David Wayne Smith v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00008-CV
DAVID WAYNE SMITH APPELLANT
V.
STATE OF TEXAS, THOMAS A. APPELLEES
WILDER, SHAREN WILSON, CARL
J. LAZARUS, ROBB CATALANO,
SHAWN W. PASCHALL, AND MATT
KING
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-289396-16
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MEMORANDUM OPINION1
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Appellant David Wayne Smith attempts to appeal from the trial court’s
order granting the motions to dismiss filed by appellees Thomas A. Wilder and
1
See Tex. R. App. P. 47.4.
Sharen Wilson. Because the order was not a final or otherwise appealable order,
we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
In late 2016, Smith filed a petition alleging that the appellees engaged in a
conspiracy and identity theft, resulting in his current imprisonment.2 Wilder and
Wilson each filed a motion to dismiss Smith’s claims against them. See Tex. Civ.
Prac. & Rem. Code Ann. § 14.003 (West 2017). The trial court granted their
motions on November 30, 2017. See id. § 14.010(a) (West 2017). Although the
order stated that the “case” was dismissed, Wilder’s and Wilson’s motions only
addressed Smith’s claims brought against them. As such, the claims against the
other five appellees remain pending in the trial court. Smith is not entitled to an
interlocutory appeal of a dismissal order under section 14.010. See id.
§ 14.010(c). Because the order does not dispose of all parties, it is an
interlocutory order not subject to immediate appeal, which we do not have
jurisdiction to address. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001); Hickman v. TDCJ, No. 13-11-00729-CV, 2012 WL 601159, at *1
(Tex. App.—Corpus Christi Feb. 23, 2012, no pet.) (mem. op.).
We notified Smith of our jurisdictional concerns, but he did not respond.
See Tex. R. App. P. 44.3. Accordingly, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 42.3.
2
On February 2, 2015, Smith pleaded guilty to possession of heroin and
was sentenced to seven years’ confinement.
2
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GABRIEL, KERR, and PITTMAN, JJ.
DELIVERED: February 15, 2018
3