Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-21-00258-CR

Aaron Dominique TRAYLOR,

Appellant

v.

The STATE of Texas,

Appellee

From the 437th Judicial District Court, Bexar County, Texas

Trial Court No. 2019-CR-6163

Honorable Melisa C. Skinner, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Concurring Opinion by: Irene Rios, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Irene Rios, Justice (concurring in the judgment)

Delivered and Filed: August 31, 2022

AFFIRMED

Appellant Traylor appeals his conviction for aggravated robbery on a sole issue: that when 

he testified at his trial, the trial court abused its discretion by allowing the State to impeach him

with his prior felonies for aggravated robbery. 

BACKGROUND

In this case, Traylor was charged with robbing a convenience store at gunpoint. During

the trial on Traylor’s charge of aggravated robbery, he chose to testify. His defense, and the 

substance of his testimony, was that the aggravated robbery occurred in the morning, so that he 
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could not have committed it because he was taking his daughter to school. His daughter also 

testified that Traylor took her to school that day. 

When Appellant was called as a witness by his lawyer, but before he began testifying, the 

prosecutor asked to approach the bench. Outside the hearing of the jurors, the following exchange 

occurred:

Prosecutor: This is impeachment and not extraneous, but just in an abundance of caution, I 

wanted to let the Court and defense know that I plan to ask him about his prior 

convictions as impeachment.

The Court: Well, if he’s got felonies or crimes of moral turpitude, that complies with the rule 

that of course at this point they can.

Defense: My objection would be a Rule 403 objection, it’s undue prejudice, his former case, 

because he committed a former case that’s substantially similar to this particular 

crime, that’s – that the jury could be easily confused by those.

The Court: That objection is overruled.

The State’s cross-examination of Traylor before the jury proceeded as follows:

Prosecutor: And I’ve got ‒ you understand that by taking the stand, I get to ask certain questions

about your past, right?

Traylor: No. Yes.

Prosecutor: Okay. So, I’m going to ask you this, have you been incarcerated, in prison for a 

felony within the past ten years?

Traylor: Yes.

Prosecutor: You have. Okay. Was that out of Beaumont?

Traylor: Yes.

Prosecutor: Okay. How many felonies were you sentenced on out of Beaumont?

Traylor: Three.

Prosecutor: All right. And what ‒ what was the crime in those cases?

Defense: I’m going to object, under Rule 403, undue prejudice and confusion of the issues.
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Trial Court: Overruled.

Prosecutor: You can answer.

Traylor: Aggravated robbery.

Prosecutor: I’ll pass the witness, Your Honor.

After the parties rested, the trial court read the following limiting instruction: 

In this case, evidence has been introduced to the effect that the 

defendant may have previously committed an act of misconduct for 

an offense, or has previously been convicted of an offense or 

offenses other than that for which he is now on trial. The Court 

permitted this evidence to be introduced for the purpose of aiding 

you, if it does aid you, in passing on the credibility of the defendant 

as a witness in his own behalf and the weight to be given his 

testimony. And you are charged that you may consider such 

evidence for that purpose and no other.

The charge instruction was followed by closing arguments, during which the prosecutor 

reminded jurors that they could consider Traylor’s criminal history in weighing his credibility and 

testimony: 

And now, the defendant did choose to testify in this case. And since 

the defendant did choose to testify in this case, you’re actually

allowed to consider the criminal history, only to the extent of 

whether you believe him or not. You can’t hold their criminal 

history against them, but you can consider their criminal history, and 

whether you decide to believe them or not. And we cannot forget

that he did mention up there that he is a three-time felon for an 

aggravated robbery.

Upon deliberation, the jury found Traylor guilty of aggravated robbery. Traylor appeals.

STANDARD OF REVIEW

“We review a court’s decision to admit or exclude evidence under an abuse-of-discretion 

standard.” Johnson v. State, 271 S.W.3d 756, 763 (Tex. App.—Waco 2008, pet. ref’d) (citing 

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006)). “In reviewing the trial court’s 

decision admitting into evidence a prior conviction, we must accord the trial court ‘wide 
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discretion.’” Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.—Houston [1st Dist.] 1999, pet. 

ref’d) (citing Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992)).

WITNESS IMPEACHMENT, PRIOR CONVICTION

A. Parties’ Arguments

Traylor objected to his impeachment by prior convictions under Texas Rule of Evidence 

403. He argues that by failing to conduct any inquiry into the potential for undue prejudice, the 

trial court erred, and the admission of Traylor’s prior convictions for aggravated robbery 

automatically fell outside the “zone of reasonable disagreement.” Traylor concludes that the 

judgment must be reversed and the case remanded for a new trial. 

The State, on the other hand, argues that because Traylor testified and could be impeached 

like any other witness, his prior convictions were admissible under Texas Rule of Evidence 609, 

which his defense counsel waived by not objecting. The State further contends that any prejudicial 

effect that could have resulted from introducing the prior convictions was lessened because 

Traylor’s testimony was impeached in other ways, such as initially lying to his wife about his alibi. 

B. Law

1. Rule 609

Texas Rule of Evidence 609 allows impeachment of a criminal conviction to attack a 

witness’s character for truthfulness if (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. TEX. R. EVID. 

609. In general, the balancing test for admitting evidence of a witness’s prior convictions falls

under Texas Rule of Evidence 609 and includes the Theus factors: impeachment value, temporal 

proximity, similarity, importance of the defendant’s testimony, and credibility. See TEX. R. EVID. 

609; Theus, 845 S.W.2d at 881.
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2. Rule 403

Under Texas Rule of Evidence 403, the trial court “may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting 

cumulative evidence.” TEX. R. EVID. 403; Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex. Crim. 

App. 2006). “Rule 403 does not require exclusion of evidence simply because it creates prejudice; 

the prejudice must be ‘unfair.’” Johnson v. State, No. 03-12-00006-CR, 2012 WL 1582236, at *4 

(Tex. App.—Austin May 4, 2012, no pet.) (mem. op.) (citing Martinez v. State, 327 S.W.3d 727, 

737 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); State v. Mechler, 153 S.W.3d 

435, 440 (Tex. Crim. App. 2005)). Under this rule, trial courts have great discretion in deciding 

whether to exclude relevant evidence and “should favor admission in close cases, in keeping with 

the presumption of admissibility of relevant evidence.” Montgomery v. State, 810 S.W.2d 372, 

389 (Tex. Crim. App. 1990) (quoting TEX.R.EVID. 403). But to be clear, “once the rule is invoked, 

‘the trial judge has no discretion as to whether or not to engage in the balancing process.’” 

Montgomery, 810 S.W.2d at 389 (quoting 22 Wright & Graham, Federal Practice and Procedure: 

Evidence § 5250 (1978), at 544‒45). No record of balancing is necessarily required, but if the

record shows that the trial court did not perform the balancing test, then error occurred. Craig v. 

State, No. 14-00-01282-CR, 2003 WL 21467209, at *3 (Tex. App.—Houston [14th Dist.] June 26, 

2003, no pet.) (citing Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 2001); Colvin v. State, 

54 S.W.3d 82, 85 (Tex. App.⸺Texarkana 2001, no pet.)). 

In cases such as this where the appellant has waived review under Rule 609 and objected 

instead under Rule 403, the factors we will review include the following: 

(1) how compellingly the challenged evidence serves to make a fact 

of consequence more or less probable; 
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(2) the potential the challenged evidence has to impress the jury “in 

some irrational but nevertheless indelible way;”

(3) the time the proponent will need to develop the evidence; and

(4) the force of the proponent’s need for the evidence, i.e., does the 

proponent have other probative evidence available to him to help 

establish the fact of consequence. 

Williams v. State, No. 04-08-00834-CR, 2010 WL 26331, at *3 (Tex. App.—San Antonio Jan. 6, 

2010, no pet.) (citing Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003)).

“After reviewing the relevant criteria objectively, an appellate court should conclude that 

the trial court abused its discretion if the record reveals that one or more of the criteria demonstrates 

‘a risk that the probative value of the tendered evidence is substantially outweighed by unfair 

prejudice.’” Hernandez v. State, No. 03-07-00040-CR, 2010 WL 391850, at *9 (Tex. App.—

Austin Feb. 5, 2010, no pet.) (mem. op.) (quoting Montgomery, 810 S.W.2d at 393); accord Mosley 

v. State, No. 01-95-01059-CR, 1997 WL 586177, at *4 (Tex. App.—Houston [1st Dist.] Sept. 18, 

1997, pet. ref’d) (mem. op.). 

C. Analysis

Traylor’s character for truthfulness

The fact of consequence at issue for the first balancing factor is Traylor’s character for 

truthfulness. See Williams, 2010 WL 26331, at *3. As stated by the prosecutor in closing 

argument, the jury was allowed to consider Traylor’s criminal history, but only to the extent of 

whether they believed him. See id. In this case, Traylor’s prior convictions would not necessarily 

have helped the jury evaluate Traylor’s credibility, because they were for aggravated robbery. See, 

e.g., Wheeler v. State, No. 01-95-00288-CR, 1995 WL 717090, at *2 (Tex. App.—Houston [1st 

Dist.] Dec. 7, 1995, no pet.) (citing Theus, 845 S.W.2d at 881). “The impeachment value of crimes 

that involve deception is higher than crimes that involve violence, and the latter have a higher 
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potential for prejudice.” Theus, 845 S.W.2d at 881; accord Williams, 2010 WL 26331, at *3 (citing 

Cuba v. State, 905 S.W.2d 729, 734 (Tex. App.⸺Texarkana 1995, no pet.)). “This factor, 

therefore, weighs ‘somewhat against admissibility.’” Williams, 2010 WL 26331, at *3 (quoting 

Cuba, 905 S.W.2d at 734).

Irrational influence on the jury

Under the second factor of the Rule 403 analysis, we review evidence of Traylor’s prior 

convictions ‘for its potential to impress the jury in some irrational but indelible way,’ such as 

character conformity.” McGregor v. State, 394 S.W.3d 90, 120–21 (Tex. App.—Houston [1st 

Dist.] 2012, pet. ref’d) (quoting Blackwell v. State, 193 S.W.3d 1, 15 (Tex. App.—Houston [1st 

Dist.] 2006, pet. ref’d)). Examples from caselaw show that this factor is most likely to weigh 

against admissibility when the evidence in question is inflammatory. See, e.g., Erazo v. State, 144 

S.W.3d 487, 495 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 395.

Traylor’s prior convictions were identical to the charge he faced before the jury. There is 

a risk in allowing the jury to assume that Traylor would act in conformity with his criminal history 

without holding the State to its high burden of proof regarding the specific incident charged. See

Theus, 845 S.W.2d at 881.

However, as argued by the State, when a defendant or other witness is impeached with a 

felony conviction within ten years under Rule 609, it can be considered proper impeachment to 

show the person’s willingness to run afoul of the law. See id. Moreover, “[a]n impermissible 

inference of character conformity ... can be minimized by the use of a limiting instruction.” 

McGregor, 394 S.W.3d at 120–21 (citing Jabari v. State, 273 S.W.3d 745, 751 (Tex. App.—

Houston [1st Dist.] 2008, no pet.)). Here, the trial court read a limiting instruction to the jury, 

directing them to only consider this evidence for purposes of weighing Traylor’s credibility. See

id. at 121. 
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Ultimately, the State merely elicited the fact of Traylor’s prior convictions without delving 

into details. Its introduction was not inherently inflammatory and unlikely to impress the jury in 

some indelible way. See Mosley, 1997 WL 586177, at *4 (“[T]he potential for impressing a jury 

in an irrational, indelible manner is much greater in a case where bizarre or titillating facts are 

presented through live testimony. Here, the danger was less because the prior convictions were 

presented by documentary evidence only.”). Its effect was also explicitly limited by the trial 

court’s jury instruction. See McGregor, 394 S.W.3d at 121. This factor therefore weighs 

somewhat in favor of admissibility. 

Time the proponent will need to develop the evidence

As illustrated in the facts above, the State required very little time to question Traylor about 

his prior convictions. See Gigliobianco, 210 S.W.3d at 642. This factor weighs in favor of 

admission.

Force of the proponent’s need for the evidence

The State has argued that it had overwhelming evidence of Traylor’s guilt. Indeed, 

evidence against Traylor included a palm print at the scene, a video of the albeit disguised 

perpetrator, items of clothing matching the disguise at Traylor’s home, a photo identification by 

the cashier, a faulty initial alibi, and a criminal timeline that was not entirely ruled out by Traylor’s 

second alibi. This argument significantly cuts against the proponent’s need to introduce evidence 

of Traylor’s prior convictions for aggravated robbery. See Gigliobianco, 210 S.W.3d at 642 (citing 

Montgomery, 810 S.W.2d at 390). We especially consider that the fact at issue was Traylor’s 

credibility, which we have noted is not significantly maligned by a violent prior offense, as 

opposed to a deceptive prior offense. See Williams, at *3. To the degree that the similarity between 

Traylor’s charge and his convictions also increased the risk of unfair prejudice to Traylor’s 

defense, this factor strongly militates against admission. See id.
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In balancing the above factors, we conclude the trial court’s decision to admit Traylor’s 

prior convictions for aggravated robbery was an abuse of discretion under Rule 403. Therefore, 

we next evaluate whether the error was harmless.

HARMLESS ERROR

A. Law

“[E]vidence admitted in violation of Rule 403 is non-constitutional error.” Burns v. State, 

298 S.W.3d 697, 703 (Tex. App.—San Antonio 2009, pet. ref’d) (citing Williams v. State, 27 

S.W.3d 599, 603 (Tex. App.—Waco 2000, pet. ref’d)). “We therefore reverse only if the error in 

this case affected [Traylor’s] substantial rights.” Id. (citing TEX. R. APP. P. 44.2(b)). For this 

review, we look to the entire record to determine whether the erroneously admitted evidence had 

anything more than a slight effect on the jury’s verdict. See id. (citing Taylor v. State, 268 S.W.3d 

571, 592 (Tex. Crim. App. 2008)). “[A]n appellate court must disregard the error if the court, 

‘after examining the record as a whole, has fair assurance that the error did not influence the jury, 

or had but a slight effect.’” Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) (quoting 

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)); see also TEX. R. APP. P. 44.2(b)). 

Important factors are “the nature of the evidence supporting the 

verdict, the character of the alleged error and how it might be 

considered in connection with other evidence in the case.” More 

specifically, the reviewing court should consider whether the State 

emphasized the error, whether the erroneously admitted evidence 

was cumulative, and whether it was elicited from an expert. 

Bagheri, 119 S.W.3d at 763 (quoting Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002)).

B. Analysis

First, evidence of Traylor’s prior convictions was not elicited from an expert or anyone but 

Traylor. See Bagheri, 119 S.W.3d at 763. Next, the character of the erroneously admitted evidence 
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was dry, short, and clear. See Motilla, 78 S.W.3d at 359. The State asked Traylor briefly about 

his prior convictions during cross-examination after questioning Traylor about his alibi. See id. 

Further, Traylor’s prior convictions were not part of the State’s main theory of the case, but rather 

a point of impeachment that the State mentioned briefly during its closing when the prosecutor 

stated, 

[S]ince the defendant did choose to testify in this case, you’re 

actually allowed to consider the criminal history, only to the extent 

of whether you believe him or not. You can’t hold their criminal 

history against them, but you can consider their criminal history, and 

whether you decide to believe them or not. And we cannot forget 

that he did mention up there that he is a three-time felon for an 

aggravated robbery.

This comment was given as an example of assessing the credibility of a witness before the State 

began applying the facts of the case to the jury charge for aggravated robbery. See id. The trial 

court also directed the jury to only consider evidence of Traylor’s prior conviction in assessing his 

credibility, if it helped them in their assessment. See Burns, 298 S.W.3d at 703.

In its application of the case facts and argument for Traylor’s guilt, the State focused on 

the victim’s testimony and description of the perpetrator, the surveillance video, evidence of the 

perpetrator’s disguise found at Traylor’s home (black hoodie, red wig, sunglasses), Traylor’s palm 

print on the clean store counter, and the victim’s photo identification of Traylor. See Motilla, 78 

S.W.3d at 356 (holding that overwhelming guilt is one factor to be considered). Traylor’s closing 

emphasized his alibi and attacked the State’s evidence. The State rebutted Traylor’s closing with 

arguments highlighting the case evidence in support of his guilt. Traylor’s criminal history was 

not mentioned again. See Bagheri, 119 S.W.3d at 763.

The evidence of Traylor’s prior convictions did not violate his substantial rights. We 

conclude that the erroneous admission of evidence was a harmless error, and we overrule Traylor’s 

sole issue.
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CONCLUSION

Based on the record before us, we conclude that the trial court abused its discretion by 

allowing the State to question Traylor about his prior convictions for aggravated robbery during 

cross-examination. See Hernandez, 2010 WL 391850, at *9 (quoting Montgomery, 810 S.W.2d 

at 393). However, the record shows that the error was harmless. See Bagheri, 119 S.W.3d at 763. 

Accordingly, we overrule Traylor’s sole issue and affirm the trial court’s judgment.

Patricia O. Alvarez, Justice

PUBLISH