Javier Diaz Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 8, 2023
• Docket: 02-22-00054-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00054-CR ___________________________

JAVIER DIAZ JR., Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1633717D

Before Sudderth, C.J.; Kerr and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

Without a plea bargain, Appellant Javier Diaz Jr. pled guilty to the offense of

failure to comply with the sexual offender registration requirements and asked the trial

court to assess punishment. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2). After

hearing the evidence, the trial court sentenced Diaz to six years’ imprisonment. Diaz

appealed. We will affirm.

I. Diaz’s Complaint

In one point, Diaz asserts that the “trial court abused its discretion in admitting

irrelevant testimony regarding details of the prior sexual offense that resulted in the

required registration.” Regarding the “prior sexual offense that resulted in the required

registration,” in 1992, Diaz was placed on deferred adjudication for the offense of

aggravated sexual assault of a child younger than fourteen years of age and placed on

community supervision for ten years. Despite not completing all the community-

supervision conditions, Diaz’s probationary term was allowed to expire in 2002, and

Diaz was released from supervision. Diaz argues that because no one disputed that he

had committed an offense that required him to register as a sex offender, the

underlying facts of his 1992 offense were irrelevant. See Hudson v. State, 112 S.W.3d

794, 800–01 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

II. Standard of Review

We review a trial court’s decision to admit evidence for an abuse of discretion.

Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort Worth 2014, pet. ref’d). Under

2 this standard, we uphold the trial court’s ruling as long as it falls within the “zone of

reasonable disagreement” and is correct under any theory of law applicable to the

case. Id. at 782.

III. Discussion

Here, the prosecutor used the 1992 offense to correct a misrepresentation that

Diaz had made to the PSI investigator1 and, further, that Diaz had tried to perpetuate

at the punishment hearing. Diaz had represented to the PSI investigator that his

1992 offense was for fondling a six-year-old child’s vagina and having her perform

fellatio on him, and when the prosecutor questioned Diaz about those representations

at the punishment hearing, Diaz maintained that they were true.

The truth, however, was that the 1992 offense to which Diaz had pled guilty

entailed penetrating the child’s vagina with Diaz’s penis. When confronted, Diaz

admitted that he had been trying to minimize his conduct.

The focus of the prosecutor’s cross-examination was that Diaz had lied to the

investigator and then to the trial court. See generally Lagrone v. State, 942 S.W.2d 602,

612–13 (Tex. Crim. App. 1997); Lemon v. State, No. 14-10-00616-CR,

2011 WL 1837680, at *5 (Tex. App.—Houston [14th Dist.] May 10, 2011, pet. ref’d)

(mem. op., not designated for publication). The question before us is whether Diaz’s

lying to the PSI investigator and to the trial court was relevant.

PSI is short for presentence investigation report. See Serrano v. State, 1

636 S.W.3d 717, 720 (Tex. App.—Fort Worth 2021, pet. ref’d).

3 Various authorities show that it was. Section 3(a)(1) of Article 37.07 of the

Texas Code of Criminal Procedure provides that both the State and the defendant

may offer evidence “as to any matter the court deems relevant to sentencing.” Tex.

Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1). The rule is well settled that in assessing

punishment the trial court is entitled to consider a defendant’s truthfulness when he

testifies. Thomas v. State, 551 S.W.3d 382, 386 (Tex. App.—Houston [14th Dist.] 2018,

pet. ref’d). Evaluating a defendant’s credibility—as shown by the defendant’s conduct

at trial and testimony under oath—is both necessary and proper. Id. The sentencing

judge must carefully evaluate a defendant’s testimony to determine whether it contains

willful and material falsehoods and, if so, to assess that conduct’s significance in the

context of the defendant’s prospects for rehabilitation and for assuming a useful place

in society. Id. A defendant’s truthfulness or mendacity when testifying on his own

behalf may be probative of his attitudes toward society and of his prospects for

rehabilitation and, thus, is relevant to sentencing. McGee v. State, 233 S.W.3d 315,

318 (Tex. Crim. App. 2007).

Accordingly, because Diaz’s dishonesty while testifying during the punishment

hearing was a “matter . . . relevant to sentencing” under Section 3(a)(1) of Article

37.07, the trial court did not abuse its discretion. See Romero v. State, No. 07-20-00049-

CR, 2021 WL 3207713, at *2 (Tex. App.—Amarillo July 29, 2021, no pet.) (mem. op.,

not designated for publication); Thomas, 551 S.W.3d at 386–87. We overrule Diaz’s

sole point.

4 IV. Conclusion

Having overruled Diaz’s point, we affirm the trial court’s judgment.

/s/ Mike Wallach Mike Wallach Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: June 8, 2023