tracy-bircher-v-management-training-corporation-a-corporation-ms ( 2009 )

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00004-CV

______________________________

TRACY BIRCHER, Appellant

V.

MANAGEMENT TRAINING CORPORATION,

A CORPORATION, MS. FLANNAGAN, PAROLE OFFICER,

MR. TIMOTHY SCHOMP, PAROLE HEARING OFFICER, AND

DR. JOHNSON, DENTIST, Appellees

On Appeal from the 4th Judicial District Court

Rusk County, Texas

Trial Court No. 2008-293

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

   This is an appeal filed pro se by Tracy Bircher from the trial court's order dismissing his cause of action against defendant Management Training Corporation.

The order entered in this appeal, however, does not dispose of defendants Ms. Rachel Flannagan, Mr. Timothy Schomp, or Dr. Johnson.

The general rule is that a final and appealable judgment must determine the entire controversy, disposing of all the parties and issues in a case. N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956). Because the trial court's order dismissing this suit did not dispose of all defendants, it is not final, and this is an interlocutory appeal from a nonappealable judgment. Accordingly, Bircher's appeal is dismissed for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: January 22, 2009

Date Decided: January 23, 2009

lly, he contends the State produced no evidence about the vault, evidence packaging, or about the safeguards that were employed to keep the evidence from being commingled with other evidence while in police custody.

          Before the current Rules of Evidence were adopted, absent a showing of tampering, issues concerning chain of custody were considered as going to the weight rather than to the admissibility of the evidence. See DeLeon v. State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974). The current Rules of Evidence do not specifically address the chain of custody issue. They simply provide that the authentication or identification necessary as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Fluellen v. State, 104 S.W.3d 152, 162 (Tex. App.—Texarkana 2003, no pet.); see Tex. R. Evid. 901(a).

          If the issue is a discrepancy in evidence, that determination of the positive identity of the physical evidence is one to be made by the fact-finder. Lopez v. State, 817 S.W.2d 150, 152 (Tex. App.—El Paso 1991, no pet.); Levi v. State, 809 S.W.2d 668, 672 (Tex. App.—Beaumont 1991, no pet.) (citing Jones v. State, 617 S.W.2d 704, 705 (Tex. Crim. App. [Panel Op.] 1981)). Any discrepancy in the testimony goes only to the weight of the evidence and not its admissibility. Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989); Allen v. State, 946 S.W.2d 115, 117 (Tex. App.—Texarkana 1997, no pet.).

          We use an abuse of discretion standard when reviewing the trial court's decision to admit evidence. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615. The trial court does not abuse its discretion in admitting evidence where it believes that a reasonable juror could find that the evidence has been authenticated or identified. Schneider v. State, 951 S.W.2d 856, 863 (Tex. App.—Texarkana 1997, pet. ref'd); Pena v. State, 864 S.W.2d 147, 152 (Tex. App.—Waco 1993, no pet.) (op. on reh'g); Coleman v. State, 833 S.W.2d 286, 289 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd).

          The officer who found the drugs in Meitler's automobile explained how he found the drugs, how he packaged the drugs in an envelope sealed with evidence tape, dated and signed the package and turned it in at the station. The officer then identified the packaging as his, along with his signature and date. Officer Steve Tigert, the custodian of the evidence, testified about drug task force policies on maintaining evidence in a locker, and explained how he kept them segregated and stored, and also explained how he matched the evidence listed on the incoming property sheet with the actual items delivered. He also testified he was the person who submitted the evidence to the laboratory for examination. Finally, Drew Fout, a representative of the Texas Department of Public Safety Crime Laboratory, testified regarding the internal procedures used to create a paper trail for the receipt of evidence and for the analysis of the items delivered. Fout testified he had opened, examined, and repackaged the evidence, and retained it in the vault at the laboratory until he brought it to court.

          The evidence supports the court's conclusion that the matter in question is what its proponent claimed. In light of this evidence, and in the absence of any evidence of tampering or any other matter that would cast doubt on its authenticity, we conclude the trial court did not abuse its discretion by overruling the objection.

          Meitler next contends the trial court erred by denying his motion for mistrial, after the prosecutor intentionally violated the terms of an order on a motion in limine by questioning him about a search of his residence by the federal Drug Enforcement Agency. The order had granted Meitler's motion restricting the prosecutor from mentioning extraneous offenses or prior convictions at trial. Thus, it appears that the question may have exceeded the bounds of the order. However, there are procedural problems with the preservation of this alleged error.

          First, counsel objected, and eventually asked for a mistrial, but did not ask for an instruction to disregard. The asking of an improper question will seldom result in a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Thus, testimony referring to or implying extraneous offenses allegedly committed by a defendant may be rendered harmless by the trial court's instruction to disregard. Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. [Panel Op.] 1979).

          A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id.; State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

          In this case, the mention of a search by a drug agency is inherently prejudicial to the defendant. However, we are not prepared to say that it is of such a prejudicial nature that a proper instruction would not have rendered the error harmless, and thus the trial court's decision to deny the motion for mistrial was not such as to constitute an abuse of discretion. The contention of error is overruled.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      August 25, 2005

Date Decided:         September 13, 2005

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