In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00064-CV ______________________________
IN THE MATTER OF THE MARRIAGE OF KERRY NATHAN PARKER AND RANA ROXANNE PARKER
On Appeal from the 115th Judicial District Court Marion County, Texas Trial Court No. 0200064
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Kerry Nathan Parker appeals from an "Order of Motion to Vacate Final Judgment." Generally, only final judgments of trial courts are appealable. Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2003) (final judgment of district and county courts); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). That does not include orders on motions for new trial unless a new judgment is entered as a result of that motion. The Legislature has also authorized the appeal of a number of interlocutory orders. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014. The complained-of order here does not fall within either category. We are, therefore, without jurisdiction over this appeal.
We notified Parker of this defect and gave him ten days to show cause why this appeal should not be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3. Appellant's counsel filed a response in which she concurs we are without jurisdiction.
Because this order is not appealable, we dismiss the appeal for want of jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 2, 2003
Date Decided: June 3, 2003
criminal cases.
On October 23, 2006, the defendants filed a motion to dismiss Blakeney's suit. That motion called for the dismissal of Blakeney's suit for several reasons: First, the defendants believed Blakeney's original petition did not satisfy the procedural requirements of Section 14.004 of the Texas Civil Practice and Remedies Code because he failed to attach the required listing of each of Blakeney's previously filed pro se civil lawsuits. (2) Second, the defendants alleged Blakeney's lawsuit was frivolous because the relief sought by Blakeney was more properly obtained (if his claims were meritorious, which the State did not so concede) through an application for writ of habeas corpus. See generally Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005). And, third, the defendants believed they were prohibited from being sued because the conduct complained of occurred in connection with the defendants' exercise of their official capacities as state officials, which entitled them to "absolute prosecutorial immunity as a matter of law."
The trial court, the Honorable Paul Banner, presiding, conducted a hearing February 14, 2007, on the State's dismissal motion. At the conclusion of the hearing, the trial court granted the State's motion, finding that Blakeney's lawsuit concerned the exercise of conduct by the defendants in their official capacities as former prosecutors for the State and that the defendants were entitled to governmental immunity from suit. Blakeney now appeals. We affirm.
"District attorneys and other prosecutors are absolutely immune from liability when performing their prosecutorial functions." Charleston v. Pate, 194 S.W.3d 89, 90 (Tex. App.--Texarkana 2006, no pet.) (citing Imbler v. Pachtman, 424 U.S. 409 (1976); Font v. Carr, 867 S.W.2d 873 (Tex. App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.); Miller v. Curry, 625 S.W.2d 84, 86-87 (Tex. App.--Fort Worth 1981, writ ref'd n.r.e.)). The acts of Freeman and Saban that Blakeney alleged as the basis of his suit were all performed in representing the State in prosecuting the multiple criminal cases against Blakeney. As such, they were acts intimately connected with the judicial process. The trial court correctly dismissed Blakeney's suit against the defendants on the basis of prosecutorial immunity.
Moreover, the relief ultimately sought by Blakeney--the "undoing" of his negotiated plea agreements in multiple criminal cases--is more properly the subject of an application for writ of habeas corpus. Blakeney acknowledges that he has previously filed several applications for the writs of habeas corpus in connection with the underlying criminal convictions, but that the Texas Court of Criminal Appeals has denied those applications. As such, the Texas Court of Criminal Appeals' decision(s) to adjudicate the merits of Blakeney's current claims via the post-conviction writ process would further serve as a bar to the trial court's ability to grant relief in this case. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4 (prohibiting trial court from considering challenges to criminal conviction on subsequent application when those challenges were not, but should have been, raised in first habeas application); see also Chandler v. Chandler, 991 S.W.2d 367, 392 (Tex. App.--El Paso 1999, pet. denied) (res judicata bars later lawsuit between same parties concerning same issues that were previously decided to finality). The trial court's written judgment properly recognized that bar, which the trial court took into consideration in rendering its judgment of dismissal.
In short, the trial court's judgment is proper and right under our law. It is, therefore, affirmed.
Jack Carter
Justice
Date Submitted: September 6, 2007
Date Decided: October 11, 2007
1. The record reflects Blakeney agreed to plea bargains in three Rusk County cases: a ten-year
sentence in cause number CR98-065, a life sentence in cause number CR01-110, and a five-year
sentence in cause number CR98-067. The record further shows that, in exchange for Blakeney's plea
in those cases, the State dismissed an aggravated kidnapping charge (CR01-109), two attempted
escape charges (cause numbers CR01-160 and CR01-161), and an arson charge (cause number
CR01-162). See Tex. Penal Code Ann. § 20.04 (Vernon 2003) (aggravated kidnapping generally
a first-degree felony); Tex. Penal Code Ann. § 38.06 (Vernon 2003) (escape generally a third-degree felony); Tex. Penal Code Ann. § 28.02 (Vernon Supp. 2006) (arson generally a second-degree felony); and see Tex. Penal Code Ann. § 15.01(d) (Vernon 2003) (punishment for criminal
attempt generally one level below punishment for completed crime). According to Blakeney, the
first two sentences were to be served concurrently; Blakeney would not begin serving the third
sentence (of five years) until he had first completed serving the other sentences.
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002).