Opinion
No. 05-10-00147-CR
Opinion Filed August 2, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F09-58423-KL.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Juan Pablo Rodriguez was charged with aggravated sexual assault of a child under the age of fourteen. He waived his right to a jury trial and entered a plea of guilty. After a hearing on punishment, the trial court assessed punishment at twenty years' confinement and a $4,000 fine. The trial court certified Rodriguez had the right to appeal. In a single issue, Rodriguez argues he was denied due process of law when he was forced to incriminate himself on extraneous offenses. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Appellant was charged with causing the penetration of his eight-year old daughter's female sexual organ with his finger. At the punishment hearing, he waived his Fifth Amendment privilege against compelled self-incrimination and testified in his own behalf. He testified he got drunk and molested his daughter by putting his finger in her sexual organ two or three times on one occasion. He said he was very sorry and ashamed of what he had done and wished it had not happened. He wanted probation so he could change his life and get help for his drinking problem. On cross-examination, appellant admitted he lied about touching his daughter on only one occasion and said he molested her on three different occasions. He also admitted that he touched her vagina with his penis by rubbing it between her legs. He denied that he penetrated her vagina with his penis. At that point, defense counsel objected that the questions were going into extraneous offenses and the State could seek another indictment on the uncharged offenses. The trial court overruled the objection. A criminal defendant cannot be compelled to testify, but the general rule is that if he exercises his right to testify, whether at the guilt-innocence stage or at the punishment stage of the trial, he is subject to the same rules of examination and cross-examination as any other witness. See Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992); Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987). The scope of cross-examination in Texas is wide open, and once a defendant decides to testify, he opens himself up to cross-examination on any relevant subject matter. Felder, 848 S.W.2d at 99. As we said in Kos v. State, Appellant has cited no authority, and we have found none, for the proposition that a defendant in this State may take the stand, waive his Fifth Amendment rights, testify in his own defense, and at the same time limit the State's right to cross-examine him regarding any "uncharged extraneous conduct" on the basis that such questioning would infringe on the very same Fifth Amendment rights the defendant has just chosen to waive. Kos v. State, 15 S.W.3d 633, 643 (Tex. App.-Dallas 2000, pet. ref'd). By electing to testify, appellant waived his right against self-incrimination and subjected himself to cross-examination regarding any matters relevant to his punishment. Clearly cross-examination about the truth of his direct testimony was relevant to punishment. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2010). We overrule appellant's sole issue on appeal. We affirm the trial court's judgment.