Rabbi Tommy L. Parker v. Ron McLaurin, Jesse Mendez, & Vilsen Salinas ( 2007 )

NO. 07-06-0472-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 25, 2007 ______________________________

TOMMY PARKER,

Appellant

v.

RON MCLAURIN, JESSE MENDEZ, and VILSEN SALINAS,

Appellees

_________________________________

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-508,867; HON. RUBEN REYES, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Tommy Parker (Parker) appeals from orders granting summary judgment in favor of appellees Ron McLaurin, Jesse Mendez, and Vilsen Salinas (collectively referred to as the appellees) and adjudicating him to be a vexatious litigant. His two issues concern the decision to deny his motion to strike the summary judgment evidence of appellees, and 2) declare him a vexatious litigant. We overrule the issues.

The proceeding arises from another of Parker's numerous suits (since the 1990's) against one or more of the appellees. The latter sought to dispose of this one via summary judgment alleging grounds of res judicata, collateral estoppel, and limitations. And, though Parker included a lengthy recitation of facts in his brief, he did not attack any of the aforementioned summary judgment grounds. Nor did he explain why the trial court erred in refusing to strike the appellees' summary judgment evidence or in designating him a vexatious litigant.

One appealing a summary judgment has the burden to negate all grounds upon which summary judgment could be based, which grounds at bar included that of being a vexatious litigant. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.-Houston [14^th Dist.] 1998, no pet.). Since Parker did not satisfy his burden, we have no basis on which to reverse the judgment.

Accordingly, we overrule the issues and affirm the summary judgment.

Brian Quinn

Chief Justice

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NO. 07-10-0384-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 8, 2011

RONALD LAWSON FRANS, II,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

___________________________

FROM THE 84^TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 10,249; HONORABLE WILLIAM D. SMITH, PRESIDING

Memorandum Opinion

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.[1]

            Appellant, Ronald Lawson Frans II, appeals his two convictions for aggravated sexual assault of a child and his two convictions for indecency with a child.  Through his first several issues, he contends that the State failed to prove he penetrated the child’s sexual organ as alleged in the indictment.  His last two issues concern the accuracy of the sentence memorialized in the written judgment; that is, it purports to levy fines for each conviction though such fines went unmentioned when sentence was orally pronounced in open court.  We affirm the judgment as modified. 

            Regarding whether the State proved appellant penetrated his victim’s sexual organ, appellant admitted to rubbing the child’s clitoris.  The clitoris lies within or under the upper portions of the labia.  Thus, rubbing it involved some measure of penetration through the external folds of the labia into the vaginal cavity.  And, because it did, the record contained some evidence upon which a rational jury could deduce, beyond resonable doubt, that appellant penetrated the child’s sexual organ.  See Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974) (noting that evidence of the slightest penetration is sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt); see also Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (stating that mere contact with the outside of an object does not amount to a penetration of it, but the pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact and sufficient to constitute penetration). 

            As for the allegation concerning the variance between the sentence as pronounced in open court and expressed in the written judgment, the record discloses such a difference.  The trial court orally pronounced the assessment of a $10,000 fine viz Count I but failed to mention a fine when orally sentencing appellant on the remaining three counts.  Furthermore, the State agreed that this occurred and that it constituted error. 

            A defendant's sentence must be pronounced orally in his presence.  Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).  When there is a conflict between the oral pronouncement and the written sentence appearing in the judgment, the former controls.  Id.   Therefore, we modify the judgment to remove reference to the imposition of $10,000 fines as part of the sentences relating to appellant’s convictions under counts two, three and four of the indictment. 

            The trial court’s judgment is affirmed as modified.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Do not publish.

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[1]John T. Boyd, Senior Justice, sitting by assignment.