Lopez, Osvaldo Jr. ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1124-07, 1125-07
OSVALDO LOPEZ, JR., Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
JONES COUNTY
K ELLER, 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.1 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
1
T EX . PEN . CODE §12.45(a), (c).
LOPEZ - 2
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
A. Trial
Appellant was charged with two deliveries of cocaine. At trial, after the State rested its case,
he informed the trial judge that he intended to testify. The State then advised the court that it would
seek to introduce three documents for impeachment purposes in the event that appellant testified.
The trial judge convened a hearing outside the presence of the jury to address this issue. The first
document that the State sought permission to introduce was a judgment of conviction for the offense
of illegal investment, a first-degree felony.2 The first page of that document contained a notation that
the plea agreement included “Sec. 12.45 P.C. Counts Two and Three.” The second document was
a motion to dismiss two extraneous drug-possession offenses on the ground that they had been taken
into account in a prior sentencing hearing under Texas Penal Code §12.45. The third document was
an order granting the motion to dismiss.
Relying upon Perea v. State,3 the State contended that the circumstances surrounding the use
of an extraneous offense under §12.45 essentially make it a prior “conviction” for impeachment
purposes under Texas Rule of Evidence 609. The defense contended that the extraneous offenses
2
See TEX . HEALTH & SAFETY CODE §481.126.
3
870 S.W.2d 314 (Tex. App.–Tyler 1994, no pet.).
LOPEZ - 3
had not been properly disposed of under §12.45, and even if they had been, they still did not
constitute “convictions.” The defense stipulated to the admissibility of the judgment for the illegal-
investment conviction, however, and said that it had no objection to the §12.45 reference contained
in that judgment. After hearing argument, the trial judge said: “All right. Thank you. I am going
to allow the admission of the documents for the purpose of impeachment in the event that the
Defendant testifies.” No further request or objection was made by either party during the hearing
after the trial judge made this ruling.
Appellant testified at the guilt phase of trial. On cross-examination he acknowledged that,
as part of a plea bargain in his prior illegal-investment case, he admitted to two other drug offenses
that were considered by the judge and subsequently dismissed. At the conclusion of this testimony,
the following occurred:
[PROSECUTOR]: Judge, I offer State’s Exhibit 9 into evidence.
[DEFENSE COUNSEL]: Judge, I object for the reasons previously stated. I’d ask you for
a running objection with respect to any information that you all in –
[THE COURT]: It’s granted. Your running objection is granted, and the document is
admitted.
[DEFENSE COUNSEL]: What did you say about the objection being –
[THE COURT]: The document is admitted. The objection is overruled.
[DEFENSE COUNSEL]: Okay.
[THE COURT]: But the running objection is granted.
LOPEZ - 4
State’s Exhibit 9 is the judgment of conviction for illegal investment.4
B. Appeal
On appeal, appellant claimed that the trial court erred in admitting impeachment evidence
involving the §12.45 extraneous offenses.5 The court of appeals first responded to the State’s
contention that appellant had failed to preserve error for review.6 Relying upon Geuder v. State,7 the
court of appeals held that appellant had preserved error because he had lodged his objection in a
hearing outside the presence of the jury.8 With respect to the merits of the admissibility question,
the court of appeals held that an extraneous offense considered under §12.45 was not a “conviction”
for the purpose of impeachment under Rule 609 and that the trial court erred in admitting the
extraneous offenses for impeachment purposes.9 Additionally, the appellate court held that the trial
court erred by failing to determine whether the probative value of the extraneous offenses
outweighed their prejudicial effect.10 Finally, the court of appeals held that appellant was harmed
4
The court of appeals said that the motion to dismiss and order were not admitted into
evidence. Lopez v. State, 230 S.W.3d 875, 883 n.1(Tex. App.–Eastland 2007). The State contends
that this is factually incorrect because the motion to dismiss and order were attached as the last page
to State’s Exhibit 9. The record before us does not show Exhibit 9 to contain such a page. We need
not address this matter further, however, because our disposition of the case is not affected by
whether those documents were in fact admitted.
5
See id. at 882.
6
Id. at 882-84.
7
115 S.W.3d 11 (Tex. Crim. App. 2003).
8
Lopez, 230 S.W.3d at 883-84.
9
Id. at 884.
10
Id.
LOPEZ - 5
by the error. The court reversed the conviction and remanded the case for a new trial.11
II. ANALYSIS
A. Preservation
To preserve error, a complaining party must make a timely and specific request, objection,
or motion and obtain an express or implied ruling on that request, objection, or motion.12 Moreover,
an objection must be made each time inadmissible evidence is offered unless the complaining party
obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of
the jury.13
In this case, there was a hearing outside the presence of the jury, but that does not end the
inquiry because we must still address the scope of the trial judge’s ruling at that hearing. In Geuder,
the case upon which the court of appeals relied, the trial judge’s ruling plainly applied globally to
any inquiry about prior felony convictions.14 The question here is whether the State’s request to
introduce documents, along with the trial judge’s use of the word “documents” in his ruling
effectively limited the scope of the ruling to documentary evidence.
We hold that it did not, because the trial judge had earlier communicated his understanding
that the State was seeking to cross-examine the defendant about his prior convictions. At the
11
Id. at 885. The court of appeals addressed and rejected appellant’s other points of error.
Id. at 879-82.
12
Geuder, 115 S.W.3d at 13 (discussing TEX . R. APP . P. 33.1).
13
Id. (discussing TEX . R. EVID . 103 and caselaw).
14
See id. at 14 (“I don’t … see how the defense could claim surprise of his own client's
criminal history. It will be denied as long as [we’re talking abut] prior convictions and not talking
about the extraneous”; ellipsis in original, bracketed material added).
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beginning of the hearing, the trial judge said:
We’re on record outside the presence of the jury. The State has rested, and the
Defense has made it aware that Mr. Lopez is going to take the stand here in a few
moments. With that. The State has made it – has advised that he is going to be
examining Mr. Lopez – cross-examining him in regards to some prior convictions,
specifically some unadjudicated prior convictions.
We therefore agree with appellant that the trial judge made at least an implied ruling permitting the
State to elicit testimony on the matter during cross-examination.
B. Merits
At issue here is the confluence of a statute, §12.45, with a rule of evidence, Rule 609. §12.45
provides in relevant part:
(a) A person may, with the consent of the attorney for the state, admit during the
sentencing hearing his guilt of one or more unadjudicated offenses and request the
court to take each into account in determining sentence for the offense or offenses of
which he stands adjudged guilty.
***
(c) If a court lawfully takes into account an admitted offense, prosecution is barred
for that offense.15
Rule 609(a) provides:
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 this evidence outweighs its prejudicial effect to a party.16
Under Boykin v. State, we construe a statute in accordance with the plain meaning of its
15
§12.45(a), (c).
16
T EX . R. EVID . 609(a)(emphasis added).
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language unless the language is ambiguous or the plain meaning leads to absurd results that the
Legislature could not possibly have intended.17 Boykin’s holding does not apply to the interpretation
of court rules; in construing the meaning of rules the appellate courts may consider extratextual
sources even absent ambiguity or absurd results.18 Nevertheless, while courts have more flexibility
when it comes to interpreting court rules, they “should attempt to effectuate the plain language
absent important countervailing considerations.”19 In ascertaining the plain meaning of a word, we
read words and phrases in context and construe them according to the rules of grammar and usage.20
Furthermore, a word should be construed according to any technical or particular meaning that it has
acquired by legislative definition or otherwise.21 We initially consult dictionary definitions for the
plain meaning of a word, and definitions from a legal dictionary are especially appropriate for
ascertaining the meaning of a legal term.22
With respect to the term “convicted,” Black’s Law Dictionary, Fifth Edition, provides, “See
conviction,” and provides the first definition of “conviction” as, “In a general sense, the result of a
criminal trial which ends in a judgment or sentence that the accused is guilty as charged.”23 This
definition, which accords with what we think is the common general meaning of the word, suggests
17
818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
18
Donovan v. State, 68 S.W.3d 633, 635 (Tex. Crim. App. 2002); Henderson v. State, 962
S.W.2d 544, 551-52 (Tex. Crim. App. 1997).
19
Henderson, 962 S.W.2d at 552.
20
Ex parte Hood, 211 S.W.3d 767, 773 (Tex. Crim. App. 2007).
21
Ex parte Rieck, 144 S.W.3d 510, 512 (Tex. Crim. App. 2004).
22
Id.
23
B LACK ’S LAW DICTIONARY 301 (5th ed. 1989).
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a strict formality: for there to be a conviction, there must ordinarily be a judgment of guilt for the
crime in question.
This conclusion is consistent with this Court’s treatment of deferred adjudication under Rule
609. We have held that a trial judge’s decision to defer adjudication does not constitute a
“conviction” under that rule.24 Although deferred adjudication clearly involves a recognition of the
defendant’s guilt by the trial judge, no actual pronouncement of judgment of guilt occurs.25
The interplay between §12.45 and Article 37.07 was the basis for the Tyler Court of
Appeals’s holding in Perea, upon which the State has relied throughout the present prosecution.
Perea relied upon our decision in Whalon v. State26 for the proposition that an unadjudicated
extraneous offense that had previously been considered under §12.45 constituted a part of the “prior
criminal record” under Article 37.07.27 Because the definition of “prior criminal record” included
“final convictions,” the Perea court reasoned that §12.45 offenses must be treated as final
convictions for Rule 609 purposes.28
24
Jones v. State, 843 S.W.2d 487, 496 (Tex. Crim. App. 1992).
25
See TEX . CODE CRIM . PROC. art. 42.12, §5(a)(judge makes a “finding that [the evidence]
substantiates the defendant’s guilt” but decides to “defer further proceedings”).
26
725 S.W.2d 181, 195 (Tex. Crim. App. 1986)(on rehearing).
27
Perea, 870 S.W.2d at 318.
28
Id. Until 1994, unadjudicated extraneous offenses were not otherwise admissible at the
punishment stage of a non-capital trial. See TEX . CODE CRIM . PROC. art. 37.07,
§3(a)(1988)(providing for the admission of a defendant’s “prior criminal record” and “his general
reputation and his character”); Grunsfeld v. State, 843 S.W.2d 521, 524-26 (Tex. Crim. App.
1992)(holding that 1989 amendments did not expand the statute to include the admission of
unadjudicated extraneous offenses); art. 37.07, §3(a)(1994)(superseding Grunsfeld).
LOPEZ - 9
But the Perea court’s logic was faulty. “Prior criminal record” did then29 and does now30
include matters other than “final convictions.” Even if §12.45 offenses were part of a defendant’s
“prior criminal record,” that fact would not make them “final convictions” for the purpose of Rule
609. Moreover, this Court’s comment in Whalon with respect to the §12.45 offense being part of
the prior criminal record was mere dicta that was phrased not even as a positive statement, but as
a question.31
Finally, we observe that the §12.45 procedure can be implemented only if the State consents.
If the State wishes to have the use of that extraneous offense as a prior conviction, it has another
option: it can seek a conviction on the extraneous offense.
The judgment of the court of appeals is affirmed.32
Delivered: May 14, 2008
Publish
29
At the time Whalon was decided, the term “prior criminal record” included probated or
suspended sentences, see TEX . CODE CRIM . PROC. Art. 37.07, §3(a)(1986), but probated sentences
are only sometimes admissible under Rule 609, see Rule 609(c)(2)(1994 & present).
30
See TEX . CODE CRIM . PROC. Art. 37.07, §3(a)(1)(the term “prior criminal record” is no
longer defined).
31
Whalon, 725 S.W.2d at 195 (question asked after a finding of procedural default and
harmless error).
32
Given our disposition of the case, we need not address a subsidiary complaint made by
the State regarding the court of appeals’s holding that the trial court committed error by failing to
conduct a Rule 609 balancing test with respect to prejudice versus probative value, and we
express no opinion on the matter.