Opinion issued November 3, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01178-CR

____________

RICHARD ORLANDO LUCIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 983167

MEMORANDUM OPINION

             A jury found appellant, Richard Orlando Lucio, guilty of the offense of murder and, in response to a special issue, found that appellant had used a deadly weapon in the commission of the offense. After finding true the allegations in two enhancement paragraphs that appellant had been previously convicted of two felony offenses, the jury assessed his punishment at confinement for life. In his sole point of error, appellant contends that the trial court erred in denying his “pretrial motion to testify free from impeachment.” We affirm.

Procedural Background

          The record indicates that, prior to trial, the State gave appellant notice that it intended to use appellant’s prior convictions for, among other things, impeachment purposes. Appellant then filed a pretrial motion to testify free from impeachment, in which he requested that the trial court conduct a pre-trial hearing “to determine whether [appellant would] be allowed to testify without being impeached by any prior conviction,” or, alternatively, to conduct a pretrial hearing “to determine which, if any, prior criminal convictions may be used to impeach [appellant], should he testify.” The trial court did not rule on appellant’s motion before the trial began.

          After the State rested, outside of the jury’s presence and prior to appellant taking the stand, the trial court denied appellant’s motion to testify free from impeachment and allowed introduction of appellant’s prior convictions if appellant chose to testify. Thereafter, on direct examination, appellant’s counsel preemptively questioned appellant about his two prior convictions for the offense of possession of a deadly weapon in a penal institution, his prior conviction for the offense of robbery by threat, and his prior conviction for the offense of theft. Appellant acknowledged that he had such prior convictions. During the State’s subsequent cross-examination, the State questioned appellant further about his prior convictions. Appellant again admitted to the existence of his two prior convictions for the offense of possession of a deadly weapon in a penal institution and for his prior convictions for the offenses of robbery by threat and theft.

Waiver

          Appellant argues that the trial court erred in denying his pretrial motion to testify free from impeachment because “the trial court cursorily denied [a]ppellant’s written motion without a hearing”; the trial court “appeared unaware of, or unwilling to employ the Theus criteria and how the criteria related to his case”; and, “[i]f the trial court had actually conducted a Theus hearing, it would have found” that “the two ‘Deadly Weapon in a Penal Institution’ convictions should not have been presented to the jury.”

          If a defendant testifies about his prior convictions on direct examination in an effort to preempt questions anticipated by the State during cross-examination, the defendant waives any right to appeal the trial court’s ruling regarding the admissibility of the prior convictions. Johnson v. State, 981 S.W.2d 759, 761 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also Ohler v. United States, 529 U.S. 753, 760, 120 S. Ct. 1851, 1855 (2000) (“[A] defendant who preemptively introduces evidence of a prior conviction on direct examination may not appeal claim that the admission of such evidence was error.”). Accordingly, because appellant preemptively testified on direct examination as to his prior convictions before cross-examination by the State, we hold that appellant waived any error regarding the trial court’s ruling as to the admissibility of his prior convictions.

          We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists Justices Nuchia, Jennings and Higley.

Do not publish. Tex. R. App. P. 47.2(b).