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Click here for the full text of this decision FACTS:Gwendolyn Thompson married Robert Glen Davis in 1986. They separated in 1990 and maintained “friendly communication” after their separation. One evening, Davis came to Thompson’s house to get his insulin medication. She let Davis inside, and Davis went to the kitchen. Davis returned to the living room with a “chef’s knife” and told Thompson that he was going to kill her, because she would not take him back and would not have sex with him. Davis stabbed the complainant repeatedly, and, after Thompson could no longer move, Davis “snatched the phones” from Thompson’s home, took money from Thompson’s purse and left the home. Davis recounted a different sequence of events. He testified that when he arrived at Thompson’s home, he told the complainant that he was there to get his insulin, he went to the kitchen, and when he returned to the living room, the complainant “hit him” with a butcher knife. Davis stated that some of the complainant’s wounds were “self-inflicted” and that the complainant sustained her injuries as he wrestled with her. Davis further stated that Thompson actually stabbed him, but he could not remember whether he ever stabbed Thompson. On cross-examination, Davis agreed that he had stabbed Thompson but asserted that he did not intentionally try to hurt her. A jury found Davis guilty of aggravated assault and, after Davis pleaded true to the allegations in two enhancement paragraphs that he had been previously convicted of two felony offenses, the trial court assessed his punishment at confinement for 50 years. HOLDING:Affirmed. In his first point of error, Davis contended that the trial court erred “by failing to grant [his] Theus motion,” which derives its name from the 1992 Court of Criminal Appeals decision Theus v. State. Davis, the court stated, filed a pretrial Theus motion “to permit [Davis] to testify free of impeachment with prior convictions,” seeking a ruling from the trial court prohibiting the state from impeaching him with his three prior robbery convictions and two previous theft convictions. Davis asserted that his previous convictions were too remote and were dissimilar. Texas Rule of Evidence 609, the court stated, provides that evidence of a witness’ prior conviction shall be admitted for purposes of impeachment if the crime was a felony or a crime of moral turpitude and the court determines that the probative value of admitting the evidence of the conviction outweighs its prejudicial effect. Such evidence is not admissible, however, if more than 10 years has elapsed since the date of the conviction or the witness’ release from confinement, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. The trial court found that the two of the convictions were not remote, the court stated, because he was still on probation for them at the time of the assault. The court found several other rationales with which to conclude that the previous convictions were not remote. The court also found that “[e]ven if we consider only the dates of appellant’s convictions as the relevant dates under Rule 609 and, thus, agree with appellant that the admission of his convictions should be evaluated under the ‘substantially outweighs’ standard in Rule 609(b), it is well settled that whether to admit remote convictions under Rule 609(b) still”lies within the trial court’s discretion and depends on the facts and circumstances of each case.’” In Theus, the court stated that the CCA set out a nonexclusive list of factors courts should use to weigh the probative value of a conviction against its prejudicial effect. Such factors, the court stated, include: “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 charged offense; 4. the importance of the witness’ testimony; and 5. the importance of the witness’ credibility.” In sum, the court found that all of the Theus factors favored admission of Davis’ theft convictions. In regard to the robbery convictions, the court found that the first Theus factor could be seen as favoring exclusion, but the court posited that Davis opened the door to impeachment by testifying that he was not a violent man. Based on its consideration of all of the Theus factors, the court held that the specific facts and circumstances supported a finding that the probative value of Davis’ prior convictions substantially outweighed their prejudicial effect. Accordingly, the court further held that the trial court did not abuse its discretion in denying Davis’ Theus motion and admitting evidence of Davis’ previous convictions. OPINION:Jennings, J.; Nuchia, Jennings and Keyes, JJ.

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