Thomas Allan Cook v. Annis Jo Cook

Cook v. Cook IN THE TENTH COURT OF APPEALS No. 10-94-306-CV THOMAS ALLAN COOK, Appellant v. ANNIS JO COOK, Appellee From the 74th District Court McLennan County, Texas Trial Court # 94-2806-3 MEMORANDUM OPINION Thomas Allan Cook attempted this second interlocutory appeal from temporary orders—this time from orders dated September 23—entered pursuant to section 3.58 of the Family Code. See Tex. Fam. Code Ann. § 3.58 (Vernon 1993). Absent an express grant, appellate courts do not have jurisdiction to review interlocutory orders. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). Section 3.58(g) of the Family Code states: "An order under this section, except an order appointing a receiver, is not subject to interlocutory appeal." Id. § 3.58(g). We are without jurisdiction to entertain Thomas's complaints about the temporary orders issued under section 3.58. Id.; Cook v. Cook, No. 10-94-271-CV (Tex. App.—Waco, October 19, 1994, n.w.h.). BILL VANCE Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Dismissed for want of jurisdiction Opinion delivered and filed October 19, 1994 Do not publish ary and again in the second photo lineup introduced as State's exhibit five during trial. She identified the photo lineup introduced at trial as one of the two lineups she had viewed the day after the burglary. She had already unequivocally identified Appellant in the courtroom, without objection, as one of the men she had seen entering the trailer and who had emerged carrying a television or a "little brown box" that he had placed in the back of the pickup. The jury was aware through both Chief Buchanan's and Lambert's testimony that the photo lineup introduced in court was not the only lineup originally shown to her. However, Lambert had already successfully identified Appellant from the photo lineup the day following the burglary and neither error nor harm has been shown by the admission of the single photo lineup. Nothing in the record indicates that the photo array in the exhibit was suggestive or that either Lambert's pre-trial or in-court identification of Appellant was unreliable. See Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984); Ford v. State, 794 S.W.2d 863, 866 (Tex. App.—El Paso 1990, pet ref'd). Appellant also complains under point one that the photo lineup was suggestive because he was the only one pictured who had blonde or red hair. However, he did not move to exclude the photo lineup on this basis, nor did he object in any manner to Lambert's in-court identification of him, such as that it had resulted from an improper pretrial identification procedure. See Ford, 794 S.W.2d at 866; Holloway v. State, 691 S.W.2d 608, 615 (Tex. Crim. App. 1984). Thus, Appellant has waived this complaint. See Perry v. State, 703 S.W.2d 668, 673-74 (Tex. Crim. App. 1986). Point one is overruled. LEGAL SUFFICIENCY OF THE EVIDENCE Appellant's second and third points assert that the evidence is legally insufficient to support his conviction. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). In addition to Monica Lambert's testimony that Appellant entered Ledbetter's residence and removed items and the testimony of the victim herself, Bobby Duke testified that Mike Parker kicked in the door of Ledbetter's trailer and that Parker and Appellant then entered the trailer and loaded items into the back of the pickup. Duke further stated that he had helped Appellant pawn the stolen items in Dallas. Although Duke's testimony as an accomplice would not have been enough to support Appellant's conviction, Lambert's testimony corroborates Duke's testimony and, together, constitute legally sufficient evidence to support Appellant's conviction. See Matson, 819 S.W.2d at 843. Although Appellant contends that the testimony of Lambert and of Duke was contradictory, the credibility of the witnesses was for the jury to resolve, and they were free to accept or reject all or part of a witness's testimony. See Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1979); Lafoon v. State, 543 S.W.2d 617, 620 (Tex. Crim. App. 1976). Appellant further claims in point two that the identification evidence contained in State's exhibit five was the only evidence affirmatively linking him to the crime, aside from the "confusing" testimony of the eyewitness and the testimony of the co-defendant. However, as we have already held, State's exhibit five and the testimony related to it were admissible and, in any event, the evidence it contained was cumulative of Lambert's in-court identification of Appellant which was made without objection. Point two is overruled. The judgment is affirmed. PER CURIAM Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed April 14, 1993 Do not publish