Royce Kimbrough v. The State of Texas

On the morning of November 17, 2016, Donald McCray was driving past the

May Food Store in Houston, and he saw his friend, Kenneth Norris, at the store, so

McCray stopped to talk to him. After a short while, Norris went inside the store.

While McCray waited outside, appellant, with whom McCray was acquainted,

approached McCray and demanded money from him. McCray refused and he and

appellant began arguing loudly, drawing Norris’s attention from inside the store.

Norris left the store to see about the commotion. When McCray refused to give

appellant money, appellant reached for McCray’s pocket to take the money, but

McCray slapped appellant’s hand away. Appellant pulled a handgun out of his

pocket, cocked it, and pointed it at McCray. Norris intervened, stepping in between

appellant and McCray and telling McCray to run. As McCray ran away from

appellant, Norris attempted to calm appellant down, but appellant instead chased

after McCray. As he ran, McCray took his cash out of his pocket and threw it on the

ground, believing it would save his life. Appellant retrieved the money and left.

McCray also left the store but returned to speak to law enforcement officers,

who had responded to the scene. By the time McCray returned, the officers had

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already spoken to other witnesses and reviewed the store’s video-surveillance

footage. The footage showed appellant approaching McCray, an altercation between

the two, Norris stepping in between them, appellant pulling a gun and pointing it at

McCray, and McCray running away. McCray gave a statement to the officers and

picked appellant out of a photo array. McCray also identified appellant in the

courtroom at appellant’s trial as the person who had robbed him.

At appellant’s trial in December 2018, the State called four witnesses: (1)

Houston Police Department (HPD) Officer T. McCurry, who responded to the May

Food Store and interviewed witnesses; (2) Norris; (3) McCray; and (4) HPD Officer

L.P. Gonzalez, who was assigned to HPD’s robbery division and conducted the

photo array from which McCray identified appellant.

During direct examination, the State asked McCray about his familiarity with

guns:

Q. After [appellant] pulled the gun out, what did [appellant] do

next?

A. Pulled it up towards me like this.

Q. Okay. And at that point, could you see the gun?

A. Yes, ma’am.

Q. What do you remember about the gun?

A. It was black and it was—you did it like this. That’s the only thing

I know. As far as what kind [of] gun it was, I don’t know.

Q. Okay. And are you familiar with guns and how they work?

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A. Yes, ma’am, a little bit.

Q. And so, you just a [sic] motion with your hands. Could you put

into words what that motion is when you—you’re doing this with

the gun?

A. You cock it back like that.

Q. And, you know, based on what you know, what does that—what

does that mean?

A. You’re putting a bullet in the chamber.

On cross-examination, outside of the jury’s presence, appellant’s counsel

sought to impeach McCray with his 1997 conviction for unlawful carrying of a

weapon, for which McCray had pleaded guilty and received an 18-day sentence:

Defense counsel: Back several—several years ago, [McCray] got—

he has a conviction for unlawfully carrying a

weapon. So—now that—

The court: No, sir.

Defense counsel: Okay.

On redirect examination, the State again mentioned McCray’s familiarity with

guns:

Q. Mr. McCray, I know you know a little bit about guns, right?

A. Yes, ma’am.

Q. When you testified earlier that the defendant actually cocked that

gun back and put a bullet in the chamber, what did you fear could

happen at that point?

A. I could be shot.

Q. So—and by being shot—this sounds silly to ask, but could you

have died at that moment?

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A. Yes, ma’am.

Q. Could you have been seriously hurt at that moment?

A. Yes, ma’am.

Q. And was that a fear or concern of yours?

A. Yes, ma’am.

On re-cross-examination, outside the presence of the jury, appellant’s counsel

again sought to impeach McCray with his 1997 conviction:

Defense counsel: Your honor, on redirect, [the State] asked the

question about whether [McCray] knew a little bit

about guns, which I think opens the door about that

gun conviction. That’s why he knows a little bit

about guns.

The court: I disagree. I know a lot about guns and I’ve never

been convicted.

Defense counsel: I know, but—

The court: Your request to impeach him on an admissible prior

is denied again.

Defense counsel: But did [sic] kind of leaves a question in the eyes of

the jury.

The court: Sorry. Not doing it.

Defense counsel: Okay.

After both sides rested, the jury returned a verdict of guilty. This appeal

followed.

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Admissibility of Character Evidence

In his sole issue on appeal, appellant contends that the trial court erred by

denying his request to impeach McCray with his prior conviction from 1997 for

unlawful carrying of a weapon to correct any false impression that McCray acquired

his familiarity with guns through law-abiding behavior.

A. Standard of Review and Governing Law

We review a trial court’s decision to exclude evidence for abuse of discretion.

Roderick v. State, 494 S.W.3d 868, 880 n.4 (Tex. App.—Houston [14th Dist.] 2016,

no pet.) (citing Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992)). We

accord “wide discretion” to the trial court’s decision to exclude evidence of a prior

conviction. See Theus, 845 S.W.2d at 881 (citation omitted). We will not disturb a

trial court’s exclusion of evidence so long as it lies within the zone of reasonable

disagreement. Roderick, 494 S.W.3d at 880 n.4 (citing Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990)). We also will not disturb the trial court’s

decision if it is correct on any theory of law applicable to the case. E.g., Osbourn v.

State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (citations omitted).

Texas Rule of Evidence 609 provides

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.

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TEX. R. EVID. 609(a); see Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App.

1993), overruled on other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 &

n.18 (Tex. Crim. App. 2008). However, even where a prior conviction does not meet

the requirements of Rule 609, the prior conviction is nevertheless admissible “when

a witness, during direct examination, leaves a false impression as to the extent of

either his prior (1) arrests[,] (2) convictions[,] (3) charges[,] or (4) ‘trouble’ with the

police.” Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988); see Delk,

855 S.W.2d at 704 (citations omitted) (“[A]n 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.”). If a 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.” Delk, 855

S.W.2d at 704 (citations omitted); see Prescott, 744 S.W.2d at 131.

B. Analysis

Appellant concedes that McCray’s prior conviction is generally inadmissible

to impeach McCray’s character. Rather, appellant argues that McCray opened the

door to the impeachment evidence because he left a false impression that he had

learned about guns through legal means. The State responds that, for the falseimpression exception to apply, the witness must have left an unambiguous false

impression of law-abiding behavior. Furthermore, the State argues that a conviction

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for unlawful carrying of a weapon does not imply knowledge of the weapon’s

operation, which can be gained from many legal sources.

We disagree that McCray’s testimony left a false impression of law-abiding

behavior. Both parties rely on Delk v. State, which reviewed a trial court’s decision

denying Delk’s request to impeach a State witness, Phillip Johnson, with evidence

of a prior conviction. 855 S.W.2d at 703. Delk was accused of murdering a man he

had lured through a newspaper advertisement to buy a Camaro. Id. at 702–03. After

the murder, Delk stole the Camaro and picked up Johnson, who drove with Delk to

Louisiana. Id.

At Delk’s murder trial, the State questioned Johnson on direct examination:

Q. Okay. Phillip, are you nervous?

A. Yes, sir.

Q. Is this the first time you’ve ever been in a courtroom—

A. Yes, sir.

Q. —as a witness?

A. Yes, sir . . .

Id. at 703–04. Delk’s counsel objected that, because Johnson had two prior

convictions, his “yes” response to the question, “Is this the first time you’ve ever

been in a courtroom—” left a false impression that he had never been in a courtroom.

Id. at 703. The trial court denied Delk’s request to impeach Johnson with his prior

convictions. Id.

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Affirming Delk’s judgment of conviction and death sentence, the court of

criminal appeals explained “that when determining to what extent a colloquy

‘opened the door’, it is important to examine how broadly one would interpret the

question that was asked.” Id. at 704 (citing Hammett v. State, 713 S.W.2d 102, 106

(Tex. Crim. App. 1986)). The court reasoned that, when Johnson initially answered

“yes,” the State had not finished its question, so Johnson’s response was nonresponsive. Id. at 705. The State immediately completed its question with “—as a

witness,” and the record demonstrated the complete question was, “Is this the first

time you’ve been in a courtroom as a witness,” to which Johnson answered, “Yes,

sir.” Id. Thus, because Johnson’s response did not leave a false impression or open

the door to his prior convictions, the trial court properly excluded the evidence. Id.;

cf. Trippell v. State, 535 S.W.2d 178, 179–80, 181 (Tex. Crim. App. 1976) (reversing

trial court’s refusal to allow impeachment of witness with prior convictions because

witness’s express statement, “I have never been convicted,” opened door to evidence

regarding witness’s prior convictions for rape and aggravated assault).

In Winegarner v. State, the Court of Criminal Appeals affirmed a trial court’s

exclusion of witness testimony in the defendant’s misdemeanor assault trial for

pinning his wife against a washing machine and shaking her severely, causing her

injuries. 235 S.W.3d 787, 788–89, 791 (Tex. Crim. App. 2007). On direct

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examination by the State, the wife testified, “I’m not crazy enough to hit a man or

start a fight. That’s why I always leave.” Id. at 789.

Defense counsel questioned the wife on voir dire about a 14-year-old assault

conviction to which the wife had pleaded guilty after assaulting her then-husband.

Id. Defense counsel argued that the wife’s trial testimony—that she’s “not crazy

enough to hit a man or start a fight” and “[t]hat’s why I always leave”—was not true,

was contradicted by her prior assault conviction, and left a false impression of lawabiding behavior. Id. at 790. The trial court denied the impeachment evidence

because the conviction was more than 10 years old and because its prejudicial effect

outweighed its probative value. Id. at 789.

The court affirmed the trial court’s exclusion of evidence, stating that “when

a witness, on direct examination, makes a blanket assertion of fact and thereby leaves

a false impression with respect to his prior behavior or the extent of his prior troubles

with the law” or a “blanket assertion of exemplary conduct [that] ‘is directly relevant

to the offense charged,’” then the opponent may cross-examine the witness and offer

extrinsic evidence rebutting the statement. Id. at 790–91. Due to the evidence of the

nature and remoteness of the wife’s prior assault conviction, the court concluded that

the impeachment testimony offered by the defendant was substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or undue delay. Id. at 791.

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Thus, the court held that the trial court’s decision was not clearly outside the zone

of reasonable disagreement. Id. at 791; see TEX. R. EVID. 403.

Here, appellant challenges the trial court’s exclusion of McCray’s prior

conviction for unlawfully carrying a weapon after McCray testified that he knew “a

little bit” about guns. McCray also testified that he saw appellant’s gun but did not

know what kind it was, and that he was “a little bit” familiar with guns and how they

work, including that you cock a gun to put a bullet in the chamber.

McCray’s testimony does not suggest that he has never been arrested, charged,

convicted, or had trouble with the police for unlawfully carrying a weapon. See Delk,

855 S.W.2d at 704. As an initial matter, the record indicates only that McCray’s

conviction was for unlawful carrying of a weapon, not necessarily a gun or other

firearm,2

and neither the record nor the parties clarify the type of weapon McCray

was convicted of unlawfully carrying. Moreover, McCray’s testimony does not

expressly state or imply that he did or did not have a criminal history.3 See Theus,

2

In 1997, at the time of McCray’s prior conviction, Texas Penal Code section

46.02(a), prohibited the carrying of a handgun, illegal knife, or club. Act of May 31,

1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 46.02(a), 1993 Tex. Gen. Laws 3586,

3686 (amended 2017) (current version at TEX. PENAL CODE ANN. § 46.02(a)).

3

In response to the State’s questioning on redirect examination, McCray testified

about his prior convictions for assault, possession of marijuana or a controlled

substance, and a ticket that he received the week before trial. Any false impression

of law-abiding behavior created by McCray’s testimony about his familiarity with

guns was cured by McCray’s admission of his prior criminal history.

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845 S.W.2d at 879 (“[T]o ‘open the door’ to the evidence of prior crimes, the witness

must do more than just imply that he abides by the law—he must in some way

convey the impression that he has never committed a crime.”). Nor does McCray’s

testimony expressly state or imply that his familiarity with guns was acquired

through lawful means. McCray did not testify how he became familiar with guns or

whether his familiarity was acquired through legal means.

A person need not be arrested, charged, or convicted with a gun-related

offense to have familiarity with guns. Conversely, a person arrested, charged, or

convicted with a gun-related offense does not necessarily have familiarity with guns.

As the trial court explained to appellant’s counsel when denying his request to

impeach McCray with the prior conviction, “I know a lot about guns and I’ve never

been convicted.” Even under the broadest interpretation of the State’s question,

“[A]re you familiar with guns and how they work,” McCray’s response that he was

“a little bit” familiar with guns does not falsely impress law-abiding behavior upon

the jury.

Nor did McCray’s additional testimony—that he could see the gun, that it was

black, that he did not know what kind of gun it was, that the gun was cocked back,

which meant putting a bullet in the chamber, and that he feared he could be shot or

seriously hurt—leave a false impression of law-abiding behavior upon the jury that

opened the door to impeachment. Much of the incident was captured on video, which

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the jury saw, and the jury heard explanatory testimony from responding HPD Officer

McCurry and McCray. McCray’s testimony was not related to his prior conviction

for unlawfully carrying a weapon.

Finally, the probative value of McCray’s prior conviction for unlawful

carrying of a firearm is substantially outweighed by a danger of unfair prejudice,

confusing the issues, undue delay, and needlessly presenting cumulative evidence.

TEX. R. EVID. 403; see, e.g., Osbourn, 92 S.W.3d at 538 (“Even when the trial judge

gives the wrong reason for his decision, if the decision is correct on any theory of

law applicable to the case it will be sustained.”) (citations omitted). McCray was the

victim of appellant’s aggravated robbery. Requiring him to testify about his 21-year

old prior conviction for unlawful carrying of a weapon would have unfairly

prejudiced the State’s case because of the remoteness of the conviction and its

irrelevance, and it would have confused the issues. In light of McCray’s admission

to other prior convictions, evidence about his prior conviction for unlawful carrying

of a firearm also would have caused undue delay and needlessly presented

cumulative evidence. Any probative value of McCray’s testimony would have been

substantially outweighed by these considerations.

The trial court’s decision to exclude the evidence was within its “wide

discretion” and is not outside the zone of reasonable disagreement. We therefore

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hold that the trial court did not abuse its discretion by denying appellant’s request to

impeach McCray with his 1997 conviction.4

We affirm the judgment of the trial court.