









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00124-CV
______________________________


VERNON A. WOLTER, Appellant

V.

 M. GREGORY DONALDSON, ET UX., Appellees



On Appeal from the 133rd Judicial District Court
Harris County, Texas
Trial Court No. 98-24468





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Vernon Wolter has filed an appeal.  He filed his notice of appeal on July 24, 2001, and it
states  that  the  appeal  is  from  "a  postjudgment  order  issued  in  the  133rd  Judicial  District
Court . . ."  The complained-of order was signed on March 16, 2001, and it directed the sale of a
promissory note.  The underlying lawsuit, a slander of title suit, involved the question of whether a
house was sold, when it was sold, and the status of a promissory note given for the purchase price. 
	The order involved in this appeal is not the judgment in the lawsuit, but as Wolter
acknowledges, it is a postjudgment order designed to enforce the judgment.  The judgment does not
appear in our record, but a copy of it is contained in the appendix to Wolter's brief.  The judgment
was signed on January 11, 1999.  Wolter appealed that judgment to the Twelfth Court of Appeals,
which modified and affirmed it on December 30, 1999.  The Texas Supreme Court denied review.
	M. Gregory and wife, Melanie P. Donaldson have filed a motion asking us to dismiss this
appeal for want of jurisdiction.  They  correctly  point  out  that  Wolter's  appellate  brief  attacks
only  the  postjudgment  order of March 16, 2001.  In his prayer for relief, Wolter attacks the order
of sale and also asks us to direct the trial court to vacate a later order of June 25, 2001, releasing the
funds obtained through the sale of the house, and to order that all moneys be returned to the registry
of the court.  
	Appellate courts may review only final judgments or interlocutory orders specifically made
appealable by statute.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Hinde v. Hinde,
701 S.W.2d 637, 639 (Tex. 1985).  Exceptions are found in Tex. Civ. Prac. & Rem. Code Ann. 
§ 51.014(a) (Vernon 2002).  We construe Section 51.014 strictly because it is a narrow exception
to the general rule that only final judgments and orders are appealable.  Mills v. Corvettes of
Houston, Inc., 44 S.W.3d 197, 199 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Tex. Dep't of
Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.-Austin 1999, no pet.).  The order
complained of here is in the nature of a writ of execution.  Neither a writ of execution nor an order
incident to a writ of execution is appealable. Schultz v. Fifth Judicial District Court of Appeals, 810
S.W.2d 738, 740 (Tex. 1991); Qualia v. Qualia, 37 S.W.3d 128, 129 (Tex. App.-San Antonio 2001,
no pet.); Gonzales v. Daniel, 854 S.W.2d 253, 255 (Tex. App.-Corpus Christi 1993, no writ).
	Neither the order of sale nor the later order to release funds comes within the exceptions
contained in Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon 2002).  They are not appealable
orders.
	Moreover, Wolter's notice of appeal explicitly states that his appeal is from the court's order
of June 25, 2001, but his brief on appeal attacks the court's order of sale signed on March 16, 2001.
	Wolter also suggests that the 1999 judgment was not truly final and was made final only by
the court's 2002 order.   The judgment was rendered after a jury trial and was affirmed in a lengthy
opinion by the Twelfth Court of Appeals.  The judgment has been judicially determined to be final. 
Any complaint about that judgment is a collateral attack on a final judgment and may not be
successfully maintained unless that judgment is absolutely void.  We find no evidence that the
judgment is void.
	For the reasons stated, we dismiss the appeal.

							William J. Cornelius
							Chief Justice

Date Submitted:	May 21, 2002
Date Decided:		May 21, 2002

Publish

re and Darnell
concluded he had fled, jumping a chain-link fence.  The investigating officers found a pager 
stuck in the fence, which Darnell identified as belonging to Johnson.  Other items were
found inside the house that did not belong to Darnell or Gore, including a cell phone and
charger, a watch, a ring, and clothing.  Darnell testified that the items missing from the
house included a new pair of overalls, a watch, a pair of tennis shoes, a pair of pants, and
a toboggan.  
          Two defense witnesses, Brian Parks and Jami LeGrand, testified they had spent the
entire night of December 19–20, 2004, with Johnson at Parks' house.  Parks testified he
had seen Johnson's cell phone before and that the one found in Darnell's  house was not
Johnson's.  He further testified he had never seen Johnson with any of the other property
left at that house.  LeGrand, a convicted felon awaiting transfer to prison, testified she was
familiar with Johnson's cell phone and that the one left at Darnell's house was not
Johnson's.  She also testified she had never known Johnson to possess a pager or any of
the other items left at Darnell's house.
          In a factual sufficiency review, the appellate court views all the evidence in a neutral
light and determines whether the evidence supporting the verdict is too weak to support
the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is
strong enough that the beyond-a-reasonable-doubt standard could not have been met.
Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State,
144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).  If the evidence is factually insufficient, then
we must reverse the judgment and remand for a new trial.  Clewis v. State, 922 S.W.2d
126, 135 (Tex. Crim. App. 1996). 
          Applying these standards, we cannot say the evidence is factually insufficient. 
Darnell positively identified Johnson as the person he caught inside his house.  Parks and
LeGrand said this was impossible since they were with Johnson at Parks' house all night. 
The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the
strength of the evidence.  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). 
The jury apparently believed Darnell and disbelieved Johnson's alibi witnesses.  The
evidence supporting the verdict is not too weak to support the finding of guilt beyond a
reasonable doubt.  Further, the evidence contrary to the verdict is not strong enough that
the beyond-a-reasonable-doubt standard could not have been met.  Johnson's sole point
of error is overruled.
          We affirm the judgment.




                                                                Donald R. Ross
                                                                Justice
 
Date Submitted:      January 12, 2006
Date Decided:         January 13, 2006

Do Not Publish
