                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-376-CV


R.W. ROGERS, SR.                                                   APPELLANT

                                        V.

LAYNE HARWELL AND NELDA
HARRIS                                                              APPELLEES

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           FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      R.W. Rogers, Sr. appeals from the trial court’s dismissal of his claim

against his former attorneys, appellees Layne Harwell and Nelda Harris, who

defended appellant in his 1988 aggravated sexual assault of a child trial. In

three issues, he contends that section 16.003 of the civil practice and remedies

code does not bar his complaint, that the trial court abused its discretion in


      1
          … See Tex. R. App. P. 47.4.
finding the suit frivolous under section 14.003 of the civil practice and remedies

code, and that the trial court improperly prevented him from appearing by phone

or other means to oppose appellee Harris’s motion to reinstate and dismiss with

prejudice.   Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2002),

§ 16.003 (Vernon Supp. 2008). We affirm.

      Appellant was convicted of aggravated sexual assault of a child and

sentenced to forty years’ confinement on September 22, 1988. This court

affirmed his conviction on August 31, 1989, and the court of criminal appeals

refused his petition for review.     Since then, appellant has filed six post-

conviction petitions for writ of habeas corpus with the court of criminal appeals,

all of which have been denied or dismissed. See Tex. Code Crim. Proc. Ann.

art. 11.07 (Vernon Supp. 2008).

      Appellant originally sued his former defense attorneys on May 4, 1998,

claiming that they failed to recognize that a witness’s testimony about semen

found in the victim’s panties exonerated him. The trial court dismissed the case

for want of prosecution on January 8, 2002 because appellant had failed to

serve appellees, but it reinstated the case upon appellant’s motion for new trial.

After being served, each appellee filed an answer.        Harris contended that

appellant’s suit was barred by the section 16.003 statute of limitations and that

appellant had brought the suit solely for harassment purposes. Harwell also

                                        2
asserted limitations, as well as collateral estoppel and lack of diligence in

effecting service.

      Six years after appellees filed their answers, the trial court ordered the

parties to respond in writing why the case should not be dismissed for the

following reasons:       want of prosecution, frivolous inmate litigation under

section 14.003 of the civil practice and remedies code, and failure to comply

with section 14.004. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003, 14.004.

Appellant and Harris both responded. Harris also filed an amended answer

contending that not only was the suit barred by limitations, it was also barred

by the principles stated in Peeler v. Hughes & Luce, 909 S.W.2d 494, 498

(Tex. 1995). The same day Harris filed her response, the trial court signed an

order stating that the case was dismissed but not specifying whether the

dismissal was with or without prejudice or on what grounds.

      Harris filed a motion to reinstate, which the trial court heard on July 3,

2008 without appellant present. At the hearing, Harris asked the trial court to

reinstate the case and then dismiss it “with prejudice” instead of “without

prejudice,” which she claimed could be the effect of the dismissal order. The

trial court explained,

             [M]y interpretation of my judgment would be that I had made
      the determination that the case was frivolous under 14.0[0]3 and
      that it was frivolous. I think that’s the determination that’s been

                                         3
      made on the case. I’m not certain that it doesn’t -- and you’re
      benefiting in that fashion. And the order does not state that it was
      without prejudice. It states it was granted on the basis under
      14.0[0]3 it was frivolous.

             And I was just looking -- I just went back and looked at
      14.0[0]3, because . . . that’s . . . what I ordered the inmate to do
      was to . . . show cause why I shouldn’t dismiss it under 14.0[0]3.
      And . . . I think that the only thing I’m inclined to do in this regard
      is to go back in and file an amended order making it clear that I
      have dismissed it because the claim is frivolous . . . under
      14.0[0]3.

               And that is what I would be inclined to do in this matter.

      Accordingly, the trial court signed an amended order dismissing the case

“with prejudice as Frivolous Inmate Litigation under Civil Practice and Remedies

Code § 14.003.” Appellant appeals from the amended order. 2

      The bulk of appellant’s brief is devoted to his second issue, in which he

contends the trial court abused its discretion by finding that the suit is frivolous

under section 14.003. Because the trial court’s order states that it dismissed

on that ground, we will review it first.

      We review a trial court’s dismissal under section 14.003 for an abuse of

discretion. Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.—Fort Worth

2008, no pet.); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 939 (Tex.

App.—Fort Worth 1997, pet. denied).              In determining whether a claim is



      2
          … Appellees declined to file briefs.

                                           4
frivolous or malicious, the trial court may consider whether (1) the claim’s

realistic chance of ultimate success is slight, (2) the claim has no arguable basis

in law or in fact, (3) it is clear that the party cannot prove facts in support of

the claim, or (4) the claim is substantially similar to a previous claim filed by the

inmate because the claim arises from the same operative facts. Tex. Civ. Prac.

& Rem. Code Ann. § 14.003; Thomas, 952 S.W.2d at 938–39. When the trial

court dismisses an inmate’s suit without holding an evidentiary hearing, our

review focuses on whether the suit has an arguable basis in law. Leachman,

261 S.W.3d at 304. A claim has no arguable basis in law if it is based on an

indisputably meritless legal theory. Id.

      Appellant’s malpractice claim is based on his theory that he would not

have been convicted but for his lawyers’ failure to realize that testimony from

a forensic serologist actually exonerated him.        According to appellant, the

serologist testified that she tested panties worn by the victim; that she found

male semen in the panties; that she only detected an H antigen in the panties,

which could have come from the victim or the male; that appellant’s blood type

was A; and that with blood type A she would expect to find the A antigen

present as well as the H antigen. According to appellant, this evidence shows

that he could not have been the contributor of the semen because he is a blood

type A and no A antigen was present in the sample. Thus, appellant contends

                                         5
the serologist’s evidence exonerated him but, because his attorneys were

unprepared and ineffective regarding DNA and blood typing, they failed to

realize this.

      Under Peeler, a criminal defendant seeking civil redress for legal

malpractice cannot recover unless he or she first establishes that he or she has

been exonerated of the crime. 909 S.W.2d at 497–98; In re Hinterlong, 109

S.W.3d 611, 628 (Tex. App.—Fort Worth 2003, orig. proceeding [mand.

denied]). Here, appellant contends that, because the above-noted evidence

shows he is actually innocent of the crime, he is, in effect, exonerated, and

Peeler is inapplicable.

      We have reviewed the record from appellant’s aggravated sexual assault

trial, in particular the testimony from the forensic serologist. See Gerdes v.

Kennamer, 155 S.W.3d 541, 546 (Tex. App.—Corpus Christi 2004, no pet.);

Birdo v. Holbrook, 775 S.W.2d 411, 412 (Tex. App.—Fort Worth 1989, writ

denied) (“This court may take judicial notice of its own records.”). She testified

that she detected semen in the panties but that because it contained only an

H antigen, which could have been present in the victim’s vaginal fluid, she

could only conclude that the semen was from an unidentified male donor. On

cross-examination, the serologist testified that she tested appellant’s blood and

determined that he was type A. She said that she would expect to find both

                                        6
an A antigen and H antigen in semen from a blood-type A male; however, she

could not detect any antigens from appellant when she tested his blood. From

this, she concluded that he was a nonsecretor. She clarified during the State’s

rebuttal that because she had concluded appellant was a nonsecretor, she

would not have expected to find the A or H antigen in the semen; thus, if the

H antigen were from the victim (which she could not conclusively determine),

the semen she did find was consistent with a nonsecretor.3

      Despite appellant’s contentions, our review of the serologist’s testimony

shows that it did not exonerate appellant.4 It merely showed that the serologist

could not conclusively say whether the semen was consistent with appellant’s

blood type or not. Moreover, this evidence does not contradict the victim’s

clear and unequivocal testimony that appellant penetrated her vagina.            See

Rogers v. State, 02-88-00262-CR, slip op. at 3 (Tex. App.—Fort Worth Aug.

31, 1989, pet. ref’d) (not designated for publication).5




      3
       … Contrary to appellant’s contentions, there was no DNA evidence; the
serologist testified that the lab did not have the capability to do DNA testing at
that time.
      4
      … Moreover, appellant’s attorneys appear to have understood the
evidence and effectively cross-examined the serologist.
      5
          … Harris provided a copy of this court’s opinion to the trial court.

                                          7
      Because this evidence does not exonerate appellant, thereby negating the

operation of the public policy principles in Peeler, we conclude and hold that the

trial court did not abuse its discretion by dismissing appellant’s claim as

frivolous under section 14.003. We overrule appellant’s second issue. 6

      In his third issue, appellant contends the trial court erred by refusing to

allow him to appear at the post-dismissal hearing at which Harris urged the trial

court to clarify its order to show that the dismissal was with prejudice.

According to appellant, Harris misled the trial court by contending that she had

been discharged as appellant’s criminal attorney, and if he had been there, he

could have shown her deception. Appellant also claims that a dismissal with

prejudice is improper because he could have cured any defects by repleading.

      Whether the trial court abused its discretion by dismissing appellant’s

claims with prejudice depends on whether the errors could be remedied. See

Leachman, 261 S.W.3d at 306. Here, the problem with appellant’s pleadings

could not be remedied; however cast, his claim against his trial attorneys fails

under Peeler. Accordingly, we conclude and hold that the trial court did not

abuse its discretion by dismissing the suit with prejudice.



      6
      … Because dismissal was proper on this ground, we need not address
whether it was proper on the limitations ground. See Tex. R. App. P. 47.1;
Wichita County v. Bonnin, 268 S.W.3d 811, 821 (Tex. App.—Fort Worth
2008, pet. denied).

                                        8
      Furthermore, even if the trial court erred by refusing to allow appellant to

appear at the hearing, the error is not reversible. See Tex. R. App. P. 44.1(a);

W. Reserve Life Assurance Co. of Ohio v. Graben, 233 S.W.3d 360, 379 (Tex.

App.—Fort Worth 2007, no pet.). As we have already stated, appellant could

not have cured his claim’s defects by repleading. And the trial court is not

required to hold a hearing in determining whether to dismiss a suit under section

14.003. Tex. Civ. Prac. & Rem. Code Ann. § 14.003; Thomas, 952 S.W.2d

at 938. Finally, the trial court indicated at the hearing that it had intended to

dismiss the suit as frivolous under section 14.003 and that it thought the effect

of such an order would be preclusive, i.e., a dismissal with prejudice. 7 We

overrule appellant’s third issue.




      7
       … Appellant contends that Harris misled the trial court in her pleadings
by stating that she had been discharged from her duties as appellant’s counsel
because the record from his trial shows she participated in closing argument.
But Harris did not state that she was discharged during trial; she stated that she
was discharged after trial and that new counsel was appointed on appeal.
Regardless, the trial court’s disposition of appellant’s suit was not based on
Harris’s assertion that she was discharged from representing appellant.

                                        9
      Having overruled appellant’s dispositive issues, we affirm the trial court’s

dismissal order.




                                                  PER CURIAM

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DELIVERED: May 28, 2009




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