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Lopez v. State

The trial judge made at least an implied ruling permitting the state to elicit testimony on previous convictions during cross-examination. Court of Criminal Appeals, Nos. PD-1124-07 and PD-1125-07

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Keller, P.J., delivered the opinion of the unanimous Court.

Texas Penal Code §12.45 permits a defendant (with the prosecutor’s consent) to admit guilt of an unadjudicated extraneous offense, have that offense taken into account by the trial court in sentencing on the primary offense, and thereafter bar any future prosecution for that extraneous offense.*fn1 In a prior prosecution, appellant and the State followed this procedure, and the trial court took into account two extraneous drug offenses. In the present case, the State sought to introduce evidence of those drug offenses as “prior convictions” to impeach appellant as a witness under Texas Rule of Evidence 609. Two issues are presented: First, did appellant forfeit error by failing to object when the State cross-examined him about the prior offenses? Second, do extraneous offenses considered under §12.45 constitute prior convictions available for impeachment under Rule 609? We answer both questions “no” and affirm the judgment of the court of appeals.

I. BACKGROUND

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