Michael Ray Diaz v. State

• Court: Court of Appeals of Texas
• Decided: September 12, 2006
• Docket: 07-05-00168-CR
• Status: Published

Opinion

NO. 07-05-0168-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 12, 2006

______________________________

MICHAEL RAY DIAZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 48,940-C; HON. PATRICK PIRTLE, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

Michael Ray Diaz contests his felony conviction for indecency with a child (his daughter). He was sentenced to imprisonment for life after pleading true to two enhancement paragraphs in the indictment. His sole issue on appeal concerns the receipt into evidence of a tape recording of a telephone conversation wherein he admitted to "touching" and possibly "licking" his daughter and several other children, including the other party to the phone conversation. The trial court purportedly violated Texas Rules of Evidence 403 and 404(b) in receiving the tape into evidence because of its multiple references to extraneous offenses or bad acts. We affirm.

In challenging the tape, appellant fails to distinguish between his admission to committing the indecency upon his daughter and his admission to committing indecencies upon other children. This is of import because receiving into evidence one's confession of the crime for which he is being tried is a legitimate exercise of the trial court's discretion under both Rules 403 and 404(b). See Matthews v. State, No. 07-05-0142-CR, 2006 Tex. App. Lexis 5933 at *2 (Tex. App.-Amarillo July 10, 2006, no pet. h.). Consequently, we cannot find fault in the decision to allow into evidence appellant's admission regarding the indecency with his own daughter.

Concerning the references to his commission of the other indecencies, we assume arguendo that the trial court abused its discretion in receiving them. However, the error was harmless. There being no purported constitutional violation involved, we conduct the relevant harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (holding that erroneous evidentiary rulings seldom rise to the level of constitutional error). The latter rule obligates us to determine whether error affected a substantial right of appellant, that is, whether it had a substantial and injurious affect or influence upon the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). And, in assessing that possibility, we should consider everything in the record including the testimony and physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error and how the error might be considered with other evidence, the jury instructions, the State's theory of the case, any defensive theories, and closing arguments. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

Of utmost import here is appellant's confession to committing the indecency upon his daughter. This evidence alone strongly supports the verdict and negates any suggestion that the complainant fabricated the accusation. So too did it bolster the testimony of the victim about how appellant "touched" her vagina with both his hand and tongue. Thus, it can be said that the evidence of guilt was overwhelming. And, though the State relied on the audiotape in its closing argument, the majority of the State's references were to appellant's offense against his daughter; the references to the offenses involving others were brief. Nor can we forget that appellant also pled true to the felony enhancement paragraphs contained in the indictment; these pleas no doubt affected the measure of punishment levied. Finally, the trial court did instruct the jury that reference to the extraneous offenses in the tape could not be used "for any purpose of showing character or that the Defendant acted in conformity with that in this particular offense." Considering these indicia, we conclude that while the admission of the extraneous offenses may have affected the verdict, the affect was not a substantial one.

Accordingly, appellant's issue is overruled and the judgment is affirmed.

Brian Quinn

Chief Justice

Do not publish.

60;      ______________________________

                                                In re BRIAN J. WINTERS,

Relator

                                        _______________________________

                               On Original Proceeding for Writ of Mandamus

                                      ________________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

          Pending before this court is the application of Brian J. Winters for a writ of mandamus. Through it, he requests that we “issue mandamus requiring the trial court to give credit for all time spent in jail prior to sentencing.” The motion wherein Winters requests the trial court to credit him with jail time appears to have been filed on September 11, 2007, and is entitled “Motion for Judgment Nunc Pro Tunc.” We deny the application for the reasons which follow.

          First, nothing of record indicates that the motion purportedly filed below was brought to the attention of the district court. Simply put, before mandamus relief may issue, the petitioner must establish that the district court 1) had a legal duty to perform a non-discretionary act, 2) was asked to perform the act, and 3) failed or refused to do it. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). Given this, it is incumbent upon Smith to illustrate that the district court received and was aware of his motion. This is so because a court cannot be faulted for doing nothing when it is or was unaware of the need to act. Here, the record simply indicates that Winters’ motion was filed with the Potter County district clerk. Whether the trial court was ever made aware of it is unknown. Lacking that information, we cannot simply assume that the district court knew of its duty to act and neglected to perform it. Thus, Winters has not fulfilled his burden of illustrating that the trial court refused to act.

          Second, and assuming arguendo that a pleading is brought to the attention of a district court, we note that the trial court has a duty to consider and act upon it. In re Bates, 65 S.W.3d 133, 134-35 (Tex. App.–Amarillo 2001, orig. proceeding); In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.–San Antonio 1998, orig. proceeding). This is so because the task of considering it is ministerial. In re Bates, 65 S.W.3d at 134-35; Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig. proceeding), quoting O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App.–Tyler 1993, orig. proceeding). However, the court also has a reasonable time within which to act. In re Bates, 65 S.W.3d at 135. And, whether that period lapsed is dependent upon the circumstances of each case. Id. In other words, no bright line demarcates the boundaries of a reasonable time period. Id. Many indicia are influential, not the least of which are the trial court’s actual knowledge of the motion, its overt refusal to act on same, the state of the court’s docket, and the existence of other judicial and administrative matters which must be addressed first. Id. So too must the trial court’s inherent power to control its own docket be included in the mix. In re Bates, 65 S.W.3d at 135; see Ho v. University of Texas at Arlington, 984 S.W.2d 672, 694-695 (Tex. App.–Amarillo 1998, pet. denied) (holding that a court has the inherent authority to control its own docket). Since that power is discretionary, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.–Houston [14th Dist.] 1997, pet. denied), we must be wary of interfering with its exercise without legitimate basis. And, since the party requesting mandamus relief has the burden to provide us with a record sufficient to establish his right to same, Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); In re Bates, 65 S.W.3d at 135, Winters had the obligation to provide us with a record establishing that a properly filed motion has awaited disposition for an unreasonable length of time. He has not done that.

          The record before us merely illustrates that Winters purportedly filed his motion with the Potter County district clerk on September 11, 2007. In it, he stated that unless the trial court acts upon it within 30 days it will be deemed denied. Yet, no evidence purporting to touch upon the indicia discussed in the preceding paragraph appears of record. And, because we do not hold that the district court’s failure to act upon a motion about which it may have no knowledge constitutes unreasonable delay per se, Winters again has not satisfied his burden of proof. Nor do we hold that the trial court’s failure to act within a 30-day period arbitrarily selected by the petitioner ipso facto evinces unreasonable delay, even if the trial court knew of the motion. Deadlines are established by rule, statute, and the judicial discretion of the judge, not the whims of litigants.

          Accordingly, the application for writ of mandamus pending before this court is denied.