source: Caselaw Access Project

author: Justice LANG.

license: Public Domain

text:
    In the Interest of J.W., a Child.
    No. 05-03-01582-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 2, 2004.
    Rehearing Overruled Jan. 13, 2005.

      Jimmy L. Verner, Jr., Verner & Brum-ley, Dallas, for Appellant.
    David Cole, Dallas, for Appellee.
    Before Justices O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG.

Harry Smith appeals the trial court’s judgment, following a jury trial, terminating the parental rights to his daughter, J.W. In seven issues, Smith argues that the evidence was legally and factually insufficient to support the trial court’s judgment. Because we conclude that (1) Smith engaged in conduct that endangered the child’s physical or emotional well-being, and (2) termination is in the child’s best interest, we resolve these issues against Smith and affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2000, Smith was convicted of attempting to smuggle cocaine and sentenced to thirty months in federal boot camp. Before he was to surrender into custody in May 2000, Smith began a sexual relationship with Deanna Wyrick. Smith and Wyrick expressly desired to conceive a child, and, although unaware of the pregnancy until September or October 2000, Wyrick did become pregnant by Smith. During their relationship, Smith knew that Wyrick was using drugs, and, on more than one occasion, drove Wyrick to the necessary places for her to obtain drugs. Wyrick, who continued to use drugs during the balance of the pregnancy, gave birth to J.W. in December 2000.

In 2001, Child Protective Services removed J.W. from Wyrick’s custody. Seven weeks later, J.W. was placed in the home of appellees, Benjamin and Lara Olsson. Smith did not learn of his daughter’s birth until he received a letter from the Olssons in August 2002, along with the Olssons’ petition for termination. Smith responded, in his original answer, by requesting possession of J.W.

The Olssons provided Smith access to the child, without a court order, from September to December 2002. Following a temporary hearing in January 2003, the trial court ordered access for Smith twice each week. The Olssons moved to Arkansas in June 2003.

At trial, evidence was presented that Smith had been a supplier of illegal drugs to numerous drug houses. Smith testified that he “had friends and associates who sold drugs, and would go with them when they sold drugs.” However, Smith testified that, since his release from federal boot camp in 2000, he left his former lifestyle behind. Also, he presented witnesses to testify to his present good character.

In May 2003, Smith married Jan Murphy. Murphy was accused at trial of being an alcoholic. Murphy’s daughter and granddaughter testified regarding Murphy’s alcoholism and tendency to be physically violent. In particular, Murphy’s daughter, Sherry Spillman, testified regarding one episode in which Murphy, during a heated argument, held a gun to the head of her former husband.

At the conclusion of trial, the jury found, by clear and convincing evidence, at least one of the enumerated requirements for terminating the parent-child relationship under family code section 161.001(1), and, under family code section 161.001(2), termination was in J.W.’s best interest.

II. STANDARD OF REVIEW

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.Code Ann. § 161.206(a) (Vernon 2002); In re J.F.C., 96 S.W.3d 256 (Tex.2002). The clear and convincing standard creates a higher burden to fulfill because of the severity and permanency of terminating the parent-child relationship. In re J.N.R., 982 S.W.2d 137, 141 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Accordingly, an appellate court must also have a higher standard when reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d at 264-65; In re C.H., 89 S.W.3d 17, 26 (Tex.2002).

In reviewing the legal sufficiency of the evidence to support a termination finding, this court looks at all the evidence, in the light most favorable to the finding, to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. In doing so, we presume that the factfinder settled disputed facts in favor of the finding if a reasonable factfinder could do so. Id. As a corollary, we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination finding, we inquire as to whether all the evidence, both in support of and contrary to the trial court’s finding, is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d at 27-29. Further, we consider whether the disputed evidence is such that a reasonable factfinder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

III. TERMINATING THE PARENT-CHILD RELATIONSHIP

Section 161.001 of the Texas Family Code permits a court to order termination of parental rights if two elements are established. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Id. § 161.001(1); Dupree v. Tex. Dep’t of Protective & Regulatory Sews., 907 S.W.2d 81, 86 (TexApp.-Dallas 1995, no writ.). Second, termination of the parent-child relationship must be in the best interest of the child. Tex. Fam.Code Ann. § 161.001(2); In re J.R.K., 104 S.W.3d 841, 342 (TexApp.-Dallas 2003, no pet.).

A. Endangerment

In Smith’s fifth issue, he claims that there was no evidence or, in the alternative, insufficient evidence to support the jury’s finding that he engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child. See Tex. Fam.Code Ann. § 161.001(1)(E). Subsection (E)’s provisions are different in several respects from the other enumerated acts in section 161.001(1). Under subsection (E), the court may terminate the parent-child relationship if it finds, by clear and convincing evidence, that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. Id.

The parent need not know of the child’s existence in order to support a finding under subsection (E). Clark v. Clark, 70S S.W.2d 218, 219 (Tex.App.-Dallas 1985, writ dism’d); see also In re M.D.S., 1 S.W.3d 190, 198 (Tex.App.-Amarillo 1999, no pet.) (finding that section 161.001(1)(E) “requires only that the parent’s conduct endanger the child.”). To constitute endangerment, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). Rather, it is sufficient that the child is exposed to loss or injury. Id.

Subsection (E) requires us to look at the parent’s conduct alone, including actions or omissions. In re D.J., 100 S.W.3d 658, 662 (Tex.App.-Dallas 2003, pet. denied); In re D.M., 58 S.W.3d 801, 811 (Tex.App.-Fort Worth 2001, no pet.). It is inconsequential that the parent’s conduct occurred before the child’s birth. In re U.P., 105 S.W.3d 222, 229 (Tex.App.-Houston [14th Dist.] 2003, pet. filed); In re D.M., 58 S.W.3d at 812. Instead, we look to the parent’s conduct both before and after the child’s birth to determine whether termination is appropriate. In re D.M., 58 S.W.3d at 812. Further, termination under subsection (E) must be based on more than a single act or omission. Id.; In re D.T., 34 S.W.3d 625, 634 (Tex.App.-Fort Worth 2000, pet. denied). A volun tary, deliberate, and conscious “course of conduct” by the parent, that endangers the child’s physical and emotional well-being, is required. Dir. of Dallas County Child Protective Sews. v. Bowling, 833 S.W.2d 730, 733-34 (Tex.App.-Dallas 1992, no writ.); In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.

Imprisonment, standing alone, does not constitute “engaging in conduct which endangers the physical or emotional well-being of the child.” It is, however, a fact properly considered on the issue of endangerment. Boyd, 727 S.W.2d at 533-34; In re D.T., 34 S.W.3d at 635-36. The petitioner need not show that imprisonment was a result of a course of conduct that endangered the child. Rather, it must only be shown that imprisonment was a part of a course of conduct endangering the child. In re D.M., 58 S.W.3d at 812. Thus, if the evidence, including imprisonment, proves a course of conduct that has the effect of endangering the child’s physical or emotional well-being, a finding under subsection (E) is supportable. Boyd, 727 S.W.2d at 533-34.

1. Legal Sufficiency Analysis

The undisputed evidence shows that Smith, before his relationship with Wyrick, was involved with a group of people who used and dealt cocaine. During this time, Smith was convicted of attempting to smuggle cocaine and sentenced to thirty months in federal boot camp. Knowing he was soon going to be surrendering to federal authorities, Smith began a sexual relationship with Wyrick in which the two of them expressly desired to conceive a child.

Wyrick testified that, at the time they were attempting to conceive, Smith knew of her past drug use and her active cocaine use. Also, she testified that while they intentionally attempted to conceive, Smith was not personally using cocaine, but supplied her with cocaine. It is undisputed that, during their relationship, Smith took her to numerous places to buy drugs.

The evidence is undisputed that Smith did go to federal boot camp. Thereafter, Wyrick continued to use cocaine for the first six to seven months of the pregnancy. Child Protective Services became involved when Wyrick admitted using cocaine during the pregnancy. When Wyrick continued to use drugs after the pregnancy, J.W. was put in a foster home and later placed with the Olssons.

Smith contends that, toward the end of their relationship, Wyrick told him that she had a heavy menstrual period lasting approximately ten days, which he assumed to be a miscarriage. Accordingly, Smith contends that he was not attempting to conceive a child after the heavy period, and that only after this apparent miscarriage did he actually take her to various places to buy drugs. Nonetheless, Wyrick became pregnant. Additionally, the jury was presented with Wyrick’s testimony in which she flatly denied ever telling Smith that she had a heavy menstrual period. Also, she testified that given her physical condition, such a menstrual period would have been impossible.

Other than the conflicting evidence as to Wyrick’s menstrual period, the evidence outlined above is not disputed. We do not deem the conflicting evidence as to whether or not Wyrick had a menstrual period to bear on the issue of the otherwise undisputed evidence of Smith’s conduct. Accordingly, when the evidence is viewed in the light most favorable to the trial court’s judgment, it is legally sufficient to support a finding under subsection (E) of the statute. See Bowling, 833 S.W.2d at 733-34; see also In re W.J.H. Ill S.W.3d 707, 717-18 (Tex.App.-Fort Worth 2003, pet. denied).

2. Factual Sufficiency Analysis

In our factual sufficiency review, we must ascertain what disputed evidence, if any, exists as to the conduct in question. The only possibly relevant disputed fact is whether Wyrick had a heavy menstrual period that could have signified a miscarriage. As previously discussed, Smith argues that Wyrick told him that she had a heavy menstrual period, which he believed to be a miscarriage. However, Wyrick denies ever having such a menstrual period.

Given this conflicting testimony, this Court will not substitute our judgment for that of the jury’s. Golden Eagle Archery, Inc., v. Jackson, 116 S.W.3d 757, 761 (Tex.2003) (“[T]he jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.”). We do not deem Smith’s argument on the disputed menstrual period to be significant to the issue of endangerment. The jury heard all the evidence as to Smith’s drug involvement and criminal conviction, his active attempt to conceive a child with a woman he knew to be actively engaged in cocaine use, and his facilitation of Wyrick’s cocaine acquisition.

Viewing all the evidence in a neutral light, both in favor of and contrary to the trial court’s judgment, we conclude that there is factually sufficient evidence to support the jury’s finding that Smith engaged in a course of conduct endangering J.W.’s physical and emotional well-being. See Bowling, 833 S.W.2d at 733-34; see also In re W.J.H. 111 S.W.3d at 707. Accordingly, we decide against Smith on his fifth issue.

Because we conclude that the evidence is both legally and factually sufficient to support the jury’s findings under subsection (E), and a finding as to any one of the acts or omissions enumerated in section 161.001(1) is sufficient to support termination, we need not address Smith’s other five issues regarding any of the alternative acts or omissions enumerated in section 161.001(1). See Tex. Fam.Code Ann. § 161.001(2); Dupree, 907 S.W.2d at 86. However, we must address Smith’s seventh issue, as to whether termination is in J.W.’s best interest. Dupree, 907 S.W.2d at 86.

B. Best Interest of the Child

In his seventh issue, Smith contends that the evidence is legally and factually insufficient to support the jury’s finding that terminating the parent-child relationship is in J.W.’s best interest. In conducting our examination of the sufficiency of the evidence to support the jury’s finding that termination is in the child’s best interest, we are mindful that there is a strong presumption that the child’s best interest is served by keeping custody in the natural parent. Tex. Fam.Code Ann. § 161.001(2); In re J.R.K, 104 S.W.3d at 342; In re K.C.M., 4 S.W.3d 392, 393-95 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 676 (Tex.App.-Fort Worth 1984, writ refd n.r.e.). However, the factfinder may consider a number of factors in determining the best interest of the child: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the person seeking custody; (5) programs available to assist those persons in promoting the best interest of the child; (6) plans for the child by those individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).

The absence of evidence about some of these considerations will not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. Id. Importantly, termination should not be used to merely reallocate a child to better and more prosperous parents. In re W.E.C., 110 S.W.3d 231, 240 (Tex.App.-Fort Worth 2003, no pet.).

1. Legal Sufficiency Analysis

In our legal sufficiency review, we are required to look at all the evidence, in the light most favorable to the jury’s finding. Smith claims we should recognize that, since being released from boot camp, Smith abandoned his former lifestyle. He is no longer involved with drugs, has become a real estate agent, and has remarried. However, we note that less favorable to Smith is the evidence which demonstrates that his new wife, Murphy, may pose a risk to J.W. The jury heard the testimony of Murphy’s daughter, Sherry Spillman, as well as Murphy’s granddaughter, Casey Spillman, both of whom attested to Murphy’s ongoing alcohol abuse and her tendency to be physically violent. Sherry Spillman testified that, on one occasion, Murphy held a gun to her former husband’s head. Also, Sherry Spillman said that on numerous occasions, Murphy has had physical altercations with her and her siblings.

Additional facts, not directly related to Smith’s conduct, must be considered. At trial, two separate psychologists testified as to the possible effects of removing J.W. from the Olssons and placing her with Smith. One psychologist, Dr. Odis, testified that Smith had “excessive self focus,” and that his tendency to view things too much from his own perspective could create some difficulties with respect to his parenting. Additionally, although conceding that Smith would not be any kind of danger to J.W., Dr. Odis expressed concern about Smith’s ability to provide a stable, secure and safe home for J.W. Another psychologist, Dr. Bontempo, testified that disrupting J.W.’s current placement would be “very, very devastating.” More specifically, Dr. Bontempo testified that J.W. is securely attached to the Olssons, and removing her from that environment would have significant physical and emotional consequences. Dr. Bontempo gave her opinion that, given her already vulnerable state, the child should not be removed from the Olssons.

Also, the Olssons testified at trial. Ben Olsson recently graduated from medical school and accepted a residency at Arkansas Children’s Hospital. Lara majored in child development and family studies, and is the assistant director of a child care center in Little Rock, Arkansas. Neither Ben nor Lara Olsson have any drug, alcohol, or criminal history. A pre-adoptive screening, conducted by a licensed professional, concluded that not only was J.W. very bonded to the Olssons, but also that there was no reason to doubt the Olssons’ parenting ability.

We conclude that the evidence, viewed in the light most favorable to the jury’s finding, is legally sufficient to support the jury’s finding that terminating the parent-child relationship is in J.W.’s best interest. In re J.F.C., 96 S.W.3d at 266.

2. Factual Sufficiency Analysis

In our factual sufficiency inquiry, we look at all the evidence, both in support of and contrary to the finding, to see if the jury “could reasonably form a firm belief or conviction” that terminating Smith’s parental rights is in J.W.’s best interest. Smith asks us to consider that he testified Murphy is no longer an alcoholic. He contends that Sherry Spillman’s testimony about Murphy is biased because of failed business dealings between the two of them. Smith points to lay witness testimony of the good character of both him and Murphy. This testimony came from friends and business associates, stating that Smith would not do anything to endanger his child, and that he is an honest person.

It is not for this Court to evaluate the credibility of the witnesses. Weighing the credibility of the witnesses is within the sole province of the jury. Golden Eagle Archery, Inc., 116 S.W.3d at 761. Accordingly, we cannot agree with Smith that the evidence was such that the jury would be unreasonable in believing the evidence in favor of terminating the parent-child relationship. We conclude that the evidence is factually sufficient to support the jury’s finding that terminating the parent-child relationship is in J.W.’s best interest. In re C.H., 89 S.W.Sd at 27-29. Smith’s seventh issue is decided against him.

CONCLUSION

For the reasons set out above, we conclude that the evidence would allow a reasonable jury to form a firm belief or conviction that Smith (a) engaged in conduct that endangered J.W.’s physical or emotional well-being, and that (b) termination of the parent-child relationship was in J.W.’s best interest. The evidence is legally and factually sufficient. Having resolved these two issues against Smith, we need not address his other five issues. The trial court’s judgment is affirmed.

      . Wyrick testified that, "I don't even know where [he is] coming up with this.”

      . See supra note 1.


author: BRIAN QUINN, Justice.

text:
    Daryl M. WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 07-03-0122-CR.
    Court of Appeals of Texas, Amarillo.
    Dec. 14, 2004.

      Paul E. Mansur, Denver City, for Appellant.
    Wade Jackson, Asst. Crim. Dist. Atty., Lubbock, for Appellee.
    Before QUINN, REAVIS, and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Justice.

Appellant Daryl M. Washington, a previously convicted felon, appeals his conviction for unlawfully possessing a firearm. He complains, through nine issues, of charge error, ineffective assistance of counsel, and the failure to grant his motion to suppress. We affirm the judgment of the trial court.

Background

On August 22, 2001, former Officer Ron McGlone and Lieutenant Billy Timms, of the Slaton Police Department, responded to a complaint from the manager of the Housing Authority about several persons smoking marijuana outside of a residence. When the officers arrived, no one was seen in front of the house. So the officers drove towards the back through an alley, saw individuals in the backyard, exited their vehicle, saw an opening in the fence and approached the group. While doing so, they noticed that one or more of the individuals appeared nervous. Also noticed was a partially smoked marijuana cigarette laying on a window sill, appellant standing closest to the cigarette, and a bulge in appellant’s right front pocket. When initially asked what was in his pocket, appellant failed to respond. Then, an officer touched the bulge and asked again. Appellant replied that it was a handgun.

At trial, appellant argued that the gun belonged to his grandfather who was visiting due to the death of appellant’s aunt. His grandfather allegedly had a fascination with guns and was also suffering from dementia. Appellant allegedly picked up the gun because he saw it laying on a coffee table, knew that his mother’s grandchildren would be home from school soon, and was worried that they would come upon it.

Issues I, 2, 3, and é — Charge Error

In his first four issues, appellant complains that the final court erred in instructing the jury about the defense of necessity. That is, when including the defense in the charge, the trial court stated that appellant had the burden to prove, by a preponderance of the evidence, that he acted out of necessity. Though no one objected to that aspect of the charge, the State nonetheless concedes on appeal that the instruction was erroneous. See Stefanoff v. State, 78 S.W.3d 496, 500 (Tex.App.Austin 2002, pet. ref d) (holding that neces sity is a statutory defense, and if the defendant presents some evidence on each element of the defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt). However, it further argues that because no one objected, the mistake cannot result in reversal unless it caused appellant to suffer egregious harm. See Degrate v. State, 86 S.W.3d 751, 754 (Tex.App.-Waco 2002, pet. ref'd) (describing egregious harm as that which affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory). We agree with the State and overrule the issue.

It is a defense to prosecution that the conduct in question was justified. Tex. Pen.Code Ann. § 9.02 (Vernon 2003). Additionally, conduct is justified when the actor reasonably believes that it is immediately necessary to avoid imminent harm. Id. § 9.22(1). Next, for the harm to be imminent it must be impending, not pending; that is, it must be on the “point of happening, not about to happen.” Smith v. State, 874 S.W.2d 269, 272-73 (Tex.App.Houston [14th Dist.] 1994, pet. ref'd). There must exist an emergency situation requiring immediate action or a split second decision to avoid the harm. Id.; accord, Stefanoff v. State, 78 S.W.3d at 501. And, whether the situation is of that ilk is determined from the standpoint of the accused. Pennington v. State, 54 S.W.3d 852, 857 (Tex.App.-Fort Worth 2001, pet. ref'd); Gonzales v. State, 2 S.W.3d 600, 605 (Tex.App.-Texarkana 1999, pet. ref'd). Yet, the defendant’s belief that his conduct was immediately necessary may be deemed unreasonable as a matter of law if the undisputed facts demonstrate a com-' píete absence of immediate necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex.App.-Texarkana 2000, no pet.); Brazelton v. State, 947 S.W.2d 644, 648-49 (Tex.App.-Fort Worth 1997, no pet.).

Appellant alleges that the record, contained sufficient evidence to warrant the charge on necessity because children lived in the home and were to return home from school “any minute.” Because they often brought friends home with them, he perceived the need to remove the gun from their reach to avoid potential injury. Yet, nothing in the record suggests, much less illustrates, that any of the children were home or in the house at the time appellant saw the weapon. Nor is there evidence suggesting that appellant thought that any children were at home. Again, he simply believed that they would be arriving “at any minute.”

We hold, as a matter of law, that this evidence, when viewed in a light most favorable to appellant and from his perspective, does not indicate that there existed some harm that was on the point of occurring and which necessitated a split second decision. Nor does it arise to a level of something about to happen for several contingencies had yet to transpire. Not only was there a need for a child to arrive home, but also the gun had to have remained at its location and the child had to have ventured into the room wherein it lay and perceived it. Given these contingencies, the evidence permits one to reasonably infer no more than that appellant feared the possibility of or potential for harm and acted in response thereto. That, however, falls short of the imminency contemplated under the defense of necessity. See Garcia v. State, 972 S.W.2d 848, 849 (Tex.App.-Beaumont 1998, no pet.) (holding that fear induced by one’s presence in a high crime area is not sufficient evidence of an immediate necessity to avoid imminent harm so as to justify unlawfully carrying a handgun). Consequently, no evidence existed to entitle appellant to an instruction on the defense in the first place. And, because he was not entitled to such an instruction, we cannot say that he was egregiously harmed when the trial court told the jury that he had the burden of proving the defense.

Issues 5 and 6 — Ineffective Assistance of Counsel

In his fifth and sixth issues, appellant asserts that his counsel was ineffective in failing to object to the misstatement in the jury charge about which we discussed in the first four issues. Yet, having determined that appellant was not entitled to the charge, we cannot say that his attorney erred in failing to object to its wording. See Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App.1999) (holding that because the defendant was not entitled to an instruction on the defense of necessity, counsel was not ineffective in failing to request one). So, the issues are overruled.

Issues 7, 8 & 9 — Motion to Suppress

In his final three issues, appellant attacks the trial court’s decision to deny his motion to suppress evidence. We overrule them as well.

Below, at the hearing to suppress, appellant argued that the evidence of the firearm was subject to suppression because the officers had no basis to temporarily detain him and search his person. Here, he contends that suppression was required since the officers had no basis to initially enter the premises. Nothing is said, in his brief, about the temporary detention and Tory , frisk other than the comment that whether the officers had “probable cause to search, or even reasonable suspicion to detain, is irrelevant.” Nor does he mention the authority (or lack thereof) of the officers to initially enter upon the property as grounds warranting exclusion of the evidence in his written motion to suppress. Given this, the grounds underlying his complaint at trial do not comport with those uttered on appeal. Thus, his complaint about the trial court’s refusal to suppress the evidence was waived. Goffv. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996) (holding that if trial objections do not comport with arguments on appeal, error is not preserved).

Nevertheless, and assuming the grounds for error were preserved, we review the trial court’s ruling on the motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim.App.1997). In doing so, we give almost total deference to the trial court’s findings of historical fact and review de novo its application of the law to the facts. Id. at 89. And, when no findings of fact are executed, as here, we must also view the evidence in the light most favorable to the trial court’s ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Both our federal and state constitutions protect one against unreasonable searches and seizures, but that protection exists only if the individual has a reasonable expectation of privacy in the thing searched. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). If there is no such expectation, there is no constitutional protection. Rosalez v. State, 875 S.W.2d 705, 713 (Tex.App.-Dallas 1993, pet. ref'd) (stating that because there is no reasonable expectation of privacy attaching to an open field, no Fourth Amendment protection extends to such an area). Furthermore, the burden lies with the accused to establish this expectation. Villarreal v. State, 935 S.W.2d at 138.

It is beyond dispute that one has such an expectation of privacy in his home. Oliver v. United States, 466 U.S. at 178, 104 S.Ct. at 1741, 80 L.Ed.2d at 224. So too is it indisputable that this expectation extends to the curtilage surrounding the home. Yet, the restriction against intruding upon one’s curtilage has its limits. For instance, it does not prevent a police officer from approaching and knocking upon the front door of a home. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex.Crim.App.1995). This is so because the police have the same right as any other person to enter onto residential property and walk up to the front door. Bower v. State, 769 S.W.2d 887, 897 (Tex.Crim.App.1989), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Watts v. State, 56 S.W.3d 694, 699-700 (Tex.App.-Houston [14th Dist.] 2001), reversed on other grounds, 99 S.W.3d 604 (Tex.Crim.App.2003); Nored v. State, 875 S.W.2d 392, 396 (Tex.App.-Dallas 1994, pet. ref'd). Because entry is impliedly authorized, there exists no reasonable expectation with regard to things observed by those on the pathway to the house. Bower v. State, 769 S.W.2d at 897. However, the authorization to enter may not exist if the occupant made manifest his intent to restrict access to the area. Id.; Nored v. State, 875 S.W.2d at 397 (stating that if the person in possession of the property has not made express orders prohibiting any form of trespass, and if the police follow the usual path to the front door, then the police have not violated the person’s Fourth Amendment rights).

There is also precedent extending the authority to approach one’s door and knock to include the back door. For instance, in Long v. State, 532 S.W.2d 591 (Tex.Crim.App.1975), the sheriff first went to the front door to inquire about private aircraft flights in the area. When no one answered the knock, he and his deputy walked around to the back door and knocked. When no one answered again, they decided to leave. Walking back around the house, they felt a blast of hot air and smelled marijuana coming from an open window. Furthermore, the window blinds were also open, and the officers looked into the room and saw marijuana on the floor and stacked around the walls. The Court of Criminal Appeals affirmed the trial court’s refusal to suppress the evidence discovered because the acts described did not constitute a search. Id. at 594-95.

A like conclusion was reached in Atkins v. State, 882 S.W.2d 910 (Tex.App.-Houston [1st Dist.] 1994, pet. refd). There, two officers proceeded to the appellant’s residence to investigate an anonymous tip. One went to the front door and the other to the back door in an effort to contact the occupant. To arrive at the back door, the officer had to pass through a fence, which he did. At that time, appellant left the house, observed the officer, dropped an object, and thereafter re-entered the house. The officer picked the object up, recognized it as contraband, and entered the house to arrest appellant. Because both officers were attempting to contact the occupant and nothing indicated the officer’s view of the backyard was blocked by the fence, “the officer’s viewing of appellant’s conduct was not a search” according to the court of appeals. Id. at 913.

Thus, an officer can enter the cur-tilage of a house in an effort to contact its occupants. Buchanan v. State, 129 S.W.3d 767, 773 (Tex.App.-Amarillo 2004, pet. ref'd). This is true when the occupant has not manifested his intent to restrict access by locking a gate or posting signs informing the officer he is not invited or the officer does not deviate from the normal path of traffic. Id.

Here, the officers were responding to a complaint by the manager of the Housing Authority (which operated the property) about men smoking marijuana on a front porch of a particular house. When the officers arrived, they saw no one in the front of the house and proceeded to drive around the back through an alley. There, they could see a group in the backyard. So the officers disembarked from their vehicle, walked through “an opening in the fence,” and approached the group. There was no gate prohibiting their entrance; nor was there evidence of a sign warning them against trespassing. And, to the extent that the fence itself could be perceived as a barrier suggesting the desire for privacy, it did not prevent the officers from seeing individuals in the backyard and it had an opening large enough for people to venture through.

In view of the foregoing, the situation before us is akin to those in Long and Atkins. Any interests the occupants had in the privacy of their backyard was lost given the officers’ authority to contact them about the complaint, their visibility in the backyard, and the opening in the fence. Thus, we cannot say that the officers violated either the constitutional or statutory rights of appellant when they entered the premises under these circumstances.

Accordingly, the judgment of the trial court is affirmed.

      . The residence was that of appellant’s mother. Appellant was living with his mother as were five of her grandchildren.

      . To the extent that one witness testified that she saw a child approaching the house, we find this evidence of little import for several reasons. First, it does not show that the child was in the house or anywhere near the weapon. Nor does it show that appellant saw the child or was aware of his or her presence at the time. And, given that we must view the evidence from appellant's perspective, what others saw but he did not can hardly be considered as influencing his perception of the situation.

      . Indeed, it could be said that appellant had an opportunity for a windfall to which the law did not actually afford him, and in the words of J.P. Driskill, "that’s the luck of the draw.”

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Curtilage is defined as the area around the home to which the activity of home life extends. Oliver v. United States, 466 U.S. 170, 182 n. 12, 104 S.Ct. 1735, 1743 n. 12, 80 L.Ed.2d 214, 226 n. 12 (1984); Rosalez v. State, 875 S.W.2d 705, 713 (Tex.App.-Dallas 1993, pet. ref'd).


author: MAZZANT, Justice.

text:
    Daniel Eric FINSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-01029-CR, 05-03-01030-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 14, 2004.

      Robert D. Burns,' Dallas, for Appellant.
    William T. (Bill) Hill, Jr., Larissa Roe-der, Asst. Crim. Dist. Atty., Dallas, for state.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

MAZZANT, Justice.

Daniel Eric Finster appeals his convictions for criminal mischief (appeal number 05-03-01030-CR) and resisting arrest, search, or transportation (appeal number 05-03-01029-CR). A jury found appellant guilty of both offenses, and the court assessed punishment at ninety days’ confinement and a $1000 .fine for each offense. In two issues, appellant argues (1) there was no evidence to support a conviction for resisting arrest or resisting transportation, and (2) he was denied his right to a unanimous verdict because the charge allowed conviction on resisting arrest, search, or transportation when there was insufficient evidence of resisting arrest and of resisting transportation. We dismiss the appeal in cause number 05-03-01030-CR, and we affirm the trial court’s judgment in cause number 05-03-01029-CR.

Factual Background

While at a Wal-Mart, appellant began writing obscenities and other statements on flags the store had displayed for sale. Appellant overheard two other shoppers discussing political issues, and he began yelling obscenities at them. Concerned, one of the shoppers reported appellant’s behavior to store personnel. Store personnel contacted the police department.

Several store employees approached appellant, and one asked him to leave the store. Appellant left the flag display area and walked toward the front of the store. He picked up some bags of salad and stood in line to check out. A cashier said she could check him out at the service desk, and appellant went to the service desk and waited.

Officer J.L. Bryan arrived at the service desk and approached appellant. Bryan saw appellant put his hands in his pockets, and Bryan asked three times before appellant removed his hands from his pockets. The police dispatch had told Bryan that appellant had been cussing at employees and customers, and Bryan noticed appellant begin to clench his fists and tense up. Bryan was concerned appellant might become violent, and he did not know if appellant had a weapon on his person. Bryan placed a hand on appellant’s back and told him he was going to pat him down to make sure he did not have any weapons. Bryan was not attempting to effect an arrest at that time, but he was trying to conduct a “pat-down search” to assure appellant had no weapons. Just as Bryan began the pat-down, appellant “flop[ped] face first onto the floor.” Appellant caught himself with his hands.

Bryan and his partner, Officer Kelly Dennis, continued talking to appellant, directing him to put his hands behind his back. Appellant did not comply. Dennis and Bryan tried to pull appellant’s hands out from underneath him to put them behind appellant’s back, unsure if appellant had a weapon, but appellant kept his hands in front of him, underneath his body. The officers used verbal commands and “muscling techniques,” but appellant began “actively fighting” them. Appellant kicked Bryan in the back of the head and punched him with the palm of his hand. Officer J.S. Borges arrived to assist, and the officers continued the struggle with appellant, increasing their force. Finally, Borges used pepper spray, and appellant “stopped resisting as much” and they were able to handcuff him.

The officers asked appellant to stand, but he refused. They picked appellant up and attempted to walk him out the door, but appellant “flop[ped] down again.” Bryan stated appellant was “resisting ... transport” by falling down and requiring the officers to drag him. The officers dragged appellant to the door and told appellant they did not want to drag him on the concrete. Appellant got up and walked to the police car. Bryan testified that at that point, appellant was under arrest.

Appellant testified he did not know what the officers were doing and thought he would be safer if he were on the floor. He testified he did not intend to kick the officer, but that he “was trying, purposely, to avoid being violent with the police, ... so [he] was flailing around.” Appellant said that after he fell to the floor, he kept his hands underneath him, preventing the officers from accessing his hands. Appellant said, “I had a pretty good idea ... they were going to be trying to handcuff me, and I was keeping my hands or arms away from them to try and buy time.”

Criminal Mischief

Appellant does not raise any issues relating to his conviction for criminal mischief. With no issues before the Court on that charge, we dismiss the appeal in cause number 05-03-01030-CR. See Tex. R. App P. 38.1; 43.2.

Charge In The Disjunctive

In his second issue, appellant contends he was denied his right to a unanimous verdict because the charge allowed conviction for more than one offense. The charge stated,

[I]f you find from the evidence beyond a reasonable doubt that the defendant ... did unlawfully then and there intentionally prevent or obstruct J. Bryan, a person that the defendant knew to be a peace officer, from effecting the arrest or search or transportation of the said defendant, by using force against said peace officer ....

Appellant argues the disjunctive jury charge created harmful error because there was no evidence to support two of the three “charges.”

A jury verdict in a criminal case is required to be unanimous. Tex. Const. art. V, § 13. A unanimous jury verdict “ensures that the jury agrees on the factual elements underlying an offense,” requiring “more than mere agreement on a violation of a statute.” Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000). However, a trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the “same offense.” Id. at 124; Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Because of the possibility of a non-unanimous jury verdict, “separate offenses” may not be submitted to the jury in the disjunctive. Francis, 36 S.W.3d at 124-25. Thus, we must determine whether the jury charge in this case merely charged alternate theories of committing the same offense or whether the jury charge included two or more separate offenses charged disjunc-tively.

This Court has not, in a published opinion, addressed whether the acts in section 38.03 are separate offenses or one offense capable of being committed under alternative theories. The Fourteenth Court of Appeals in Houston, however, has treated these acts as separate offenses. See Vaughn v. State, 983 S.W.2d 860 (Tex.App.-Houston, [14th Dist.] 1998, no pet.). In Vaughn, in response to the defendant’s challenge to the legal sufficiency of the evidence, the court reviewed the language of the information in which he had been charged and statéd, “This information indicates the State charged appellant with resisting arrest, not resisting search. The State could have charged appellant alternatively with all three offenses which would have forced appellant to file a motion to quash the information and require the State to charge him more specifically.” Id. at 862. However, we disagree with the Houston court’s treatment of the offense in section 38.03.

We rely on “separate offense” analysis conducted by the court of criminal appeals in asking if the language of section 38.03 addresses separate offenses or one offense with a variety of means of commission. In looking at the aggravated sexual assault statute, section 22.021 of the penal code, the court of criminal appeals concluded that section 22.021 provided for separate offenses because it criminalized very specific conduct, separated the specific types of conduct into separate sections, and separated those sections by “or.” Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999). The court reached a similar conclusion in analyzing section 39.03, official oppression. See Haight v. State, 137 S.W.3d 48, 50-51 (Tex.Crim.App.2004). In Haight, the court stated that section 39.03 was “also a conduct-oriented statute that criminalizes several different types of conduct, each of which, if committed, would cause a different type of harm to a victim.” Id. at 50.

Turning to the instant case, we should examine the structure and language of the statute in question. See Vick, 991 S.W.2d at 832-33. We note first that section 38.03 — resisting arrest, search, or transportation — does not address varying types of very specific conduct. Section 38.03(a) states,

A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003). The conduct proscribed in the statute is the act of preventing or obstructing a peace officer from completing his tasks. The actor must intentionally prevent or obstruct some act of a peace officer in order to prevent the peace officer from effecting his duties. It matters not if the actor does that by hitting, kicking, or using the weight of his body so long as the person is intentionally interfering with the peace officer’s duties. “[T]he ‘nature of conduct’ ... is inconsequential (so long as it includes a voluntary act) to the commission of the crimes.” See Crawford v. State, 863 S.W.2d 152, 166 (Tex.App.Houston [1st Dist.] 1994) (quoting Alvarado v. State, 704 S.W.2d 36, 37 (Tex.Crim.App.1985)), rev’d on other grounds, 892 S.W.2d 1 (Tex.Crim.App.1994). Further, with which duty the actor interferes is simply another means by which a person could be interfering with a police officer effecting his duties.

Absent different specific types of conduct, section 38.03 does not address different types of harm. Further, section 38.03 addresses the conduct proscribed (preventing or obstructing) in one section, not multiple sections separated by the term “or.” The actions of resisting arrest, resisting search, and resisting transportation are not separated into multiple sections. We see no indication the legislature intended to address three distinct offenses. We conclude that unlike the statutes in Vick or in Haight, section 38.03 does not provide for three distinct offenses.

Section 38.03 refers to only one offense, identifying three theories under which it can be committed. Accordingly, we hold the court did not err in charging appellant in the disjunctive. See Kitchens, 823 S.W.2d at 258. Because the charge was not erroneous, it is unnecessary to perform an egregious harm analysis. We resolve appellant’s second issue against him.

Sufficiency Of The Evidence

In his first issue, appellant argues there was no evidence to support a conviction for resisting arrest or transportation. See Tex. Pen. Code Ann. § 38.03. Appellant does not contest the sufficiency of the evidence to support a conviction under section 38.03 under the theory that appellant prevented or obstructed a peace officer from effecting a search.

We decided above that the court "did not err in charging the jury in the disjunctive. When a charging instrument alleges alternative means for the commission of an offense, the conviction will stand if the evidence supports any of the theories alleged. Kitchens, 823 S.W.2d at 259 (“ ‘[Wjhen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, ... the verdict stands if the evidence is sufficient with respect to any of the acts charged.’”) (quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970)). Thus, the State need prove only one of the underlying theories in order to support the conviction. Because appellant does not contest the sufficiency of the evidence to prove culpability for section 38.03 by preventing or obstructing a peace officer from effecting a search, we resolve his first issue against him. See Kitchens, 823 S.W.2d at 259; St. Clair v. State, 26 S.W.3d 89, 99 (Tex.App.-Waco 2000, pet. ref'd).

We dismiss the appeal in cause number 05-03-01030-CR. We affirm the trial court’s judgment in cause number 05-03-01029-CR.

      . Appellant was notified by letter that his brief was defective in this respect. Appellant was given ten days to file an amended brief and warned that failure to do so would result in the appeal being submitted on the defective brief. Appellant failed to file an amended brief.

      . In an unpublished opinion, this Court treated the offenses of resisting search and resisting arrest as one offense able to be committed under different theories. See Soto v. State, No. 05-97-00917-CR, 1998 WL 265135, at *2 (Tex.App.-Dallas May 27, 1998, no pet.) (not designated for publication). In Soto, the defendant complained the evidence was insufficient to support his conviction for resisting arrest because the testifying police officer stated, the defendant’s use of force was an attempt to prevent a pat-down frisk or search. We affirmed the trial court’s conviction, stating that a “hypothetically correct jury charge would have charged in the disjunctive that appellant resisted arrest or the search.” Id. We conclude today that our previous treatment of resisting search and resisting arrest as one offense was correct.


author: Justice MOSELEY.

text:
    Pattie Delores WALKER, Appellant, v. Barbara WALKER, Appellee.
    No. 05-03-01418-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2005.

      Joe Putnam, Irving, for Appellant.
    David M. Pyke, Dallas, for Appellee.
    Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
   OPINION

Opinion by

Justice MOSELEY.

Pattie Delores Walker appeals the probate court’s judgment of partition and sale of real property involved in the probate proceedings of the estate of her mother, Hattie Lee Walker (Mother). In three issues she challenges the trial court’s jurisdiction to order the dependent administrator to sell the undivided one-half interest in certain real property jointly by Pattie and her sister Barbara Walker, which is not part of the estate. We conclude this Court has jurisdiction because Pattie appealed from a final appealable order, and that the probate court had jurisdiction under section 5A(b) of the probate code to order the partition and sale of the property. Therefore we resolve Pattie’s issues against her and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Pattie and Barbara are the daughters of Mother and Zelvin Walker (Father), who together owned a single-family residence at 5021 Wenonah, Dallas, Texas. Father died intestate in 1982, and Pattie and Barbara each inherited an undivided one-fourth interest in the property. Mother died in April 1997, leaving her interest in the property to Pattie and Barbara and naming Pattie as the independent executor of her estate. Pattie lived in the house.

In June 1997, Barbara filed a “Sworn Motion to Produce Last Will and Testament” in which she requested that Pattie be cited to appear before the probate court and show cause why she should not deliver Mother’s will to the court. In March 2001, the probate court signed an “Order Admitting Will to Probate” in which the probate court admitted Mother’s will to probate and authorized the issuance of letters testamentary to Pattie. Subsequently, Barbara filed an original petition and a first amended petition, asserting Pattie had breached her fiduciary duties as executor. Pertinent to the issues on appeal, Barbara alleged that Pattie: (1) continued to live in the house without paying rent or compensating the estate for her use of the house; (2) had not changed the title to reflect the change in ownership from Mother to Barbara and Pattie; and (3) continued to use the house as her own property. Barbara requested damages for unpaid rent, partition of the house, and removal of Pattie and appointment of Barbara as the independent executor. Pattie answered and filed an inventory, appraisement, and list of claims.

In October 2002, the probate court signed a “Final Judgment” removing Pat-tie as independent executor of Mother’s estate and appointing R.W. Calloway as dependent administrator of the estate. Calloway subsequently filed an inventory, appraisement, and list of claims, which the probate court approved. Calloway also applied to sell the property, stating in the “Application for Sale of Real Property” that the sale was in the estate’s best interest. The probate court heard the application and signed the “Order of Sale on Real Property” granting the application and ordering that the property be sold at a private sale and a report be made after the sale.

On April 1, 2003, Pattie filed a “Notice of Homestead Right” in which she asserted that she lived in the house and was “entitled to have said property set aside to her for her use and benefit.” On May 28, 2003, Barbara filed a second amended petition, which was substantially the same as her previous pleadings. The probate court held another hearing and signed a “Judgment of Partition” ordering the sale of the property in terms substantially the same as the “Final Judgment.” The probate court subsequently filed findings of fact and conclusions of law in support of its “Judgment of Partition.” This appeal timely followed.

JURISDICTION

In her second issue, Pattie argues that the October 2002 “Final Judgment” was a final, appealable judgment, disposing of all claims and issues raised by Barbara’s original and first amended petitions, and the probate’s court plenary power expired before Barbara filed her second amended petition. Because Pattie’s second issue concerns the jurisdiction of this Court, we address it first.

The order of a court decreeing a partition is a final, appealable order. Sibert v. Devlin, 508 S.W.2d 658, 668 (Tex.Civ.App.-Texarkana 1974, no writ); see Long v. Spencer, 187 S.W.3d 923, 925 (Tex.App.-Dallas 2004, no pet.). Accordingly, the November 20, 2002 “Order of Sale on Real Property” (not the October 2002 “Final Judgment”) was a final, appealable order as to the partition and order of sale.

Nevertheless, Barbara filed a second amended petition on May 28, 2003. When a court enters a final judgment, a party thereafter files an amended petition, and the court enters a second judgment based upon the amended petition, two distinct cases under the identical cause number result. Cockrell v. Cent. Sav. & Loan Ass’n, 788 S.W.2d 221, 224 (Tex.App.-Dallas 1990, no writ) (per curiam); see Azbill v. Dallas County Child Protective Servs., 860 S.W.2d 133,137 (Tex.App.-Dallas 1993, no writ). Barbara’s original petition was assigned cause number 97-2429-P3; her second amended petition was assigned cause number 97-2429-P3(A). We conclude that Barbara’s second amended petition initiated a distinct case, which was disposed of by the “Judgment of Partition.” Pattie timely appealed from this later judgment. Moreover, the probate court retains jurisdiction until the dependent administrator is discharged and the probate court declares the estate closed. See TEX. PROB.CODE ANN. § 408(d) (Vernon 2003) (providing for probate court’s discharge of estate’s representative when estate has been fully administered). Accordingly, we resolve Pattie’s second issue against her.

Next, we turn to Pattie’s first and third issues regarding the jurisdiction of the trial court to order the sale of — and the dependent administrator’s authority to sell — an interest in property not owned by the decedent whose estate is being administered. In her first issue, Pattie contends the probate court had no jurisdiction to order the sale of the one-half interest in the property not owned by Mother. In her third issue, Pattie contends that the dependent administrator had no authority to sell the one-half interest in the property not owned by Mother.

A challenge to a trial court’s subject matter jurisdiction presents a question of law subject to de novo review. Garza v. Rodriguez, 18 S.W.3d 694, 696 (Tex.App.San Antonio 2000, no pet.). In conducting our review, we take as true the facts pled in the appellant’s petition and determine whether the petition supports jurisdiction in the trial court. Id.

Dallas County Probate Court Number 3 is a statutory probate court. Tex. Gov’t Code Ann. § 25.0591(d)(3) (Vernon 2004). “All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.” Tex. PROB. Code Ann. § 5(f) (Vernon Supp.2004-05). In proceedings in the statutory probate courts, matters “incident to an estate” include but are not limited to “all matters relating to the settlement, partition, and distribution of estates of deceased persons.” Id. § 5A(b) (Vernon 2003); see Palmer v. Coble Wall Trust Co., 851 S.W.2d 178,182 (Tex.1992).

Section 373 of the probate code provides for an application for partition and distribution of a decedent’s estate:

Who May Apply. At any time after the expiration of twelve months after the original grant of letters testamentary or of administration, the executor or administrator, or the heirs, devisees, or legatees of the estate, or any of them, may, by written application filed in the court in which the estate is pending, request the partition and distribution of the estate.

Tex. PROb.Code Ann. § 373(a) (Vernon 2003). The probate code provides for the partition and distribution of property of an estate when it is incapable of division: “When, in the opinion of the court, the whole or any portion of an estate is not capable of a fair and equal partition and distribution, the court shall make a special finding in writing, specifying therein the property incapable of division.” Id. § 381(a) (Vernon 2003). Moreover:

Order of Sale. When the court has found that the whole or any portion of the estate is not capable of fair and equal division it shall order a sale of all property which it has found not to be capable of such division. Such sale shall be made by the executor or administrator in the same manner as when sales of real estate are made for the purpose of satisfying debts of the estate, and the proceeds of such sale, when collected, shall be distributed by the court among those entitled thereto.

Id. § 381(b). Section 386 provides for the partition of property jointly owned:

Any person having a joint interest with the estate of a decedent in any property, real or personal, may make application to the court from which letters testamentary or of administration have been granted thereon to have a partition of said property between the applicant and the estate of the deceased....

Id. § 386 (Vernon 2003).

Both Pattie and Barbara were before the court. The parties stipulated that the property is not capable of being subdivided, and the trial court found that the property was incapable of fair and equal distribution and of being partitioned in kind. Not having attacked these fact findings on appeal, they are binding on Pattie and this Court. See Employers Cas. Co. v. Henager, 852 S.W.2d 655, 658 (Tex.App.-Dallas 1993, writ denied) (“Unchallenged findings of fact are binding on the parties and the appellate court.”).

Pattie argues that, while statutory probate courts have jurisdiction over matters relating to the settlement, partition, and distribution of the estates of deceased persons pursuant to section 5A(b), this jurisdiction does not extend to the partition of property not owned by the decedent’s estate. To support this argument, Pattie relies on Lucik v. Taylor, 596 S.W.2d 514, 516 (Tex.1980).

In Lucik, the beneficiaries under two wills applied to probate those wills. The probate court appointed a temporary administrator of the estate. Subsequently, on application by one of the beneficiaries, the probate court issued an injunction that ordered the second beneficiary to turn over all assets belonging to the estate of the deceased irrespective of whether they constituted a part of the deceased’s separate estate or part of the community estate of the deceased and his widow. The injunction also included restraints on the second beneficiary’s use of items received from the deceased during his lifetime.

The supreme court concluded that the protection from dissipation of transfer of the potential assets of the deceased’s estate bore directly on the ultimate collection and distribution of such properties pursuant to his effective will. Therefore, the injunctive relief related to a matter “incident to an estate” and was within the probate court’s jurisdiction pursuant to the probate code. Id. at 516.

The court also stated that “the settlement, partition and distribution of the estate of Lucik will pertain only to the assets comprising his estate.” Id. However, this statement clearly relates to the supreme court’s recognition that injunctive relief was necessary to protect and preserve the assets in question “until their status could be determined.” Id. Lucik is distinguishable because it involved the protection, not the partition, of property belonging to a decedent. Accordingly, Lucik does not support Pattie’s argument that the trial court had no jurisdiction to order the sale of property not a part of Mother’s estate.

Also, Pattie argues that, pursuant to section 386, the probate court can partition property of the estate jointly owned with other persons upon the application of the person owning the joint interest with the estate. We construe this argument to be that all joint owners must join the application for partition. To support this argument, Pattie relies on Sibert. There, the two children of James McDowell acquired an undivided interest in their father’s community interest in certain property. Later, when their mother died, the children acquired their mother’s interest in the property through her will. The two children applied to the county court for partition of their father’s and mother’s estates. Sibert, 508 S.W.2d at 659 — 60. The Texar-kana Court of Appeals rejected the argument that the county court, in which their mother’s will was being probated, had no jurisdiction over the undivided one-half interest inherited by the children from their father and that the county court’s judgment was therefore void. Id. at 661. The court of appeals stated that “[t]he county court not only has jurisdiction to partition the property belonging to an estate being administered [footnote omitted] but it also has jurisdiction to effect a partition between the estate and persons who have a joint interest with the estate in any property.” Id. at 662 (citing Tex. PROB.CODE ANN. §§ 373, 386); see Speer v. Stover, 711 S.W.2d 730, 738 (Tex.App.-San Antonio 1986, no writ) (per curiam) (holding that suit for specific performance seeking conveyance of property, some of which belonged to estate of deceased person whose estate in being administered through probate proceedings, “is an action that related to the settlement, partition and distribution of the estate of a deceased person and as such is incident to an estate”).

Even though all the children in Sibert requested partition, nothing in sections 373, 381, or 386 requires the joinder of all joint owners in the request for partition for jurisdiction. Therefore, the fact that Pattie objected to the partition is immaterial to the issue of the probate court’s jurisdiction.

We conclude that the probate court had jurisdiction to order the dependent administrator to sell the property, including the one-half interest not owned by Mother’s estate, because this partition relates to Mother’s estate pursuant to section 5A(b). We resolve Pattie’s first issue against her.

Because the probate court had the jurisdiction to order partition of the entire property, it had the authority to direct Calloway to conduct the partition sale. See Tex. Prob.Code Ann. §§ 373, 381(b). Therefore, we reject Pattie’s argument that the dependent administrator had no authority to sell the property because he was not made a party to Barbara’s action. The case on which Pattie relies to support her argument that the dependent administrator had no authority to sell her interest, Greene v. Cass County State Bank, 7 S.W.2d 620, 620 (Tex.Civ.App.-Texarkana 1928, no writ), is distinguishable because, unlike the case before us, Greene relates to the sale of a homestead on which a minor lived and which was sold to pay “simple debts.” Thus we resolve Pattie’s third issue against her.

CONCLUSION

Having resolved Pattie’s three issues against her, we affirm the trial court’s “Judgment of Partition.”

      . The "Judgment of Partition” states the number of the case as "No. 97-2429-P3.”


author: LAMBERT, Chief Justice.

text:
    RUSSELL COUNTY, KENTUCKY HOSPITAL DISTRICT HEALTH FACILITIES CORPORATION, Appellant/Movant, v. EPHRAIM McDOWELL HEALTH, INC.; and L. Clark Taylor, Jr., Appellees/Respondents. and Russell County, Kentucky Hospital District Health Facilities Corporation, Appellant, v. Ephraim McDowell Health, Inc.; L. Clark Taylor, Jr.; and Hon. Vernon Miniard, Jr., Judge, Russell Circuit Court, Appellees. and Russell County, Kentucky Hospital District Health Facilities Corporation, Petitioner, v. Ephraim McDowell Health, Inc.; and L. Clark Taylor, Jr., Respondents/Real Parties in Interest, and Honorable Sara Combs, Judge, Kentucky Court of Appeals, Respondent.
    Nos. 2004-SC-0938-I, 2004-SC-0939-MR, 2004-SC-0984-OA.
    Supreme Court of Kentucky.
    Dec. 16, 2004.

      Robert L. Bertram, Bertram & Wilson, Joel Randolph Smith, Wilson & Smith, Jamestown, David Lewis Williams, Burkesville, Counsel for Appellant/Mov-ant/Petitioner.
    William P. Wiseman, Jr., Hiram Ely, III, Vickie Yates Brown, Melissa Norman Bork and Ann Toni Kereiakes, Greeneb-aum, Doll & McDonald, Louisville, Counsel for Appellees/Respondents, Ephraim McDowell Health, Inc.; and L. Clark Taylor, Jr.
    Vernon Miniard, Jr., Monticello, Appel-lee, Vernon Miniard, Jr., Judge, Russell Circuit Court.
    George E. Fowler, Jr., Court of Appeals, Frankfort, Counsel for Respondent, Hon. Sara Combs, Judge, Kentucky Court of Appeals.
   OPINION AND ORDER

LAMBERT, Chief Justice.

I. INTRODUCTION

In a pending original action seeking a writ of prohibition, the Court of Appeals granted intermediate relief under CR 76.36(4) in the form of a temporary stay of a circuit court order. Subsequently, both an original action for a writ of prohibition against the enforcement of the temporary stay and an appeal of the temporary stay were filed in this Court. We are thus presented with the questions of whether the Supreme Court can hear an original action and whether an appeal can be taken from intermediate relief granted under CR 76.36(4). We conclude that an original action may be prosecuted in the Supreme Court under limited circumstances, though we refuse to grant the requested writ of prohibition in this case, and that an appeal of intermediate relief granted under CR 76.36(4) is inappropriate because such relief is not a final order or judgment. We remand to the Court of Appeals for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND

Until 1999, Russell County, Kentucky Hospital District Health Facilities Corporation, the Appellant/Movant/Petitioner in this case (hereinafter “Petitioner”), operated the Russell County Hospital. On September 1, 1999, Ephraim McDowell Health, Inc. (hereinafter “Respondent”) leased the hospital premises from Petitioner and took over the hospital’s operations.

On October 25, 2004, the Petitioner filed a lawsuit in Russell Circuit Court, claiming that the Respondent was in default and seeking termination of the lease agreement. Later that day, the Russell Circuit Court entered an ex parte order, styled a “Restraining Order,” which, among other things, prohibits all the parties from interfering in any way with the operation or the personnel of the Russell County Hospital, requires that the Respondent return any and all property belonging to Petitioner, and requires that the Respondent transfer all licenses required for operation of the Russell County Hospital to the Petitioner.

Subsequently, the Respondent filed two pleadings with the Court of Appeals: (1) a motion for relief from a temporary injunction under CR 65.07 seeking to prevent enforcement of the Restraining Order, and (2) an original action under CR 76.36 seeking a writ of prohibition. On October 30, 2004, a Friday, the Court Appeals entered an order that, among other things, refused to grant the Respondent’s requested relief under CR 65.07 because the Restraining Order was not reviewable under that Rule. But in response to an emergency motion filed along with the original action for a writ of prohibition, the Court of Appeals in its October 30, 2004 order granted a temporary stay against the enforcement of the Restraining Order pending further orders of the Court of Appeals. In granting the temporary stay, the Court of Appeals noted that “some interim provision must be made” before the following Monday when the matter could be more fully addressed, and that should the Respondent’s claims be true, then it was apparent that the circuit court’s order “could result in so serious degree of injury as to warrant the entry of a writ of prohibition.” The Court of Appeals expressly indicated that it was proceeding overall under CR 76.36, but that it would revisit the matter the following Monday once a response had been entered by the Petitioner’s counsel.

On Monday, November 1, 2004, the Petitioner filed a response and the Court of Appeals revisited the matter by entering yet another order. The Petitioner had argued that the order of the Russell Circuit Court was a “restraining order” and, as such, was not reviewable pursuant to Common Cause of Kentucky v. Commonwealth. The Court of Appeals noted in its new November 1, 2004, order that its October 80, 2004 order had recognized this, i.e., that the Russell Circuit Court’s order appeared to be a “restraining order,” and was thus not reviewable under CR 65.07. The Court of Appeals then went on to note that this argument did not address the fact that its October 30, 2004 order had actually been in response to an emergency motion under the original action for a writ of prohibition. The Court of Appeals also reiterated that it had such serious concerns over the Russell Circuit Court’s Restraining Order that a writ of prohibition would be a possible remedy, and, as such, sustained the temporary stay against enforcement of the Restraining Order. However, the Court of Appeals indicated that it would hold a hearing on November 8, 2004, wherein it would hear both the motion for review under CR 65.07 and the merits of the original action for a writ of prohibition.

Rather than attending to the matter at the November 8, 2004, hearing at the Court of Appeals, Petitioner filed an extensive pleading with this Court, which is denominated as follows:

ORIGINAL ACTION AND PETITION FOR WRIT OF PROHIBITION PURSUANT TO CIVIL RULE 76.36;
MOTION FOR INTERMEDIATE RELIEF PURSUANT TO CIVIL RULE 76.36(4);
APPEAL TO SUPREME COURT FROM JUDGMENT OF COURT OF APPEALS ENTERED NOVEMBER 1, 2004 PURSUANT TO CIVIL RULES 76.36(7); AND
PETITION TO VACATE ORDER OF COURT OF APPEALS ENTERED NOVEMBER 1, 2004 AND ORDER ENTERED OCTOBER 30, 2004 PURSUANT TO CIVIL RULE 65.09

In other words, the Petitioner filed the following: (1) a petition for a writ of prohibition against the Court of Appeals under CR 76.36; (2) a motion for intermediate relief under CR 76.36(4) until such a writ is entered; (3) an appeal under CR 76.36(7) of the order issued by the Court of Appeals on November 1, 2004; and (4) a motion under CR 65.09 to vacate the orders entered by the Court of Appeals on October 30 and November 1, 2004. Because Petitioner’s motion for intermediate relief and the motion to vacate the orders of the Court of Appeals were denied by this Court on November 12, 2004, only the appeal and petition for a writ of prohibition remain. We now address those matters.

III. ANALYSIS

A. Petition for a Writ of Prohibition

The petition for a writ of prohibition filed under CR 76.36 now pending before us is an original action seeking to prevent enforcement of the orders of the Court of Appeals, specifically the temporary stay granted by the Court of Appeals under CR 76.36(4). For the sake of clarity, we note that this original action is a separate and distinct original action from that which is currently pending before the Court of Appeals.

1. Original Actions in the Supreme Court

As a preliminary matter, we must address the Respondent’s claim that the Civil Rules “do not allow for an original action to be brought in the Supreme Court from an interlocutory order of the Court of Appeals.” We would first note that review of the denial or grant of a writ of prohibition is properly obtained by an appeal. “An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.” And it is well established in Kentucky that “[a]n appeal rather than a motion for a discretionary review is the proper method of securing a review of an order of the Court of Appeals granting or denying a petition for a writ of prohibition or a writ of mandamus.” Though the various jurisdictions across the country are split over whether the proper method of reviewing a grant or denial of a writ by a lower court is by a request for a writ by a higher court or by appeal to the higher court, by providing for a matter of right appeal in our Rules, we have chosen to allow review of a Court of Appeals ruling on a petition for a writ of prohibition only by appeal, rather than by a separate original action in this Court.

This, however, does not answer the question of whether this Court may entertain an original action as to an interlocutory order of the Court of Appeals. And, given that writs of prohibition generally apply only to interlocutory orders (because the appealability of a final order is usually dispositive of the matter), Respondent has, in effect, raised the question of whether an original action is ever appropriate before this Court. We must answer that question in the affirmative because the Civil Rules clearly contemplate that original actions may be filed in the Supreme Court.

The basic rule on original actions in appellate courts provides that “[o]riginal proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court. All other actions must be prosecuted in accordance with the applicable law.” Surely the Supreme Court is such “an appellate court.” Furthermore, the Rule that retains the common law writs provides that “[rjelief heretofore available by the remedies of mandamus, prohibition ... may be obtained by original action in the appropriate court.” And CR 76.43, which describes the number of documents required for docketing of various types of cases in the Court of Appeals and the Supreme Court, includes in its listing “Original Proceedings (Mandamus/Prohibition) and Responses thereto,” with “10” as the number of documents required for the Supreme Court. Rule 76.09, which “applies only to the clerks of the Court of Appeals and the Supreme Court,” requires that “[t]he clerk of each appellate court shall keep a general docket in which shall be recorded all appeals and original proceedings in that court.” None of the Civil Rules says that an original action may not be prosecuted in the Supreme Court, and the rules that do discuss original actions refer either to “an appellate” or “appropriate” court, or explicitly to the Supreme Court. Thus, even though “[a] petition seeking relief under this rule is normally filed in the Court of Appeals,” we can only conclude that the Rules also allow for the prosecution of an original action in this forum.

The argument could be raised that because CR 76.36(7)(a) allows for a direct, matter of right appeal of decisions in original actions at the Court of Appeals to this Court, then allowing a separate original action in this Court is unnecessary or somehow contrary to the spirit of CR 76.36(7)(a). But if we were only to hear such matters by appeal, we could never issue such a writ; we would only have the power to remand the matter with an order for the Court of Appeals to issue or quash such a writ. While that is certainly the appropriate remedy once the Court of Appeals has finally ruled on a petition for a writ of prohibition, what could be done if the Court of Appeals somehow acted outside its jurisdiction while an original action was still pending before that court? The obvious and appropriate remedy in such a case would be a writ of prohibition from this Court, but such a writ can only be obtained by an original action in this Court. The interpretation urged on us by Respondent, were we to accept it, would serve only to strip this Court of its constitutionally mandated “power to issue all writs necessary in aid of its jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.” This we cannot do.

Having determined that this Court can hear original actions, we must determine when such an action is appropriate. As discussed above, CR 76.36(1) allows that an original action may be brought in “an appellate court,” but the Rule also places a limit on when such an action may be brought, namely, such an action may “be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.” As such, original actions in this Court are limited in that they may be filed against the Court of Appeals only when the final action of the Court of Appeals may be appealed to this Court as a matter of right. Such occurrence is rare because most decisions of the Court of Appeals are subject only to discretionary review by this Court. But, as CR 76.36(7) makes clear, original actions in the Court of Appeals are appealed to this Court as a matter of right. Thus, we conclude that an original action in this Court seeking to prohibit the proceedings in an original action in the Court of Appeals is allowed under the Rules because the final ruling in an original action in the Court of Appeals would be appealed as a matter of right to this Court.

This hints at a second requirement, namely, that the original action in the Court of Appeals must still be pending. As noted above, we held in Stephens v. Goodenough that once the Court of Appeals has ruled on a petition for a writ of prohibition, the proper remedy is a direct appeal to this Court. But the facts of this case present a subtle, but important, distinction, namely that the original action is still pending at the Court of Appeals, and it is the temporary stay entered by the Court of Appeals that the Petitioner seeks to attack. We still require that if the merits of the petition for a writ in the Court of Appeals have been decided by the Court of Appeals, then we may review that ruling only via a matter of right appeal to the Supreme Court as allowed under CR 76.36(7) and Section 115 of the Kentucky Constitution. But we also conclude that an original action in the Supreme Court against the Court of Appeals is allowed where the Court of Appeals is charged with hearing an original action but has not yet issued a final ruling on the matter.

Here, because the Petitioner is seeking a writ of prohibition against the enforcement of a temporary stay by the Court of Appeals, this matter falls under the very narrow class of cases wherein an original action for a writ of prohibition against the Court of Appeals is allowed. Thus, because the original action in the Court of Appeals is still pending, Petitioner’s original action in this Court is proper.

2. Merits of Petitioner’s Claim

We begin by noting that just because an original action is allowed before this Court does not mean that the action is meritorious and relief will be granted to the petitioner. As our predecessor court noted previously, a writ of prohibition is an “extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief.” Indeed, it would be rare circumstances that would justify this Court granting a writ of prohibition against the Court of Appeals. Ultimately we must conclude that Petitioner’s original action here is without merit.

We have divided writ cases into “two classes,” which are distinguished by “whether the inferior court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’), or (2) acting erroneously within its jurisdiction.” It is, however, unclear exactly what grounds upon which Petitioner is relying in requesting the writ of prohibition because the petition itself fails to address explicitly either of the two classes of writ cases.

Petitioner never claims that the Court of Appeals acted outside its jurisdiction; thus we conclude that it is not invoking the first class of writ cases. But were that the case, we would simply note that although the orders entered by the Court of Appeals did not state the authority for the temporary stay, such authority is expressly given in the “intermediate relief’ provision of CR 76.36(4) and, as such, the Court of Appeals has jurisdiction to enter a temporary stay.

Because Petitioner claims it will suffer “immediate and irreparable harm” from the enforcement of the temporary stay, Petitioner’s claim appears to fall under the second class of writ case. On this, we have noted that writs of prohibition “ordinarily ha[ve] not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied).”

We would note that Petitioner’s claim of irreparable harm and injury would likely fail given that the orders of the Court of Appeals merely preserve the status quo (i.e., the Respondent’s continued operation of the Russell County Hospital). But we do not need to reach that issue because we “have consistently (apparently without exception) required the petitioner to pass the first test, i.e., he must show he has no adequate remedy by appeal or otherwise.” Because Petitioner has failed even to claim, much less present a compelling argument, that it has no adequate remedy by appeal, we cannot grant the relief requested.

B. Appeal of the Order Entered on November 1, 2004

We find even less merit in Petitioner’s appeal of the order of the Court of Appeals entered November 1, 2004. Petitioner is entitled to a matter of right appeal only “from a judgment or final order in any proceeding originating in the Court of Appeals.” But for the very reasons that the Petitioner is allowed to bring its original action in this Court, i.e., the Court of Appeals has acted only in an interlocutory manner, we conclude that the order of November 1, 2004, cannot be characterized as a “judgment or final order.”

Basically, the Petitioner mischaracter-izes the order as a “judgment.” The order entered on October 30, 2004, created a temporary stay under CR 76.36(4) of the Russell Circuit Court’s Restraining Order. The order entered on November 1, 2004, of which the Petitioner seeks this expedited appeal, simply maintains that stay pending the outcome of the determination of the merits of the Petitioner’s original action for a writ of prohibition (which, given that the hearing on the merits was scheduled for November 8, 2004, might have already happened had the Petitioner not filed this second original action). The November 1, 2004, order is interlocutory in nature, and an appeal of such an order is inappropriate and premature. Once the merits of the original action are heard in the Court of Appeals, the Petitioner enjoys a matter of right appeal to this Court should the outcome favor the Respondent. But we will not review the Petitioner’s appeal until, and unless, such a result should come to pass. In other words, there is no reviewable order or judgment at this time.

IV. CONCLUSION

While the Petitioner’s original action in the form of a petition for a writ of prohibition falls within the limited category of original actions that may be prosecuted before the Supreme Court, the petition has not been prosecuted correctly and has no merit. Additionally, the Petitioner’s appeal of the interlocutory order entered by the Court of Appeals is premature.

WHEREFORE, IT IS HEREBY ORDERED:

(1) The petition for a writ of prohibition is denied;
(2) Petitioner’s appeal is dismissed; and
(3) This matter is remanded to the Court of Appeals for further proceedings.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur.

WINTERSHEIMER, J., concurs in result only.

      . Russell County, Kentucky Hospital District Health Facilities Corporation is the Real Party in Interest in the original action still pending before the Court of Appeals. In this separate original action before the Supreme Court, Ephraim McDowell Health, Inc. and L. Clark Taylor are the Real Parties in Interest.

      . "A restraining order shall only restrict the doing of an act.” CR 65.01. But “[a]n injunction may restrict or mandatorily direct the doing of an act.” Id. (emphasis added). Thus, because the order issued by the circuit court was denominated a "restraining order” and issued without notice, it was improper for the order to mandate any action by the Respondent. See also 7 Kurt A. Philipps, Jr„ Kentucky Practice, Rules Of Civil Procedure Annotated Rule 65.01, cmt. 3, at 478 (5th ed. 1995) ("A restraining order, which is granted without notice, may not be mandatory in character, and may only restrict the commission or continuance of an act.”). Perhaps, this is the basis, at least in part, for the Court of Appeals’s serious concerns with the restraining order issued by the circuit court.

      . Ky.App., 143 S.W.3d 634 (2004).

      . CR 76.36(7)(a),

      . Gilliece v. City of Covington, Ky., 565 S.W.2d 451, 452 (1978).

      . See 63C AM. JUR. 2D Prohibition § 88 (1997) ("Although it has been said that the proper remedy to contest dismissal of a petition for a writ of prohibition is a request for a writ from a higher court, rather than appeal, it has also been said that an appeal, rather a motion for discretionary review, is the proper method for securing review of an order of an intermediate appellate court granting or denying a writ of prohibition.” (footnotes omitted)).

      . See also Stephens v. Goodenough, Ky., 560 S.W.2d 556, 557 (1977) (noting that the Supreme Court was presented with "double-barreled attack on ... [an] order of the Court of Appeals ... denying a writ of prohibition” in the form of an appeal and a separate petition for a writ of prohibition and holding that the proper procedure where the Court of Appeals has ruled is a matter of right appeal to the Supreme Court).

      . CR 76.36(1) (emphasis added).

      . CR 81.

      . CR 76.43(k).

      . CR 76.09(1) (emphasis added).

      . CR 76.09(2) (emphasis added).

      . 7 KURT A. PHILLIPS, JR., KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE ANNOTATED, Rule 76.36, cmt. 1, at 697 (5th ed.1995) (emphasis added).

      . See also KY. CONST. § 115 (“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”).

      . KY. CONST. § 110.

      . CR 76.36(1) (emphasis added).

      . Ky., 560 S.W.2d 556, 557 (1977).

      . Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961).

        .Id.

      . See also Green Valley Environmental Corp. v. Clay, Ky., 798 S.W.2d 141, 144 (1990) (holding that "Court of Appeals was proceeding within its jurisdiction” in issuing a temporary stay while the merits of a petition for a writ were pending).

      . Bender, 343 S.W.2d at 801.

      . Green Valley Environmental Corp., 798 S.W.2d at 144 (holding that a stay preserving the status quo while the merits of a petition for a writ were pending did not rise to the level of immediate and irreparable harm).

      . Bender, 343 S.W.2d at 801.

      . CR 76.36(7)(a).