NO. _____________________________________

Second Court of Appeals No. 02-12-00643-CR

TO THE

COURT OF CRIMINAL APPEALS 

OF TEXAS 

DONOVAN DARREN LEVOY MEADOWS

 Petitioner, 

V.

THE STATE OF TEXAS,

Appellee.

PETITION FOR DISCRETIONARY REVIEW

 

Paul Francis

State Bar No. 07359600

P.O. Box 13369

1178 West Pioneer Parkway

Arlington TX 76013-6367 

(817) 543-2600 Telephone

(817) 460-2236 Facsimile

pfrancis@birch.net 

ATTORNEY FOR PETITIONER

 DONOVAN DARREN LEVOY 

 MEADOWS 

PD-0790-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/25/2015 1:55:10 PM

Accepted 6/29/2015 2:02:18 PM

ABEL ACOSTA

CLERK
ii

IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT 

OR ORDER, AND COUNSEL

TRIAL JUDGE: The Honorable Mark T. Price1

, 

Judge Of The 89th District 

Court Of Wichita County, 

Texas

APPELLANT: Donovan Darren Levoy 

Meadows

COURT APPOINTED 

COUNSEL ON APPEAL: Paul Francis

1178 W. Pioneer Parkway

Arlington TX 76013

COUNSEL AT TRIAL: S. Price Smith

705 Eighth St., Ste 600

Wichita Falls TX 76301

APPELLEE: The State of Texas

COUNSEL ON APPEAL: Carey Jensen 

Assistant District Attorney

Wichita County District Attorney's Office

900 7th St., Rm 351

Wichita Falls TX 76301

COUNSEL AT TRIAL: Matt Fass, Assistant District Attorney

Starla Jones, Assistant District Attorney

Wichita County District Attorney's Office

900 7th St., Rm 351

Wichita Falls TX 76301

 

1 Since deceased
iii

TABLE OF CONTENTS

IDENTITY OF TRIAL JUDGE, PARTIES TO JUDGMENT 

OR ORDER, AND COUNSEL..........................................................ii

TABLE OF CONTENTS ............................................................................iii

INDEX OF AUTHORITIES ....................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ....................................1

STATEMENT OF THE CASE.....................................................................2

STATEMENT OF PROCEDURAL HISTORY ............................................3

GROUNDS FOR REVIEW (ISSUES)...........................................................3

ARGUMENT .............................................................................................5

1. The Court of Appeals ignored the Trial Judge’s Finding and Substituted 

its Own........................................................................................5

2. The Court of Appeals ignored the plain text of Rule 609(b) that there 

must be specific facts and circumstances to justify the admission of the 

remote convictions under the “substantially outweighs” test, and case law 

which places the burden on the proponent of such evidence to bring them 

forth............................................................................................................9

PRAYER FOR RELIEF ............................................................................14

CERTIFICATE OF COMPLIANCE (word count) .....................................15

CERTIFICATE OF SERVICE.........................................................16

APPENDIX...............................................................................................17
iv

INDEX OF AUTHORITIES

Cases

Allen v. State, 108 S.W.3d 281 (Tex. Crim. App. 2003).......................................4, 7

Berry v. State, 179 S.W.3d 175 (Tex.App.-Texarkana 2005, no pet.) ......................7

Bryant v. State, 997 S.W.2d 673 (Tex. App.—Texarkana 1999, no pet.).................8

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)...................................8

Garcia v. State, 201 S.W.3d 695 (Tex. Crim. App. 2006)........................................7

Greer v. State, 436 S.W.3d 1 (Tex. App.—Waco 2014, no pet.)..............................7

Kizart v. State, 811 S.W.2d 137 (Tex. App.—Dallas 1991, no pet.)..............10

Leyba v. State, 416 S.W.3d 563 (Tex.App.-Houston [14th] Dist.2013, pet. 

ref'd) ............................................................................................................. 5, 10, 11

Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015)......................... 2, 5, 11

Stern v. State, 922 S.W.2d 282 (Tex.App.-Fort Worth 1996, pet. ref'd)...................8

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992).......................... 4, 5, 7, 10

United States v. Acosta, 763 F.2d 671 (5th Cir. 1985)............................................14

Washington v. State, 14-13-00818-CR, 2015 WL 2250628, at *2 (Tex. App.—

Houston [14th Dist.] May 12, 2015, no. pet. h.) (Not designated for publication).11

Rules

Tex.R.App.P. 66.3 ...............................................................................................4, 5

Tex.R.Evid. 609(a)...................................................................................................10

Tex.R.Evid. 609(b) ........................................................................................ passim
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 1 -

NO. _____________________

TO THE

COURT OF CRIMINAL APPEALS 

OF TEXAS

DONOVAN DARREN LEVOY MEADOWS

 Petitioner

V.

THE STATE OF TEXAS

Appellee

 

PETITION FOR DISCRETIONARY REVIEW

To the Honorable Court of Criminal Appeals of Texas:

Petitioner, DONOVAN DARREN LEVOY MEADOWS, submits this 

petition for discretionary review and requests that the Court consider the 

following issues: 

I.

STATEMENT REGARDING ORAL ARGUMENT

Petitioner waives oral argument unless the state is granted oral 

argument. 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 2 -

II.

STATEMENT OF THE CASE

Petitioner was convicted of aggravated robbery (two counts) and 

sentenced to 75 years in prison. (CR 207, 209, 216-218) During the 

trial he testified in his defense on guilt-innocence, and the state sought 

to impeach him with convictions over 10 years old. The trial court, 

over objection of the defendant, allowed such impeachment because 

there had been intervening convictions that, under the common law 

doctrine known as “tacking” allowed the impeachment to go forward 

once the trial judge determined that the probative value “outweighed” 

the prejudicial effect. (5 RR 79) On appeal the petitioner attacked 

this as an abuse of discretion based on error in doing so but the Fort 

Worth Court of Appeals held that under the tacking doctrine it was 

allowable. The Court of Criminal Appeals reversed the Fort Worth Court 

of Appeals in Cause No. PD-0175-142 and issued a unanimous opinion that 

the tacking doctrine was no longer viable and remanded the case to the Fort 

Worth Court of Appeals. The Fort Worth Court of Appeals in an opinion 

 

2 Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015)
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 3 -

dated April 30, 2015 affirmed the conviction. Appellant filed a motion for 

rehearing on May 12, 2015 which was overruled by the Court of Appeals on 

May 28, 2015. 

III.

STATEMENT OF PROCEDURAL HISTORY

The judgment (and opinion) of the Fort Worth Court of Appeals

affirming the trial court was issued April 30, 2015. A copy of same is 

attached as an Appendix to this petition. 

IV.

GROUNDS FOR REVIEW

1. The Court of Appeals ignored the Trial Judge’s Finding and 

Substituted its Own.

The Court of Appeals ignored the finding of the trial court that the 

proof of probative value of the remote convictions only “outweighed” not 

“substantially outweighed” the prejudice of those remote convictions and 

substituted its own findings. This violated the standard of review which 

prohibits an appellate court from substituting its opinion for that of the trial 

court that is within the zone of reasonable disagreement. This conflicts with 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 4 -

Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim. App. 1992) and Allen v. State, 

108 S.W.3d 281, 284-85 (Tex. Crim. App. 2003). The standard of review is of 

long-standing and is accepted practice in the courts of Texas, and the Court 

of Criminal Appeals should not allow it to be ignored. See Tex.R.App.P. 

66.3(a), (c) and (f). 

2. The Court of Appeals ignored the plain text of Tex.R.Evid. 609(b) that 

there must be specific facts and circumstances to justify the admission of the 

remote convictions under the “substantially outweighs” test, and case law 

which places the burden on the proponent of such evidence to bring them 

forth.

The appellate court, in reviewing the admission of the remote 

convictions ignored the plain text of Tex.R.Evid. 609(b) that there must be 

specific facts and circumstances to justify the admission of the remote 

convictions under the “substantially outweighs” test, and case law which 

places the burden on the proponent of such evidence (the State in this case) 

to bring them forth, thereby using an improper standard of review. This 

failure to properly apply the plain text requirements of the rule in analyzing 

the action of the trial court is in conflict with Theus v. State, 845 S.W.2d 874, 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 5 -

879-81 (Tex. Crim. App. 1992), Leyba v. State, 416 S.W.3d 563 (Tex.App.-

Houston [14th] Dist.2013, pet. ref'd) and Meadows v. State, 455 S.W.3d 

166, 171 (Tex. Crim. App. 2015). Following this court’s holding in 

Meadows that the plain text of Tex.R.Evid. 609(b) be followed it would 

harm the state’s jurisprudence to allow the court of appeals, on remand, in 

the same case, to misapply the plain text of the rule without correction. See 

Tex.R.App.P. 66.3(a), (c) and (f). 

V.

ARGUMENT

What the Court of Appeals Did On Remand

On April 30, 2015 the Court of Appeals affirmed the conviction of 

Appellant on two counts of aggravated robbery. 

The First Issue

The Court of Appeals ignored the Trial Judge’s Finding and 

Substituted its Own.

In addressing the argument of Appellant that the trial court erred 

(abused its discretion) in admitting the remote convictions the court of 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 6 -

appeals substituted its findings for that of the trial court, which was an 

incorrect application of the standard of review. 

Tex.R.Evid. 609 (b) provides that remote convictions are not 

admissible “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.” 

In considering the admissibility of the remote convictions the trial 

judge made the following finding: 

The trial judge acknowledged the standard was “substantially outweighs”, (5 

RR 73-74) yet did not find that the probative value substantially outweighed 

prejudice, merely that it “outweighs” the prejudice. (5 RR 79) 

On the face of the record the trial court did not find that the proof rose to the 

level of “substantially outweighs” because it did not make a finding to that effect. 

Instead the judge found “outweighed,” and on the state’s argument that the tacking 

doctrine should be applied found the convictions admissible. The court of 

appeals, in its opinion on page 4, even acknowledges the trial judge’s finding. It 

then goes on to state “We cannot say, on the record before us, that the trial court 

could not have found that the probative value of the prior felony convictions 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 7 -

substantially outweighed their prejudicial effect...” at page 6, despite that fact that 

the trial court made a different finding. 

An appellate court is not free to reverse a lower court's determination simply 

because it disagrees with that decision. Garcia v. State, 201 S.W.3d 695, 704-05 

(Tex. Crim. App. 2006) [Determination of admissibility of evidence may be 

reversed only if it was outside the zone of reasonable disagreement.] A court of 

appeals which does otherwise has misapplied the standard of review. Id. 

The balancing of probative value against prejudice is a determination in 

which the trial court has broad discretion and should not be lightly disturbed. This 

standard of appellate review is applicable to determinations under Tex.R.Evid. 

609. See Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim. App. 1992) [“In 

reviewing the trial court's conduct in weighing these factors and decision in 

admitting into evidence a prior conviction, we must accord the trial court “wide 

discretion.”]; Berry v. State, 179 S.W.3d 175, 180 (Tex.App.-Texarkana 2005, no 

pet.).

3

 It must be presumed that the trial court properly weighed the factors when it 

determined that the probative value only “outweighed” rather than “substantially 

 

3 The same deference is used in reviewing the prejudice v. probative balancing under 

Tex.R.Evid. 403. See Allen v. State, 108 S.W.3d 281, 284-85 (Tex. Crim. App. 2003); Greer v. 

State, 436 S.W.3d 1, 9 (Tex. App.—Waco 2014, no pet.)
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 8 -

outweighed” the prejudice. See Stern v. State, 922 S.W.2d 282, 287 (Tex.App.-

Fort Worth 1996, pet. ref'd); Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.—

Texarkana 1999, no pet.)

The trial court already made its finding. The court of appeals did not follow

the proper standard of review when it chose to ignore the trial court’s finding and 

speculate about what the trial court “could” have found. 

The trial court’s decision to admit the evidence based on the doctrine of 

Tacking, which is not longer viable, does not change the efficacy or conclusiveness

of the determination the trial court made regarding the balancing of probative vs. 

prejudice. 

If the trial court's evidentiary ruling is correct on any theory of law 

applicable to that ruling, it will not be disturbed even if the trial judge gave the 

wrong reason for his right ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. 

Crim. App. 2009) However, in this case, when the tacking doctrine is ignored, 

there is no correct theory of law that would allow the admission of the remote 

convictions, given the trial court’s “prejudice v. probative” balancing

determination expressly set out in the record. The court of appeals does not rely on 

the De La Paz rule in any event. It merely sat at the trial judge’s bench and made 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 9 -

its own evaluation of the balancing between probative and prejudice. 

There is room for only one judge on a trial bench, and appellate courts 

cannot take over that job. 

This was an improper application of the standard of review and the Court of 

Appeals’ judgment and opinion should be set aside as the court of appeals failed to 

follow the law. 

The Second Issue

The Appellate Court, in reviewing the admission of the remote 

convictions ignored the plain text of Tex.R.Evid. 609(b) that there must be 

specific facts and circumstances to justify the admission of the remote 

convictions under the “substantially outweighs” test, and case law which 

places the burden on the proponent of such evidence (the State in this case) 

to bring them forth, thereby using an improper standard of review. 

Even if the court of appeals’ error addressed above is ignored, the court of 

appeals failed properly to analyze the required showing under Tex.R.Evid. 609(b). 

Any proponent seeking to introduce evidence pursuant to Tex.R.Evid. 609 

has the burden of demonstrating that the probative value of a conviction outweighs 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 10 -

its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992)

(Applying Tex.R.Evid. 609(a)) Under Tex.R.Evid. 609(b), the proponent also 

carries the burden of proof. See Leyba v. State, 416 S.W.3d 563, 572 (Tex. App.—

Houston [14th Dist.] 2013), petition for discretionary review refused (May 7, 

2014) Also see Kizart v. State, 811 S.W.2d 137, 141 (Tex. App.—Dallas 

1991, no pet.)

Specific facts and circumstances are required by the plain text of the 

rule. The burden of producing those for the trial court’s consideration was 

on the state. 

The court of appeals in the present case stated that “We cannot say, on 

the record before us, that the trial court could not have found that the 

probative value of the prior felony convictions substantially outweighed their 

prejudicial effect or that it abused its discretion by admitting them...”4 The

Court of Appeals speculated that the trial court could have made a ruling 

that would have required evidence the state failed to provide, thereby 

abusing its discretion. This ignores the manner in which 609(b) is to be 

applied, as set out in Leyba v. State, 416 S.W.3d 563 (Tex.App.-Houston 

 

4 Page 6 of its opinion. 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 11 -

[14th] Dist.2013, pet. ref'd) In Leyba the court acknowledged that the 

prosecution in that case did not offer any “specific facts and circumstances” 

beyond the date and the type of crime to justify the admission of Leyba's prior 

convictions. Leyba v. State, 416 S.W.3d at 571. Further at 572:

After considering all five factors together, we are not convinced that 

the prosecutor satisfied her difficult burden under Rule 609(b). As we 

mentioned before, the prosecutor only established the date and type of 

the conviction. The prosecutor did not explain how the prior 

conviction had any probative value, or that this probative value was 

supported by specific facts and circumstances. Considering that Leyba 

did not deny using a weapon in the instant case, the probative value of 

this prior conviction appears to have been minimal. Because there is 

no indication that this value substantially outweighed its prejudicial 

effect, we hold that the trial court abused its discretion by allowing 

this evidence to be admitted. [Emphasis added]

The burden was on the prosecutor to adduce specific facts and circumstances 

beyond the date and type of crime to justify the admission. Also see Washington v. 

State, 14-13-00818-CR, 2015 WL 2250628, at *2 (Tex. App.—Houston [14th 

Dist.] May 12, 2015, no. pet. h.) (Not designated for publication)5 The requirement 

of specific facts and circumstances is in the text of the rule itself. In the absence of 

 

5 “We clarified that if the State intends to impeach a witness with evidence of a conviction that is 

at least ten years old, then the State must show that the probative value of that evidence 

“substantially outweighs” its prejudicial effect. Id. In Meadows v. State, the Court of Criminal 

Appeals embraced this analysis and held that Tex.R.Evid. 609(b) provides the exclusive standard 

for admitting evidence of a remote conviction. See 455 S.W.3d 166, 171 (Tex.Crim.App.2015).” 

(Emphasis added)
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 12 -

the state providing such evidence the trial court abuses its discretion in admitting 

the remote convictions. 

In the present case the judge recited the language of Tex.R.Evid. 609(b) 

which required specific facts and circumstances, and invited the state to make its 

argument, stating at 5 RR 73-74:

THE COURT: Well, the rest of the test -- beyond the 10 years, 

though, is unless the Court determines in the interest of justice that the 

probative value of the convictions supported by specific facts and 

circumstance substantially outweighs the prejudicial effect.

MR. SMITH: Yes, sir.

THE COURT: So I'll hear evidence to that regard -- I'll hear 

argument to that regard

In the present case the prosecutor’s arguments regarding the remote 

convictions are set out at 5 RR 72-79. The state set out dates and types of 

convictions regarding the felonies at issue here. Mention was made of the 

convictions being crimes of deception but no other specific fact or circumstance 

was offered by the state to support admission. The remainder of the argument was 

in support of the tacking doctrine. 

The court of appeals treated the paucity of the record as being neutral and 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 13 -

engaged in a purported consideration of the Theus factors based on a record devoid 

of specific facts and circumstances. In fact the lack of specific facts and 

circumstances is proof of the failure of the state to discharge its burden of adducing 

evidence necessary to justify admission of the remote convictions. 

By failing to require compliance with the plain text of the rule, the court of 

appeals failed to correctly apply Tex.R.Evid. 609(b). 

The requirement for admissibility under the “substantially outweighed” 

standard is not easy or routine. It is a difficult burden. Leyba v. State, 416 S.W.3d 

at 572. In federal cases6 applying the same standard the courts have recognized the 

heavy burden this places on the proponent of the admissibility. The probative 

value of a conviction more than 10 years old is by definition outweighed by its 

prejudicial effect, and the general rule is inadmissibility. United States v. Hamilton,

48 F.3d 149, 154 (5th Cir.1995). Substantially outweighs is found very rarely and 

only in exceptional circumstances. United States v. Cathey, 591 F.2d 268, 275 (5th 

Cir. 1979) The mere fact that the defendant's credibility is in issue—a 

circumstance that occurs whenever the defendant takes the stand—cannot, 

 

6 Federal court interpretations of federal rule 609 is of guidance in the interpretation of the Texas 

rule. Montgomery v. State, 810 S.W.2d 372, 387 n. 2 (Tex.Cr.App.1990) By adopting the 

language of a federal rule it was intended to adopt the federal interpretation of the rule as well. 

Ramirez v. State, 802 S.W.2d 674, 676-77 (Tex. Crim. App. 1990)
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 14 -

by itself, justify admission of evidence of convictions over ten years old. 

United States v. Acosta, 763 F.2d 671, 695 (5th Cir. 1985)

The Court of Appeals failed by require compliance with the plain text of 

Tex.R.Evid. 609(b) and its opinion and judgment should be set aside. 

VI.

PRAYER FOR RELIEF

Based on the above and foregoing, the Petitioner respectfully requests 

that the Court of Criminal Appeals, grant the Petition for Discretionary 

Review, and upon consideration of the case to vacate the court of appeals’ 

judgment and determine that the trial court abused its discretion in admitting 

the remote convictions, that same was harmful and reverse the conviction 

and remand the case to the trial court. In the alternative, Petitioner requests 

the Court of Criminal Appeals to vacate the court of appeals’ judgment, and 

remand the case to the court of appeals with instructions consistent with its 

disposition. 

 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 15 -

Respectfully submitted,

Law Office of Paul Francis

P.O. Box 13369

1178 W. Pioneer Parkway

Arlington TX 76013-6367

(817) 543-2600 Telephone

(817) 460-2236 Facsimile

By: /s/ Paul Francis

Paul Francis

State Bar No. 07359600

ATTORNEY FOR PETITIONER

DONOVAN DARREN LEVOY 

MEADOWS

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that the number of words in this 

document, as computed in accordance with Tex.R.App.P. 9.4(i) using the 

Word Count function of Microsoft Word is 2,378. 

/s/ Paul Francis

Paul Francis 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 16 -

CERTIFICATE OF SERVICE

A true and correct copy of the above and foregoing was served upon 

the following persons in accordance with Texas Rule of Appellate Procedure 

9.5, on this June 25, 2015. 

Carey Jensen

Assistant District Attorney

900 7th St., Rm 351 

Wichita Falls TX 76301

Lisa C. McMinn

State Prosecuting Attorney

PO Box 13046

Capitol Station

Austin, TX 78711

/s/ Paul Francis

Paul Francis 
Petition for Discretionary Review of Donovan Darren Levoy Meadows - 17 -

APPENDIX
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00643-CR

Donovan Darren Levoy Meadows

v.

The State of Texas

§

§

§

§

§

From the 89th District Court

of Wichita County (51,786-C)

April 30, 2015

Opinion by Justice Sudderth

(nfp)

JUDGMENT ON REMAND

This appeal is on remand from the Court of Criminal Appeals. This court 

has again considered the record on appeal in this case and holds that there was 

no error in the trial court’s judgment. It is ordered that the judgment of the trial 

court is affirmed.

SECOND DISTRICT COURT OF APPEALS 

By _/s/ Bonnie Sudderth________________

 Justice Bonnie Sudderth
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00643-CR

DONOVAN DARREN 

LEVOY MEADOWS

APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

------------

MEMORANDUM OPINION1 ON REMAND

------------

I. Introduction

A jury concluded that appellant Donovan Darren Levoy Meadows robbed 

two Buffalo Wild Wings employees at gunpoint after hearing witness testimony 

that he threatened to blow their heads off if they pushed the panic button, failed 

to comply with his instructions to open the restaurant’s safe, or made any 

movements after he left them in the restaurant’s walk-in freezer. See Meadows 

 

1See Tex. R. App. P. 47.4.
2

v. State, No. 02-12-00643-CR, 2014 WL 84207, at *3–4 (Tex. App.—Fort Worth 

Jan. 9, 2014) (mem. op., not designated for publication), rev’d, No. PD-0175-14, 

2015 WL 778556 (Tex. Crim. App. Feb. 25, 2015).2 The jury convicted Meadows 

of two counts of aggravated robbery and assessed his punishment at seventyfive years’ confinement on each count. Id. at *1.

In a single point in his direct appeal to this court, Meadows argued that the 

trial court had abused its discretion by allowing the State to cross-examine him 

during the guilt-innocence phase of trial with evidence of three felony theft

convictions that were more than ten years old and a 2009 misdemeanor assault 

conviction that was not a crime involving moral turpitude. See id. Regarding the 

three felony convictions, Meadows asked us to revisit our application of the 

tacking doctrine in Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.—Fort Worth 

2001, pet. ref’d). Id. at *1–2. We declined the invitation to do so, overruled the 

portion of Meadows’s sole point that pertained to the three felony convictions on 

that basis, overruled the portion of his sole point that pertained to his 2009 

misdemeanor conviction on a different basis, and affirmed the trial court’s 

judgment. See id. at *1, *3–6.

 

2

The restaurant’s surveillance video corroborated the testimony of the 

State’s witnesses; it showed the robber removing his mask after he left the 

building but before he was out of surveillance range. 2014 WL 84207, at *4. 

After several of Meadows’s acquaintances identified him as the culprit, Meadows 

admitted that he had been the masked man but claimed that what appeared to 

be a gun was actually a water nozzle spray gun, denied threatening anyone, and 

contended that he had committed a theft, not a robbery. Id. at *4 & n.7, *5.
3

On February 25, 2015, the court of criminal appeals held that the 

unambiguous plain language of rule 609 supplants the common-law tacking 

doctrine that we relied upon in overruling the portion of Meadows’s sole point that 

pertained to his prior felony convictions. Meadows, 2015 WL 778556, at *2, *4. 

The court of criminal appeals reversed our judgment and remanded the case to 

us, instructing us to reconsider our ruling on those convictions under the more 

restrictive standard of rule 609(b). Id. As set out below, we have done so and 

once more affirm the trial court’s judgment.3

II. Discussion

The trial occurred from November 26 to November 29, 2012. Before

cross-examining Meadows and outside of the jury’s presence, the State 

announced its intent to question Meadows about his convictions for, among other 

things, theft by receiving and grand larceny in the early 1990s4and his 1996 

 

3We will not revisit the portion of Meadows’s sole point in which he argued 

that his 2009 misdemeanor assault-family violence conviction should not have 

been admitted under the false-impression exception. With regard to that 

conviction, in our original opinion, we assumed without deciding that the trial 

court had erred by admitting the misdemeanor conviction but found that any such

error had no substantial or injurious effect or influence in determining the jury’s 

verdict after performing the appropriate harm analysis. Meadows, 2014 WL 

84207, at *3–6 (reviewing the record as a whole, including testimony and

physical evidence, the nature of that evidence, and the character of the alleged 

error, along with jury instructions, the State’s theory and any defensive theories, 

closing arguments, and voir dire to conclude that the error, if any, was harmless). 

The court of criminal appeals did not remand the case to us to reconsider this 

analysis. Cf. Meadows, 2015 WL 778556, at *4.

4

In 1990, Meadows was convicted of theft by receiving. He received 

probation for his grand larceny conviction, but his probation was revoked in 1991.
4

conviction for theft of property $20,000 to $100,000. Meadows, 2014 WL 84207, 

at *1. The trial court acknowledged that the convictions were beyond ten years 

old but found “that in the interest of justice, the probative value of the 

conviction[s] and supported by the specific facts and circumstances outweighs 

the prejudicial effect.” Id.

A. Standard of Review

We review a trial court’s admission of evidence for an abuse of discretion, 

and wide discretion is afforded to the trial court. Theus v. State, 845 S.W.2d 874, 

881 (Tex. Crim. App. 1992). Only if the trial court’s decision falls outside the 

“zone of reasonable disagreement” has it abused its discretion. Id.; Miller v. 

State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet. ref’d).

B. Remote Convictions

In his original appeal, Meadows argued that the admission of his three 

prior felony theft convictions allowed his impeachment “merely for being a 

criminal generally” and that the trial court abused its discretion by admitting them 

because it improperly applied the balancing test under rule 609(b) by failing to 

find that the probative value of the convictions “substantially” outweighed their 

prejudicial effect. 

The pertinent portions of rule of evidence 609, which provides for 

impeachment by evidence of conviction of a crime, are as follows:

(a) In General. Evidence of a criminal conviction offered to attack a 

witness’s character for truthfulness must be admitted if:
5

(1) The crime was a felony or involved moral turpitude, regardless 

of punishment;

(2) The probative value of the evidence outweighs its prejudicial 

effect to a party; and

(3) It is elicited from the witness or established by public record.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) 

applies if more than 10 years have passed since the witness’s 

conviction or release from confinement for it, whichever is later. 

Evidence of the conviction is admissible only if its probative value, 

supported by specific facts and circumstances, substantially 

outweighs its prejudicial effect.

Tex. R. Evid. 609(a)–(b).

A nonexclusive list of factors to consider in weighing the probative value of 

a conviction against its prejudicial effect includes (1) the past crime’s 

impeachment value, (2) the past crime’s temporal proximity relative to the 

charged offense and the witness’s subsequent history, (3) the similarity between 

the past crime and the offense being prosecuted, (4) the importance of the 

defendant’s testimony, and (5) the importance of the credibility issue. Theus, 

845 S.W.2d at 880. The impeachment value of crimes that involve deception is 

higher than those involving violence, while those involving violence have a higher 

prejudicial potential. Id. at 881. Temporal proximity favors admission if the past 

crime is recent and the witness has demonstrated a propensity for running afoul 

of the law, while if the past crime and charged crime are similar, this weighs 

against admission because similarity suggests the possibility that the jury could 

convict on the perception of a pattern of past conduct rather than on the facts of 

the charged offense. Id. When the case involves the testimony of only the 
6

defendant and the State’s witnesses, the importance of the defendant’s credibility 

and testimony escalates and weighs in favor of admission. Id.

Theft is a crime of deception. See Huerta v. State, 359 S.W.3d 887, 892 

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Theft is a crime of moral 

turpitude involving elements of deception.”). Therefore, Meadows’s three felony 

theft convictions had a high impeachment value. See id. However, the three 

theft convictions were also remote and were similar to the charged offense in that 

they involved taking property that did not belong to him, weighing against their 

probative value, even though none of the prior thefts involved violence. Theus, 

845 S.W.2d at 880. As the only defense witness who testified, Meadows’s 

credibility was paramount, supporting the admission of the prior theft convictions. 

See id. at 881. We cannot say, on the record before us,5that the trial court could 

not have found that the probative value of the prior felony convictions 

substantially outweighed their prejudicial effect or that it abused its discretion by 

admitting them, particularly when Meadows stated during his direct testimony 

that he had intended to steal money from the restaurant but that his objective had 

been to commit theft, not robbery, presenting the jury with a credibility issue to 

resolve. Because we conclude that the trial court did not abuse its discretion by 

admitting the three felony theft convictions, we overrule this remanded portion of 

Meadows’s sole point.

 

5See generally Meadows, 2014 WL 84207, at *3–5 (setting out a summary 

of all of the testimony presented at trial).
7

III. Conclusion

Having overruled Meadows’s sole point on remand, we affirm the trial 

court’s judgment.

/s/ Bonnie Sudderth

BONNIE SUDDERTH

JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.6

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015

 

6

Justice Bob McCoy retired from the Second Court of Appeals before the 

court of criminal appeals remanded the case.