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Prior Offenses At Trial- Texas Rule of Evidence 609

Defendants who have a lengthy criminal history often think the State can’t use their past convictions against them at trial. They are kind of right. We generally don’t allow the State to argue that since you’ve been a criminal in the past, you are guilty of what you are charged with now. But in many circumstances, the State can use prior convictions against you in trial. The State must follow certain rules to talk about your prior convictions at trial. One of those rules is Texas Rule of Evidence 609, but there are others (38.37CCP for example). Let’s look at 609 today.

Texas Rule of Evidence 609

Salto de fianza

Salto de fianza es el nombre corto para un delito penal de Texas llamado “salto de fianza y falta de comparecencia”. Si no asistió a una cita en la corte, especialmente si el caso es un delito grave, es posible que se le acuse de fianza. Primero, algunas aclaraciones, si se pierde una cita en la corte, se emitirá una orden judicial y su fianza se perderá. Ese es un tema diferente al de la fianza. La fianza es un caso criminal completamente nuevo que se puede presentar en su contra junto con la orden del caso original por el que iba a la corte.

¿Cuál es la ley sobre el salto de fianzas en Texas?

There are a lot of bad ideas in the world. One the worst is going to court alone on a criminal case. One reason people don’t hire lawyers is that they think they are guilty, and it won’t make a difference if they have a lawyer or not.

Here’s the thing, you can be 1000% did-it-on-camera-and-confessed super guilty and it’s still a good idea to hire a lawyer.

Let’s talk about what guilty means first of all. Being guilty means that the fact finder in your criminal case has found you guilty. You can think you “did it” but until you are found guilty, you aren’t guilty. What’s between you and being found guilty is litigation, due process, criminal prosecution, litigation. That’s where the defense lawyer can help you.

I’ve been lawyering for 16 years now, and for that entire time, I’ve been telling clients that convictions can be not expunged or sealed in Texas. That is not the case anymore, Texas now allows for some misdemeanor straight probation cases to be sealed (non-disclosed). These cases still can not be expunged (which means the records are destroyed), but they can be sealed (which means hidden from the public, but not from the government).

What is straight probation?

Good question. That is what we called probation that is not deferred. That means you are convicted of the offense when you plead guilty and placed on probation. I’m not sure how it came to be called “straight”, but that decision was made well before I became a lawyer. Straight probation means you plead guilty, and the judge finds you guilty but probates (put offs the sentence for) the jail time. That is, you don’t have to serve the jail part of your sentence if you finish probation. Compare that to deferred probation, where the judge puts off the sentence and the conviction.

If you are facing a trial for an assault family violence case you should be aware that evidence regarding the relationship between the parties may be admissible. This can be powerful evidence for the State or the Defendant depending on the nature of the relationship, and your lawyer should be ready to use this evidence or defend against it.

What’s the law on relationship evidence in family violence cases? 

Texas Code of Criminal Procedure 38.371 allows evidence that “testimony or evidence regarding the nature of the relationship between the actor and the alleged victim”. This is “subject to the Texas Rules of Evidence”, so there are still some rules about what comes in, but think of a relationship and the dynamic between two people. Is there a history of violence? Substance abuse? Lying? Cheating? Emotional abuse? These are all areas where you could find either a motive for an assault or a history of aggressive behavior for the Defendant. Or the defense could present a motive to fabricate a claim or a history of violent behavior by the complaining witness.

You know what’s weird with spam calls? When it shows your own cell phone number. I got a few of those for “extended car warranty” calls and I picked up the first time (I’m not sure why. Did I think I was trying to call myself?). Technology now allows people to spoof their phone number and have it appear as any number on your called ID (including your own number). Texas has now made that illegal, but I’m not sure how this would actually be prosecuted unless the caller and victims are all in Texas.

So what’s the law on phony caller ID? Glad you asked.

Sec. 33A.051. FALSE CALLER IDENTIFICATION INFORMATION DISPLAY.

Everyone hates credit card skimmers, but prosecutors had a problem under the old law for prosecuting fake credit cards etc, you required contacting each person who had their information stolen and getting them to trial if necessary. Getting dozens of credit-card victims to testify was a logistical nightmare for prosecutors, and so the legislature passed a new law to make it easier to prosecute people for possessing stolen credit card information.

The new law creates a “rebuttable presumption” that if you possess 5 or more stolen credit numbers, or counterfeit credit cards, you are doing so without the permission of the account holder. What’s a rebuttable presumption? It means what it sounds like. It shifts the burden to the defendant to show they had permission and lets the State off the hook from contacting all the people on the phony credit cards.

Let’s look at the statute-

Texas passed a new law criminalizing indecent assault. What is an indecent assault? It sounds like what used to be called “groping”, it takes something that would have a Class C Assault for “unwanted contact” and raises it to a Class A Misdemeanor.

Sec. 22.012. INDECENT ASSAULT. (a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person

(1) touches the anus, breast, or any part of the genitals of another person;

What happens if I get another DWI? 

The Texas Penal Code allows for the state to enhance a DWI with each DWI you are convicted of. For example, if you have been previously convicted of DWI, which was a class B misdemeanor and you are arrested for a 2nd DWI, the state can bump that charge to a DWI 2nd, raising your punishment to a class A misdemeanor. 

When we have clients call to inquire for DWI, one of the first questions we ask, is have you been convicted of DWI before? At times, the answer is “well yes, but that was like 15 years ago.” Well, unfortunately, that doesn’t matter. Now, after the 2005 legislature, all DWI’s can be used to enhance your case, no matter how long ago you were convicted.