David Wayne Smith v. State

• Court: Court of Appeals of Texas
• Decided: February 15, 2018
• Docket: 02-18-00008-CV
• Status: Published

Opinion

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

----------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 067-289396-16

MEMORANDUM OPINION1

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