                                      NO. 07-11-0357-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                      JANUARY 25, 2013

                            ______________________________


                         MICHAEL ROBERT TIETZ, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

         NO. 21,807-A; HONORABLE LEE WATERS, SR. DISTRICT JUDGE,
                          SITTING BY ASSIGNMENT

                           _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


      Appellant, Michael Robert Tietz, pled guilty in open court to driving while

intoxicated enhanced to a second degree felony1 and was sentenced to six years

confinement.    In a single issue, Appellant asserts the trial court erred in admitting

evidence of an extraneous offense during the punishment proceedings. We affirm.


1
See Texas Penal Code Ann. §§ 12.42(a); 49.04(a), 49.09(b)(2) (West Supp. 2012).
                                        BACKGROUND


      In September 2010, an indictment was filed alleging that on or about August 6,

2010, Appellant committed the offense of felony driving while intoxicated.            The

indictment also contained an enhancement paragraph alleging Appellant had previously

been convicted of the felony offense of theft of property with a value of $750 or more but

less than $20,000. Without a recommendation as to punishment, Appellant entered a

plea of guilty to the charged offense and a plea of true to the enhancement, making the

range of punishment two to twenty years confinement and a fine of up to $10,000. 2


      Appellant filed an application for community supervision and testified during his

hearing, requesting treatment and community supervision. He admitted he drank daily

and alcohol abuse led to his theft conviction in 1989, two prior DWIs and an assault on

his stepdaughter. He described himself as the main breadwinner for his family, an

honest employee that was well thought of at work, and someone who lived for his

family. He also testified he didn’t believe he was intoxicated the night of his arrest on

August 6, 2010.


      On cross-examination, the State asked Appellant whether he had sex with an

underage female in 1992, when he was twenty-two years old. Appellant’s immediate

objections were overruled and the State was allowed to question him regarding a

statement he had given to an Amarillo Police Department sergeant. Appellant testified

that he remembered giving the statement but did not remember the incident. The State

then introduced Appellant’s signed statement wherein he confessed to having sex with


2
Tex. Penal Code Ann. §§ 12.33 (West 2011)

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an underage female. Although Appellant testified he did not remember the incident, he

did agree that he was “probably” intoxicated at the time because he was drinking daily

during that time period. During closing argument, the State’s sole reference to the

statement was that “[Appellant’s] drinking [puts him] in situations where he threatens

young girls in that statement, State’s Exhibit Number 6 . . . .” The State concluded by

asking for at least ten years confinement. The trial court found Appellant guilty of

driving while intoxicated, enhanced, and assessed his sentence at confinement for six

years. This appeal followed.


                                       DISCUSSION


       At the outset, we note that the decision of a trial court regarding the admissibility

of extraneous offense evidence during the punishment phase of a criminal proceeding is

reviewed under an abuse of discretion standard. Nanez v. State, 179 S.W.3d 149, 151

(Tex.App.—Amarillo 2005, no pet.) (citing Saenz v. State, 843 S.W.2d 24, 26

(Tex.Crim.App. 1992)).      The test for abuse of discretion is whether the trial court

acted without reference to any guiding rules and principles or, alternatively, whether the

trial court’s actions were arbitrary and unreasonable based on the circumstances of the

individual case and whether its discretion falls outside the zone of reasonable

disagreement. Jordan v. State, 271 S.W.3d 850, 855 (Tex.App.—Amarillo 2008, pet.

ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on

reh’g)).


       For purposes of assessing punishment, a trial court may hear any evidence

“deem[ed] relevant to sentencing” and the prosecution may offer evidence of any


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extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have

been (1) an act committed by the defendant or (2) an act for which he could have been

held criminally responsible.   See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

(W EST SUPP. 2012). See also Arthur v. State, 11 S.W.3d 386, 392 (Tex.App.—Houston

[14th Dist.] 2000, pet. ref’d) (citing Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.

1999)). Accordingly, during an open plea, the trial court has an obligation to make a

determination, upon proper request, whether the proposed evidence is relevant to the

issue of punishment. See Jordan, 271 S.W.3d at 855.


      Evidence that Appellant committed a sexual assault against a minor when he

was “probably” under influence of alcohol is relevant to his punishment proceedings.

“[W]hen a defendant applies for community supervision (as the appellant did), the trial

court may reasonably deem any character trait that pertains to the defendant’s

suitability for community supervision to be a relevant matter for the sentencer to

consider.” Sims v. State, 273 S.W.3d 291, 295 (Tex.Crim.App. 2008) (emphasis added)

(citing Ellison v. State, 201 S.W.3d 714, 719 (Tex.Crim.App. 2006)). See also Anderson

v. State, 896 S.W.2d 578, 579 (Tex.App.—Fort Worth 1995, pet. ref’d). (Because

appellant offered testimony that he was a “good candidate” for probation, the door was

opened to the admission of prior extraneous offense evidence to rebut that testimony.)

Further, “by tendering evidence of his ‘suitability’ for probation, appellant in effect

consented to the admission of specific acts of conduct to inform the [sentencer’s]

discretion in deciding what punishment to assess.”      Id. (citing Griffin v. State, 787

S.W.2d 63, 67 (Tex.Crim.App. 1990)).




                                           4
       Appellant contends that, because the extraneous offense was sexual in nature,

its admission was inherently inflammatory and its presentation by the State required a

disproportionate amount of time. There is no per se rule regarding the admission of

extraneous offenses involving illegal sexual behavior in a sentencing proceeding. See,

for example, Anderson, 896 S.W.2d at 579. 3 In addition to being relevant to Appellant’s

request for community supervision, the offense had independent relevance because it

involved illegal behavior while Appellant was under the influence of alcohol and the

offense for which he was being sentenced was an alcohol related offense. Moreover,

given that the presentation of evidence of the extraneous offense by both the State and

Appellant required only five pages of the ninety-four page transcript, we cannot say it

required a disproportionate amount of time to present.                Appellant’s single issue is

overruled.


                                           Conclusion


       The trial court’s judgment is affirmed.



                                                      Patrick A. Pirtle
                                                          Justice

Do not publish.




3
 The Amarillo Court of Appeals case cited by Appellant is inapposite because the extraneous offense of
indecency with a child was determined to be erroneously admitted during the guilt/innocence phase of a
criminal proceeding, not during the punishment phase. See Bjorgaard v. State, 220 S.W.3d 555, 560-61
(Tex.App.—Amarillo 2007, pet. denied).

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