NO. 07-03-0489-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	NOVEMBER 25, 2003

	______________________________

	IN RE JOE LEE TOUCHSTONE, RELATOR

	_______________________________

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

	MEMORANDUM OPINION

	By this original proceeding, relator Joe Lee Touchstone, an inmate proceeding pro se and informa pauperis, seeks a writ of mandamus to compel the Judge of the 100th District Court of Carson County to rule on various motions.  By his prayer, however, he requests this Court render a judgment of acquittal or alternatively, grant a new trial.  For the reasons expressed herein, relator’s petition for a writ of mandamus is dismissed in part for want of jurisdiction and denied in part.

	Request to Rule on Motion for New Trial

	By opinion dated October 14, 1991, this Court affirmed relator’s conviction for aggravated sexual assault in cause number 07-91-0054-CR.  No petition for discretionary review was filed and mandate was issued on December 12, 1991.  By this proceeding, relator asserts his motion for new trial filed on March 14, 1991, has yet to be ruled on.  We conclude we have no jurisdiction over relator’s request regarding his motion for new trial as our plenary power over our judgment has expired and mandate has issued.  Tex. R. App. P. 19.1; see generally In re Trevino, 79 S.W.3d 794, 795 (Tex.App.–Corpus Christi 2002, no pet.) (per curiam) (concluding it no longer had jurisdiction over relator’s request where his conviction had previously been affirmed, his petition for discretionary review had been denied, and mandate had issued).

	Motion for Release on Bond

	Relator must satisfy three requirements to establish his entitlement to the issuance of a writ of mandamus, to-wit: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act.  Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).  When a motion is properly filed and pending before a trial court, the act of considering and ruling upon the motion is a ministerial act.  Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992).  However, the trial court has a reasonable time within which to perform that ministerial duty.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San Antonio 1997, orig. proceeding).  Whether a reasonable period of time has lapsed is dependent on the circumstances of each case.  Barnes v. State, 832 S.W.2d 424, 426, (Tex.App.–Houston [1st Dist.] 1992, orig. proceeding).  Other factors are influential such as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its docket, and other judicial and administrative duties which must be addressed.  In re Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding).  Further, the party requesting relief must provide a sufficient record to establish his entitlement to mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); see also In re Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001, orig. proceeding). 

	Relator has provided a copy of his motion for release on bond file-stamped by the Carson County District Clerk on October 8, 2003.  His petition for writ of mandamus was filed in this Court on November 19, 2003.  We acknowledge that a trial court has a duty to consider and resolve motions within a reasonable time.  However, because only seven weeks have lapsed since relator filed his motion and he has not provided a sufficient record to show that the motion has been brought to the trial court’s attention, we cannot conclude that he has awaited disposition of his motion for an unreasonable period of time nor that the trial court has refused to act.  Relator’s request for mandamus relief regarding his motion for release on bond is denied.						 	

		Request for Appointment of Counsel Pursuant to 

	Chapter 64 of the Texas Code of Criminal Procedure

	Article 64.01(c) provides that a convicted person is entitled to counsel if he wishes to submit a motion for DNA testing.  The statute further provides:

	 [t]he convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent.

(Emphasis added).  The language of the statute is mandatory.  Neveu v. Culver, 105 S.W.3d 641, 642 (Tex.Cr.App. 2003).  Once the convicting court determines relator is indigent, the appointment of counsel is a purely ministerial act.  Id.   

	Relator is entitled to mandamus relief if he establishes (1) the act sought to be compelled is purely ministerial and (2) he has no other adequate legal remedy.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Cr.App. 2003).  The ministerial act requirement is satisfied if relator establishes a “clear right to the relief sought” with nothing left to the exercise of discretion or judgment.  Id.  Article 64.01(c) does not require relator to make a prima facie showing that he is entitled to DNA testing before his right to counsel attaches.  In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.–Corpus Christi 2002, orig. proceeding).  

	Recently, the Court conditionally granted mandamus relief in Winters v. The Presiding Judge of the Criminal District Court Number Three of Tarrant County, No. 74,691, 2003 Tex. Cr. App. LEXIS 675 (Tex.Cr.App. Oct. 22, 2003) (designated for publication).  In Winters, the convicting court acknowledged that appointment of counsel pursuant to article 64.01(c) is mandatory, but declined to appoint counsel noting that to do so would be “useless.”  The Court conditionally granted a writ of mandamus noting that appointment of counsel under chapter 64 is mandatory if the convicted person proves he is indigent and informs the court he wishes to file a motion under chapter 64.  Id. at *5.   

	Included with the petition for writ of mandamus, relator has provided this Court with copies of his request for speedy disposition of his request for appointment of counsel pursuant to chapter 64 accompanied by a blank order appointing counsel and a declaration of inability to pay costs.  The documents are file-stamped July 9, 2002.  However, before relator may be entitled to mandamus relief, he must provide a sufficient record to show that the motion was presented to the trial court and that the trial court refused to act.  In re Villarreal, 96 S.W.3d at 710 n.2 (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court’s attention).  We conclude relator has not satisfied the burden to show his entitlement to mandamus relief.  See Walker, 827 S.W.2d at 837.

	Accordingly, relator’s petition for writ of mandamus is dismissed in part for want of jurisdiction and denied in part. 

						Don H. Reavis

						    Justice

  rious as to undermine confidence in the verdict.åã	10 See Tex. R. Evid. 404(b).åÆ(ííÅæ

O$ù;åÇOpê	e 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.