WENDALL CRAIG GOODIE v. THE STATE OF TEXAS--Appeal from 180th District Court of Harris County

   NUMBER 13-03-406-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

WENDALL CRAIG GOODIE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

   On appeal from the 180th District Court of Harris County, Texas.

   MEMORANDUM OPINION

   Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Ya ez

On June 11, 2003, appellant, Wendall Craig Goodie, was convicted of aggravated sexual assault of a child[1] by a Harris County jury and sentenced to forty-five years= imprisonment in TDCJ-Institutional Division, with enhancements.[2] By one issue, appellant argues on appeal that the trial court erred in denying his motion to testify free from impeachment by his prior convictions. We affirm.

The record contains the trial court=s certification that this is not a plea-bargain case and the defendant has the right of appeal.[3]

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them except when necessary to advise the parties of the Court=s decision and the reasons for it.[4]

Standard of Review

The standard of review for a trial court's ruling on the admissibility of an extraneous offense is abuse of discretion.[5] The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action.[6] Rather, it is a question of whether the trial court acted without reference to any guiding rules and principles.[7] Another way of stating the test is whether the act was arbitrary or unreasonable.[8] As long as a trial court's evidentiary ruling could be a subject of reasonable disagreement, the appellate court will not set it aside.[9]

Analysis

In appellant=s sole issue, he asserts that the trial court abused its discretion in overruling his motion to testify free from impeachment by prior convictions because the probative value of the prior convictions was not outweighed by their prejudicial effect.[10]

The record reflects that on March 3, 2003, prior to trial, the State gave appellant notice of its intent to impeach his credibility by questioning him regarding whether he had any prior convictions. Immediately prior to the beginning of the guilt/innocence phase of trial, appellant=s trial counsel filed a motion to allow appellant to testify free from impeachment by his prior convictions. Shortly thereafter, during a hearing outside the jury=s presence, appellant=s trial counsel requested that the court address his objection regarding admission of appellant=s prior convictions. The court overruled the objection and allowed the introduction of appellant=s prior convictions for impeachment purposes if appellant chose to testify. Shortly after the court=s ruling, on direct examination, appellant=s trial counsel preemptively questioned appellant about his prior convictions. Appellant acknowledged that he had three prior convictions. During the State=s subsequent cross-examination, the prosecutor questioned appellant further regarding his prior convictions, and appellant again admitted to the existence of the prior convictions.

In Ohler v. United States, the United States Supreme Court addressed the consequences of preemptively admitting a prior conviction during direct examination.[11] Ohler was on trial for possession of marijuana.[12] During trial, Ohler sought to testify on her own behalf.[13] As a result, the government sought to introduce evidence of any prior felony conviction committed by Ohler as character evidence and as impeachment evidence.[14] The trial court subsequently ruled that evidence of Ohler=s prior conviction was admissible for the purpose of impeachment if Ohler chose to testify on her own behalf.[15] Despite the court=s ruling, Ohler chose to testify on her own behalf and admitted on direct examination to a prior conviction for possession of methamphetamine.[16] The government then requested, and the district court granted, permission for the government to cross-examine Ohler regarding her prior convictions for the purpose of impeachment.[17] After deliberations, the jury convicted Ohler of possession of marijuana with intent to distribute.[18] On appeal, Ohler challenged the district court=s ruling regarding her prior convictions.[19] In a 5-4 decision, the Supreme Court upheld her conviction and stated in pertinent part, that Aa defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.@[20] The Court further stated that Aa defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like.@[21]

Here, as in Ohler, appellant=s trial counsel first introduced testimony of appellant=s prior convictions before cross-examination. Following Ohler, we conclude the trial court did not err in denying appellant=s motion and allowing the testimony.[22] Accordingly, we overrule appellant=s sole issue.

We affirm the judgment of the trial court.

_____________________

LINDA REYNA YA EZ,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered

and filed this the 23rd day of June, 2005.

[1] See Tex. Pen. Code Ann. ' 22.01(a)(2) (Vernon 2003).

[2] The record reflects that appellant=s sentence was enhanced by the following prior convictions: (1) in 1998, appellant was convicted of retaliation, sentenced to two years= imprisonment, and fined $500; (2) in 1991, appellant was convicted of possession of a controlled substance and sentenced to four years= imprisonment; and (3) in 1990, appellant was convicted of burglary of a motor vehicle and sentenced to five years= imprisonment. See Tex. Pen. Code Ann. '12.42(d) (Vernon 2003).

[3]See Tex. R. App. P. 25.2(a)(2).

[4]See Tex. R. App. P. 47.4.

[5] Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) (en banc).

[6] Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc).

[7] Id.

[8] Id.

[9] See id. at 391.

[10] Tex. R. Evid. 609(a).

[11] Ohler v. United States, 529 U.S. 753, 754 (2000).

[12] See id.

[13] See id. at 755.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] See id. at 760.

[21] See id. at 759 (quoting McGautha v. California, 402 U.S. 183, 215 (1971).

[22] Id. at 760.