Armando Diaz v. State ( 2007 )

NO. 07-07-0287-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 26, 2007 ______________________________

ARMANDO DIAZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 251^ST DISTRICT COURT OF RANDALL COUNTY;

NO. 18404-C; HONORABLE ANA ESTEVEZ, JUDGE _______________________________

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

ON ABATEMENT AND REMAND

Appellant, Armando Diaz, appeals from his conviction for Injury to a Child and sentence of ten years incarceration in the Institutional Division of the Texas Department of Criminal Justice. The appellate record was due in this case by August 20, 2007. The clerk's record was filed on August 21, 2007. The court reporter requested an extension to file the reporter's record on September 21, 2007 and was granted an extension until October 20, 2007. On November 8, 2007, the reporter requested another extension. However, the court reporter's monthly report and an accompanying letter demonstrate a heavy work load plus several medical emergencies that could potentially affect the timeliness of the reporter's records in several cases on appeal.

Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether the reporter's record can reasonably be filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of his right to appeal, and

2. whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner.

The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk's record to be developed containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and (3) cause a reporter's record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk's record and any reporter's record transcribing the hearing with the clerk of this court on or before December 17, 2007. Should further time be needed by the trial court to perform these tasks, then same must be requested before December 17, 2007.

It is so ordered.

Per Curiam

at all to the people of the county would be life" was improper, as it constituted a call to the jury to heed demands, desires, or expectations of the community). But a proper plea for law enforcement may take many forms, one of which is to argue the relationship between the jury's verdict and the deterrence of crime in general, or this specific type of crime. Borjan v. State, 787 S.W.2d 53, 55 (Tex.Cr.App. 1990).

We conclude the prosecutor's argument was not, as asserted by appellant, "outside the record." Neither did the argument constitute an encouragement to the jury to believe that either the community or any particular part of the community expected or demanded a particular punishment. Murray v. State, 861 S.W.2d 47, 54 (Tex.App.-Texarkana 1993, pet. ref'd). Rather, the "they" argument advanced by the State in this instance is a permissible plea for law enforcement. ⁽¹⁾ See Burns v. State, 556 S.W.2d 270, 286 (Tex.Cr.App. 1977), cert. denied, 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977); see also Haynes v. State, 627 S.W.2d 710, 714 (Tex.Cr.App. 1982). The State had not only the right, but a duty to make that plea. Phillips v. State, 511 S.W.2d 22, 29-30 (Tex.Cr.App. 1974). The trial court, thus, did not err in overruling appellant's objection to it. Appellant's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. With the "they" or "they people" argument, the prosecutor refers to the jury as the "they" people when the question is asked, "why don't they do something about this?" Burns v. State, 556 S.W.2d 270, 286 (Tex.Cr.App. 1977), cert. denied, 434 U.S. 935, 98 S. Ct. 422, 54 L. Ed. 2d 294 (1977); see also Phillips v. State, 511 S.W.2d 22, 29 (Tex.Cr.App. 1974).