unfairly prejudicial. The trial court could have reasonably concluded that the 
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probative value of the photographs was not substantially outweighed by the danger 

of unfair prejudice. Appellant’s first issue is overruled.

Prior Testimony

In his second issue, Appellant contends that Flores’s testimony from the 

earlier trial constituted inadmissible hearsay under the Texas Rules of Evidence 

and the Confrontation Clause of the United States Constitution. Rule 804 of the 

Texas Rules of Evidence creates certain hearsay exceptions when the declarant is 

unavailable as a witness. TEX. R. EVID. 804. A declarant is unavailable if he “is 

absent from the hearing and the proponent of [his] statement has been unable to 

procure [his] attendance or testimony by process or other reasonable means.” 

TEX. R. EVID. 804(a)(5). Under Rule 804(b)(1), an unavailable declarant’s 

testimony from “another hearing of the same or a different proceeding” is not 

excludable as hearsay “if the party against whom the testimony is now offered . . .

had an opportunity and similar motive to develop the testimony by direct, cross, or 

redirect examination.” 

The Confrontation Clause of the Sixth Amendment provides a right in both 

federal and state prosecutions to confront and cross-examine adverse witnesses. 

U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. 

State, 336 S.W.3d 634, 641 (Tex. Crim. App. 2011). The Confrontation Clause 

bars the admission of a witness’s prior testimony unless the witness is unavailable 

to testify and the defendant had a prior opportunity to cross-examine the witness. 

Crawford v. Washington, 541 U.S. 36, 53–54 (2004); Render, 347 S.W.3d at 917.

Appellant contends that the State did not meet its burden to establish that 

Flores was unavailable as a witness. To establish that a witness is unavailable 

under Rule 804(a)(5), the proponent of the testimony must demonstrate that a 

good-faith effort was made before trial to locate and present the witness. Reed v. 

State, 312 S.W.3d 682, 685 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). 
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Similarly, “unavailability” for purposes of the Confrontation Clause is established 

if the prosecution made a good-faith effort to obtain the witness’s presence at trial. 

Reed, 312 S.W.3d at 685; Ledbetter v. State, 49 S.W.3d 588, 592 (Tex. App.—

Amarillo 2001, pet. ref’d). For both Rule 804(a)(5) and the Confrontation Clause, 

we review a trial court’s ruling—on whether the effort to obtain a witness was 

sufficient—for an abuse of discretion. Reed, 312 S.W.3d at 685; Ledbetter, 49 

S.W.3d at 592.

Deris Hutcheson, an investigator for the Taylor County District Attorney’s 

Office, testified about the prosecution’s efforts to procure Flores’s attendance as a 

witness at trial. Investigator Hutcheson said that he served Flores before the earlier 

trial. On June 16, 2011, Investigator Hutcheson obtained a subpoena for Flores for 

the July 5, 2011 trial setting. Investigator Hutcheson testified that investigators 

from the district attorney’s office attempted to serve Flores several times at his last 

known address but were unable to serve him there. Investigator Hutcheson knew 

that Flores was represented by a lawyer in a different aggravated robbery case. 

Investigator Hutcheson contacted Flores’s lawyer and told her that he needed to 

locate Flores. Flores’s lawyer told Investigator Hutcheson that she would find 

Flores. Investigator Hutcheson did not hear back from Flores’s lawyer. 

Investigator Hutcheson called Flores’s lawyer again, but there was no answer. 

Investigator Hutcheson left a message on an answering machine. Flores’s lawyer 

did not return the call. Investigator Hutcheson testified that he also contacted 

Flores’s bail bondsman. Investigator Hutcheson told the bondsman that he needed 

to serve a subpoena on Flores. The bondsman told Investigator Hutcheson that he 

would tell Flores to contact Investigator Hutcheson. Flores did not contact 

Investigator Hutcheson. So, Investigator Hutcheson again contacted the bondsman. 

The bondsman told Investigator Hutcheson that Appellant would be in the bond

company’s office the Friday before the trial setting in this case. The bondsman 
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said that he would call Investigator Hutcheson when Flores arrived at the office 

and that, then, Investigator Hutcheson could go to the office to serve Flores. 

Investigator Hutcheson testified that he never heard back from the bondsman. 

Investigator Hutcheson said that investigators at the district attorney’s office also 

contacted some of Flores’s family members in an effort to locate Flores.

After Investigator Hutcheson testified, the trial court ruled that the State had 

met its burden to show that Flores was unavailable as a witness. The trial court 

found that the State made a diligent effort to procure Flores’s attendance as a 

witness. Investigator Hutcheson’s testimony showed that the prosecution made 

numerous and repeated efforts to serve Flores with the subpoena. Based on that 

testimony, the trial court could have reasonably concluded that the State made a 

good-faith effort to locate and present Flores as a witness. Therefore, we conclude 

that the trial court did not abuse its discretion by ruling that Flores was unavailable 

for the purposes of Rule 804 and the Confrontation Clause.

Appellant also contends that the State failed to show that he had “an 

opportunity and similar motive” to cross-examine Flores at the previous trial. The 

record shows that Appellant’s counsel had the opportunity, and exercised the 

opportunity, to cross-examine Flores at the earlier trial. During cross-examination 

of Flores at the earlier trial, Appellant’s counsel attempted to develop facts to 

support Appellant’s insanity defense. As summarized above, Appellant’s counsel 

asked Flores questions about Appellant’s mental state before and on the date of the 

incident at Allsup’s. Flores testified that he had seen Appellant talk to himself on 

numerous occasions. 

Appellant asserts that he did not have a similar motive to cross-examine 

Flores at the earlier trial. Appellant’s counsel informed the trial court that he had 

not heard the 911 tapes before the current trial. Appellant’s counsel stated, “For 

the record Judge, when [Franklin], on the 911 tape, describes the person that went 
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into the Allsup’s and robbed it as being a Hispanic male, and I didn’t have that 

information so I didn’t cross-examine [Flores].” Appellant is African-American,

and Flores is Hispanic.

Franklin testified that he could not tell whether the individual who went into 

Allsup’s was “white, Hispanic or black” because “[i]t was too dark.” The 

overwhelming evidence established that Appellant entered Allsup’s and that Flores 

remained at the van during the robbery. In the earlier trial, Flores testified that he 

stayed at the van when Appellant walked away from it. An attempt by Appellant’s 

counsel to establish, through cross-examination of Flores, that Flores and not 

Appellant entered Allsup’s and committed the robbery would have been futile. 

Based on the evidence, the trial court could have reasonably concluded that 

Appellant had an opportunity and similar motive to develop Flores’s testimony by 

cross-examination at the earlier trial. The trial court did not abuse its discretion 

when it admitted Flores’s former testimony. Appellant’s second issue is overruled.

Evidence of Prior Conviction

In his third issue, Appellant contends that the trial court abused its discretion 

when, during the guilt/innocence phase, it admitted evidence of his 1989 

conviction for the murder of Brett. In his direct testimony, Appellant said that he 

heard Brett’s voice even though Brett was not there and that Brett told him to rob 

the store. During the prosecution’s cross-examination of Appellant, the following 

exchange took place:

 Q. Who is Brett, or who was he?

 A. He was a man from my past.

 Q. Yes, he was. Isn’t it true that he was a man from 21 years in 

your past?

 A. More than 21 years ago.
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 Q. But you haven’t seen him in at least 22 years; is that correct?

 A. 23.

 Q. Why have you not seen him since then?

 A. Because he passed away.

 Q. Passed away. Isn’t it true you murdered him?

 [DEFENSE COUNSEL]: Objection.

 THE COURT: Overruled.

 [PROSECUTOR]: Q. Isn’t it true you murdered Brett?

 A. Yes, sir.

 Q. And isn’t it true you were convicted of that in 1989?

 A. He tried to rape me.

 Q. Isn’t it true that you were convicted of his murder in 1989?

 [DEFENSE COUNSEL]: Objection.

 A. (BY THE WITNESS): Yes, sir.

 THE COURT: Overruled.

 [PROSECUTOR]: Q. And isn’t it true you were sentenced to 20 

years in prison?

 [DEFENSE COUNSEL]: Objection, Your Honor. Punishment is 

not relevant.

 THE COURT: Overruled.

 A. (BY THE WITNESS): I took the 20 years because --
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 Q. I just asked you a question. You can answer your counsel’s 

when I get through. Weren’t you sentenced to 20 years in prison?

 A. Yes, sir.

 Q. And did you serve 20 years?

 A. Yes.

 Q. That would have meant you were released in 2009?

 A. 2008.

Before trial, Appellant filed a motion to suppress in which he asserted that 

his 1989 murder conviction was inadmissible for impeachment purposes under 

Rule 609 of the Rules of Evidence. TEX. R. EVID. 609. The trial court denied the 

motion. Rule 609(a) provides that, for impeachment purposes, evidence that a 

witness has been convicted of a crime that was a felony or involved moral 

turpitude is admissible if the court determines that the probative value of admitting 

the evidence outweighs its prejudicial effect. Rule 609(b) establishes a time limit. 

Rule 609(b) provides that, if ten years have passed since the date of conviction or 

the date of release of the witness from confinement, whichever is later, the 

conviction is not admissible unless the trial court determines that the probative 

value of the conviction substantially outweighs its prejudicial effect. Appellant 

was released from prison for the murder conviction in 2008. Thus, his prior 

conviction fell well within the ten-year range in Rule 609(b).

Courts use a nonexclusive list of factors to weigh the probative value of a 

conviction against its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex. 

Crim. App. 1992). The factors include (1) the impeachment value of the prior 

crime, (2) the temporal proximity of the prior crime relative to the charged offense 
17

and the witness’s subsequent history, (3) the similarity between the prior crime and 

the charged offense, (4) the importance of the defendant’s testimony, and (5) the 

importance of the credibility issue. Id. The proponent seeking to introduce 

evidence of a conviction under Rule 609 has the burden to demonstrate that the 

probative value of the conviction outweighs its prejudicial effect. Id.

Appellant testified that Brett told him to rob the store. Appellant said that he 

thought he was doing the right thing by robbing the store. Before the prosecutor 

asked Appellant whether he murdered Brett, Appellant’s testimony left a false 

impression with the jury that Brett “passed away,” when, in fact, Appellant killed 

him. Evidence of Appellant’s murder conviction removed the false impression. 

While witnesses other than Appellant testified that Appellant complained of 

hearing voices, Appellant was the only witness who testified about Brett. 

Appellant’s testimony was critical to his insanity defense; therefore, his credibility 

was extremely important to the jury’s consideration of his defense. Evidence that 

Appellant murdered Brett was relevant to the jury’s determination of Appellant’s 

insanity defense and to the issue of Appellant’s credibility. After considering all 

the factors outlined in Theus, we conclude that the probative value of the evidence 

of Appellant's conviction outweighed its prejudicial effect and that, therefore, 

evidence of the conviction was admissible under Rule 609. The trial court did not 

abuse its discretion when it admitted evidence of Appellant’s conviction. 

Appellant’s third issue is overruled.

The Trial Court’s Judgment

The judgment of the trial court erroneously reflects “N/A” with respect to 

the enhancement pleas and findings. Additionally, although the first page of the 

judgment correctly reflects that the trial court assessed Appellant’s punishment, the 

second page of the judgment erroneously reflects that the jury assessed Appellant’s 

punishment. The record shows that Appellant pleaded true to both enhancement 
18

allegations, that the trial court found both enhancement allegations to be true, that 

the trial court assessed Appellant’s punishment, and that Appellant was sentenced 

as a habitual offender under TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012).

This Court’s Ruling

We modify the judgment of the trial court to reflect that Appellant pleaded 

“TRUE” to the first and second enhancement paragraphs and that the trial court 

found the first and second enhancement paragraphs to be “TRUE.” We modify the 

second page of the judgment to reflect that the trial court assessed Appellant’s 

punishment. As modified, we affirm. 

TERRY McCALL

JUSTICE

July 11, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.