Karen D. Smith v. Jerry W. Smith, Sr. and in the Interest of H.T.S., Z.C.S. and E.C.S., Children

Karen D. Smith v. Jerry W. Smith et al

IN THE

TENTH COURT OF APPEALS

No. 10-01-108-CV

     KAREN D. SMITH,

                                                                              Appellant

     v.

     JERRY W. SMITH,

                                                                              Appellee

AND IN THE INTEREST OF

H.T.S., Z.C.S., AND E.C.S., CHILDREN

From the 13th District Court

Navarro County, Texas

Trial Court # 99-00-09293-CV

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Jerry W. Smith, Sr. sought a divorce from his wife Karen D. Smith. The trial court granted the divorce, appointing Jerry as sole managing conservator of the Smiths’ children and ordering Karen to pay child support. On December 22, 2000, Karen perfected an appeal from the divorce decree, which we docketed under appellate cause number 10-00-409-CV.

      Jerry filed a motion to enforce Karen’s child support obligation on March 5, 2001. The trial court found Karen in contempt of court, committed her to jail for three days, then placed her on community supervision for two years. Karen perfected this appeal from the contempt order on April 3, 2001, which we docketed under appellate cause number 10-01-108-CV.

      Karen has now filed a two-part motion in which she requests that we: (1) “consolidate” the record in the contempt appeal (cause number 10-01-108-CV) with the record in the divorce appeal (cause number 10-00-409-CV); and (2) dismiss the contempt appeal because “this traditional appeal is not the appropriate procedural vehicle by which to challenge the trial court’s contempt orders.”

      Regarding consolidation of the contempt record with the divorce record, Karen asserts that the former “is pertinent to the [divorce appeal] that will remain pending and any future habeas corpus proceeding.” Thus, she asserts that “it would be efficient and practical for this Court to file the appellate record from the [contempt appeal] in the [divorce] appeal before [the contempt appeal] is dismissed.” Karen seems to believe that the contempt record might not be available after the contempt appeal is dismissed. However, section 51.204 of the Government Code requires the Clerk of this Court to maintain this record for a minimum of six years. See Tex. Gov’t Code. Ann. § 51.204(d) (Vernon Supp. 2002). We assume that “any future habeas corpus proceeding” which Karen may institute will be filed within the next six years. Karen can file any appropriate motion regarding the contempt record at that time. Accordingly, we deny her request to consolidate the records.

      Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

      Karen’s dismissal motion complies with the requirements of the appellate rules. Accordingly, this cause is dismissed with costs to be taxed against Karen.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed February 13, 2002

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[CV06]

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  This appeal concerns a conviction for possession of cocaine.  See Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003), § 481.102(3)(D) (Vernon Supp. 2004).  Appellant contends that the trial court erred in not ordering the State to disclose the identity of an informer.  See Tex. R. Evid. 508(c)(2).  We will affirm.

      First, Appellant argues that the informer “both was present and participated in the alleged offense,” and “was a material witness as to whether [Appellant] knowingly committed a crime.”  At most, the informer was present when Appellant committed the offense of distribution of cocaine on an earlier occasion, not at the time of the charged offense.  See Long v. State, 137 S.W.3d 726, 733 (Tex. App.—Waco 2004, no pet.); Daniels v. State, 25 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Bodin v. State, 816 S.W.2d 770, 772-73 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

      Next, Appellant argues that the person whom Appellant believed was the informer had a “long history of drug use” and had “been known to commit crimes [involving] moral turpitude,” and that Appellant and the person “had recently had an altercation” in which Appellant “forcibly removed the person” from Appellant’s property.  “The informant’s credibility and motives for providing the information leading to the investigation of [the] appellant have no bearing on whether [the appellant] was guilty or innocent of” the charged offense.  Daniels, 25 S.W.3d at 898.

      Appellant also argues that he was denied confrontation and cross-examination of the informer.  “The trial court [does] not violate [an] appellant’s right to confront witnesses against him [when] the confidential informant [does] not testify against him.”  Lillard v. State, 994 S.W.2d 747, 753 (Tex. App.—Eastland 1999, pet. ref’d).

      Accordingly, we overrule Appellant’s issue.

      Having overruled Appellant’s sole issue, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance dissenting with note)*

Affirmed

Opinion delivered and filed October 27, 2004

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[CR25]

* “(Justice Vance dissents with a note:  I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in memorandum opinions.  For basically the same reasons stated in my dissent to Long v. State, I would find that the court should have disclosed the identity of the informant.  137 S.W.3d 726, 737-38 (Tex. App.—Waco 2004, no pet.) (Vance, J. dissenting).  The majority sets the threshold for disclosure too high.  Furthermore, the trial court held an in camera hearing, the result of which was that Woodson made a "plausible showing" that the informer, who had purchased cocaine only two hours before the drug bust, "may be able to give testimony necessary to a fair determination of a material issue on . . . guilt or innocence."  Because the majority finds otherwise, I respectfully dissent).”