Wayne Ernest Barker v. Steven R. Halbert ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00045-CV ______________________________



WAYNE ERNEST BARKER, Appellant

V.

STEVEN R. HALBERT, ET AL., Appellees

---

On Appeal from the 2nd Judicial District Court Cherokee County, Texas Trial Court No. 2007-06-0453

---

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

This is an appeal by Wayne Earnest Barker from the trial court's order dismissing his cause of action against defendants Steven R. Halbert, Todd A. Foxworth, Theresa Cano, and Johnnie J. Miller, II.

The order entered in this appeal, however, does not dispose of defendant Claudette Slider. Further, on our review of the clerk's record in this case, we note that Slider was not served until March 20, 2008. The order from which Barker appeals was signed March 27, 2008. Therefore, Slider had not yet filed her answer to the suit.

The general rule is that a final and appealable judgment must determine the entire controversy, disposing of all the parties and issues in a case. N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956).

Because the trial court's order dismissing this suit did not dispose of all defendants, it is not final, and this is an interlocutory appeal from a nonappealable judgment. Accordingly, Barker's appeal is dismissed for want of jurisdiction.

Jack Carter

Justice

Date Submitted: May 5, 2008

Date Decided: May 6, 2008

y; line-height: 0.416667in">          Riley first contends the trial court erred by overruling his objection to the State's closing argument. During the trial, Riley's identity as the person who sexually assaulted the victim was hotly contested. The following contains the relevant portion of the State's closing argument, as well as Riley's objection:

[Prosecutor]: . . . . So the real issue in this case is who sexually assaulted [the victim]? Now, the defense wants you to believe that, first of all, it wasn't Mr. Riley. And there was the issue about Patrick Hollins, "Who was Patrick Hollins?" Patrick Hollins has nothing to do with this case. You have to remember [the victim] is mentally retarded. She knows -- maybe she did, maybe she named someone named Pat. And, boy, if I'm a mother and if my child could give me any information at all, I would be telling the police every Pat that I know. The police followed up on that, they found a Patrick Hollins. They sent his DNA down, it was excluded.

[Defense Counsel]:Objection, Your Honor. That states facts that aren't in evidence.

THE COURT:Approach the bench.

                     (Bench conference, outside jury's hearing:)

THE COURT:I think it is, . . . .

[Defense Counsel]:Well, there was evidence -- something was said --

[Prosecutor]:It's in the report.

[Defense Counsel]:-- but it never came out that it was actually his.

[Prosecutor]:It's in the report, Patrick Hollins.

THE COURT:Well, if it's [sic] evidence, it's in evidence. Go ahead.

          The State contends the trial court's statement, "Go ahead," is not a ruling on Riley's objection and, therefore, this issue has not been preserved for appellate review. "To preserve error for review a defendant must receive an adverse ruling on his objection." Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). A trial court's ruling on a defendant's objection must be "conclusory; that is, it must be clear from the record the trial judge in fact overruled the defendant's objection or otherwise error is waived." Id. In Ramirez, the Texas Court of Criminal Appeals held the trial court had implicitly overruled the defendant's objection and the error was thereby preserved for appellate review. Id. at 650. In this case, the trial court stated that it believed the disputed facts were in evidence and permitted the State to continue its argument over the defendant's objection. We believe the trial court's instruction to the State, "Go ahead," was an implicit overruling of Riley's objection. Therefore, the ruling was adverse to Riley and error was preserved. But cf. Sands v. State, 64 S.W.3d 488, 491 (Tex. App.—Texarkana 2001, no pet.) (trial court carried motion with case, did not rule, and defendant later waived objection by permitting admission of same evidence without objection).

          There are four permissible areas of jury argument: (1) a summation of the evidence presented, (2) reasonable deductions from the evidence presented, (3) responses to the argument(s) of opposing counsel, and (4) pleas for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000). In this case, the trial court admitted into evidence, without objection, the State's ninth exhibit. That exhibit is a laboratory report from the Texas Department of Public Safety concerning sexual assault evidence collected from the victim and a suspect identified as "Patrick Hollins." John Donahue, a serologist previously with the Texas Department of Public Safety, had analyzed DNA from the victim's rape kit examination and DNA from Patrick Hollins to determine whether Hollins could be excluded as a suspect in the rape. After conducting the requisite tests, Hollins prepared a laboratory report that included his findings. In relevant part, the laboratory report states,

The DNA recovered from the sperm fraction of the vaginal swab indicates a mixture of DNA from two or more persons. The victim is included as a possible contributor of DNA to this mixture. Suspect Hollins is excluded as a possible contributor to this mixture.

(Emphasis added.)

          Donahue had also testified that, through DNA testing, he had been able to exclude Hollins as a suspect. Therefore, there was evidence Hollins had been ruled out as the perpetrator. We hold the trial court properly overruled Riley's objection to the State's closing argument.

          In his second point of error, Riley contends the trial court erred by ordering his sentence in the case now on appeal be "stacked" on to his sentence from a robbery conviction.

          On December 1, 2000, the 202nd Judicial District Court found Riley guilty of a robbery committed October 10, 2000, in trial court cause number 00-F-0694-202. The trial court placed Riley on community supervision for that offense. On November 18, 2002, the trial court in that cause found Riley had violated the terms and conditions of his community supervision, revoked Riley's community supervision, and sentenced Riley to six years' imprisonment.

          In this case, on February 5, 2003, a jury in the 202nd Judicial District Court, in cause number 01-F-0294-202, found Riley guilty of aggravated sexual assault, that offense having occurred July 14, 1999. The trial court ordered that Riley not begin serving the sentence in the case now on appeal until he first served his sentence for which he received six years' imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004).

          On appeal in this case, Riley asks us to limit a trial court's discretion to cumulate sentences to situations where (1) the conviction on which the present sentence is being stacked chronologically preceded the current charge, and (2) the trial court has carefully weighed mitigating considerations, such as participation in personal counseling or the Texas Department of Criminal Justice's "SAFPF" program.

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and the sentence and execution shall be accordingly; . . . .

Tex. Code Crim. Proc. Ann. art. 42.08(a). We review a trial court's cumulation order for abuse of discretion. Pettigrew v. State, 48 S.W.3d 769, 770 (Tex. Crim. App. 2001).

          The State maintains "the offense date of either of Riley's felonies is irrelevant." The State is correct. In Pettigrew, the Texas Court of Criminal Appeals emphasized that, for the purpose of cumulating sentences, the date sentence is either imposed or suspended is the key date for the trial court to consider. Id. at 770, 771 (affirming trial court's stacking of 1995 sexual assault revocation on top of 1997 murder); see Spencer v. State, 503 S.W.2d 557, 561–62 (Tex. Crim. App. 1974) (affirming trial court's stacking order that defendant's conviction for 1973 offense be served before beginning to serve sentence for 1970 offense), overruled on other grounds, Gordon v. State, 575 S.W.2d 529, 531 n.2 (Tex. Crim. App. 1978). Neither caselaw nor the statute's plain language limits a trial court's discretion to cumulate sentences to those instances where the defendant's charges are tried in chronological order according to the date of the offense.

          In this case, the record reflects Riley was convicted in two separate cases. The decision whether to order the sentences be served consecutively or concurrently was entirely within the trial court's discretion. The record does not lead us to conclude the trial court abused its discretion in this case.

          We affirm the trial court's judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      March 29, 2004

Date Decided:         March 31, 2004

Do Not Publish