NO. 07-09-0169-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 5, 2009
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In re BARRY DWAYNE MINNFEE,
Relator
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ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before this court is the application of Barry Dwayne Minnfee for a writ of mandamus. He requests that we compel the “court to respond to further motion for rehearing” concerning his request for DNA testing. We deny the application for the reasons that follow.
First, rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix. Tex. R. App. P. 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 requesting further rehearing from the trial court. This Minnfee failed to do.
Second, Minnfee did disclose in his application for writ of mandamus that he has filed several prior motions for rehearing and that they had been “overruled.” Whether those motions were mere reiterations of that at issue here is unknown for they too were not included in an appendix. Nonetheless, he cites us to nothing that suggests, much less requires, a trial court to act upon repetitious motions that are akin to motions for new trial. With regard to the latter, they are considered overruled by operation of law if no action is taken upon them within 75 days of the date the final order was signed. Tex. R. Civ. P. 329b(c). Given that a motion for rehearing which attempts to alter a final order is much like one for new trial, see Edwards Lifesciences, L.L.C. v. Covenant Health Systems, 205 S.W.3d 687, 690 (Tex. App.–Amarillo 2006, no pet.) (stating that the substance of the motion controls as opposed to its label), we see no reason to treat them differently here. So, given that the allegations in and the file-mark on Minnfee’s application for writ leads us to conclude that 1) more than 75 days has lapsed from the date upon which the trial court entered its final order and 2) the trial court has yet to act on the motion, it can and should be considered as overruled by operation of law.
Accordingly, the application for writ of mandamus pending before this court is denied.
Per Curiam
easonable doubt that appellant burglarized the habitation as charged. Furthermore, the inconsistency about whether the appliances were disconnected from the multi-socketed electrical cord or whether the latter alone was unplugged from the wall simply created issues regarding the credibility of the witnesses. It, however, did not negate the evidence that the appliances had been somehow disconnected from their electrical source, and that such was necessary before they could be removed from the abode. Thus, the evidence was and is both legally and factually sufficient to support the conviction.
Issue Three - ImpeachmentVia his third issue, appellant questions the trial court's refusal to allow him to cross-examine Nail about a criminal investigation into her purported effort to acquire property through the use of another's name. We overrule the issue.
The evidence of record illustrates that Nail had not been convicted of the supposed offense or any felony or crime of moral turpitude. This is determinative. One may not delve into specific instances of conduct in effort to attack a witness' credibility, Tex. R. Evid. 608(b), unless the instances resulted in a felony conviction or a conviction for a crime of moral turpitude. Tex. R. Evid. 609(a). Since Nail had not been so convicted, the trial court did not abuse its discretion in excluding the evidence.
Having overruled each issue, we affirm the trial court's judgment.
Brian Quinn
Chief Justice
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