                                    NO. 07-05-0168-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                SEPTEMBER 12, 2006
                          ______________________________

                                   MICHAEL RAY DIAZ,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 48,940-C; HON. PATRICK PIRTLE, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

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

       Michael Ray Diaz contests his felony conviction for indecency with a child (his

daughter).   He was sentenced to imprisonment for life after pleading true to two

enhancement paragraphs in the indictment. His sole issue on appeal concerns the receipt

into evidence of a tape recording of a telephone conversation wherein he admitted to

“touching” and possibly “licking” his daughter and several other children, including the other

party to the phone conversation. The trial court purportedly violated Texas Rules of
Evidence 403 and 404(b) in receiving the tape into evidence because of its multiple

references to extraneous offenses or bad acts. We affirm.

       In challenging the tape, appellant fails to distinguish between his admission to

committing the indecency upon his daughter and his admission to committing indecencies

upon other children. This is of import because receiving into evidence one’s confession

of the crime for which he is being tried is a legitimate exercise of the trial court’s discretion

under both Rules 403 and 404(b). See Matthews v. State, No. 07-05–0142-CR, 2006 Tex.

App. LEXIS 5933 at *2 (Tex. App.–Amarillo July 10, 2006, no pet. h.). Consequently, we

cannot find fault in the decision to allow into evidence appellant’s admission regarding the

indecency with his own daughter.

       Concerning the references to his commission of the other indecencies, we assume

arguendo that the trial court abused its discretion in receiving them. However, the error

was harmless. There being no purported constitutional violation involved, we conduct the

relevant harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See

Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (holding that erroneous

evidentiary rulings seldom rise to the level of constitutional error). The latter rule obligates

us to determine whether error affected a substantial right of appellant, that is, whether it

had a substantial and injurious affect or influence upon the jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997). And, in assessing that possibility, we should

consider everything in the record including the testimony and physical evidence admitted

for the jury’s consideration, the nature of the evidence supporting the verdict, the character

of the error and how the error might be considered with other evidence, the jury



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instructions, the State’s theory of the case, any defensive theories, and closing arguments.

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

       Of utmost import here is appellant’s confession to committing the indecency upon

his daughter.     This evidence alone strongly supports the verdict and negates any

suggestion that the complainant fabricated the accusation. So too did it bolster the

testimony of the victim about how appellant “touched” her vagina with both his hand and

tongue. Thus, it can be said that the evidence of guilt was overwhelming. And, though the

State relied on the audiotape in its closing argument, the majority of the State’s references

were to appellant’s offense against his daughter; the references to the offenses involving

others were brief.    Nor can we forget that appellant also pled true to the felony

enhancement paragraphs contained in the indictment; these pleas no doubt affected the

measure of punishment levied. Finally, the trial court did instruct the jury that reference to

the extraneous offenses in the tape could not be used “for any purpose of showing

character or that the Defendant acted in conformity with that in this particular offense.”

Considering these indicia, we conclude that while the admission of the extraneous offenses

may have affected the verdict, the affect was not a substantial one.

       Accordingly, appellant’s issue is overruled and the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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