St. Mary's Law Journal


In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule of Evidence 609. Thus, intermediate courts continue to inconsistently interpret Rule 609. Rule 609 grants an exception to use certain prior criminal convictions of a witness as circumstantial evidence of the witness’s untruthful character. Such evidence is admissible if it is established by an acceptable mode of proof, it fits into a qualifying category, and if the court determines the probative value of admitting the impeachment evidence outweighs its prejudicial effect to a party. The rule hinges on the central premise that evidence of a prior conviction to impeach the credibility of a witness at trial must be balanced against any threat that the same conviction will mislead the jury. An explicit clarification by the Texas Court of Criminal Appeals will not only aid in applying the rule consistently, it will ensure that courts across Texas will evaluate all prior convictions offered as attacks upon witnesses by a uniform and logical criteria that mirror the purpose and intent underlying Rule 609.


St. Mary's University School of Law