Unreported / Non-Citable
Background
Fort Worth police pursued Thomas McClendon after receiving an alert that the pickup he was driving had been reported stolen. McClendon initially moved onto the shoulder after an officer activated emergency lights and a siren, but he continued driving, exited the freeway, accelerated past ninety miles per hour, wove through traffic, and nearly struck another vehicle before stopping as officers prepared to deploy spike strips.
The State dismissed an unauthorized-use charge and tried McClendon for evading arrest or detention with a vehicle. McClendon maintained that he did not initially realize the officers were trying to stop him. The trial court excluded as hearsay his friend’s account of statements McClendon made during a contemporaneous phone call, but permitted the friend to describe McClendon as confused, distracted, and unlike himself. After McClendon testified, the court allowed the State to impeach him with two prior evading-arrest convictions that the appellate court treated as more than ten years old. The jury convicted him and assessed fifteen years’ confinement.
The Court’s Holding
The Seventh Court of Appeals affirmed. Without deciding whether McClendon’s statements during the phone call qualified as present-sense impressions or excited utterances, the court held that any error in excluding them was nonconstitutional and harmless. McClendon and his friend otherwise presented his confusion theory, and McClendon testified in detail about believing that the officers might be trying to pass him or reach a wreck. The excluded conversation also included McClendon saying that the officers might be after him, which could have supported an inference that he knew he was being pursued.
The court also held that admitting the two prior evading convictions for impeachment fell within the trial court’s discretion under Texas Rule of Evidence 609(b). Although the convictions were remote and identical to the charged offense, increasing the risk of unfair prejudice, McClendon’s knowledge and credibility were central because he admitted continuing to drive but disputed whether he understood that the officers were signaling him to stop. Given that credibility dispute and the nonviolent nature of the prior offenses, the trial court could reasonably find that their probative value, supported by the case’s specific circumstances, substantially outweighed their prejudicial effect.
Key Takeaways
- Excluding a defendant’s hearsay statements may be harmless when the same defensive theory and state-of-mind evidence reach the jury through other testimony.
- A remote conviction offered under Rule 609(b) requires probative value supported by specific facts and circumstances that substantially outweighs prejudicial effect.
- Even remote convictions identical to the charged offense may be admitted for impeachment when the defendant’s credibility is paramount, though their similarity weighs against admission.
Why It Matters
The decision illustrates how harmless-error review can preserve a conviction when excluded testimony is cumulative and potentially cuts both ways. It also shows that Texas courts may permit impeachment with remote, similar convictions when the charged offense turns principally on whether jurors believe the defendant’s account of his mental state.