Than Van Nguyen v. State

Opinion issued October 27, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01086-CR

———————————

Than Van Nguyen , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 10CR1899

MEMORANDUM OPINION

After

a bench trial on two counts of robbery, the trial court convicted Than Van

Nguyen on one count of robbery and sentenced him to two years’ imprisonment. [1] Nguyen appeals on the

ground that the trial court erred in admitting evidence of five of his prior

convictions for impeachment purposes because the prejudicial effect of the convictions

outweighed their probative value. We conclude that the trial court did not

abuse its discretion in admitting the prior convictions. We therefore affirm

the trial court’s judgment.

Background

D. Cumpian

is a loss-prevention detective for CVS Pharmacy. She testified that, in June

2010, she witnessed Nguyen enter a CVS store, place several items in the

pockets of his shorts, and exit the store without paying for them. Cumpian

notified the store manager that she would be making an apprehension and followed

Nguyen outside of the store. Once outside the store, Cumpian identified herself

and reached out toward Nguyen. A struggle ensued between them, during which

Nguyen struck Cumpian with his hands and feet. E. Patina, a CVS supervisor,

heard the commotion and went outside to assist Cumpian. He pulled Nguyen away

from Cumpian. Nguyen bit Patina, but Patina continued to restrain Nguyen until

the police arrived.

The State indicted Nguyen for

robbery on allegation that, “while in the course of committing theft of

property with intent to obtain or maintain control of said property, [he]

intentionally, knowingly or recklessly caused bodily injury to [Cumpian] by

striking [her] with his hand and kicking her with his foot.” The State also charged

him with robbery on the basis of the bodily injury to Patina.

Nguyen

waived his right to a jury trial and elected to have his case heard by the

trial court. At trial, the court admitted a video that showed Nguyen entering

and exiting CVS, as well as the struggle that ensued outside of the store.

Through a translator, Nguyen admitted to stealing the items from CVS, stating

that he was hungry and had no money with which to buy food. He testified that Cumpian

and Patina attacked him and that he fought back because Patina restrained him

in a way that hindered his breathing. He testified that he did not want to hurt

anyone but that he wanted to run away because he did not want to go to jail. He

denied striking Cumpian.

During

Nguyen’s cross-examination, the State introduced five of Nguyen’s prior

convictions for impeachment purposes: a conviction for theft in 2007, a

conviction for felony criminal mischief in April 2005, and three felony convictions

for unauthorized use of a motor vehicle in April 2005, September 2006, and

January 2010. Nguyen’s attorney objected to the admission of the prior convictions:

“Your Honor, I would object to use of these five judgments to impeach [Nguyen].

Since his testimony and [Cumpian’s] testimony are both critical, that weighs in

the favor of excluding such evidence, and we’d ask that he be able to testify

free from that impeachment.” The trial court overruled Nguyen’s objection.

The

trial court found Nguyen guilty of robbery on the charge relating to Cumpian

but not guilty on the charge relating to Patina, finding reasonable doubt as to

whether the injuries Nguyen caused to Patina occurred in the course of

committing the theft or whether Nguyen believed he was acting in self-defense

because his breathing was impaired. The court sentenced Nguyen to two years’

confinement for the robbery conviction. This appeal followed.

Standard of Review

We review a trial court’s decision to admit or exclude

evidence—including its determination as to whether the probative value of

evidence was substantially outweighed by its prejudicial effect—under an abuse

of discretion standard. Martinez v. State , 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010), cert. denied, 180 L. Ed. 2d 253 (U.S. June 6, 2011); Green

v. State , 934 S.W.2d 92,

104 (Tex. Crim. App. 1996). A trial court abuses its discretion in this regard

if its determination “lies outside the zone of reasonable disagreement.” Martinez ,

327 S.W.3d at 736 ; see Green , 934

S.W.2d at 104 (using similar language to describe standard).

Impeachment with Prior Convictions

Rule 609 of the Texas Rules of

Evidence authorizes the admission of evidence that a witness has been convicted

of a crime for the purposes of impeaching the witness’s credibility if:

(1)

the crime was a felony or a crime of

moral turpitude,

(2)

the trial court determines that the

probative value of admitting the evidence outweighs its prejudicial effect, and

(3)

no more than ten years has elapsed since

the date of the conviction or the witness’s release from confinement imposed

for the conviction, whichever is later, unless the court makes certain specific

findings regarding the probative value of the conviction.

Tex. R. Evid. 609(a),

(b). It is undisputed that the prior convictions admitted by the trial court during

the guilt-innocence phase of the trial were felonies or crimes of moral

turpitude for which Nguyen was convicted within the last ten years. Nguyen’s

challenge on appeal relates to the second requirement: whether the prejudicial

effect of the convictions outweighed their probative value.

Nguyen does not identify what the

prejudicial effect of his prior convictions is or how it outweighs their

probative value. Instead, his only complaint is that the trial court did not

make any statements on the record regarding this balancing test. On this basis,

Nguyen asserts that the trial court erred by failing to analyze whether the

probative value of the convictions outweighed their prejudicial effect. Nguyen

recognizes that the case law establishes that a trial court need not conduct

the balancing test on the record. See

Bryant v. State , 997 S.W.2d 673, 676 (Tex. App.—Texarkana 1999, no pet.)

(“A record of [the Rule

609 balancing] test is not necessary. When considering the probative effect of

evidence versus its possible prejudicial effect, the appellate court may

presume that the trial judge conducted the balancing test, which need not be

shown in the record.”); see also Berry v.

State , 179 S.W.3d 175, 180 (Tex. App.—Texarkana 2005, no pet.); Nolen v.

State , 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. ref’d); W alker

v. State , No. 09-09-00338-CR, 2010 WL 2533774 , at *3 (Tex. App.—Beaumont

June 23, 2010, pet. ref’d) (mem. op., not designated for publication); Luna

v. State , No. 05-08-01647-CR, 2010 WL 1782237 , at *6 (Tex. App.—Dallas May

5, 2010, pet. ref’d) (mem. op., not designated for publication). But Nguyen

contends that this case is distinguishable from the cases applying that rule

because the record establishes that the trial judge did not perform such a

balancing analysis.

We disagree that the record establishes that the trial court

did not consider the probative value of Nguyen’s prior convictions and the

prejudicial effect of admitting such convictions. Nguyen’s counsel objected to

the admission of the prior convictions on that basis and nothing in the record

establishes that the trial court did not consider that objection when he

overruled it. See Rojas v. State , 986

S.W.2d 241, 250 (Tex. Crim. App. 1998) (“[W]here nothing in the record shows

the trial judge did not perform the balancing test, we have found no error when

the judge simply listened to the defendant’s objections, then overruled them.”).

We presume that the trial court did balance the prejudicial effect of Nguyen’s

prior convictions against their probative value, and the record does not

contradict that presumption. See Bryant , 997 S.W.2d at 676 ; Berry , 179 S.W.3d at 180 ; Nolen , 872

S.W.2d at 812 ; W alker , 2010 WL 2533774 , at *3; Luna , 2010 WL 1782237 , at *6. We

therefore reject Nguyen’s contention that the trial court failed to conduct the

balancing test required by Rule 609.

Moreover, even if the trial court had failed to perform the

balancing test, Nguyen could prevail on appeal only upon a showing that (1) if

the trial court had applied the balancing test, it would have resulted in the

exclusion of the prior convictions and (2) the improper admission of the prior

convictions impaired Nguyen’s substantial rights. See Craig v. State , No. 14-00-01282-CR, 2003 WL 21467209 , at *2–3

(Tex. App.—Houston [14th Dist.] June 26, 2003, no pet.) (mem. op., designated

for publication) (holding, when record established that trial court failed to

perform balancing test, there was no reversible error because evidence was admissible

under test); see also Tex. R. App. P. 44.2(b) (requiring

showing of harm for reversal of criminal conviction on basis of

non-constitutional error). [2]

Although Nguyen contends that the impeachment of his credibility was harmful to

his case, he does not analyze whether the convictions’ probative value was

outweighed by their purported prejudicial effect. Additionally, the harm Nguyen

asserts is founded on the prior convictions’ impeachment of Nguyen’s

credibility—the very purpose for which such evidence may be admitted—rather

than any undue prejudice that the convictions purportedly engendered. See Tex. R.

Evid. 609(a) (authorizing admission of prior convictions to impeach

credibility of witness absent unfair prejudice that outweighs probative value of

convictions).

Finally, we note that this was a bench trial. When a case is

tried to a trial judge rather than a jury, the danger that the trial judge will

consider the extraneous offense evidence for anything other than the limited

purpose for which it was admitted—here, impeachment—is reduced, as is the

danger that the evidence will unfairly prejudice the defendant. Corley v. State , 987 S.W.2d 615, 621

(Tex. App.—Austin 1999, no pet.); see Ex

parte Twine , 111 S.W.3d 664, 668 (Tex. App.—Fort Worth 2003, pet. ref’d) (same

principle applied in context of Rule 403 balancing test); Thomas v. State ,

No. 05-03-01445-CR, 2004 WL 1615836 , at *3 (Tex. App.—Dallas July 20, 2004, no

pet.) (mem. op., not designated for publication) (same).

Conclusion

We conclude the trial court did not abuse its discretion in

admitting five of Nguyen’s prior convictions for impeachment purposes. We

therefore affirm.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . § 29.02

(West 2011).

[2]

Nguyen admits that the error he asserts here is non-constitutional

error. See, e.g., Geuder v. State , 142 S.W.3d 372, 376 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d) (holding that trial court’s error

in admitting prior convictions under Rule 609 is non-constitutional error); Lopez

v. State , 990 S.W.2d 770,

777 (Tex. App.—Austin 1999, no pet.) (same).