IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 14, 2001
______________________________IN RE LAWRENCE TRINIDAD CHAVEZ,
Relator
_________________________________
ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS _______________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
Pending before the court is the petition of Lawrence Trinidad Chavez for a writ of mandamus. Chavez requests that we order the Hon. David R. Gleason, 47th Judicial District, Potter County, to "schedule and hold a hearing on the properly filed Motion for a Free Copy of the Trial/Appellate Record from cause no [sic] 9445-A in the 47th District Court . . . " We deny the application for the reasons which follow.
First, rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix. (1) Tex. R. App. Proc. 52.3(j). The latter must include, among other things, a "certified or sworn copy of . . . [the] document showing the matter complained of." In this case, the document showing the matter complained of would be the motion allegedly filed and the request for a free copy of the trial and appellate record. None was provided to us, however, via appendix or otherwise. Thus, it cannot be said that Chavez complied with the rules which he now seeks to enforce. (2)
Second, Chavez failed to accompany his petition with the requisite filing fee. Rather, he attempted to avoid paying the fee by tendering an affidavit purportedly establishing his status as an indigent. The affidavit, however, consists of little more than the conclusory statement that "I am indigent and unable to pay, or give security therefore [sic] any filing fees or costs related to the attached petition . . . " As can be seen, nowhere does this affidavit address: 1) the amount of his income, if any, 2) the income of his spouse, if any, 3) the availability of other sources of money, if any, 4) the extent of the real and personal property he owns, if any, 5) the cash he possesses, if any, 6) the extent of his assets, if any, 7) the extent of his debts, if any, and 8) the extent of his monthly expenses, if any. These are indicia which must be discussed via affidavit when one seeks to invoke this court's jurisdiction through a notice of appeal. Tex. R. App. Proc. 20.1(b). We see no reason why they should be ignored when one attempts to invoke our jurisdiction through a petition for writ of mandamus.
In short, while we must rule upon matters properly before us, we need not do so at the expense of the State of Texas without a proper showing of indigence. And, simply stating that "I am indigent" is not such a proper showing, as evinced by the enactment of Rule 20.1(b).
Third, a trial court cannot be found to have abused its discretion until the complainant establishes that the 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 so. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Chavez complains of the trial court's failure to convene a hearing and rule upon his alleged motion, application of the foregoing rule would necessarily require him to illustrate that the trial court was aware of the motion. Indeed, one can hardly be faulted for doing nothing if he were never aware of the need to act.
Here, nothing appears of record illustrating that the trial court was afforded or had notice of the motion. Nor does anything appear of record which would allow one to reasonably infer that such notice was given or knowledge was had. Admittedly, Chavez stated in the body of his petition that he "properly filed" the motion. Yet, the identity of the entity with which he "properly filed" the instrument is unknown. This is of import because the entity could have been either the district clerk or the trial court. Tex. R. Civ. Proc. 74 (stating that pleadings, papers and the like shall be filed with the clerk of the court or with the court itself if permitted). If filing occurred with the district clerk, we know of no rule which imputes the clerk's knowledge to the trial court. Thus, it would be incumbent upon appellant to illustrate that the clerk informed the trial court of the motion or that the trial court otherwise obtained knowledge of it. So, merely stating that something was "properly filed" is insufficient basis from which to reasonably infer that the trial court had notice of that something and the need to act on it. And, because the state of the record prevents us from holding that the trial court was aware of the motion, we cannot say that the court abused its discretion in allegedly failing to act on same.
Fourth, admittedly, the need to consider and rule upon a motion is not a discretionary act. In re Bates, No. 07-01-0199-CV, 2001 Tex. App. WL 513450, at *1 (Amarillo, May 15, 2001, no pet. h.); In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). Rather, when the motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial. 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 has a reasonable time within which to perform this duty. Id.; Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). And, whether such a period has lapsed is dependent upon the circumstances of each case. Barnes v. State, 832 S.W.2d at 426.
Moreover, no bright-line demarcates the boundaries of a reasonable time period. Bates, 2001 WL 513450, at *1. Its scope is dependent upon a myriad of criteria, not the least of which is 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 factored into the mix. 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). Finally, because it is the burden of the party requesting mandamus relief to prove his entitlement to same, Bates, 2001 WL 513450, at *1, Chavez had the obligation to provide us with evidence of the foregoing indicia (or the like) against which we could test the reasonableness of the court's supposed delay.
Here, however, we have no evidence of the complexity of the motion in question (since we lack a copy of the motion), the number of other cases, motions, or issues pending on the trial court's docket, the number of cases, motions, or issues which have pended on its docket longer than that at bar, the number of cases, motions, or issues pending on its docket that lawfully may be entitled to preferential settings, or the trial court's schedule. Without such evidence, any attempt to assess whether Judge Gleason's court acted unreasonably in failing to address the motion within the two months it has supposedly pended, would be mere folly. Again, a trial court has great discretion over its docket. And, while it cannot opt to forever avoid hearing a motion, no litigant is entitled to a hearing at whatever time he may choose.
For the reasons stated above, we deny the petition for mandamus without prejudice.
Brian Quinn
Justice
Publish.
1. That Chavez acts in a pro se capacity does not relieve him from complying with the rules of appellate procedure. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied).
2. In an apparent attempt to avoid the requirement of Rule 52.3(j), Chavez alleges that he could not make a copy of his motion since the "institution" in which he now resides "does not provide copying services." Implicit in this assertion is the representation that he possesses a document which he would copy but for the "institution['s]" refusal to provide him access to a photocopy machine. Why he deigned to withhold from us the copy he does possess went unexplained, however. Similarly unaddressed is the possibility of re-creating a copy through other means, such as requesting a third-party to copy the item via a photocopy machine found outside the walls of the "institution" or re-creating a copy via typewriter. Until information is given to us which explains why these and like reasonable alternatives are impractical or unavailable, we cannot excuse him from complying with Rule 52.3(j).
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NO. 07-09-00089-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 19, 2010
EDWARD F. SWANSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-421,735; HONORABLE DAVID GLEASON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Edward F. Swanson appeals from his jury conviction of the offense of robbery and the resulting sentence of fifty years of imprisonment. Through two issues, appellant contends the trial court erred by overruling appellant=s objection to the omission of a lesser-included offense instruction of misdemeanor assault and erred by overruling appellant=s objection to an incorrect statement of law during the State=s closing argument, thereby harming appellant. We will affirm.
Background
By a December 2008 indictment, appellant was charged with robbery.[1] The State alleged three different manners and means of commission of the offense. On his plea of not guilty, only the first theory, that appellant Aintentionally and knowingly, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten[ed] and place[d] [the victim] in fear of imminent bodily injury, by swinging [appellant=s] hand at the said [victim],@ was submitted to the jury. Also included in the indictment were two enhancement paragraphs setting forth appellant=s two prior final felony convictions.[2]
Appellant does not challenge the sufficiency of the evidence supporting his conviction, so we will recite only so much of the evidence as is necessary to an understanding of the issues presented. The events leading to appellants conviction occurred in September 2007 at South Plains Mall in Lubbock. Evidence showed that a sales associate at Dillards department store called the store=s security officer to report that she noticed appellant and an unidentified man acting suspiciously. Appellant went into a dressing room with four pairs of jeans but came out with only three pairs. The security officer broadcast a radio message describing the two men. A uniformed mall security officer heard the broadcast, and saw two men consistent with the radioed description running out of the mall. He chased them, catching the unidentified man. He then chased appellant, yelling several times at him to Astop.@ Appellant turned and looked at the officer but did not stop. Instead, he got into a parked car and started it. The mall officer arrived at the car and pulled appellant out. Appellant told the officer Ahe wasn=t going back.@ The officer put appellant against the side of the car. The car started to move and ran over the officer=s right foot, causing a Ashock and a sharp pain.@ As the car ran over the officers foot, appellant was able to step aside and swing at the officers head. The blow did not make contact as the officer ducked.
Appellant then ran again. The officer again chased him. When the officer grabbed appellant, he took another swing at the officer=s face. The officer ducked under the blow, tackled appellant and grabbed him by the legs. The officer noticed appellant had a pair of pants and a shirt tied around his leg. The Dillard=s security officer arrived on-scene and identified appellant as the man she saw leaving Dillard=s and identified the merchandise he had tied around his legs as Dillard=s merchandise. The shirt and jeans had Dillard=s tags attached to them.
Analysis
Lesser-Included Jury Instruction of Misdemeanor Assault
In appellant=s first issue, he contends the trial court erred by omitting an instruction on the lesser-included offense of misdemeanor assault. At the close of the guilt-innocence phase of trial, appellant stated, AYour Honor, I=m going to request a charge of lesser included of assault under the theory that if the jury finds the assault was not done with intent to maintainBobtain or maintain control of property.@ The trial court denied the request but suggested appellant may want to prepare a requested or proposed charge. He did not do so. Thereafter, the following exchange took place:
Appellant: I would object to the charge as a whole for its failure to include a definitionBI mean an instruction on the lesser included offense of assault by again threatening or placing someone in imminent fear of serious bodily injury. Your Honor, and I don=t feel I need toBI think the case law is clear. I don=t need to offer a proposed charge on that.
The Court: You=re just objecting to the failure to include that instruction?
Appellant: To include.
The Court: All right. The record will be clear that objection is overruled. Any further objections?
Appellant: No, your Honor.
Pursuant to article 37.09, an offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).
The first step in the lesser‑included‑offense analysis, determining whether an offense is a lesser‑included offense of the alleged offense, is a question of law. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). It does not depend on the evidence to be produced at the trial. Id. It may be, and to provide notice to the defendant must be, capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser‑included offense. Id. The evidence adduced at trial should remain an important part of the courts decision whether to charge the jury on lesser‑included offenses. Id. The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury. Id. AA defendant is entitled to an instruction on a lesser‑included offense where the proof for the offense charged includes the proof necessary to establish the lesser‑included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser‑included offense.@ Id. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. In other words, the evidence must establish the lesser‑included offense as Aa valid, rational alternative to the charged offense.@ Id. See also Rousseau v. State, 885 S.W.2d 666 (Tex.Crim.App. 1993); Royster v. State, 622 S.W.2d 446 (Tex.Crim.App. 1981) (plurality opinion on reh=g) (holding adopted by majority of court in Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App. 1985).
A person commits robbery if, in the course of committing theft as defined in Penal Code Chapter 31 and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003). A person commits an assault by intentionally or knowingly threatening another with imminent bodily injury. Tex. Penal Code Ann. ' 22.01(a)(2) (Vernon Supp. 2010).
The State does not directly dispute that the elements of misdemeanor assault are contained within the allegations of appellants indictment for robbery. We agree with appellant that the first step of the required analysis is satisfied. See Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998) (affirming finding of error in denial of request for instruction on misdemeanor assault as lesser-included offense of robbery); Nottingham v. State, No. 07-08-0131-CR, 2009 Tex. App. Lexis 649, at *2-*3 (Tex.App.--Amarillo January 30, 2009, no pet.) (mem. op.) (noting some courts have held simple assault may be lesser-included offense of robbery). But we agree with the State that appellants argument fails to accomplish the second step, that is, fails to point to some evidence that, if appellant is guilty, he is guilty only of misdemeanor assault.
The evidence clearly showed appellant took merchandise from Dillards. Appellant cannot point to any evidence rebutting the States evidence he committed theft, nor does appellant argue any evidence rebuts a conclusion he committed his assaultive conduct in the course of his commission of theft. Cf. Jones, 984 S.W.2d at 257 (defendants testimony denying theft negated theft element of robbery, if believed).
Instead, appellant contends the jury heard evidence that, if believed, would have negated the element of robbery requiring proof he assaulted the security officer with intent to obtain or maintain control of the clothes he took from Dillards. Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). The Court of Criminal Appeals has held that a lesser included offense may be raised if evidence either affirmatively refutes or negates an element establishing the greater offense, or that evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996) (per curiam), citing Saunders v. State, 840 S.W.2d 390 (Tex.Crim.App. 1992).
The evidence appellant sees as potentially negating or rebutting his intent to obtain or maintain control of Dillards clothes is the testimony that the security officer initiated the physical contact between them when he pulled appellant from the vehicle and then when he took appellant to the ground in the parking lot, and testimony that appellant exhibited anger at the security officer. One witness testified that after appellant was arrested, [h]e was wanting [the security officer] to take off the handcuffs so that he can go toe-to-toe with him.[3] The security officer similarly testified that appellant said if it had not been for the wet and drizzly conditions, he would have kicked my ass. Appellant argues such testimony is subject to the interpretation that appellant swung his fist as a response to the security officers aggressive physical contacts and not with the intent to obtain or maintain control of the clothes. Thus, he argues, the jury could have found his assault of the officer was unrelated to the theft.
We disagree that the evidence appellant cites, even if interpreted in the manner appellant suggests, negated or rebutted his intent related to the theft. See Schweinle, 915 S.W.2d at 19 (referring to evidence subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater offense). An intent to respond in anger to the security officers physical contact is not inconsistent with an intent to obtain or maintain control of the stolen clothes. Said another way, the jurys conclusion that appellant assaulted the officer out of anger over his physical contact would not have precluded their conclusion, necessary to a guilty verdict for robbery, that appellant also acted with the intent to obtain or maintain control of the clothes. Appellants suggested interpretation does not negate or rebut an element of the greater offense. See Saunders, 840 S.W.2d at 392 (jurys conclusion which culpable mental state defendant possessed would determine guilt of greater or lesser offense; lesser-included-offense instruction required); In re A.E.B., 255 S.W.3d 338, 347 (Tex.App.BDallas 2008, no pet.) (jurys conclusion which of two possible items defendant had in his hand when he assaulted victim would determine his possible guilt of sexual assault; instruction required). Accordingly, the evidence appellant cites does not constitute evidence that if he is guilty, he is guilty only of assault. We overrule his first issue.
State=s Argument in Closing
In appellant=s second issue, he argues the trial court erred by overruling his objections to the State=s closing arguments. The law provides for and presumes a fair trial free from improper jury argument. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App.1991). Proper jury argument falls into four categories: 1) summation of evidence presented at trial, 2) reasonable deductions drawn from evidence presented at trial, 3) answers to opposing counsels argument, or 4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App.1997). To constitute reversible error, the argument must be extreme or manifestly improper, violative of a mandatory statute, or have injected new facts, harmful to the accused, into the trial proceedings. Id. at 59. The argument must be considered within the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). Proper argument may refer to the law as stated in the courts charge. See Helleson v. State, 5 S.W.3d 393, 397 (Tex.App.‑Fort Worth 1999, pet. ref'd) (finding such argument proper).
Appellants issue focuses on two statements made by the prosecutor during his closing argument. The first included, A[a]nd that=s all robbery is, it=s a theft with an assault.@ Appellant objected, stating A[t]hat=s a misstatement of the law. It=s not just a theft in an assault, Your Honor.@ The court overruled appellant=s objection. In the second statement, the prosecutor said, A[t]wo things, intentBand remember, it=s intent to place someone in fear of bodily injury. All we have to show is in the course of committing theft, and you can read that in the charge.@ Appellant objected, AYour Honor, again I=m going to object. He=s misstating the law. He=s totally forgetting the element of intent to obtain and maintain control of property, Your Honor. He=s totallyBthey want to ignore that, Your Honor.@ The court again overruled appellant=s objection.
Considering the prosecutors statements in context, we find the court did not err by overruling appellants objections. A trial court possesses broad discretion in controlling the scope of closing argument. Lemos v. State, 130 S.W.3d 888, 892 (Tex.App.--El Paso 2004, no pet.); see Herring v. New York, 422 U.S. 853, 862-63, 95 S.Ct. 2550, 2555-56, 45 L. Ed. 2d 593 (1975). If, in the objected-to statements the prosecutor was purporting to recite all the elements the jury must find to convict appellant, his objections might have been well taken. But we find the court reasonably could have considered the statements merely to be referring to individual elements of the offense, and summarizing the evidence concerning them. The prosecutors all we have to show statement refers explicitly only to the element requiring that the assault must have occurred in the course of committing theft. We see no reversible error in the trial courts rulings, and overrule appellant=s second issue. Having overruled both appellate issues, we affirm the trial courts judgment.
James T. Campbell
Justice
Do not publish.
[1] See Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003).
[2] See Tex. Penal Code Ann. ' 12.42 (Vernon Supp. 2010). Appellant=s punishment was enhanced from a second degree felony to a first degree felony, increasing his punishment to a term between 25 and 99 years.
[3] The same witness agreed that appellant appeared to be pretty upset with the security officer who apprehended him.