Texas Court Finds Witness’s Testimony That He’d Found Christ Didn’t Open Door to Impeachment Through His Criminal Record

Texas Rule of Evidence 609(a) provides that

Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted 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.

That said, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. So, was this exception triggered in Cortinas v. State, 2022 WL 619158 (Tex.App. 2022)?

In Cortinas, Sandra Cortinas a/k/a Sandra Ramirez was convicted of solicitation of capital murder. After she was convicted, Cortinas appealed, claiming, inter alia, that the court erred by precluding her from impeaching a witness for the prosecution named Michael “Big Mike” Villareal with his criminal record. Presumably, none of Villareal’s prior convictions satisfied Texas Rule of Evidence 609(a), but the court noted that

an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense….Where the witness creates a false impression of law-abiding behavior, he “opens the door” on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood.

That said, the court then ruled as follows:

Appellant argues that on multiple occasions, the trial court limited her ability to discredit Villareal’s testimony regarding his “false impression” to the jury that he had “found Christ” in 2016 and turned his life around. While Villareal did mention he began attending church and it helped him change his life, he never testified that he had been a peaceful and law-abiding citizen. In fact, Villareal stated that he was in a prison gang, that he had been arrested and been to jail, had sold and used drugs, and was involved in illicit behaviors. He admitted he knew of many wrong-doings and even admitted he was involved in criminal activity. The prior criminal history that appellant argues she should have been allowed to introduce occurred during the time that Villareal admitted he was engaged in criminal activity. While she does note that there were charges “in 2016 when [Villareal] found Christ,” she does not explain why this testimony was necessary when Villareal himself admitted to the behaviors. He did not “open the door by claiming he had not been in trouble before.”

-CM