Ford Mustang Saleen (Chad Davis) v. State

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-08-00437-CV _____________________ FORD MUSTANG SALEEN (CHAD DAVIS), Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. 10,907-A MEMORANDUM OPINION Appellant Chad Davis appeals the trial court's judgment determining the rightful owner of a Ford Mustang Saleen. We affirm the trial court's judgment. Article 47.01a of the Texas Code of Criminal Procedure addresses the procedure for the disposition of seized property in the absence of a pending criminal action: (a) If a criminal action relating to allegedly stolen property is not pending, a district judge, county court judge, statutory county court judge, or justice of the peace having jurisdiction as a magistrate in the county in which the property is held or a municipal judge having jurisdiction as a magistrate in the municipality in which the property is being held may hold a hearing to determine the right to possession of the property, upon the petition of an interested person, a county, a city, or the state. Tex. Code Crim. Proc. Ann. art. 47.01a(a) (Vernon 2006). A court acting under this section may "order the property delivered to whoever has the superior right to possession, without conditions[.]" Id. art. 47.01a(a)(1). The statute provides that "[j]urisdiction under this section is based solely on jurisdiction as a criminal magistrate under this code and not jurisdiction as a civil court." See id. art. 47.01a(a). (1) The Ford Mustang Saleen was seized from Davis's residence in San Jacinto County while the officers were executing a search warrant related to a murder that occurred in Brazos County. The State subsequently filed a Motion to Determine Rightful Owner of the vehicle. Davis and Larry Bishop were served with citation. Davis, then represented by counsel, filed an answer asserting a general denial. Larry Bishop answered, claiming that his son, Jason Bishop, was the vehicle's rightful owner. Jason Bishop filed an answer stating that the vehicle belonged to him and he attached a copy of a Georgia title for the vehicle. Davis filed a notice of termination of counsel stating he would proceed pro se and asking that the case be dismissed sua sponte by the trial court for failure to prosecute. The trial court dismissed the State's case for want of prosecution without mention of Bishop's claim and without determining ownership of the vehicle. See Tex. R. Civ. P. 165a. The trial court signed a corrected order within thirty days. Davis then filed a motion to modify under Texas Rule of Civil Procedure 329b, arguing the vehicle belonged to him and complaining that the order of dismissal did not dispose of the vehicle. The trial court held a hearing on May 29, 2008. Davis was in prison, and the record does not reflect that he attempted to appear by teleconference or otherwise. At the hearing, Jason Bishop testified he owned the vehicle, and he presented a Georgia title as evidence of his ownership. At a subsequent hearing on June 26, 2008, Davis attended by teleconference. He asserted ownership of the vehicle but could not provide proof of valid title at that time. On June 26 the trial court signed a judgment ordering that, after considering "the pleadings and records on file in this cause and the evidence[,]" the vehicle was Bishop's property. Davis filed a motion for new trial. The motion stated that the trial court should not have awarded the vehicle to Bishop because Davis's Texas title "supersedes" Bishop's Georgia title and that Davis was prevented from offering this evidence to the trial court because he did not receive notice of the May 29 hearing. He attached documents to the motion for new trial, including a copy of a Texas title for the vehicle purportedly issued to Davis on August 13, 2002. The trial court held a hearing on the motion. The motion was overruled by operation of law. In his first issue, Davis argues the trial court did not have jurisdiction over the vehicle. In his second issue, he contends the trial court did not have jurisdiction to conduct a trial after the case was dismissed. In issue three, he maintains the trial court did not have jurisdiction over Jason Bishop. Davis concedes on appeal that the vehicle was seized as a result of the execution of a search warrant at his residence in San Jacinto County as part of an investigation of a murder in Brazos County. The State filed a motion to determine the rightful owner of the vehicle seized from Davis's residence. Davis and Bishop each claimed the vehicle. The trial court had jurisdiction under article 47 of the Texas Code of Criminal Procedure, and had the authority to order the delivery of the property to the person with the superior right to possess the vehicle. See Tex. Code Crim. Proc. Ann. arts. 47.01 (Vernon 2006), 47.01a. Davis's motion to modify was filed within thirty days of the corrected order, and the hearing on May 29 was held within the time period that the trial court maintained plenary power. We conclude the trial court retained jurisdiction to hold the hearing. See Tex. R. Civ. P. 329b (a),(d),(g); see also Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111-12 (Tex. App.--San Antonio 1997, no pet.); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.--Houston [1st Dist.] 1995, no writ). The State served Larry Bishop with the motion to determine the rightful owner and Jason Bishop filed a pro se letter in response asserting he was the owner of the vehicle. Bishop's pro se letter constituted an answer and appearance, and the trial court had jurisdiction over Bishop. See Tex. R. Civ. P. 120; Sells v. Drott, 259 S.W.3d 156, 159 (Tex. 2008) (holding pro se defendant appeared by answer even though answer was not in "'standard form'") (citing Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992)). Davis's first, second, and third issues are overruled. In his fourth issue, Davis maintains the trial court abused its discretion by granting a default judgment against Davis and awarding the vehicle to Bishop. In his fifth issue, he states the trial court abused its discretion by allowing his motion for new trial to be overruled by operation of law. Davis argued in his motion for new trial that the trial court abused its discretion in awarding the vehicle to Bishop and that he did not receive notice of the May 29 hearing. If a motion for new trial "is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period." Tex. R. Civ. P. 329b(c). Because the court did not rule within the stated time period, Davis's motion for new trial was overruled by operation of law. See id. In cases where the motion for new trial is overruled by operation of law, the issue is whether the trial court abused its discretion by not granting the motion for new trial. Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 187 (Tex. App.--Dallas 2000, pet. denied). In Davis's motion for new trial and on appeal, Davis argues he did not receive notice of the May 29 hearing. (2) The reporter's record of the May 29 hearing suggests the hearing was held in response to Davis's motion to modify. The record does not include any request by Davis for a bench warrant, or any request to attend the hearing or participate by teleconference. The notice for the May hearing states the court set the case "for hearing on May 29th, 2008 at 9:00 A.M., unless a Motion to Retain is filed reflecting good cause as to why the above case should not be dismissed." The trial court included in its findings of fact that "[n]otice was sent to Chad Davis by letter dated 5-8-08 to the Michael Unit, P.O. Box 4500, Tennessee Colony, Texas 75886-4500 advising him of a hearing set on 5-29-08" and that Davis "did not request to appear at the hearing on 5-29-08." The trial court's findings of fact also state that "Jason Bishop appeared at the hearing on 5-29-08 and the Court retained the case and determined that title to the Mustang was in the name of Jason T. Bishop." Davis acknowledges receiving the notice for the June hearing, and he attended that hearing by teleconference. The notice of the June hearing was mailed to him at the same prison address as the notice for the May hearing. The trial court could reasonably conclude that Davis had notice of the May 29 hearing and yet made no request to appear. The trial court held a hearing on Davis's motion for new trial. Bishop's counsel asserted that the copy of the Texas title Davis attached to his motion for new trial was forged. The trial court could reasonably conclude that no newly discovered evidence indicated a new trial should be granted, and that the vehicle rightfully belonged to Bishop. The trial court did not abuse its discretion. Davis's fourth and fifth issues are overruled. The trial court's judgment is affirmed. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on August 4, 2009 Opinion Delivered August 27, 2009 Before Gaultney, Kreger, and Horton, JJ. 1. Article 47.12(a) of the Texas Code of Criminal Procedure states that appeals from a 47.01a hearing shall be heard by a court of appeals and "[t]he appeal is governed by the applicable rules of procedure for appeals of civil cases to a court of appeals." Tex. Code Crim. Proc. Ann. art. 47.12(a) (Vernon 2006). Any interested person who appears at the hearing under article 47 must "give an oral notice of appeal at the conclusion of the hearing and must post an appeal bond . . . ." Id. art. 47.12(c) (Vernon 2006). No party challenges the lack of "oral notice," but we are required to consider jurisdictional issues. The reporter's record from the June 26, 2008 hearing includes a discussion of appeal. We treat this discussion as sufficient "oral notice." It does not appear that the trial court required an appeal bond. 2. He also states in the Statement of Facts section of his appellate brief that "Davis believed that the May 29th hearing was based on a motion by Bishop, [ ] because the trial court had mailed Davis a notice that his motion to modify the judgment was set" for a later date.