Clifton Levon Porcher v. State ( 2007 )

Affirmed and Memorandum Opinion filed March 6, 2007

Affirmed and Memorandum Opinion filed March 6, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-00867-CR

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CLIFTON LEVON PORCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 991,386

M E M O R A N D U M   O P I N I O N

This is a capital murder case in which appellant, Clifton Levon Porcher, challenges his conviction by contending in thirteen appellate issues that (1) he received ineffective assistance of counsel; (2) the trial court erred in denying his objection to the State=s use of peremptory strikes on two potential jurors; and (3) the trial court erred in various evidentiary rulings.  We affirm.

I.  Factual and Procedural Background

In October of 2002, Tyrone Jones approached his roommate, Romalius Mathews, with a request to purchase a kilogram of cocaine.  Mathews had the ability to purchase this cocaine from his longtime friend and associate, the complainant, Andre Merriweather, with whom Mathews had engaged in other narcotics transactions.  Jones provided Mathews with $17,000 to purchase the cocaine.  On October 16, 2002, immediately after receiving the cash, Mathews contacted Merriweather to arrange for the Aexchange@ to occur later that evening at a McDonalds restaurant.

In the meantime,  Mathews came up with a plan to steal the purchase money back from Merriweather after the two had completed the cocaine transaction.  Mathews discussed this plan with Jones, and they contacted Lee Washington, who was the leader of a gang known as Athe Fam@ or Athe Family.@^[1]  The plan, as developed by Mathews, was for Mathews to meet Merriweather alone and pay him $16,200.00 in exchange for one kilogram of cocaine. Mathews suspected that Merriweather would drive to a night club after the transaction and leave the money in his car.  According to Mathews=s plan, someone else would follow Merriweather to the club and then break into Merriweather=s car through the window and steal the money. Washington called appellant, who agreed to be the accomplice in Mathews=s plan.     

Washington and appellant met Mathews at a grocery store near the McDonalds where Mathews and Merriweather were to conduct the cocaine transaction later that evening.  All three men sat in appellant=s truck while Mathews explained his plan to appellant.  Mathews, surprised at seeing appellant loading a Glock gun, told appellant that a gun was not necessary because Merriweather did not carry a gun.  Appellant replied, Ayou never know what might happen.@  Mathews then left the grocery store and drove to the McDonalds in his car while Washington and appellant drove to a Race Track gas station located next to the McDonalds.

Soon thereafter, Merriweather arrived in a silver Mercedes sports utility vehicle (ASUV@) and parked next to Mathews.  Mathews retrieved the box of money out of his own car and got into Merriweather=s SUV to make the exchange.  While they were completing the transaction, a man approached the driver=s side of Merriweather=s vehicle and hit the window with the back of his weapon. Mathews, who was sitting in the passenger seat, immediately looked up and saw appellant.  Merriweather, who was sitting in the driver=s seat, jumped into Mathews=s lap, just as appellant lifted his weapon and fired through the driver=s side window. Mathews, in the passenger seat, felt glass and blood-splatter hit him.  Then, after hearing another gun shot, Mathews heard Merriweather say, Aouch.@ 

At the time of the shooting, Merriweather=s vehicle was not in the Apark@ position. Consequently, after he was shot, his foot fell off the break, and the SUV, still in gear, spun backwards in a circular motion.  The passenger side door flew open, and Mathews was thrown from the vehicle, and landed in the grass near the parking lot.  From there Matthews could see the SUV collide with other vehicles in the parking lot.  When the vehicle finally came to a stop, appellant ran to the SUV, dove through the window, and fired more shots (at least two or three) into Merriweather.  Appellant was thrown backward when the SUV moved forward.  Appellant then went back to the SUV, looked in the driver=s side window, and fled the scene.  Mathews went to the SUV to check on Merriweather, and found him still alive.  He pulled Merriweather from the SUV and held Merriweather=s head on his lap. Merriweather died within minutes.

Meanwhile, Dierdra Castilow, a customer in the McDonalds drive-through lane, had witnessed the event.  After the shooting, she saw a man walk up to the SUV and reach in and retrieve something.  She described him as being clad in dark clothes, with a hood on his head, and his hands in his pockets.  She also saw a white Avalanche vehicle parked at the McDonalds, and when the hooded man approached the vehicle, it took off.  The hooded man then fled into a wooded area.

Castilow left the McDonalds and drove to the Race Track gas station.  On the way, she saw what she thought was the white Avalanche parked by some trailers, and someone walking out of the bushes toward this vehicle. She then returned to the McDonalds and considered administering cardiac pulmonary resuscitation to Merriweather, but decided against it when she saw smoke coming from the bullet wounds in his chest.  Although Castilow could not identify the man who took the items from the SUV, she testified that he was a black man with a slim build.  Her passenger and companion that evening, Taiwanna Richardson, described the man as wearing a hood over his head, wearing baggy blue jeans, being approximately six feet tall, and weighing about 160 pounds.

On the night of the shooting, Mathews gave a statement to the police. By his own admission, Mathews omitted material information from this initial statement and was not completely truthful with the police. Initially, Mathews disclosed only that he was sitting in Merriweather=s vehicle when someone approached and shot his friend.  Mathews later testified that, at the time, he did not want to admit to the police that he and Merriweather had been involved in a narcotics transaction because he feared his federal probation might be revoked if the truth of his activities were revealed. Mathews also testified that he did not identify appellant as the shooter because he feared appellant would kill him if he did.  In fact, Washington spoke to Mathews several days later, and did threaten to kill him if he talked about the shooting.

About a week after the shooting, Mathews provided a second statement to the police in which he admitted to purchasing cocaine from Merriweather at the time of the shooting.  However, Mathews still refused to reveal the gunman=s identity because he remained intimidated by members of the Family.  As a result of his involvement in the narcotics transaction, Mathews=s probation was revoked and he was placed in federal custody in April 2003.

Several months later, in October 2003, Agents Vanessa Walthur and Tony Davis of the Federal Bureau of Investigation (AFBI@) interviewed Mathews about a matter unrelated to the Merriweather homicide.  However, at the completion of this interview, Mathews indicated that he wanted to discuss the Merriweather homicide.  Because Merriweather had been a witness in a federal trial, these two FBI agents previously  had interviewed Mathews about Merriweather=s murder.  After conducting their own independent investigation, the agents determined that Merriweather=s murder was not related to the federal case.  Mathews felt that because he was in federal custody, he could safely reveal the identity of the gunman who had fatally shot Merriweather and he informed the agents that appellant had shot and killed Merriweather.

The FBI agents contacted Sergeant Clarence Douglas, with the Houston Police Department, who was the homicide investigator in charge of the Merriweather murder, and informed him that Mathews wanted to speak to him in regard to the shooter=s identity.  Sergeant Douglas then met with Mathews, who told him that appellant shot Merriweather and Washington drove the get-away vehicle. 

After his meeting with Mathews, Sergeant Douglas obtained a photograph of appellant and placed it in a photospread to be viewed by Jimmie Evans, a police officer employed by Precint One. Evans happened to be pumping gas at the Race Track gas station on the night of the Merriweather murder and witnessed the shooting.  After hearing the first shot, Evans had looked in the direction of the McDonalds and caught a glimpse of the gunman=s face. Evans testified that although the shooter was wearing a hood, there was nothing covering his face and from Evans= position about thirty yards away, he could see the shooter=s face.  After viewing the photospread, Evans positively identified appellant as the gunman, saying he was one hundred percent certain of his identification. 

Appellant was arrested and charged with the offense of capital murder.  He pleaded Anot guilty.@  The jury found appellant guilty of the charged offense, and the trial court imposed an automatic life sentence.

II.  Issues and Analysis

A.      Was appellant denied effective assistance of counsel during the guilt-innocence phase of trial?

In ten of his appellate issues, appellant raises various arguments relating to ineffective assistance of counsel.  More specifically, in issues one through nine, and twelve, he contends that he was denied effective assistance of counsel in the following respects:

(1)     His trial counsel failed to object to the continued hearsay identification of appellant as the shooter by Sergeant Douglas, which allegedly denied appellant the right of confrontation.

(2)     His trial counsel failed to object to the State=s questioning of Sergeant Douglas as to whether he disbelieved Mathews=s statements that he could not make a positive identification of the shooter, and whether he believed Mathews=s final statement that appellant shot Merriweather.

(3)     His trial counsel questioned Sergeant Douglas concerning whether Sergeant Douglas had any doubt as to whether appellant was the individual who shot Merriweather.

(4)     His trial counsel failed to object on hearsay grounds to the testimony of Sergeant Douglas concerning appellant=s gang membership and the positions of the different gang members and denied appellant the right of confrontation.

(5)     His trial counsel failed to object to the continued hearsay identification of appellant as the shooter by FBI Agent Walthur as such identification allegedly was the result of hearsay information which denied appellant the right of confrontation.

(6)     His trial counsel failed to object to the State=s questioning of FBI Agent Walthur as to whether she disbelieved Mathews= initial denial of being able to make a positive identification of the shooter, and whether she believed Mathews=s final statement that appellant shot Merriweather.

(7)     His trial counsel failed to object to the State=s questioning of FBI Agent Walthur concerning appellant=s membership in a gang known as Athe Family,@ and to the nickname he earned in that gang as such information was allegedly based solely on hearsay which denied appellant the right of confrontation.

(8)     His trial counsel failed to object to the State=s questioning of FBI Agent Walthur concerning what she learned about the general characteristics of criminal activity in appellant=s gang as that information is not relevant to any issue of appellant=s  guilt, and was totally based upon hearsay statements received from Mathews, which denied appellant the right of confrontation.

(9)     His trial counsel failed to object to FBI Agent Tony Davis=s testimony concerning Mathews=s identification of appellant as being credible.

. . .

(12)    His trial counsel failed to request a continuance to investigate allegedly potentially exculpatory items revealed in FBI Agent Walthur=s notes during trial.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92.   Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals has stated that it is a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy.   See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent record, this court can only find ineffective assistance of counsel if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Appellant did not file a motion for new trial in this case.  The record is silent as to trial counsel=s strategy.    As for appellant=s first nine issues, there is no explanation from counsel revealing why he failed to object to certain testimony or why he questioned Sergeant Douglas as he did.  When the record is silent as to trial counsel=s strategy, an appellate court may not speculate about why counsel acted as he did.  See Toney v. State, 3 S.W.3d 199, 210 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  In the absence of such testimony, it is difficult to meaningfully address appellant=s claims.  See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).  In this case, even if the evidence were inadmissible, trial counsel=s failure to object may have been part of a reasonable trial strategy.  See Stroman v. State, 69 S.W.3d 325, 332 (Tex. App.CTexarkana 2002, pet. ref=d) (concluding that counsel may have chosen not to object to inadmissible incriminating testimony from an officer in an effort to appear open and honest with the jury); Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (concluding that failure to object to hearsay testimony could have been part of trial counsel=s plausible trial strategy).  An attorney must be free to choose not to make an objection even if she has a legal basis for doing so.  McKinny v. State, 76 S.W.3d 463, 473 (Tex. App.CHouston [1st Dist.] 2002, no pet.).  The record is silent regarding appellant=s first nine ineffective- assistance-of-counsel claims concerning trial counsel=s failure to make various objections, and we conclude that the conduct challenged in these issues was not so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392B93;  Smith v. State, 40 S.W.3d 147, 151 (Tex. App.CTexarkana 2001, no pet.) (concluding  counsel was not ineffective by failing to object to inadmissible hearsay because record was silent regarding counsel=s strategy). Thus, appellant has not satisfied the first prong of Strickland as to these ineffective assistance claims.

In his twelfth issue, appellant contends his trial counsel was ineffective for failing to request a continuance to investigate potentially exculpatory information revealed in FBI Agent Walther=s notes during trial.  This complaint also lacks merit. 

When FBI Agent Walthur concluded her testimony, appellant=s counsel asked her for all documents that she had used to refresh her memory.  After reviewing the documents, appellant=s counsel informed the trial court that one of the documents contained information that might be exculpatory.  At this time, appellant=s counsel mentioned that he would review this information, and depending on his ultimate conclusion, he might request a continuation of trial to further investigate the information.  The record contains no further mention of this information, nor does it contain any other reference to or request for a continuance.   The record is silent as to trial counsel=s strategy.  As reflected by the record, it is plausible that upon further review of this potentially exculpatory information, appellant=s trial counsel determined that no further action was warranted, for example because upon further reflection and investigation, the information was not potentially exculpatory at all.  Or, perhaps trial counsel discovered that a continuance was not necessary.  Appellant=s counsel was in the best position to make this decision, and he has not been given an opportunity to explain his actions.  We conclude that his failure to request a continuance in this regard was not so outrageous that no competent attorney would have done so.  See Lee v. State, 186 S.W.3d 649, 656B57 (Tex. App.CDallas 2006, pet. ref=d) (concluding that because the record was silent regarding counsel=s reasons for not requesting a continuance, reviewing court refused to find counsel deficient for failing to ask for a continuance to combat the introduction of unexpected incriminating evidence);  In re B.T., 154 S.W.3d 200, 205‑06 (Tex. App.CFort Worth 2004, no pet.) (stating that A[b]y not presenting the issue in a motion for new trial and developing a record of ineffective behavior, the proponent of the claim has a difficult burden to overcome because the challenged action might be considered sound trial strategy.@).  Therefore,  appellant has not satisfied the first prong of Strickland as to these ineffective- assistance claims.          

Having failed to meet the first prong of the Strickland standard with respect to every ineffective-assistance claim asserted, appellant cannot be successful on these issues.  Accordingly, we overrule appellant=s issues one through nine and twelve.

B.      Did the trial court err in denying appellant=s Batson challenges to the State=s peremptory strikes of two black veniepersons?    

In his tenth issue, appellant contends the trial court should have granted his Batson challenges to the State=s peremptory strikes against two venirepersons: Ms. Denton (Juror number three) and Ms. Green (Juror number fifteen).   Appellant contends the State struck these potential jurors because they were African-Americans.

The authority for appellants= challenges is found in the United States Supreme Court=s holding in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).   In Batson, the Supreme Court explained that the United States Constitution Aprohibits all forms of purposeful racial discrimination in the selection of jurors.@  Id. at 88, 106 S. Ct. at 1718, 90 L.Ed.2d at 82.  Under Batson, a prosecutor cannot use a peremptory strike against a venireperson solely on account of race.   Id. at 89, 106 S. Ct. at 1719, 90 L.Ed.2d at 83.   In Batson, the Court laid out a three‑step test to evaluate objections to peremptory challenges:

Step 1: The opponent of the challenge must make out a prima facie case of racial discrimination.

Step 2: If a prima facie case is made, the burden of production shifts to the proponent of the strike to come forward with a race‑neutral reason for exercising the strike.

Step 3: If a race‑neutral explanation is given, then the trial court must decide whether the opponent of the strike has proved purposeful discrimination.

Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).  Regarding the second step, the State=s race-neutral reason for the strike need not be persuasive, or even plausible, but only facially valid.  Purkett v. Elem, 115 S.Ct.1769, 1771 (1995).  Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral. Id.

The State offered the following explanations for exercising its peremptory strikes on Ms. Denton and Ms. Green:

[Appellant=s counsel]:        Juror 3 Ms. Denton and Juror No. 15 Ms. Green.

[The Court]:                     3 and 15.

[Appellant=s counsel]:        Yes Your Honor. Ms. Brown was outside. Juror No. 55 she was outside and she was 55 and we stopped at 54.

[The Court]:                     Okay. So 3 and 15.

[Appellant=s counsel]:        Correct. 3 and 15.

[The Court]:                     And your reason for exercising preemptories [sic] on 3 and 15?

[The State]:                      On juror No. 3 there were a few reasons.  Some of her answers were inaudible.  I was asking some questions.  I wasn=t clear on which ones she was answering but on jury information part she filled inCshe left most of it blank.  She wasn=t willing to provide the Court with any information.  Work phone number, employer, how long, spouse=s name, spousal occupation, how long, marital status.  We struck other jurors for the same reasons that they had left too many blanks on juror information card.  State just considers it too much of a wild card not to know too much about them and then juror No. 15 while I think she disqualified herself on the Fifth Amendment but then yet went back and back tailed and was saying how the lawyers is the voice of the Defendant and there were some other issues with regard toC

[The State]:                      On the questioning of her he was trying to explain the presumption of innocence and I believe the question was something like if the State didn=t present any evidence on the verdict be a fairly obvious question the answer to which wasCwell membersCabout five seconds of silence indicating that she did not understand basic principle of law after it had been discussed by the Court, by the State and by the Defense to the extent that Mr. Glover had to turn to another person on the panel who gave the correct answer. So our belief is that she=s going to have a problem with some basic legal concepts just based on the fact that on the right not to testify cause she clearly was headed in the direction that she was going to disqualify herself so much that the Court had to ask her a question to clarify and she seemed like she had to switch around.

[The Court]:                     Can I ask some questions?

[Appellant=s counsel]:        On juror No. 15 weren=t there other people who hesitated on answering questions as well that were not struck from the jury panel by the State?

[The State]:                      Not that I=m aware of.  She didn=t seem to understand the basic legal concept.  There were some out of the strike range but I had notes those weren=t following the questions, my question, or your questions that are not paying attention or unable to answer. Those persons were struck.

[Appellant=s counsel]:        Okay.

[The Court]:                     Anything else?

[Appellant=s counsel]:        Nothing else.

[The Court]:                     I=m going to deny your motion. All right.

(Emphasis added).  We conclude that the State provided race-neutral explanations for exercising peremptory strikes on venirepersons Denton and Green, and the trial court did not err in denying appellant=s Batson challenges. See Satterwhite v. State, 858 S.W.2d 412, 423B24 (Tex. Crim. App. 1993) (stating that a venireperson=s failure to complete the juror information card is a race-neutral justification for striking the venireperson); Chiles v. State, 57 S.W.3d 512, 516B18 (Tex. App.CWaco 2001, pet. dism=d, untimely filed) (concluding that a venireperson=s inability to understand legal principles is a race-neutral justification for striking venireperson); Godine v. State, 874 S.W.2d 197, 205 (Tex. App.CHouston [14th Dist.] 1994, no writ.) (holding failure to complete information card a race-neutral reason); Davis v. State, 796 S.W.2d 813, 819 (Tex. App.CDallas 1990, writ ref=d) (concluding that juror=s appearance and demeanor are valid race neutral reasons for exercising a peremptory strike);  C.E.J. v. State, 788 S.W.2d 849, 857 (Tex. App.CDallas 1990, writ denied) (stating that a venireperson=s inattentiveness may be a sufficiently race‑neutral reason to justify the use of a peremptory strike); York v. State, 764 S.W.2d 328, 331 (Tex. App.CHouston [1st Dist.] 1988, writ ref=d) (striking minority venireperson due to her occupation as a social worker is race‑neutral explanation).  Accordingly, we overrule appellant=s tenth issue.

C.      Did the trial court err by allowing FBI Agent Walthur to testify that appellant=s nickname is AIce?@

In his eleventh issue, appellant contends the trial court erred in overruling his trial counsel=s objection to statements by the State=s witness, FBI Agent Walthur, concerning nicknames for members of the Family and, specifically, to her testimony that appellant=s nickname is AIce.@  Appellant asserts on appeal that this testimony constitutes inadmissible hearsay.

A failure to raise a specific objection during trial will waive error in the admission of evidence. Tex. R. App. P. 33.1(a); see also Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) (stating that Ato preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection . . . to give to the trial court . . . the opportunity to correct the error@ ); Miranda v. State, 813 S.W.2d 724, 737 (Tex. App.CSan Antonio 1991, pet. ref=d) (reiterating that a timely, specific objection is required to preserve a complaint for appellate review).  Although appellant objected when the State asked FBI Agent Walthur to identify Washington=s nickname, he failed to raise an objection when she revealed appellant=s nickname a few questions later.  Appellant=s objection at trial did not  specifically direct the trial court=s attention to which particular statement by Agent Walthur he claimed was inadmissible, and thus appellant failed to preserve his complaint for appellate review.

In any event, any error in admitting the statements was harmless because two other witnesses (Mathews and FBI Agent Tony Davis) referred to appellant by his nickname, Ice, after Agent Walthur had testified. See Ethington v. State, 819 S.W.2d 854, 860 n. 8 (Tex. Crim. App. 1991) (holding that when counsel objects to certain inadmissible testimony, but then permits similar evidence to come in without objection, any error is deemed harmless); Ross v. State, 154 S.W.3d 804, 812 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (stating that any error in witness=s reference to defendant by his nickname, Thug, was cured when subsequent witnesses referred to him by his nickname).  Accordingly, we overrule appellant=s eleventh issue.

D.      Did the trial court err in failing to rule on appellant=s objections made during Mathews=s testimony?

In his thirteenth issue, appellant argues the trial court erred in failing to rule on several of his objections made during Mathews=s testimony.  In order to preserve this type of complaint for appellate review, one must object in the trial court to the judge=s failure to rule on objections.  See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Whitmore v. State, 183 S.W.3d 522, 531 (Tex. App.CHouston [14th Dist.] 2006, no pet. h.).  Though appellant made several objections during Mathews=s testimony, he but did not object to the trial court=s failure to rule on them.  To avoid waiver, appellant either had to secure an adverse ruling at a time when the trial judge could correct the problem by ruling on the matter or issuing an instruction to the jury, or he had to object to the judge=s failure or refusal to rule on the objection.  Without an adverse ruling or an objection to the trial court=s failure to rule, there is no error preserved for our review.  See Geuder, 115 S.W.3d at 13.  Accordingly, appellant has waived his complaint, and we overrule his thirteenth issue.

Having overruled all of appellant=s issues on appeal, we affirm the trial court=s judgment.                                                                      

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2007.

Panel consists of Justices Fowler, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant and Mathews were members of the Family. The members paid monthly dues to the group leader (Washington).