
NO. 07-08-0303-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 8, 2009
______________________________

AARON R. DIAL, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant

v.

THE STATE OF TEXAS, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2006-413,416; HON. CECIL PURYEAR, PRESIDING
_______________________________

On Motion for Rehearing
_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Â Â Â Â Â Â Â Â Â Â Pending before the court is appellantâs motion for rehearing.  We grant the motion
for rehearing, withdraw the original opinion and judgment issued on March 24, 2009, and
substitute this opinion for the one we previously issued.
Â Â Â Â Â Â Â Â Â Â Aaron R. Dial appeals a judgment revoking his probation and sentencing him to two
years confinement in a state jail facility for the offense of possession of a controlled
substance.  Through two complaints, he apparently argues that 1) the trial court erred in
failing to conduct an investigation into whether his plea of guilty to the original offense was
voluntary, and 2) the trial court relied upon illegally obtained evidence in finding that
appellant failed to identify himself to a police officer.  We affirm the judgment. 
Â Â Â Â Â Â Â Â Â Â Issue One â Investigating Voluntariness of Guilty Plea
Â Â Â Â Â Â Â Â Â Â In a rather rambling discourse, appellant complains about the voluntariness of his
guilty plea which resulted in the trial courtâs decision to revoke his community supervision. 
We are unsure of whether he contends that the plea was involuntary, that he should have
been entitled to withdraw his plea, or that the trial court failed to inquire into the
voluntariness of his prior plea at the subsequent revocation hearing.
  If it is the first, then
we cannot consider the dispute via an appeal from an order revoking his community
supervision.  Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001) (affirming the
appellate courtâs refusal to entertain claims regarding the voluntariness of the appellantâs
guilty plea because those claims should have been raised in an appeal from the imposition
of community supervision).
Â Â Â Â Â Â Â Â Â Â If it is the second, then the claim was not preserved for appellant did not request
leave to withdraw his plea from the trial court.  The Court of Criminal Appeals required as
much in Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004).  
Â Â Â Â Â Â Â Â Â Â If it is the third, appellantâs receipt of the statutory admonishments was prima facie
evidence that his plea was knowing and voluntary.
 See Brown v. State, 11 S.W.3d 360,
362 (Tex. App.âHouston [1st Dist.] 2000, pet. refâd) (holding that the receipt of statutory
admonishments is prima facie evidence that the plea is knowing and voluntary).  Moreover,
without citation to either evidence or authority suggesting that oneâs ingestion of cocaine
alone impairs his ability to think rationally, perceive the circumstances before him or
understand the consequences of his actions, we hesitate to impose on a trial judge the
duty contemplated by appellant.  See Villareal v. State, 860 S.W.2d 529, 533 (Tex. App.
âCorpus Christi 1993, pet. refâd) (stating the trial court had no duty to sua sponte examine
retrospectively the voluntariness of the defendantâs guilty plea even though he was found
incompetent at the adjudication hearing).    
Â Â Â Â Â Â Â Â Â Â Issue 2 - Illegal Detention
Â Â Â Â Â Â Â Â Â Â Via his second issue, appellant attacks the trial courtâs finding that he failed to
identify himself.  Purportedly, the evidence upon which the trial court relied was acquired
through an illegal detention.  Be that as it may, we do not see how that changes the validity
of the decision to revoke.  Appellantâs failing to identify himself was only one of many
grounds alleged by the State in support of its motion.  Moreover, appellant pled true to at
least two grounds the validity of which had nothing to do with his misidentifying himself to
a police officer.  So, even if we were to accept appellantâs protestations about the
supposed illegal detention and ignore that finding as a ground supporting revocation,
nothing would change.  Simply put, the decision to revoke is supported by the other
findings about which he utters no complaint. Moore v. State, 605 S.W.2d 924, 926 (Tex.
Crim. App. 1980) (stating that only one ground can justify the trial courtâs decision to revoke
community supervision).
Â Â Â Â Â Â Â Â Â Â Accordingly, we overrule each issue and affirm the judgment.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice
Publish.

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NO. 07-10-00252-CV
Â 
IN THE COURT OF APPEALS
Â 
FOR THE
SEVENTH DISTRICT OF TEXAS
Â 
AT
AMARILLO
Â 
PANEL A
Â 

JULY
30, 2010
Â 

Â 
IN RE KIRK ROGERS, INDEPENDENT EXECUTOR OF THE ESTATE OF S.K. ROGERS,
RELATOR

Â 

Â 
Before
CAMPBELL and HANCOCK and PIRTLE, JJ.
Â 
Â 
MEMORANDUM OPINION
Â 
Relator Kirk Rogers, as independent executor
of the estate of his father S.K. Rogers, deceased, seeks a writ of mandamus
requiring the respondent trial court judge to vacate orders compelling relators responses to written discovery requests.Â  We will deny the requested mandamus relief.
Background
Â Â Â Â Â Â Â Â Â Â Â  S.K.
Rogers (husband) and real party in interest Mary Beth Goss Rogers (wife)
married in 1999.Â  Before their marriage,
they executed a premarital agreement which, according to relator,
expresses the intent of husband and wife to create a marriage free of community
property.Â  An exhibit
attached to the agreement states husbandÂs total assets then were valued
at $10.9 milllion.Â 
The agreement obligated husband to execute a new will containing
provisions benefiting wife, and husband executed a new will after the marriage.
The marriage ended with the death of
husband in November 2008.Â  HusbandÂs will
was admitted to probate and relator appointed
independent executor.Â  Among other
provisions, the will devised their residence to wife, and created a trust for
her benefit.Â  Relator
was named trustee of the trust.Â  Relator filed an inventory, appraisement and list of claims
showing a probate estate of $40.9 million, all of it separate property.Â Â  
In May 2009, relator
filed suit against wife seeking declaratory relief pertaining to the premarital
agreement, a post-marital agreement of husband and wife, and husbandÂs
will.Â  On August 27, 2009, wife served relator with requests for disclosure, requests for
production (containing ninety-eight requests, some with sub-parts), and
requests for admissions (containing thirty requests).Â  In response, on September 1, relator filed a two-page document entitled Âobjection to
discovery and motion for protective order.ÂÂ 
It presented a global objection asserting each of wifeÂs discovery
requests required a response that was not relevant or calculated to lead to the
discovery of relevant evidence.Â  The
document also contained a motion for protective order seeking a stay of relatorÂs obligation to respond to wifeÂs discovery
requests on the grounds the requests were interposed for harassment and created
an undue burden and unnecessary expense.Â 
Relator made no further response to wifeÂs
written discovery requests.Â  During
September 2009, wife filed an application to remove relator
as executor.
Â Â Â Â Â Â Â Â Â Â Â  On
February 5, 2010, the trial court conducted a non-evidentiary hearing of relatorÂs motion for protective order.Â  By letter to the parties dated March 3, it
announced the motion was denied.Â  The
record does not contain a signed order.
Â Â Â Â Â Â Â Â Â Â Â  On
February 8, relator filed a document answering wifeÂs
petition for removal of relator as executor.Â  The pleading also sought a declaratory
judgment that the premarital agreement was Âvalid and enforceable and does not
create a community estate,Â and wife lacked standing to challenge the estate
and was not an interested party of the estate because she had received all
benefits due her under husbandÂs will.
Â Â Â Â Â Â Â Â Â Â Â  The
trial court conducted a rehearing on relatorÂs motion
for protective order and a hearing on relatorÂs
objection to discovery on March 31.Â  It
also heard wifeÂs motion to vacate a prior order approving the inventory,
appraisement and list of claims and addressed issues of wifeÂs standing and
status as a person interested in the estate.Â 
Relator testified the requested document
production ÂprobablyÂ involved the records of thirty to fifty business
entities.Â  Responsive documents, he
Âassume[d],Â would fill some 200 large bankerÂs boxes.Â  According to relatorÂs
testimony, producing the requested documents Âwould be a huge undertaking.Â Relator agreed the project would be Âonerous and
burdensome.ÂÂ  Reproduction of the
documents, he opined, would cost Âthousands of dollars.ÂÂ  Copying the requested volume of documents
would disrupt business at an office of the estate in Levelland,
Texas.Â  
By written order of March 31, the
trial court denied relator any relief from wifeÂs
outstanding discovery requests and set a sixty-day deadline for serving
responses.Â  By written orders signed
April 6 and 7 respectively, the trial court vacated its prior order approving
the inventory, appraisement and list of claims and concluded wife was an
interested party and possessed standing to assert claims against the executor.
Â Â Â Â Â Â Â Â Â Â Â  On
June 17, wife filed a motion for discovery sanctions.Â  In the motion, she acknowledged relator had served responses to her requests for disclosure
and requests for admissions.Â  She
requested monetary sanctions and an order compelling responses to her
still-outstanding requests for production.Â 

Â Â Â Â Â Â Â Â Â Â Â  On
June 18, wife filed an amended pleading seeking removal of relator
as executor and alleging claims for declaratory relief and affirmative causes
of action in contract and tort.Â  In the
pleading, wife asserted, and sought declarations concerning, a reading of the
premarital agreement contrary to that asserted by relator.Â  She also alleged claims for damages in part
arising from false representations and conduct of husband predating the
premarital agreement.
Â Â Â Â Â Â Â Â Â Â Â  On
June 25, relator filed the present petition for writ
of mandamus and motion for temporary relief.Â 
By his petition, relator asks us to vacate the
orders of the trial court requiring responses to wifeÂs discovery.Â  We stayed enforcement of the March 31
discovery order and directed a response to the petition.Â  Wife filed a response.
Analysis
Â Â Â Â Â Â Â Â Â Â Â  The
scope of discovery rests mainly with the discretion of the trial court.Â  In re
Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding)
(per curiam).Â 
A writ of mandamus will issue, however, if a discovery order constitutes
an abuse of discretion and no adequate remedy by appeal exists.Â  Id.Â  An abuse of discretion occurs when a trial
court acts without reference to guiding rules and principles.Â  Id.Â  No adequate relief by appeal may lie when the
trial court orders production of irrelevant or duplicative documents imposing a
disproportionate burden on the producing party.Â 
Id. The live pleadings
determine the breadth of permissible discovery.Â 
In re Barlow, No. 07-05-0321-CV,
2005 Tex. App. Lexis 8523, at *4-*5 (Tex.App.--Amarillo
Oct. 14, 2005, orig. proceeding) (mem. op.).Â  
Â Â Â Â Â Â Â Â Â Â Â  RelatorÂs petition for mandamus focuses on the trial
courtÂs order requiring him to respond to wifeÂs ninety-eight requests for
production,[1]
some containing sub-requests.Â  As noted,
his objection in the trial court asserted globally that wifeÂs discovery
requests sought information that was not relevant or reasonably calculated to
lead to the discovery of admissible evidence.Â 
Similarly, before this court relator broadly
contends the trial court abused its discretion by authorizing discovery
exceeding the scope allowed by the rules of civil procedure.
As we understand the posture of the
litigation at the time of the March 31 hearing from the limited mandamus
record, the issues joined by the parties were relatorÂs
claim for declaratory relief and wifeÂs petition for removal of relator as executor.Â 
Assuming relatorÂs objection had merit as the
pleadings of the parties existed at that time, a decision we do not reach, we
cannot fail to note the effect of wifeÂs subsequent amendments to her
pleadings.Â  The amended pleadings added
claims arising from or related to the conduct of husband in contemplation of marriage
and during marriage.Â  Even if the scope
of proper discovery excluded inquiry into husbandÂs conduct before wifeÂs
amended pleading, after it was served the rules authorized proper
discovery.Â  Accordingly, on this record,
we decline to grant mandamus based on relatorÂs broad
contention the trial court abused its discretion by not sustaining his
relevancy objection to wifeÂs request for production.Â  A writ of mandamus will not issue Âif for any
reason it would be useless or unavailing.Â Dow
Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (quoting Holcombe v. Fowler, 118 Tex. 42, 9
S.W.2d 1028, 1028 (Tex. 1928)).Â  
Relator also sought a protective order,
staying wifeÂs discovery requests, on the grounds of undue burden, unnecessary
expense, and harassment.Â  Tex. R. Civ. P. 192.6(b).Â 
The stay relator sought would have suspended
his obligation to respond to wifeÂs discovery requests until the court
determined the sufficiency of the premarital agreement to create a
Âcommunity-free marriage.ÂÂ  The propriety
of granting a stay involved a balancing of the burden on relator
to respond, shown by his record evidence, and the benefit of discovery going
forward, Âtaking into account the needs of the case, the amount in controversy,
the partiesÂ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the
issues.ÂÂ  Tex. R. Civ. P. 192.4(b); see In
re Alford Chevrolet-Geo, 997 S.W.2d 173, 182 (Tex. 1999) (orig. proceeding)
(discussing precertification discovery in class action). Â According to relatorÂs
testimony, wifeÂs requested production of documents involves thirty to fifty
business entities.Â  As noted, relator told the court also that the requested documents would
occupy some 200 large bankerÂs boxes and the process would disrupt business
where the records are stored.Â  In relatorÂs opinion, copying the documents would cost
thousands of dollars.Â  Considering that
evidence in light of the issues at stake, the amount in controversy, and the
importance of the dispute in settlement of administration of husbandÂs probate
estate,[2]
we are unable to say the trial court abused its discretion by denying relator the protective order requested.Â  
Finding no abuse of discretion in the
trial courtÂs rulings, it is not necessary to discuss relatorÂs
claim that he lacks an adequate remedy at law.
Conclusion
RelatorÂs petition is denied. We dissolve our
order temporarily staying enforcement of the trial courtÂs March 31 discovery
order.Â  Wife has requested rehearing of
our grant of temporary relief.Â  That
motion is dismissed as moot.Â  As a
sanction, wife also requested attorneyÂs fees.Â 
Tex. R. App. P. 52.11.Â  We deny
that request.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Per
Curiam
Â 




[1] RelatorÂs petition for
mandamus does not address the applicability of the trial courtÂs discovery
order to wifeÂs requests for admissions or requests for disclosures.Â  As noted, it appears relator
has responded to those requests, so we do not address them further.


[2] As a comparison with the evidence the court heard
concerning the expense of the proposed discovery, relator
also testified the cost of appraisal services incurred in connection with the
filing of the federal estate tax return and inventory exceeded $119,000.Â Â Â  


