in Re: Eddie Kevin Coleman

• Court: Court of Appeals of Texas
• Decided: March 31, 2010
• Docket: 06-10-00021-CV
• Status: Published

Opinion

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00021-CV

                                                                        IN RE:

EDDIE KEVIN COLEMAN

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion Per Curiam

                                                      MEMORANDUM OPINION

            Eddie Kevin Coleman has filed a petition for writ of mandamus in which he asks this Court to order the 8th Judicial District Court of Hopkins County, Texas, to rule on his motion to dismiss for want of prosecution in trial court cause number CV34788.  Coleman filed his motion to dismiss on December 2, 2008,^[1] claiming the State brought a lawsuit for the seizure of $2,240.00 in United States currency on September 7, 2002, and has failed to prosecute that action.  Coleman claims that his motion to dismiss was not ruled upon within a reasonable time.

            We may grant a petition for writ of mandamus when the relator shows there is no adequate remedy at law to redress the alleged harm and that the act to be compelled is purely ministerial.  Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig. proceeding) (citing Winters v. Presiding Judge of Criminal Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003)).  When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act and mandamus may issue to compel the trial court to act.  In re Kleven, 100 S.W.3d 643, 644 (Tex. App.—Texarkana 2003, orig. proceeding); see also Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding).

            A trial court must consider and rule on a motion brought to the court’s attention within a reasonable amount of time.  In re Bonds, 57 S.W.3d 456, 457 (Tex. App.—San Antonio 2001, orig. proceeding).  While we have jurisdiction to direct the trial court to proceed and rule, we may not tell the court what ruling it should make.  O’Donniley v. Golden, 860 S.W.2d 267, 269–70 (Tex. App.—Tyler 1993, orig. proceeding). 

            Coleman’s motion has been pending and ripe for a ruling for almost sixteen months.^[2]  Coleman is entitled to have a ruling on his motion.  We, therefore, conditionally grant Coleman’s petition for writ of mandamus.  The writ will issue only if the trial court fails to rule on Coleman’s motion within twenty-one days from the date of this opinion.

                                                                                    BY THE COURT

Date Submitted:          March 30, 2010

Date Decided:             March 31, 2010

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^[1]A copy of the motion to dismiss for want of prosecution filed in trial court cause number CV34788 is attached as Appendix 1 to the petition for writ of mandamus.  While this copy does not bear the clerk’s file mark, the Clerk of the Hopkins County District Court for the 8th Judicial District has confirmed said motion was filed on December 2, 2008.

^[2]Appendix 2 to Coleman’s petition is a notice of intent which advises the trial court of the pending motion to dismiss for want of prosecution and intent to file a petition for writ of mandamus to compel the trial court to act on said motion.  The Clerk of the Hopkins County District Court for the 8th Judicial District has confirmed said notice of intent was filed on December 15, 2009.

le 38.37, argued that the type of contact at issue did not fall within the purview of the rule.  Error was preserved on this issue.

III.      Admission of Evidence Pursuant to Article 38.37 of the Texas Code of Criminal         Procedure

            The admission of extraneous offense evidence is reviewed for an abuse of discretion.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).  If the decision to admit evidence is within the “zone of reasonable disagreement,” there is no abuse of discretion in the admission of such evidence.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).  If the trial court’s decision on the admission of evidence is supported by the record, there is no abuse of discretion, and the decision of the trial court will not be reversed.  Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).

            Under Rule 404(b), evidence of other crimes, wrongs, or bad acts is inadmissible if it is offered to prove the character of a person in order to show action in conformity therewith, though it may be admissible for other purposes.  Tex. R. Evid. 404(b).  But, when a defendant is charged with sexual assault of a child, evidence of extraneous acts is admissible under Article 38.37 of the Texas Code of Criminal Procedure for its bearing on relevant matters.  Article 38.37, Section 2 of the Texas Code of Criminal Procedure provides:

Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1)        the state of mind of the defendant and the child; and

(2)        the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2. 

            Article 38.37 is an evidentiary rule limited to certain designated offenses.  The crime of aggravated sexual assault of a child, which is found in Chapter 22 of the Texas Penal Code, is governed by this article.^[4]  See Tex. Penal Code Ann. § 22.021.  In accordance with Article 38.37, the testimony regarding the incident in May 2009 was admissible if it involved evidence of other crimes, wrongs, or acts committed by Bonilla against the victim on “relevant matters.”  Tex. Code Crim. Proc. Ann. art. 38.37; see Conrad v. State, 10 S.W.3d 43, 46 (Tex. App.—Texarkana 1999, pet. ref’d). 

            “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  Article 38.37 provides that the state of mind of the defendant and the child, and the previous and subsequent relationship between the defendant and the child are “relevant matters.”  Tex. Code Crim. Proc. Ann. art. 38.37, § 2.  Moreover, evidence of other crimes, wrongs, or acts by the defendant against the victim is admissible if it shows the “necessary intent and ability” to commit the offense.  See McCulloch v. State, 39 S.W.3d 678, 681 (Tex. App.—Beaumont 2001, pet. ref’d) (discussing Article 38.37 evidence to show intent of defendant); Poole v. State, 974 S.W.2d 892, 898 (Tex. App.—Austin 1998, pet. ref’d) (evidence of prior sexual offenses probative of intent and ability to commit offense); see also Ernst v. State, 971 S.W.2d 698, 700 (Tex. App.—Austin 1998, no pet.) (noting authority that observes that wording of Article 38.37 is “strongly tipped in favor of admissibility”). 

            Bonilla contends the evidence of the May 2009 incident was not admissible because it was not relevant to any material issue before the court, citing Phillips v. State, 193 S.W.3d 904, 911 (Tex. Crim. App. 2006) (noting that “Article 38.37 does allow for the admission of other crimes, wrongs or acts to be admitted when relevant”).  Bonilla maintains that because the material issue before the trial court as finder of fact was whether Bonilla intentionally or knowingly committed the crime of aggravated sexual assault of a child, this evidence, which Bonilla characterizes as a nonsexual theft offense, is not relevant.  That is, it does not make more or less probable Bonilla’s commission of the offense for which he was on trial.

            The May 2009 incident was not offered by the State as an extraneous act of theft.  Rather, testimony regarding this incident was offered pursuant to Article 38.37 to show “prior relationship, prior contact between the victim and defendant.”  At the time of the May 2009 incident, the victim was twelve years old.  The testimony at issue indicates that approximately nine months prior to the alleged aggravated sexual assault of the victim in February 2010, Bonilla grabbed the victim’s arm and told her that he loved her.  This evidence is relevant to Bonilla’s state of mind and could be viewed as an unnatural attraction to the victim, a mere child.  Evidence that Bonilla previously attempted to restrain the victim just months before the instant crime is further probative of Bonilla’s intent and ability to commit the offense with which he was charged.  We cannot say the trial court’s decision to admit this evidence is outside the zone of reasonable disagreement, and thus find no error in the admission of the subject testimony pursuant to Article 38.37 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 38.37.

IV.       Conclusion

            We affirm the judgment of the trial court.

                                                                                                Jack Carter

                                                                                                Justice

Date Submitted:          September 16, 2011

Date Decided:             September 19, 2011

Do Not Publish

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^[1]Tex. Penal Code Ann. § 22.021 (West 2011).

^[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (West 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

^[3]The victim’s father also testified that Bonilla grabbed his daughter’s arm and took her purse in May 2009.  Finally, in relation to this same incident, Johnny Vargus, Jr., an officer with the Smith County Sheriff’s Department, testified that he arrested Bonilla for public intoxication after he received a call regarding a suspicious person. 

^[4]Article 38.37 “applies to a proceeding in the prosecution of a defendant for an offense under the following provisions of the Penal Code, if committed against a child under 17 years of age:  . . . (2) Chapter 22 (Assaultive Offenses). . . .  Tex. Code Crim. Proc. Ann. art. 38.37, § 1(2).