NO. 07-04-0011-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	SEPTEMBER 24, 2004

	______________________________

	RICKY D. STARKS, APPELLANT

	V.

	THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, APPELLEE

	_________________________________

	FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

	NO. 91,655-E; HONORABLE ABE LOPEZ, JUDGE

	_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

	MEMORANDUM OPINION

	Presenting two points of error, appellant Ricky D. Starks challenges the trial court’s order dismissing his tort claim against the Texas Department of Criminal Justice for failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code Annotated (Vernon 2002).  We reverse and remand.

	Pursuant to the Texas Tort Claims Act, Starks filed his original complaint and other necessary documents on November 20, 2003, alleging he sustained personal injuries caused by operation of motor vehicles or motor driven equipment, premises defects, or use, misuse, or condition of tangible personal or real property.  Specifically, Starks claimed he sprained his left wrist, bruised an elbow, and fractured his fingers after slipping and falling while showering in a deficient stall known by employees of the Department to be hazardous.

	By two points of error, Starks (1) challenges the trial court’s exercise of discretion in dismissing his claim without specifying how he failed to comply with chapter 14 of the Code, and (2) claims he has immunity from the application of chapter 14 on the ground that it has been used to deny or abridge a vested due course of law based on “race.”1  Given the record before us, we agree the trial court abused its discretion in dismissing his claim.

	In reviewing the dismissal of a claim under chapter 14 of the Code, we apply the abuse of discretion standard.  McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex.App.–Houston [14th Dist.] 1998, no pet.); see also Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.–Waco 1996, no writ).  Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985).  The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred.  Id.  

	Starks’s suit is governed by the rules set forth in chapter 14 of the Code.  Thompson v. Henderson, 927 S.W.2d 323, 324 (Tex.App.–Houston [1st Dist.] 1996, no writ).  The purpose of chapter 14 is to assist the trial court in determining whether a suit is malicious or frivolous under section 14.003(a).  Hickson, 926 S.W.2d at 399.  Thus, an inmate’s suit may be dismissed without a hearing when he fails to comply with the requirements of section 14.004.  See Williams v. Brown, 33 S.W.3d 410, 412 (Tex.App.–Houston [1st Dist.] 2000, no pet.). 

	  By its dismissal order, the trial court did not specify what requirements of chapter 14 Starks failed to satisfy.  Thus, we will review all requirements of chapter 14 and the documents filed by Stark in pursuit of his claim mindful that pro se pleadings are evaluated by less stringent standards than those applied to formal pleadings filed by attorneys.  Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex.App.–Beaumont 2002, pet. denied).  

	Section 14.004(a)(1) requires an inmate who files an affidavit of inability to pay costs to file a separate affidavit of every suit filed pro se without regard to whether he was an inmate at the time other than suits filed under the Texas Family Code.  Pursuant to subsection (a)(2) the affidavit shall describe each suit and (A) state the operative facts, (B) list the case name, cause number, and court in which suit was filed, (C) identify each party, and (D) state the result of the suit, including whether it was dismissed as frivolous or malicious.  Under subsection (b), an inmate must declare the date of the final order affirming the dismissal of a previous suit if it was dismissed as frivolous or malicious. Finally, subsection (c) requires that the affidavit be accompanied by a certified copy of the inmate’s trust account statement.  See also § 14.006(f).  

	An inmate is also required to exhaust his administrative remedies as provided by section 14.005(a) of the Code.  See also Tex. Gov’t Code Ann. § 501.008 (Vernon 1998).  He must also provide an affidavit or unsworn declaration providing the date he filed a grievance as well as the date he received the written decision from the grievance system.  The record must include a copy of the written decision.  Once an inmate receives the grievance system’s decision, suit must be filed within 31 days or the trial court is authorized to dismiss the action.  § 14.005(b).

	By his affidavit of previous filings, Starks detailed eight previous suits providing all the information required by section 14.004(a)(2) except the case names.  However, because Starks was the plaintiff in all suits and he provided the names of all defendants in each suit, we conclude he substantially complied with section 14.004(a)(2)(B).  See  Gowan v. Texas Department of Criminal Justice, et al., 99 S.W.3d 319, 322 (Tex.App.–Texarkana 2003, no pet.); see also Jackson v. Texas Dept. of Criminal Justice, No. 07-03-0409-CV, 2004 WL 1933532, at *3, (Tex.App.–Amarillo, Aug. 31, 2004, no pet. h.).  The operative facts in Starks’s affidavit were brief;2 however, they were nevertheless sufficient to apprise the trial court that the present suit alleging damages for injuries sustained from a fall in a shower stall was not similar to the suits previously filed.  Thus, he also complied with section 14.004(a)(2)(A).  

	As required by sections 14.004(c) and 14.006(f), the clerk’s record contains a certified copy of Starks’s trust account statement reflecting the six month period preceding the date the claim was filed.  The clerk’s record also contains Starks’s Step 1 and Step 2 grievance offender forms in which he details his complaints regarding his current suit, as well as copies of the written responses from the grievance system.  By his unsworn declaration he recites that the final decision of the grievance system was received on September 4, 2003, and his lawsuit was filed with the proper person in the Department on October 2, 2003, within the 31-day limitations period.  See § 14.005(a) & (b).

	Having reviewed the mandatory requirements of chapter 14 and the documents filed by Starks, we conclude he complied with the statutory requirements, and the trial court abused its discretion in dismissing his suit for failure to comply.3  We sustain point of error one which pretermits consideration of his complaint that chapter 14 has been used to deny him due course of law because of “race.”

	Accordingly the judgment is reversed and the cause is remanded to the trial court for further proceedings.

						Don H. Reavis

						    Justice

 åÅàXÅXÅXÅÅXÅùåÉld” further support the reasonableness of the jury’s finding of guilt.7  The State can prove identity through direct evidence and inferences, as well as through circumstantial evidence.  Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Roberson v. State, 16 S.W.3d 156, 157 (Tex.App.–Austin 2000, pet. ref’d).  See also Sosa v. State, 177 S.W.3d 227, 230 (Tex.App.–Houston [1st Dist.] 2005, no pet.) (identification based on an individual’s build and other characteristics, when corroborated with additional evidence, can be legally sufficient); Hutchison v. State, 42 S.W.3d 336, 342-43 (Tex.App.–Texarkana 2001), aff’d, 86 S.W.3d 636 (Tex.Crim.App. 2002) (recognizing same).  Further, there is no legal requirement that property stolen must be recovered in whole or in part to constitute the offense of robbery.  Russo v. State, 228 S.W.3d 779, 794 (Tex.App.–Austin 2007, pet. ref’d), citing Chaney v. State, 474 S.W.2d 711, 712 (Tex.Crim.App. 1972); Dean v. State, 154 S.W.2d 459 (Tex.Crim.App. 1941). 

	Viewed in the light most favorable to the verdict, we find the combined force of the incriminating circumstances allowed the jury rationally to conclude, beyond a reasonable doubt, that appellant was one of the robbers.  Hooper, 214 S.W.3d at 9.  The evidence supporting guilt is legally sufficient.

	Evidence contrary to the verdict includes appellant’s wife’s testimony that he was at home watching their children while she was ill in bed at the time of the robbery.  Appellant also emphasizes the Conners were unable to identify him as one of the robbers.  He notes also that witnesses gave varied descriptions of the Jeep seen the day of the robbery,8 and that no firearm or ballistics evidence was linked to him, no DNA evidence or fingerprints were found and none of the stolen cash was recovered.  At trial, appellant attacked the credibility of the State’s witnesses.9  The trier of fact is the sole judge of the credibility of witnesses and may believe or disbelieve any part of a witness’s testimony.  Gaines v. State, 874 S.W.2d 733, 734 (Tex.App.–Houston [1st Dist.] 1994, no pet.).  Further, the trier of fact may believe a witness even though his testimony is contradicted.  Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); Gaines, 874 S.W.2d at 735.  We must give due deference to the fact-finder’s determinations, particularly those determinations concerning the weight and credibility to be given items of evidence.  Johnson, 23 S.W.3d at 9.  The jury was free to disbelieve appellant’s wife’s testimony, and we cannot agree with appellant that the inconsistencies to which he refers render the evidence presented insufficient.

	Viewing the entire record in a neutral light, we do not find the evidence favoring guilt is so weak that the jury’s verdict seems clearly wrong and manifestly unjust or that, giving due consideration to the evidence contrary to the verdict, the great weight and preponderance of all the evidence contradicts the jury’s verdict.  The evidence is factually sufficient.  

	We overrule appellant’s fourth issue.

Denial of Motions for Mistrial

	Appellant’s first issue involves statements contained in two of his jailhouse telephone conversations, which were recorded and admitted into evidence for the limited purpose of showing contact between appellant and Tiffeni Martinez or her husband Andrew.  In one statement the jury heard, in a conversation with Tiffeni Martinez appellant made reference to his previous experience with a court-appointed attorney.  The second statement, also made during a conversation with Tiffeni Martinez, was a comment to the effect that Davey Enriquez’s record was worse than appellant’s and that Enriquez’s bail would likely be a lot higher.  Appellant timely objected to admission of both statements as evidence of extraneous offenses.10  The trial court sustained both objections, and instructed the jury to disregard the statements, but denied appellant’s motion for a mistrial.  On appeal, appellant contends the trial court abused its discretion by denying a mistrial after the jury heard the second statement.11  

	The denial of a motion for mistrial is reviewed under the standard of abuse of discretion.  Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.–Amarillo 2002, pet. ref’d), citing Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999).  A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement.  Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g).  It is presumed the jury will obey an instruction to disregard.  Nichols v. State, 754 S.W.2d 185, 200 (Tex.Crim.App. 1988).  Testimony referring to extraneous offenses thus can be rendered harmless by an instruction to disregard it, unless it is so clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the impression produced.    Lusk, 82 S.W.3d at 60, citing Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992).  Accordingly, a mistrial is appropriate only when the event is “so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.”  Id. at 60.  

	We find no abuse of discretion in the trial court’s denial of a mistrial.  There is nothing especially inflammatory about the references the jury heard to appellant’s prior experience with a court-appointed attorney and appellant’s “record.”  The statements of which appellant complains are of the nature courts have found curable by instructions to disregard.  In Tennard v. State, 802 S.W.2d 678, 685 (Tex.Crim.App. 1990), the court found a prompt limiting instruction given after a witness referred to the defendant’s prior prison time cured any error.  The same conclusion was reached in Barney v. State, 698 S.W.2d 114, 125 (Tex.Crim.App. 1985), in which the court determined that an instruction to disregard a reference to appellant’s status as an “ex-con” sufficiently cured any error.  The court noted that an accused may not be tried for some collateral crime or for being a criminal; however, not every improper response requires reversal and, except in extreme cases, if a timely objection to the remark is sustained, and the trial court instructs the jury to disregard, the error is cured.  Id.  Likewise, in Evans v. State, 643 S.W.2d 157, 161 (Tex.App.–Austin 1982, no writ), the court found error was cured by an instruction to disregard when an officer testified that the victim was shown a second photographic lineup because the defendant had been implicated as a member of a robbery team. See also Kemp, 846 S.W.2d at 308.

	Appellant contends the court’s instructions to disregard were ineffective because too much time elapsed between the jury’s reception of the objectionable statements and the court’s instructions.   We disagree.  In both instances, the record reflects the evidence was heard by the jury, the court considered objections, heard argument, ruled on the objections and then gave instructions to the jury.  Although the jury was removed from the courtroom on the second instance and the amount of time that elapsed is not clear from the record, the court gave the instruction to disregard immediately on the jury’s return to the courtroom after a recess.12  The instructions were given as promptly as possible under the circumstances, and we find their presumed curative effect here was not allayed.  Cf. Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992) (instruction given morning after objectionable reference to collateral offense too late to cure error by itself).

	We overrule appellant’s first issue.

Denial of Due Process by Refusing to Exclude Evidence

	At appellant’s behest, before Danielle Holmes testified she was subjected to voir dire examination outside the jury’s presence, concerning the circumstances under which she overheard the first conversation between appellant and Woody on May 20.  She told the court part of the conversation she overheard took place inside her home.  She said appellant and Woody left the house at a point, however, and the rest of their conversation took place at the curb alongside appellant’s vehicle.  Holmes testified she had a security camera mounted outside her home at the time, and it had the capability to transmit sound, as well as video images.  The camera was wired into her television.  Holmes said when appellant and Woody went outside during their conversation, she turned up the volume control on her television because she wanted to hear what they were saying.  By this means, she said, she heard appellant make some of the incriminating statements to which she later testified.

	Shortly before trial, appellant caused a subpoena duces tecum to be issued to Holmes, requiring her to appear at trial, and to bring with her the audio and video equipment.  Holmes did not bring the equipment to trial, and told the court her security system did not record its video or audio transmissions and the camera hardware had been stolen.  Appellant objected that allowing her to testify about the curbside conversation without allowing him the opportunity to test the equipment by which she claimed to have heard the conversation deprived him of a fair trial.  The court overruled appellant’s objections, and allowed Holmes to testify to the extent it did not require expert or specialized knowledge.

 	By his third issue, appellant reiterates his contention he was denied due process of law by the trial court’s refusal to exclude Holmes’s testimony to the contents of the curbside conversation. In considering a trial court’s ruling on the admissibility of evidence, we determine whether the trial court abused its discretion.  Montgomery, 810 S.W.2d at 372.  A trial court abuses its discretion when it acts without reference to any guiding rules and principles.  Id.  Further, an appellate court must uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  State v. Ross, 32 S.W.3d 854, 856 (Tex.Crim.App. 2000).

	Appellant cites article 24.02 of the Code of Criminal Procedure, which provides that if a witness possesses any instrument or writing or other thing desired as evidence, a subpoena may specify that evidence and direct the witness to produce it in court.  Tex. Code Crim. Proc. Ann. art. 24.02 (Vernon 1989).  We held in Martin v. Darnell, 960 S.W.2d 838, 841 (Tex.App.–Amarillo 1997, no pet.) that a defendant’s right under the statute to secure evidence material to his defense arises out of the Sixth Amendment right to compulsory process.13  As was the case in Martin, 960 S.W.2d at 842, the record here compels the conclusion appellant was not denied any right given him by article 24.02.  By its terms, article 24.02 applies to things in the possession of a witness.  Holmes told the court the equipment appellant sought had been stolen.  

	We next consider whether due process required the trial court to exclude Holmes’s testimony despite the inapplicability of article 24.02.  See Martin, 960 S.W.2d at 842 (examining whether constitutional right required that defendant have greater access to documents sought than that provided by statute).  Appellant treats the issue as involving a restriction of the right to compulsory process, citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) and Coleman v. State, 966 S.W.2d 525 (Tex.Crim.App. 1998).  Appellant’s contention also bears similarity to those discussed in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), United States v. Valenzuela- Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (referring to case law “in what might loosely be called the area of constitutionally guaranteed access to evidence”) and Thomas v. State, 837 S.W.2d 106 (Tex.Crim.App. 1992), all involving defendants who were deprived in some manner of access to or use of evidence.  In some instances, the deprivation is treated as a violation of the right of confrontation. See, e.g., Ritchie, 480 U.S. at 51, 107 S.Ct. at 998. The Supreme Court also has noted the confluence of its analysis of compulsory process claims and due process protections.  Ritchie, 480 U.S. at 56, 107 S.Ct. at 1001; Valenzuela-Bernal, 458 U.S. at 872, 102 S.Ct. at 3449 (Court has “borrowed much of our reasoning with respect to the Compulsory Process Clause . . . from cases involving the Due Process Clause”).  Here, so far as the record shows, the equipment appellant sought was no longer available to Holmes when it was subpoenaed.  This factor distinguishes appellant’s case from Martin.  960 S.W.2d at 840; see also Dixon v. State, No. 03-01-00459-CR, 2002 WL 31206210, *2 (Tex.App.–Austin, October 3, 2002 pet. ref’d) (mem. op., not designated for publication) (distinguishing Thomas by noting information there sought by defendant was known to exist).  

	After considering the authorities we have cited and others, we conclude that factor, together with one or more of the following additional factors, takes appellant’s claim outside the requirements of due process and of the Compulsory Process Clause: (1) so far as the record shows, not only was the equipment not available, it always was in the hands of Holmes, and its unavailability in no way resulted from any State action, see Ritchie, 480 U.S. at 43, 107 S.Ct. at 994 (state child abuse law made information sought confidential); Thomas, 837 S.W.2d at 109 (statute then prohibited production of Crime Stoppers records); (2) the record provides no basis to evaluate whether the equipment’s availability would have resulted in evidence material or favorable to appellant, see Washington v. Texas, 388 U.S. at 16, 87 S.Ct. at 1922 (undisputed that excluded testimony would have been relevant and material); and (3) appellant’s cross-examination of Holmes was not limited by the trial court, see Ritchie, 480 U.S. at 52-54, 107 S.Ct. at 999-1000 (evaluating contention under Confrontation Clause).  We thus conclude the admission of Holmes’s testimony concerning appellant’s statements she overheard, despite her failure to produce the mechanical means by which she said she overheard them, did not violate appellant’s due process or other constitutional rights. We overrule appellant’s third issue.

Conclusion

	Having overruled each of appellant’s issues, we affirm the judgment of the trial court.		

							James T. Campbell

							          Justice

Publish.

Quinn, C.J., not particpating.