Abbott suggests that before asking a defendant about a prior conviction (if he should testify at the punishment phase) you should have available a pen packet that would prove the issue beyond a reasonable doubt. Is that true? Abbott also holds that before asking about an extraneous offense you must have available some admissible evidence of the offense. Everyone seemed to acknowledge that another girl had once accused Abbott of molesting her, but it was misconduct warranting a mistrial for the prosecutor to ask anything about this topic.

While it certainly seems the court should have presumed the trial judge's instruction was sufficient to overcome any prejudice from an unanswered question, I am still pondering why the State cannot cross-exam the defendant's repeated assertion of innocence (recently found by the jury to be false beyond a reasonable doubt) with what proof it has that he is a repeat offender? Why must a question on cross-examination be supported by proof beyond a reasonable doubt? Is there a clear distinction between the situation in Abbott and such cases as Murphy, 4 S.W.3d at 931 ?

Let's start by noting the opinion is written by Justice Vance on the Waco Court of Appeals. Justice Gray dissented to the reversal on punishment. So, we know from the beginning that the opinion is out of the mainstream.