COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

OMAR AGUILAR,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee. 

§

§

§

§

§

§

No. 08-11-00266-CR

Appeal from

41st District Court

of El Paso County, Texas

(TC # 20110D02385)

O P I N I O N

Omar Aguilar appeals his convictions for aggravated assault on a public servant and 

evading arrest or detention with a motor vehicle. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Appellant was charged by indictment with aggravated assault on a public servant (Count 

I) and evading arrest or detention with a motor vehicle (Count II). On June 29 and 30, 2011, the 

case was tried before a jury. At the start of the trial, Appellant pled not guilty as to each count. 

El Paso Police Officer Edmundo Amaya testified that on September 4, 2009 at 

approximately 1 p.m., he was monitoring a school zone when he witnessed Appellant speed past 

him in a minivan. Amaya pulled behind the vehicle to initiate a traffic stop and noticed that the 

passenger was not wearing a seat belt. Due to a line of traffic, the vehicle stopped. Officer 

Amaya dismounted his motorcycle, approached the vehicle and told Appellant the two reasons 
- 2 -

for the stop. Appellant “immediately became sarcastic . . . and said, I wasn’t speeding.” Officer 

Amaya asked Appellant for his license and insurance which Appellant admitted he did not have. 

Once the cars in front of Appellant’s vehicle moved, Officer Amaya instructed Appellant 

to pull over to the side of the road. Appellant refused and said he was going home. Appellant 

then “took off.” Officer Amaya mounted his motorcycle and followed. Appellant turned onto 

numerous streets, and finally entered a residential street. The officer attempted to catch up by 

pulling to the back left of Appellant’s minivan. His motorcycle was even with the left rear tires 

and there was approximately one arm’s length between the left side of the minivan and the right 

side of the motorcycle. Once Amaya got to “the back left quarter” of the minivan, Appellant 

swerved the vehicle far enough to the left that the vehicle crossed the center line. To avoid being 

hit, Officer Amaya performed a “brake and escape.” Based on Officer Amaya’s training and 

experience, he believed Appellant intentionally caused the vehicle to veer toward him. 

Officer Amaya then repositioned himself behind the minivan. From this vantage point, 

he could see Appellant’s face in the side mirror. Appellant had his left arm propped up, with his 

hand under his chin and was looking directly at the officer, “smirking and laughing.” 

Appellant continued driving and led Officer Amaya to a residence where he parked in the

driveway and stepped out of the car. Amaya stopped his motorcycle and dismounted. As he 

began to approach Appellant, the latter tried to flee on foot. Amaya followed Appellant through 

the backyard and into an alley, but he was unable to catch him. At that point, other units arrived 

to help apprehension. 

After the State rested but prior to the start of evidence in Appellant’s case-in-chief,

defense counsel asked the trial court to rule on his pretrial motion requesting that Appellant be 
- 3 -

allowed to testify on his own behalf free from impeachment by prior convictions.

1

 During the 

discussion, the State identified four convictions that it intended to use, if necessary, to impeach 

Appellant: one felony conviction for assault on a public servant and three misdemeanor 

convictions, two for family violence assault and one for theft. Defense counsel focused his 

argument on Appellant’s prior felony conviction for assault on a peace officer, arguing that 

because the two offenses were so similar, the prejudicial effect outweighed the probative value. 

The prosecutor responded that the close proximity between the charged offense and 

Appellant’s prior offenses indicated a propensity for breaking the law. He recognized that the 

similarity between Appellant’s prior felony conviction for assault of a public servant and the 

charged offense could be prejudicial, but the impact could be neutralized by an instruction to the 

jury to refrain from considering the offenses for anything other than impeachment. 

With respect to Appellant’s prior felony conviction, the court then ruled as follows: 

In looking at the law that has been presented and hearing the argument, the 

Court is going to -- and having done the balancing test and looking at all the 

factors in Theus -- the Court is going to find that the assault on a public servant --

it is not a crime of moral terpitude. [sic]

It is so similar to this crime. Even though it was done close and it could --

there is a lot of credibility issues between one witness for the State and one 

witness for the defense. 

 

1 Appellant’s motion requested that, pursuant to Texas Rule of Criminal Evidence 609, the court prevent the State 

from impeaching Appellant “by any prior convictions of which the State has given notice of an intent to use for such 

purpose.” According to the motion: 

I.

The prior convictions would so inflame the minds of the jurors that any value with 

reference to impeachment (these offenses having no particular correlation with truth-telling) 

would be outweighed by its prejudicial impact.

II.

To require that the jury hear the nature of [Appellant’s] prior record as a condition of his 

testimony would have a chilling effect on his right to a fair trial under both the Texas and U.S. 

Constitutions.

The motion then listed the set of factors, as set forth in Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992) and 

urged that the trial court was required to consider such factors before permitting impeachment of a witness with 

prior convictions.
- 4 -

At this time, I’m not going to allow the State to proffer that. 

With respect to the prior misdemeanor convictions, the judge noted that a family violence assault 

has been ruled a crime of moral turpitude under prior case law. Therefore, the three prior 

misdemeanor convictions would be admissible for impeachment purposes. The prosecutor again 

asked that the State be allowed to use the prior felony conviction for impeachment purposes, 

suggesting that the State be allowed to question Appellant about whether he had ever been 

convicted of a felony, without allowing the State to specify any details of the felony. The 

defense countered the impact would still be unduly prejudicial and would affect Appellant’s 

ability to take the stand. The trial judge ruled that she would not allow the State to ask any 

questions related to the felony conviction but that based on Appellant’s testimony, she may 

change her mind. Appellant did not testify. 

IMPEACHMENT EVIDENCE

In his sole issue for review, Appellant complains that because the trial court refused to 

guarantee that he could testify free from impeachment of prior convictions, Appellant “decided 

he couldn’t risk having his prior convictions used to impeach him if he testified and decided not 

to testify.” Accordingly, Appellant argues that the trial court’s ruling effectively deprived him of 

his constitutional right to present a complete defense and violated Appellant’s due process rights. 

Standard of Review 

We review a trial court’s evidentiary rulings for an abuse of discretion. Guzman v. State, 

955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing a trial court’s decision to admit prior 

convictions, we will reverse only upon a showing of a clear abuse of discretion. Theus v. State, 

845 S.W.2d 874, 881 (Tex.Crim.App. 1992).

Texas Rule of Criminal Evidence 609(a) provides:
- 5 -

For the purpose of attacking the credibility of a witness, evidence that the witness

has been convicted of a crime shall be admitted if elicited from the witness or 

established by public record but only if the crime was a felony or involved moral 

turpitude, regardless of punishment, and the court determines that the probative 

value of admitting this evidence outweighs its prejudicial effect to a party.

TEX.R.CRIM.EVID. 609. The Court of Criminal Appeals has articulated a list of non-exclusive 

factors to be considered in weighing the probative value of a conviction against its prejudicial

effect: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime 

relative to the charged offense and the witness’ 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 881. 

Prejudicial v. Probative 

We begin with Theus. There, the trial court overruled the defendant’s pretrial motions to 

testify free from impeachment by a prior conviction. Theus, 845 S.W.2d at 881. Theus took the 

stand and testified in his own defense, and the State impeached him with evidence of a prior 

felony conviction. Id. Here, Appellant chose not to take the stand and accordingly, he was never 

impeached. Therefore, as the State points out, he has failed to preserve error for review.

While the Court of Criminal Appeals has not directly addressed the issue, our sister 

courts have held that to preserve a claim for improper impeachment through prior convictions, a 

defendant must actually testify. Morgan v. State, 891 S.W.2d 733, 735 (Tex.App.--Houston [1st 

Dist.] 1994, pet. ref’d)(“Because appellant chose not to testify, he was never actually impeached 

with evidence of the prior convictions.”). Likewise, the United States Supreme Court has held 

that the federal corollary to Texas Rule of Criminal Evidence 609(a) requires that a defendant 

testify in order to preserve a pretrial ruling on the admissibility of prior conviction impeachment 

evidence. Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984). 
- 6 -

The court explained that without a factual record of a defendant’s testimony, a reviewing court 

cannot weigh the probative value against the prejudicial effect of impeachment. Id. at 40, 105 

S.Ct. at 463. In contrast, if a defendant testifies and is impeached, the reviewing court has the 

benefit of examining the defendant’s testimony, the prosecutor’s cross-examination and the jury 

arguments in determining the impact of the impeachment. Id. In other words, a reviewing court 

must know the precise nature of a defendant’s testimony in order to assess potential harm. Id. 

Since Appellant never testified, he was never actually impeached with evidence of prior 

convictions. See Morgan, 891 S.W.2d at 735. We have no way no way of knowing whether the 

trial judge would have changed her mind. Because a conclusion of harmful error would be 

speculative, we overrule Issue One. 

Constitutional Claims

Though not framed as a separate issue, Appellant also asserts constitutional claims under 

the United States and Texas Constitutions. Specifically, he contends that the trial court’s ruling 

violated: (1) his due process right under the United State’s Constitution to present his own 

witnesses to establish a defense; and (2) his right to present a defense under the due course of 

law provision found in Article I, Section 10 of the Texas Constitution.2 Appellant’s 

constitutional claims have no merit. 

The record shows that Appellant was physically free to testify at trial, but chose not to do 

so. Appellant has constitutional rights under both the United States and Texas Constitutions to 

present a defense and to due course of law. He does not have a constitutional right to testify free 

from impeachment. There is no authority to support the argument that the threat of impeachment 

 

2 Appellant fails to cite to the specific provisions of the United States Constitution upon which his argument is 

based. However, based on the context of Appellant’s argument and the authorities relied on, it appears Appellant’s 

argument is based on the right to present a defense articulated in the Sixth Amendment to the United States 

Constitution, made applicable to the states by the 14th Amendment to the United States Constitution. 
- 7 -

unconstitutionally prevented Appellant from presenting his defense. See Morgan, 891 S.W.2d at 

736 (acknowledging that the appellant did not have the right to testify from impeachment and 

finding that, where the appellant was physically able to testify but chose not to, no authority 

exists supporting the argument that the threat of impeachment unconstitutionally prevented the 

appellant from presenting his defense). We overrule Issue One in its entirety and affirm the 

judgment of the court below. 

August 28, 2013

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)