In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00136-CR
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EDWARD LEE McDADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th Judicial District Court
Waller County, Texas
Trial Court No. 01-02-10,580
Before Morriss, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N
Edward Lee McDade appeals from his conviction by a jury for the offense of assault on a public servant. The jury assessed his punishment at twenty-five years' imprisonment. This appeal is on one of three cases that were tried together. In this case and in another companion case, McDade was tried for assault on a public servant, and in the third case (No. 06-01-00134-CR), he was convicted of aggravated assault. The causes have been appealed separately and have been briefed together.
Since the briefs and arguments raised therein are identical in all three appeals, for the reasons stated in McDade v. State, No. 06-01-00134-CR, we likewise resolve the issues in this appeal in favor of the State.
We affirm the judgment of the trial court.
Ben Z. Grant
Justice
Date Submitted: October 31, 2002
Date Decided: December 5, 2002
Do Not Publish
e conviction in its cross-examination of Turk and did not mention it in its closing argument.
Counsel argues that the trial court's incorrect ruling left defense counsel with no choice but to attempt to preempt the State's attack by bringing up the matter first and that he should not therefore be held to have waived his complaint on appeal. This matter has not been conclusively addressed in this context by a Texas court in a published opinion.
The United States Supreme Court has held that a party who preemptively introduces evidence of a prior conviction at trial cannot complain on appeal the evidence was erroneously admitted, even if the trial court had previously held it would allow the state to introduce the evidence. Ohler v. United States, 529 U.S. 753, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000).
Counsel strives to distinguish his case from those above by phrasing his argument as a contention that the reversible error lies in the trial court's preliminary ruling. He argues that, because of the error, counsel chose to inoculate the jury against the State's planned introduction of the prior offense by first bringing it up himself. See McKinney v. State, 722 S.W.2d 506, 507 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd). Turk argues that the court's error in finding the evidence admissible caused his later decision to preempt the State's impeachment by introducing the evidence himself.
That tactical decision may have some potential merit. It is generally assumed that it is preferable for a defendant to initially admit anything that would negatively impact that defendant's testimony, rather than allowing the state to introduce the evidence during cross-examination. In spite of the potential merit of this argument, a majority of the Supreme Court has found it to be without merit. The Court undertook an extensive review of the general rule involved here: if evidence is affirmatively introduced by a party, that party cannot complain about its introduction. The Court recognized that the parties are required to make choices during trial and that one of these choices may be whether to introduce evidence concerning any prior criminal record of a testifying defendant. Therefore, the Court concluded, "a 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." Ohler, 529 U.S. at 760.
We agree with the reasoning of the Court and decline the invitation to create a tactical exception to the general rule. Accordingly, we find Turk waived any complaint he had about the trial court's ruling when he first introduced the complained-of evidence himself.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: May 16, 2002
Date Decided: June 5, 2002
Do Not Publish