Javier Diaz Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00054-CR
___________________________
JAVIER DIAZ JR., Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1633717D
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Without a plea bargain, Appellant Javier Diaz Jr. pled guilty to the offense of
failure to comply with the sexual offender registration requirements and asked the trial
court to assess punishment. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(2). After
hearing the evidence, the trial court sentenced Diaz to six years’ imprisonment. Diaz
appealed. We will affirm.
I. Diaz’s Complaint
In one point, Diaz asserts that the “trial court abused its discretion in admitting
irrelevant testimony regarding details of the prior sexual offense that resulted in the
required registration.” Regarding the “prior sexual offense that resulted in the required
registration,” in 1992, Diaz was placed on deferred adjudication for the offense of
aggravated sexual assault of a child younger than fourteen years of age and placed on
community supervision for ten years. Despite not completing all the community-
supervision conditions, Diaz’s probationary term was allowed to expire in 2002, and
Diaz was released from supervision. Diaz argues that because no one disputed that he
had committed an offense that required him to register as a sex offender, the
underlying facts of his 1992 offense were irrelevant. See Hudson v. State, 112 S.W.3d
794, 800–01 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).
II. Standard of Review
We review a trial court’s decision to admit evidence for an abuse of discretion.
Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort Worth 2014, pet. ref’d). Under
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this standard, we uphold the trial court’s ruling as long as it falls within the “zone of
reasonable disagreement” and is correct under any theory of law applicable to the
case. Id. at 782.
III. Discussion
Here, the prosecutor used the 1992 offense to correct a misrepresentation that
Diaz had made to the PSI investigator1 and, further, that Diaz had tried to perpetuate
at the punishment hearing. Diaz had represented to the PSI investigator that his
1992 offense was for fondling a six-year-old child’s vagina and having her perform
fellatio on him, and when the prosecutor questioned Diaz about those representations
at the punishment hearing, Diaz maintained that they were true.
The truth, however, was that the 1992 offense to which Diaz had pled guilty
entailed penetrating the child’s vagina with Diaz’s penis. When confronted, Diaz
admitted that he had been trying to minimize his conduct.
The focus of the prosecutor’s cross-examination was that Diaz had lied to the
investigator and then to the trial court. See generally Lagrone v. State, 942 S.W.2d 602,
612–13 (Tex. Crim. App. 1997); Lemon v. State, No. 14-10-00616-CR,
2011 WL 1837680, at *5 (Tex. App.—Houston [14th Dist.] May 10, 2011, pet. ref’d)
(mem. op., not designated for publication). The question before us is whether Diaz’s
lying to the PSI investigator and to the trial court was relevant.
PSI is short for presentence investigation report. See Serrano v. State,
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636 S.W.3d 717, 720 (Tex. App.—Fort Worth 2021, pet. ref’d).
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Various authorities show that it was. Section 3(a)(1) of Article 37.07 of the
Texas Code of Criminal Procedure provides that both the State and the defendant
may offer evidence “as to any matter the court deems relevant to sentencing.” Tex.
Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1). The rule is well settled that in assessing
punishment the trial court is entitled to consider a defendant’s truthfulness when he
testifies. Thomas v. State, 551 S.W.3d 382, 386 (Tex. App.—Houston [14th Dist.] 2018,
pet. ref’d). Evaluating a defendant’s credibility—as shown by the defendant’s conduct
at trial and testimony under oath—is both necessary and proper. Id. The sentencing
judge must carefully evaluate a defendant’s testimony to determine whether it contains
willful and material falsehoods and, if so, to assess that conduct’s significance in the
context of the defendant’s prospects for rehabilitation and for assuming a useful place
in society. Id. A defendant’s truthfulness or mendacity when testifying on his own
behalf may be probative of his attitudes toward society and of his prospects for
rehabilitation and, thus, is relevant to sentencing. McGee v. State, 233 S.W.3d 315,
318 (Tex. Crim. App. 2007).
Accordingly, because Diaz’s dishonesty while testifying during the punishment
hearing was a “matter . . . relevant to sentencing” under Section 3(a)(1) of Article
37.07, the trial court did not abuse its discretion. See Romero v. State, No. 07-20-00049-
CR, 2021 WL 3207713, at *2 (Tex. App.—Amarillo July 29, 2021, no pet.) (mem. op.,
not designated for publication); Thomas, 551 S.W.3d at 386–87. We overrule Diaz’s
sole point.
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IV. Conclusion
Having overruled Diaz’s point, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 8, 2023
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