james-michael-odonald-on-behalf-of-the-estate-of-ross-eugene-odonald ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00050-CV

______________________________

JAMES MICHAEL O'DONALD, ON BEHALF

OF THE ESTATE OF ROSS EUGENE O'DONALD,

DECEASED, AND ALL WRONGFUL

DEATH BENEFICIARIES, Appellant

 

V.

 

T. MICHAEL HILLIS, M.D.,

MALCOLM A. SMITH, M.D., AND

COLLOM & CARNEY CLINIC ASSOCIATION, Appellees

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On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 01C1015B-005

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Before Ross, Carter, and Cornelius,* JJ.

Memorandum Opinion by Justice Ross

*William J. Cornelius, C.J., Retired, Sitting by Assignment

MEMORANDUM OPINION

          James Michael O'Donald, on behalf of the Estate of Ross Eugene O'Donald, Deceased, and all wrongful death beneficiaries, has appealed from a judgment purportedly rendered in favor of Texarkana Memorial Hospital, d/b/a Wadley Regional Medical Center (Hospital), T. Michael Hillis, M.D., Malcolm A. Smith, M.D., and Collom & Carney Clinic Association in trial court cause number 01C1015-005. Three of the appellees, Hillis, Smith, and Collom & Carney Clinic, have filed a motion seeking to dismiss the appeal against them for want of jurisdiction.

          In the underlying lawsuit, on January 5, 2004, the trial court granted Hillis, Smith, and Collom & Carney Clinic's motion for summary judgment. The court also severed the claims against those defendants and assigned the severed litigation a new cause number, 01C1015B-005.

          An appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). This includes concluded matters that are severed, because those matters are then final. See Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. 2003).

          The notice of appeal filed October 29, 2004, timely perfected appeal from the judgment in the original case, signed October 1, 2004. However, in that case, only the Hospital remained as a defendant. O'Donald did not timely perfect his appeal in the summary judgment rendered in favor of Hillis, Smith, and Collom & Carney Clinic, which became final on severance.

          The motion is granted. We order the appeal against Hillis, Smith, and Collom & Carney Clinic severed from that of the Hospital, and we assign it to cause number 06-05-00050-CV. The appeal against the Hospital will retain the original cause number, 06-04-00121-CV.

          We dismiss the appeal in cause number 06-05-00050-CV.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      March 29, 2005

Date Decided:         March 30, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00159-CR

                                                ______________________________

 

 

                                  DAVID SCOTT DANIELS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                      On Appeal from the 402nd Judicial District Court

                                                             Wood County, Texas

                                                       Trial Court No. 20,064-2008

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

 

            David Scott Daniels appeals the revocation of his community supervision.  In the underlying conviction, he pled guilty to unauthorized use of a motor vehicle.  Tex. Penal Code Ann. § 31.07 (Vernon 2003).  He was placed on five years’ community supervision.  Revocation proceedings were brought and Daniels pled true to a violation of his terms of community supervision (and not true to several other allegations).  His community supervision was revoked and he was sentenced to one year in a state-jail facility.

            Daniels’ attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief and a letter to Daniels on December 21, 2010, informing Daniels of his right to file a pro se response and of his right to review the record.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. 

            Daniels filed a pro se response on February 2, 2011. In his response, he complains about the evidence supporting the underlying conviction and about a perceived level of confusion in the prosecution of the case at the trial court.  We point out that this appeal is not taken from the underlying conviction.  Any complaint about that proceeding would have had to be raised in an appeal from the conviction.  The only proceeding before this Court on appeal is the revocation and subsequent sentencing.

            We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and we agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed.  See Anders, 386 U.S. 738.   We affirm the judgment of the trial court.^[1]

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          February 4, 2011

Date Decided:             February 8, 2011

 

Do Not Publish

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^[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of Daniels in this case.  No substitute counsel will be appointed.  Should Daniels wish to seek further review of this case by the Texas Court of Criminal Appeals, Daniels must either retain an attorney to file a petition for discretionary review or Daniels must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.