Theus factors in Texas

2026We just 8 The Theus factors are a set of five non-exclusive considerations the Texas Court of Criminal Appeals has adopted for applying Rule 609 when 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 v. State, 845 S.W.2d 874, 880 (

2026We just 8 The Theus factors are a set of five non-exclusive considerations the Texas Court of Criminal Appeals has adopted for applying Rule 609 when 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 v. State, 845 S.W.2d 874, 880 (

2024Those factors are: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the [date the witness testifies] and the witness’ subsequent [criminal] history, (3) the similarity between the past crime [and the conduct at issue in the present trial], (4) the importance of the [witness]’s testimony, and (5) the importance of the credibility issue. 3 Id. (quoting Theus, 845 S.W.2d at 880 ); see Blacklock v. State, 611 S.W.3d 162 , 170 (Tex. App.— Houston [14th Dist.] 2020, pet. ref’d) (citing Moore v. State, 143 S.W.3d 305 , 312–13 (Tex. App.—Waco 2004,

2020Moore v. State, 143 S.W.3d 305 , 312–13 (Tex. App.—Waco 2004, pet. ref’d) (adapting Theus factors to cases in which witness subject to impeachment with prior convictions is not the defendant); see Theus, 845 S.W.2d at 880 (establishing nonexclusive list of factors courts consider when defendant is witness being impeached with evidence of prior conviction).

2019See Theus, 845 S.W.2d at 880 ; Leyba v. State, 416 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (considering the Theus factors in determining admissibility under Texas Rule of Evidence 609(b)).

2019See Theus, 845 S.W.2d at 880 ; Leyba v. State, 416 S.W.3d 563, 571 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (considering the Theus factors in determining admissibility under Texas Rule of Evidence 609(b)).

2024The reason for this is that a jury should not be encouraged to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.” Id. -5- 04-22-00539-CR defendant’s testimony, and (5) the importance of the credibility issue. 4 Theus, 845 S.W.2d at 880 ; Davis v. State, 259 S.W.3d 778, 782 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Hankins v. State, 180 S.W.3d 177 , 180–81 (Tex. App.—Austin 2005, pet. ref’d)) (applying Theus factors in Rule 609(b) analysis).

2024See id.; Davis, 259 S.W.3d at 782 .

2015App. 1992); see Miller, 196 S.W.3d at 268 (reciting and applying the Theus factors); Woodall v. State, 77 S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d) (same).

2015App. 1992); see Miller, 196 S.W.3d at 268 (reciting and applying the Theus factors); Woodall v. State, 77 S.W.3d 388, 395 (Tex. App.—Fort Worth 2002, pet. ref’d) (same).

2024The reason for this is that a jury should not be encouraged to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.” Id. -5- 04-22-00539-CR defendant’s testimony, and (5) the importance of the credibility issue. 4 Theus, 845 S.W.2d at 880 ; Davis v. State, 259 S.W.3d 778, 782 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Hankins v. State, 180 S.W.3d 177 , 180–81 (Tex. App.—Austin 2005, pet. ref’d)) (applying Theus factors in Rule 609(b) analysis).

2008See Hankins v. State, 180 S.W.3d 177, 180-81 (Tex.App.-Austin 2005, pet. ref'd) (applying Theus factors in Rule 609(b) analysis).

2018App. 1992); see also Cisneros v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009) (referring to Theus motion), pet. dism’d, improvidently granted, 353 S.W.3d 871 (Tex. Crim.

2017See, e.g., Cisneros v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009) (referring to Theus motion), pet. dism’d, improvidently granted, 353 S.W.3d 871 (Tex. Crim.

2024“Wide discretion is accorded the trial court’s decision in weighing these factors, and the decision should be reversed on appeal only if there is a showing of a clear abuse of discretion.” Medina, 367 S.W.3d at 475 (quoting Berry v. State, 179 S.W.3d 175, 180 (Tex. App.—Texarkana 2005, no pet.)).

2008Berry v. State, 179 S.W.3d 175, 180 (Tex.App.-Texarkana 2005, no pet.) (citing Theus v. State, 845 S.W.2d 874 (Tex.Crim.App.1992)); Moore v. State, 143 S.W.3d 305, 312-13 (Tex.App.-Waco 2004, pet. ref'd) (same).

2015For cases that have used Theus in the context of Rule 609(b), see Leyba v. State, 416 S.W.3d 563 (Tex. App. – Houston [14th Dist.] 2013, pet. dism’d.); Butler v. State, 890 S.W.2d 951 , 954- 55 (Tex. App.—Waco 1995, pet. ref’d); Brown v. State, 880 S.W.2d 249, 253-254 (Tex. App.— El Paso 1994, no pet.); Polk v. State, 865 S.W.2d 627, 630-31 (Tex. App.—Fort Worth 1993, pet. ref’d); Jones-Jackson v. State, 443 S.W.3d 400 (Tex. App.—Eastland 2014, no pet.); Bello v. State, No. 05-14-00284-CR, 2015 Tex. App. LEXIS 5006 (Tex. App.—Dallas May 15, 2015, no pet. h.) (mem. op.); and Duarte v. State, No

2007App. 1992) (en banc); see Hankins v. State , 180 S.W.3d 177, 180-81 (Tex. App.-Austin 2006, pet. ref'd) (applying Theus factors to a rule 609(b) issue); Polk v. State , 865 S.W.2d 627, 630-31 (Tex. App.-Fort Worth 1993, pet. ref'd) (same).

2021Dale v. State, 90 S.W.3d 826, 830 (Tex. App.—San Antonio 2002, pet. ref’d); see also Guerra v. State, No. 01-15-00650- CR, 2016 WL 6212999 , *10–11 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op., not designated for publication) (assault-family-violence against woman is crime of moral turpitude, but in considering Theus factors is not a crime of deception).

2019App. 1992); see also Dale v. State, 90 S.W.3d 826, 830 (Tex. App.—San Antonio 2002, pet. ref’d) (court considers the Theus factors when determining whether the probative value of a defendant’s previous conviction outweighs its prejudicial effect).

2013See Huerta v. State, 359 S.W.3d 887, 894 (Tex.App.-Houston [14th Dist.] 2012, no pet.); see also Martin v. State, 265 S.W.3d 435, 444-45 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (holding that trial counsel did not render ineffective assistance for not filing Theus motion when admission of prior convictions by counsel appeared to be strategic attempt to appear open and honest to jury and to lessen impact of any impeachment on issue).

2010See Martin v. State , 265 S.W.3d 435 , 444–45 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that trial counsel did not render ineffective assistance for not filing Theus motion when prior convictions were likely admissible and admission of prior convictions by counsel appeared to be strategic attempt to appear open and honest to jury and to lessen impact of any impeachment on issue); See also, e.g. , Tong v. State , 25 S.W.3d 707 , 713–14 (Tex. Crim.

2023Theus, 845 S.W.2d at 881 ; see Schmidt v. State, 373 S.W.3d 856 , 862–63 (Tex. App.—Amarillo 2012, pet. ref’d) (using the five Theus factors to weigh the probative value of using defendant’s prior convictions as impeachment evidence).

2023Theus, 845 S.W.2d at 881 ; see Schmidt v. State, 373 S.W.3d 856 , 862–63 (Tex. App.—Amarillo 2012, pet. ref’d) (using the five Theus factors to weigh the probative value of using defendant’s prior convictions as impeachment evidence).

2018App. 1992); see also Cisneros v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009) (referring to Theus motion), pet. dism’d, improvidently granted, 353 S.W.3d 871 (Tex. Crim.

2017See, e.g., Cisneros v. State, 290 S.W.3d 457, 468 (Tex. App.—Houston [14th Dist.] 2009) (referring to Theus motion), pet. dism’d, improvidently granted, 353 S.W.3d 871 (Tex. Crim.

2015See Johnson, 981 S.W.2d at 761 ; Wootton, 132 S.W.3d at 84 ; Cisneros, 290 S.W.3d at 468 .

2005Johnson v. State , 981 S.W.2d 759, 761 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); Wootton v. State , 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also Ohler v. United States , 529 U.S. 753, 760 , 120 S. Ct. 1851, 1855 (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not appeal claim that the admission of such evidence was error.”).

2017See Theus, 845 S.W.2d at 881–82; Jackson, 11 S.W.3d at 340– 41; Pierre, 2 S.W.3d at 442–43; cf. Vasquez v. State, 417 S.W.3d 728 , 731–33 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (no ineffective assistance when it 21 would not have been an abuse of discretion to admit a conviction for failing to register as a sex offender; the only factor weighing against admissibility was the similarity of the offense to the crime charged); Huerta v. State, 359 S.W.3d 887 , 892–94 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (no ineffective assistance when it would not have been an abuse of discret

2013See Huerta v. State, 359 S.W.3d 887, 894 (Tex.App.-Houston [14th Dist.] 2012, no pet.); see also Martin v. State, 265 S.W.3d 435, 444-45 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (holding that trial counsel did not render ineffective assistance for not filing Theus motion when admission of prior convictions by counsel appeared to be strategic attempt to appear open and honest to jury and to lessen impact of any impeachment on issue).

2015See Johnson, 981 S.W.2d at 761 ; Wootton, 132 S.W.3d at 84 ; Cisneros, 290 S.W.3d at 468 .

2005Johnson v. State , 981 S.W.2d 759, 761 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); Wootton v. State , 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also Ohler v. United States , 529 U.S. 753, 760 , 120 S. Ct. 1851, 1855 (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not appeal claim that the admission of such evidence was error.”).

2010Therefore, because these prior convictions would have been admissible, we hold that Scope has not overcome the presumption that his trial counsel employed a reasonable trial strategy by eliciting testimony from Scope about his prior convictions, while attempting to portray him as truthful. [3] See Martin , 265 S.W.3d at 443 ; Rodriguez , 129 S.W.3d at 558–59.

2010Therefore, because these prior convictions would have been admissible, we hold that Scope has not overcome the presumption that his trial counsel employed a reasonable trial strategy by eliciting testimony from Scope about his prior convictions, while attempting to portray him as truthful. [3] See Martin , 265 S.W.3d at 443 ; Rodriguez , 129 S.W.3d at 558–59.

2023See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim.

2023See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim.

2021See Ex Parte Menchaca, 854 S.W.2d at 132 ; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 1.

2021See Ex Parte Menchaca, 854 S.W.2d at 132 ; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 1.

2021See Ex Parte Menchaca, 854 S.W.2d at 132 ; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 1.

2021See Ex Parte Menchaca, 854 S.W.2d at 132 ; McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 1.

2019Evid. 609; Theus, 845 S.W.2d at 880 ; Morris, 214 S.W.3d at 187-88 (applying Theus factors and concluding the prejudicial value of evidence of a prior conviction was significant).

2017App. 2011); see also Theus, 845 S.W.2d at 877 (noting that the trial court held a pretrial hearing on counsel’s “Motion to Testify Free From Impeachment With Prior Conviction”).13 And, counsel filed a pretrial request for notice of the State’s intent to use evidence of extraneous offenses at trial, specifically requesting notice under Rule 609(f) regarding convictions to impeach the “[c]omplaining witness and other civilian witness to be presented by the State.” But, counsel did not request notice of the State’s intent to use convictions to impeach appellant.14 13 Had the trial court erroneous

2017App. 1972) (“It is observed that aggravated assault, not committed on a female, is not a misdemeanor involving moral turpitude and is not available for impeaching.” (citation omitted)); Garza v. State, 160 S.W.2d 926, 927 (Tex. Crim.

2016Recently, the Court of Criminal Appeals explained that “[i]n deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction.” Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim.

2016Recently, the Court of Criminal Appeals explained that “[i]n deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction.” Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim.