author: DIANE DeVASTO, Justice.

text:
    Eddie ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 12-04-00090-CR.
    Court of Appeals of Texas, Tyler.
    June 30, 2005.
    Discretionary Review Refused Nov. 23, 2005.

      Richard Kennedy, for appellant.
    Michael J. West, for state.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Eddie Ross appeals his conviction for aggravated assault with a deadly weapon. In three issues, Appellant asserts that the evidence is not legally or factually sufficient to support his conviction and that his trial counsel provided ineffective assistance of counsel. We affirm.

Background

Appellant was charged by indictment with aggravated assault with a deadly weapon. See Tex. Pen.Code Ann. § 22.02(a)(2) (Vernon 2003). The indictment alleged that, on or about March 25, 2003 in Smith County, Texas, Appellant intentionally or knowingly threatened Iwa-na Grant with imminent bodily injury and used or exhibited a deadly weapon, to wit: a hypodermic syringe and needle, during commission of the assault. Further, the indictment alleged that during commission of the felony offense described above, Appellant used and exhibited a deadly weapon, to wit: a hypodermic syringe and needle, “that in the manner of its use and intended use was capable of causing death and serious bodily injury.” Appellant pleaded “not guilty.”

During voir dire, as the State’s counsel began to discuss punishment, the trial court asked both counsel to approach the bench. The trial court stated that Appellant did not file an election on punishment. Consequently, punishment would be assessed by the trial court. Appellant’s counsel stated that she believed Appellant’s former counsel had filed an election. However, the trial court reiterated that no such election was in the court’s file. Thus, the trial court refused to allow counsel to voir dire the jury on punishment.

At trial, Gant testified that she contacted Officer Kelly Smith with the Drug Enforcement Agency (“DEA”) regarding Appellant. As a confidential informant, Gant agreed to make a “controlled” buy of drugs from Appellant, specifically methamphetamine. According to Gant, Appellant was living in a mobile home at 642 Jamestown Highway, Smith County, Texas. However, Gant stated that the address might be in Wood County. On March 25, Gant and Appellant agreed that Appellant would buy drugs in Tyler and be at the residence that afternoon. Smith fitted Gant with a wire and gave her a car and money to buy the drugs. Then, Gant traveled to Appellant’s residence. Appellant informed Gant that he did not get the drugs, “grabbed” her money, and left. He returned about an hour later and told Gant to go inside the mobile home. Gant bought the drugs from Appellant, left the mobile home, and got in her car. However, according to Gant, Appellant followed her, told her to give him some of the drugs, stated that he wanted to have sex with her, and refused to let her leave. Frightened of “blowing” her cover, Gant returned to the mobile home.

Once inside the mobile home, Appellant used a syringe and needle to inject himself with drugs. Appellant told Gant to put some of the drugs on a spoon and that they would have sex. Gant refused. At some point, Appellant grabbed her arm, held the dirty needle, and told her that she was going to do the drugs. Then, he sat on the couch and unzipped his pants. At that point, Gant used the pre-arranged code words to signal the DEA that her life was in danger. Moments later, the DEA arrived and took Appellant into custody.

At the conclusion of the trial, the jury found Appellant guilty of aggravated assault with a deadly weapon as charged in the indictment. The trial court assessed punishment at twenty years of imprisonment and a $10,000 fine. The trial court also made a deadly weapon finding. This appeal followed.

Venue

In his first and second issues on appeal, Appellant argues that the evidence is legally and factually insufficient to support his conviction. More specifically, Appellant contends that the evidence adduced at his trial was legally and factually insufficient to prove venue. The State disagrees, arguing that the sufficient evidence of venue was presented.

Texas Rule of Appellate Procedure 44.2(c)(1) provides that unless venue is disputed in the trial court, the court of appeals must presume that venue was proved in the trial court. Tex.R.App. P. 44.2(c)(1). A plea of not guilty puts allegations of venue in issue. Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App.1983). However, this rule merely places the burden of proof at trial. Holdridge v. State, 707 S.W.2d 18, 21 (Tex.Crim.App.1986). An appellant who did not otherwise timely raise an issue of venue in the trial court has not made an issue of venue for purposes of avoiding the presumption. Id. at 20-21.

Appellant does not point us to a place in the record where he disputed venue nor did our review of the record reflect any such objection. To the extent he seeks to rely on his plea of “not guilty” to raise the issue, he is incorrect. See id. Because Appellant failed to dispute venue before the trial court and the record does not affirmatively refute proper venue, we must presume that venue was proved in the trial court. See Tex.R.App. P. 44.2(c)(1). Accordingly, Appellant’s first and second issues are overruled.

Ineffective Assistance of Counsel

In his third issue, Appellant argues that his former counsel provided ineffective assistance of counsel. More specifically, Appellant contends that his trial counsel failed to timely file an election for jury sentencing, thereby denying him the opportunity to have the jury render punishment. Appellant contends that he was harmed by his trial counsel’s error because he received the maximum sentence and fine from the trial court. The State argues that the record does not support Appellant’s contention that he maintained a desire to have the jury determine punishment. Alternatively, the State contends that Appellant cannot show harm because the evidence showed that he committed the offense alleged and had approximately eleven prior convictions.

Standard of Review

In reviewing an ineffective assistance of counsel claim, we follow the United States Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). Under the first prong of the Strickland test, an appellant must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To be successful, an appellant must “show that counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688, 104 S.Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The Strickland standard applies to ineffective assistance of counsel claims alleging a deficiency in attorney performance at noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App.1999) (overruling Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980)).

Review of a trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It is Appellant’s burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. 466 U.S. at 689, 104 S.Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Appellant must prove both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.

Applicable Law

If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense. Tex.Code Crim. PROC. Ann. art. 37.07, § 2(b) (Vernon Supp.2004-2005). However, where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury. TexUode CRIM. PROC. Ann. art. 37.07, § 2(b). If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment. Tex. Code CRIM. Proc. Ann. art. 37.07, § 2(b). There is no constitutional right to have the jury assess punishment. Grim v. State, 923 S.W.2d 767, 769 (Tex.App.-Eastland 1996, no pet.)

Analysis

During voir dire, trial counsel was under the impression that Appellant’s former counsel had filed an election. However, the trial court stated that no election was filed before voir dire. Appellant claims that he intended to have the jury sentence him and that trial counsel rendered competent advice to go to the jury for punishment. He contends that trial counsel then failed to effectuate his decision when she failed to file an election for the jury to assess punishment. Appellant admits that trial counsel’s performance was otherwise effective.

The record shows that trial counsel conducted voir dire, made numerous trial objections, cross-examined witnesses, put on a defense, and made closing arguments. See id. When asked by the trial court, Appellant stated, after the close of evidence and again after sentencing, that he had no problems with or complaints about trial counsel’s representation. Although Appellant contends that trial counsel advised him to go to the jury for punishment, the record is silent as to what advice, if any, that trial counsel gave Appellant regarding the forum for punishment. See id. Therefore, we are unable to conclude that Appellant instructed counsel to file an election for the jury to assess punishment. Moreover, although trial counsel did not object to the trial court’s discharging the jury and assessing punishment, nothing in the record explains trial counsel’s thought processes. See Redmond v. State, 30 S.W.3d 692, 698-99 (Tex.App.-Beaumont 2000, pet. ref'd) (presumption of reasonable effectiveness cannot ordinarily be overcome absent evidence in record showing attorney’s reasons for conduct). Consequently, based upon our review of the record, we conclude that Appellant has not shown that trial counsel was ineffective or that her performance was deficient. Therefore, Appellant has failed to meet the first prong of the Strickland test. See Thompson, 9 S.W.3d at 813.

Furthermore, Appellant has also failed to show that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Tong, 25 S.W.3d at 712. In an offer of evidence before trial, the State enumerated ten extraneous offenses or bad acts allegedly committed by Appellant prior to the charged offense. The ten prior offenses or bad acts included escape, aggravated assault, assault causing bodily injury, evading arrest or detention, possession, criminal mischief, violation of a protective order, and conspiracy to manufacture. Further, Appellant previously had been sentenced to a total of eleven years of imprisonment. Appellant claims that a jury could have only “tied” the judge for the amount of punishment rendered and, therefore, he was harmed by receiving the maximum time and fine available. However, we cannot speculate as to whether a jury would have assessed a lesser sentence. See Schaired v. State, 786 S.W.2d 497, 499 (Tex.App.-Houston [1st Dist.] 1990, no pet.). Thus, Appellant has failed to meet the second prong of the Strickland test. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Tong, 25 S.W.3d at 712. Accordingly, Appellant’s third issue is overruled.

Disposition

The judgment of the trial court is affirmed.

      . Aggravated assault is a second degree felony. Tex. Pen.Code Ann. § 22.02(b). The punishment range for a second degree felony is a term of imprisonment of not more than twenty years or less than two years and, in addition, a fine not exceeding $10,000. Tex. Pen. Code Ann. § 12.33 (Vernon 2003).


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Lamont HANKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00018-CR.
    Court of Appeals of Texas, Austin.
    Aug. 10, 2005.
    Rehearing Overruled Nov. 30, 2005.
    Discretionary Review Refused Feb. 15, 2006.

      Gregory D. Sherwood, Austin, for appellant.
    Ronald Earle, Dist. Atty., Holly E. Taylor, Asst. Dist. Atty., Austin, for appellee.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

Appellant Lamont Hankins was convicted of aggravated assault with a deadly weapon, specifically a hot iron or knife, and sentenced to eight years’ imprisonment. See Tex. PemCode Ann. § 22.01 (West 2004). The trial court admitted evidence of appellant’s prior felony conviction of manufacture and delivery of cannabis from 1989. Appellant complains that- evidence of the 1989 prior conviction was improperly admitted and claims that the admission affected his substantial rights. He also complains of the erroneous inclusion of “scissors” as a weapon listed in the judgment. We sustain appellant’s first issue but find the error harmless, modify the judgment to conform to the verdict of the jury and affirm the judgment as modified.

DISCUSSION

Prior Conviction

Appellant complains in his first point of error that the trial court improperly admitted evidence of his 1989 felony conviction for manufacture and distribution of cannabis. See Tex.R. Evid. 609. Appellant argues that his prior conviction did not meet the requirements for admission of pre-rules common law, or alternatively of the rules of evidence. See id. Appellant claims that the error, under either analysis, affected his substantial rights and that he was harmed.

Before the codification of the rules of evidence, common law presumed prior, “remote” convictions were inadmissible for impeachment purposes. McClendon v. State, 509 S.W.2d 851, 853-54 (Tex.Crim.App.1974) (generally, conviction is remote if discharge from conviction occurred more than ten years before trial). An exception to the common-law rule allowed the trial court the discretion to admit a remote conviction if the witness demonstrated a lack of reformation by committing a subsequent conviction for a felony or a misdemeanor involving moral turpitude. Lucas v. State, 791 S.W.2d 35, 51 (Tex.Crim.App.1989). This exception is sometimes referred to as the “tacking” doctrine. See Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). If a court finds that the conviction is more than 10 years old but that subsequent convictions of felonies or misdemeanors involving moral turpitude remove the taint of its distance, the “outweighs” standard from Rule 609(a), rather than the “substantially outweighs” standard from 609(b), is appropriate. Id. In such a case, the “tacking” of the intervening convictions “causes a conviction older than 10 years to be treated as not remote.” Id. (citing McClendon, 509 S.W.2d at 853-54; Crisp v. State, 470 S.W.2d 58, 59-60 (Tex.Crim.App.1971)).

The rules of evidence subsequently displaced this common-law rule and its accompanying exception by setting explicit standards for the admission of prior convictions for impeachment purposes. See Tex.R. Evid. 609. Rule 609(a) establishes the general rule requiring that a proof of conviction shall only be admitted if (1) it was a felony or involved moral turpitude and (2) the probative value of admitting the conviction outweighs its prejudicial effect to a party. Tex.R. Evid. 609(a). Rule 609(b), however, applies a more rigorous standard to convictions more than ten years old. To admit these convictions, a court must find that “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Tex.R. Evid. 609(b) (emphasis added).

Some courts have imported the pre-rules exception from McClendon and apply it in conjunction with Rule 609. See Jackson v. State, 50 S.W.3d 579, 591-592 (Tex.App.Fort Worth 2001, pet. ref'd); Rodriguez v. State, 31 S.W.3d 359, 363-64 (Tex.App.San Antonio 2000, pet. ref'd). These courts conclude that a trial court has the discretion to ignore the fact that a prior conviction is more than ten years old if the defendant demonstrates lack of reformation in the form of intervening convictions. Under this reasoning, the court will subject the prior conviction to the lower “outweighs” standard found in Rule 609(a) rather than the “substantially outweighs” standard of Rule 609(b) upon a finding that the defendant was again convicted after the prior conviction. Jackson, 50 S.W.3d at 591-92; Rodriguez 31 S.W.3d at 363-64.

However, we do not find that the current rules tolerate this exception or that the tacking doctrine was intended to survive the creation of the rules. Unlike the exception, Rule 609 creates two distinct categories of prior convictions — those more than ten years old and those less than ten years old. See Tex.R. Evid. 609. Rule 609 does not include a third category of prior convictions codifying the McClen-don exception. Id. We will apply the general requirements in Rule 609(a) as well as the standard from Rule 609(b), which prohibits admission for impeachment purposes of all prior convictions more than ten years old absent a showing that “the probative value of the conviction ... substantially outweighs its prejudicial effect.” Tex.R. Evid. 609(b).

We review the admission of appellant’s 1989 conviction and will only reverse upon a finding of clear abuse of discretion. See Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992). The trial court abuses its discretion if its decision to admit a prior conviction lies “outside the zone of reasonable disagreement.” Id.

The trial court in the present case did not articulate a balancing of factors and seems to have applied the “tacking” doctrine drawn from common law rather than Rule 609. See Hernandez, 976 S.W.2d at 755-56. Although a trial court is not required to articulate in the record a balancing analysis conducted under Rule 609, such a policy is good practice.

The 1989 felony drug conviction satisfied the general requirement in Rule 609(a) that a prior conviction be either a felony or crime of moral turpitude to be admissible. Rule 609(b) further governed the admissibility of the 1989 conviction because it was more than ten years old at the time of the trial. See Tex.R. Evid. 609(b). Thus, we next consider whether a court could have concluded within the “zone of reasonable disagreement” that the probative value of the prior conviction supported by facts and circumstances substantially outweighed its prejudicial effect of the pri- or conviction. See Theus, 845 S.W.2d at 881.

Courts consider various factors when balancing the probative value and prejudicial effect of a prior conviction. The court of criminal appeals has identi-fíed the following non-exclusive factors to be considered under Rule 609:(1) impeachment value; (2) temporal proximity of the prior conviction to the charged offense and subsequent history; (3) similarity of the prior conviction to the charged offense; (4) importance of the witness’s testimony; and (5) importance of the witness’s credibility. Id. at 880. We consider these factors to determine whether the trial court’s decision to admit the prior conviction fell within the “zone of reasonable disagreement.” Id.

The State offered no specific facts or circumstances beyond the date and the type of crime to justify the admission of the conviction. Thus, we are forced to rely on the bare facts of the prior conviction in our analysis. Appellant’s 1989 drug conviction was not shown to involve a crime of deception, was temporally distant from the charged offense, and was successfully discharged through probation. These facts lead to the conclusion that the conviction offered minimal probative value. See Theus, 845 S.W.2d at 880.

The State presented no argument regarding the probative value of the prior conviction despite having the burden to do so, and simply justified the admittance of the 1989 conviction by arguing a lack of reformation as indicated by assault convictions from 2002 and 2008. A lack of reformation does not necessarily lead to a conclusion that the probative value of a prior conviction substantially outweighs its prejudicial effect, but it may be considered within the balancing process of Rule 609. See Theus, 845 S.W.2d at 881. The appellant’s later convictions for assault could increase the probative value of the prior conviction as it may suggest lack of reformation. However, the more than ten-year gap between the 1989 drug conviction and the later convictions diminishes the probative value of the prior conviction.

The importance of appellant’s credibility adds probative value. The defense asserted that appellant was not involved in the charged assault and that the charges were entirely fabricated, primarily offering appellant’s testimony to support this theory. The State asserted that appellant did commit the assault and offered the testimony of the victim and two police officers. The importance of appellant’s credibility gave rise to the State’s interest in impeaching him. However, although the importance of appellant’s credibility weighs in favor of admission of the prior conviction, the other factors offer only minimal indication of probative value. We cannot find facts or circumstances suggesting that the probative value of the prior conviction substantially outweighed its prejudicial effect, nor can we conclude that it was “within the zone of reasonableness” to find that the importance of impeaching appellant substantially outweighed the prejudicial effect of the evidence.

The record, including the trial court’s comment at sentencing that the prior conviction lacked probative value, leads us to believe that even if the court had engaged in the correct analysis under Rule 609, the State’s burden was not met. We hold that the trial court erred in admitting the 1989 drug conviction into evidence. We next consider whether this error was harmful.

Harmless Error

Appellant claims that the erroneous admission of his 1989 conviction affected his substantial rights, arguing that the introduction of such evidence could have motivated the jury to convict him based on the prior drug felony rather than the charged offense of assault. We hold that the error is harmless.

A violation of the rules of evidence is generally non-constitutional error. See Potier v. State, 68 S.W.3d 657, 662-63 (Tex.Crim.App.2002) (“Erroneous eviden-tiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense.”). Thus, in accordance with the rules of appellate procedure, we will reverse only if the erroneous admission of appellant’s pri- or conviction affected his substantial rights by exerting “a substantial and injurious effect or influence in determining the jury’s verdict.” Tex.R.App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The error is harmless if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001)). To analyze harm, we consider the entire record, including testimony, physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, the State’s theory, the defensive theory, and closing arguments. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002).

The State claimed that appellant arrived at the victim’s home and assaulted her with both an iron and a knife, then demanded her keys and stole her vehicle. Testimony from the victim, two police officers and others supported this theory. The State also introduced physical evidence, including photographs of the scene and the victim’s burn injury on her face.

The defense theorized that the victim was a jealous and hurt ex-girlfriend seeking to punish her ex-boyfriend by sending him to jail. Basing its case on belittling the victim’s credibility, the defense attempted to impeach her by offering testimony from the 911 operator, appellant, and appellant’s wife. Appellant testified that the victim had called him at Wal-Mart and informed him that she had called the police and that they were coming to arrest him. He claims that she met him at Wal-Mart and offered her car as a means of escape.

During cross-examination of appellant, the State referred briefly to his 1989 drug conviction as well as his 2002 and 2003 convictions for assault. The State did not emphasize the 1989 conviction or attempt to develop its probative value, but simply asked whether appellant had been convicted of the drug felony without inquiring about the details of the offense. The State also mentioned the 1989 conviction in closing arguments to remind the jury to question appellant’s credibility.

The defense did not object to the admission of the 2002 and 2003 assault convictions. See Theus, 845 S.W.2d at 881 (“admission for impeachment purposes of a crime similar to the crime charged presents a situation where the jury would convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense”). The prior drug conviction not only lacks similarity to the charged assault but also occurred fifteen years before the trial. Considering the nature of the evidence supporting the verdict, we conclude that the two brief references to the 1989 conviction could not have caused more than a slight influence on the jury in light of the other, more prejudicial evidence against the appellant. The trial court’s erroneous admission of the 1989 conviction was therefore harmless. We overrule appellant’s first point of error.

Modification

In his second point of error, appellant alleges that the trial court erred in reciting in the judgment that scissors were used as a deadly weapon. He asks that “scissors” be stricken from the judgment.

The indictment charges appellant with aggravated assault with a deadly weapon in the form of a hot iron and a knife. The jury’s verdict found appellant guilty of “aggravated assault with a deadly weapon” and further found that appellant “did use or exhibit a deadly weapon, to wit: a hot iron or a knife during the commission of the offense.” There is no evidence or finding that appellant used scissors in the commission of the offense.

This Court may modify the trial court’s judgment and affirm it as modified. Tex. R.App. Proc. Rule 43.2(b). Appellant’s second point of error is sustained, and the judgment is modified to delete any reference to “scissors” as a deadly weapon. The judgment should reflect the jury’s verdict that in committing aggravated assault with a deadly weapon, appellant used or exhibited a hot iron or a knife.

CONCLUSION

We cannot conclude within the zone of reasonableness that the probative value of appellant’s 1989 drug conviction substantially outweighed its prejudicial effect, but find that the error was harmless. We order that the judgment be modified to conform to the jury’s verdict and affirm the judgment as modified.

      . Rule 609. Impeachment by Evidence of Conviction of Crime
      (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a parly.
      (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, 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.
      Tex.R. Evid. 609.

      . Determining whether or not a drug crime constituted a crime of deception typically depends on the facts and circumstances of the offense. Because no specific facts and circumstances are available in the record, we will assume that the prior drug offense was not a crime of deception.

      . The trial court did not describe any balancing analysis that it might have utilized in deciding to admit the prior conviction. When discussing the prior conviction at sentencing, however, the court commented, "I think the probative value is so slight that it’s hardly worth considering.”

      . STATE: On May 23rd, 1989, in cause number 89CR0235101 in the circuit court of Cook County, you were found guilty of delivery of marijuana, more than 30 grams and less than 500 grams, and that was a felony; is that correct?
      APPELLANT: Yes.

      STATE: And you were sentenced to a 30-month probation, a felony — you had a felony conviction for that; is that correct?
      APPELLANT: Yes

      . STATE: The defendant, how credible is he? He’s been convicted of a felony, delivery of marijuana....

      . Appellant does not challenge the remainder of the judgment that appellant was guilty of assault with a deadly weapon; he merely asks that we correct the erroneous term, “scissors.”