Vaughn Birdwell v. State

Birdwell-V v. State IN THE TENTH COURT OF APPEALS No. 10-96-032-CR      VAUGHN BIRDWELL,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the 54th District Court McLennan County, Texas Trial Court # 95-324-C                                                                                                     O P I N I O N                                                                                                           A jury convicted Vaughn Birdwell of brutally stabbing Irene Mitchell to death and sentenced him to life in prison. Birdwell now appeals his conviction claiming he was denied his constitutional right to be tried by a jury of twelve peers. He contends a juror, who had felony convictions, should have been disqualified. Additionally, Birdwell contends that he did not receive a fair trial when the trial court denied his motion for mistrial following an outburst from a member of the audience. Because we find that Birdwell received a fair trial by a jury of twelve qualified citizens, we affirm his conviction.       In his first point of error, Birdwell claims that previous felony convictions disqualified one of the twelve jurors. He disputes the constitutionality of articles 42.12 and 44.46 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 42.12, 44.46 (Vernon Supp. 1997). Article 42.12, section 20, provides that a judge may set aside the verdict against a criminal defendant and dismiss the charges that had been made against him once he successfully completes a certain portion of his sentence of community supervision. Id. art. 42.12, § 20(a). Article 44.46 requires a showing of significant harm by service of the disqualified juror to reverse a criminal conviction when the disqualification was not discovered until after the verdict was entered. Id. art. 44.46.       Juror "J.W." failed to disclose his felony convictions on his juror information card and failed to respond to questions about his involvement in a prosecution. Subsequently, the trial court impaneled J.W. as one of the twelve jurors in this case. However, the trial judge in J.W.'s underlying felony trial had entered an order under article 42.12, section 20, to remove his disability prior to being called to jury duty.       Birdwell relies upon the Fort Worth Court of Appeals to supply the backbone of his argument that article 42.12, section 20, is unconstitutional. In that case, the court, sitting in its civil capacity, held that only the executive branch has the constitutional authority to restore a convicted felon's civil rights taken away as a result of a conviction. R.R.E. v. Glenn, 884 S.W.2d 189, 192-93 (Tex. App.—Fort Worth 1994, writ denied). Thus, according to that court, the Legislature cannot enact any statutes which permit either itself or the judiciary to restore a convicted felon's civil rights. Id. at 193.       We have already rejected the holding in Glenn and found article 42.12, section 20, constitutional. Hoffman v. State, 922 S.W.2d 663, 667-69 (Tex. App.—Waco 1996, pet. ref'd). Although Birdwell acknowledges Hoffman, he alleges we failed to consider other statutory provisions which are designed to exclude convicted felons from serving on juries, the basic rules of constitutional construction, and the meaning of "conviction." Because we believe Hoffman to be correctly decided, we decline to reconsider its holding.       Article 42.12, section 20, provides a mechanism to release a convicted person of all legal disabilities upon successful completion of community supervision. Wolfe v. State, 917 S.W.2d 270, 277 (Tex. Crim. App. 1996). The release from legal disabilities occurs after the trial judge enters an order of discharge and dismisses the case. Id. Thus, a juror who has completed community supervision, had his conviction set aside, or had the case dismissed is eligible to serve as a juror. Walker v. State, 645 S.W.2d 294, 295 (Tex. Crim. App. 1983); Payton v. State, 572 S.W.2d 677, 679 (Tex. Crim. App. 1978): Smith v. State, 859 S.W.2d 463, 464 (Tex. App.—Fort Worth 1993, pet. ref'd); Day v. State, 784 S.W.2d 955, 956 (Tex. App.—Fort Worth 1990, no pet.). Because J.W. qualified as a juror in this case, there can be no harm to Birdwell. As such, we do not address the harm needed to reverse a criminal conviction under article 44.46. We overrule Birdwell's first point of error.       In his second point of error, Birdwell complains the trial court denied his right to a fair trial when it overruled his request for a mistrial following an outburst from a member of the audience. While the medical examiner testified regarding the stab wounds inflicted upon Mitchell, Aurora Victoria Shinehouer jumped from her seat, went to the rail separating the audience from counsels' tables, and screamed vulgarities at Birdwell. Following this outburst, the trial judge instructed the jury that they were not to consider this outburst for any reason. After the judge removed the jury, he warned the audience that further outbursts would not be tolerated. At this point, Birdwell made a motion for mistrial claiming that the outburst created an emotionally charged atmosphere. The judge overruled his motion and when the jury returned, again admonished them not to consider the outburst for any reason.       Inappropriate comments by members of the audience do not result in error and certainly do not result in reversible error unless and until Birdwell shows a reasonable probability that such outbursts affected or interfered with the jury's verdict. Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985); Boyd v. State, 774 S.W.2d 37, 42 (Tex. App.—Beaumont 1989, pet. ref'd). Usually, any potential injury caused by the spectator's outbursts can be cured by the trial court's unequivocal and dogmatic instruction to the jury. Boyd, 774 S.W.2d at 42; Nation v. State, 762 S.W.2d 290, 292 (Tex. App.—Beaumont 1988, no pet.). Because curative instructions are presumed efficacious to withdraw from jury consideration almost any evidence or argument which is objectionable, trial conditions must be extreme before a mistrial is warranted under Texas law. Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996). Injury to a defendant is measured on a case-by-case basis. Landry, 706 S.W.2d at 112.       The judge immediately instructed the jury that it could not consider this profane outburst for any reason. After the jury returned from its brief recess, the judge again instructed it not to consider the outburst. The only reference to this outburst came from Birdwell's trial counsel when he said "there is lots of emotions on each side, as you can tell"; the State did not make Shinehouer's outburst any part of its case. Even though this outburst occurred in the presence of the jury, we believe after a review of the whole record that the judge's immediate instructions cured any potential harm. Bauder, 921 S.W.2d at 700. Therefore, we find that Birdwell failed to show with a reasonable probability that the outburst affected or interfered with the jury's verdict. Landry, 706 S.W.2d at 112; Boyd, 774 S.W.2d at 42. We overrule his second point of error.       We affirm Birdwell's conviction.                                                                                    REX D. DAVIS                                                                                  Chief Justice Before Chief Justice Davis,           Justice Cummings, and           Justice Vance Affirmed Opinion delivered and filed January 22, 1997. Do not publish viction. See id.; Muhammad, 540 U.S. at 754, 124 S.Ct. at 1306. We sustain Fernandez’s first issue on this narrow basis and proceed to address the remaining grounds raised in the motion to dismiss. Exhaustion of Remedies            Fernandez claims in his third issue that the trial court erred in dismissing his suit to the extent that dismissal was based on the defendants’ assertion that he failed to exhaust his administrative remedies. The defendants assert that Fernandez failed to exhaust available administrative remedies only with regard to his inverse-condemnation claim. They argued in the dismissal motion that he “never specifically grieved the absence of just compensation” in his grievances. However, an inmate need not specify particular legal theories in his grievance. Rather, the grievance must provide prison officials with notice of the relevant “operative facts” that serve as the basis for his complaint. See Tex. Gov’t Code Ann. § 501.008(d) (Vernon 2004); Brewer v. Simental, 268 S.W.3d 763, 768-69 (Tex. App.—Waco 2008, no pet.) (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued”)).            In Johnson, the Fifth Circuit similarly concluded that an inmate grievance need not specify the particular legal theories that he may choose to allege in a subsequent lawsuit. “[T]he purpose of the exhaustion requirement is to give prison administrators an opportunity to address a problem, and they can do this whether or not the prisoner tells them the constitutional provisions that the problem implicates.  Further, TDCJ rules specifically instruct inmates to provide facts, not legal terminology.” Johnson, 385 F.3d at 518. The operative facts that the defendants allegedly seized property from Fernandez in violation of his legal rights are clearly spelled out in his grievances. Nothing more was required. See Brewer, 268 S.W.3d at 769. Fernandez’s third issue is sustained. Arguable Basis in Law            Fernandez’s sixth issue asserts that the trial court erred by dismissing his suit as frivolous because all his claims have an arguable basis in law and in fact. His fifth issue asserts that the trial court abused its discretion by dismissing his suit with prejudice.            A trial court may dismiss a claim as frivolous under chapter 14 if “the claim has no arguable basis in law or in fact.” See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(2) (Vernon 2002); Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied). “A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory.” Hamilton, 298 S.W.3d at 339. When, as here, there has been no fact hearing, our review is limited to the question of whether the claim has an arguable basis in law.[4] Id.; Brewer, 268 S.W.3d at 770. We may affirm the dismissal if it was proper under any applicable legal theory. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no pet.). If the claim has no arguable basis in law, then dismissal with prejudice is proper. Hamilton, 298 S.W.3d at 340.            Texas Tort Claims Act:  Fernandez asserts a claim against the defendants under section 101.021(2) of the Texas Tort Claims Act, alleging that he suffered injury and loss of the seized property that was caused by the defendants’ use and misuse of prison documents. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005) (“A governmental unit in the state is liable for . . . personal injury and death so caused by a condition or use of tangible personal or real property”).            Under section 101.021(2), a governmental unit can be liable only for “personal injury” or “death.” Id.; see Jones v. Tex. Dep’t of Crim. Just.-Inst. Div., 318 S.W.3d 398, 404-05 (Tex. App.—Waco 2010, pet. denied). Fernandez alleges that he suffered property damage, not personal injury. His claim under the Texas Tort Claims Act has no arguable basis in law. See Jones, 318 S.W.3d at 404-05.            Due Process: Fernandez claims that defendants seized his property without due process of law in violation of article I, section 19 of the Texas Constitution. A prison official’s wrongful seizure of property does not violate due process if an adequate post-deprivation remedy is provided. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Texas law provides at least two such remedies: (1) the tort of conversion; id.; and (2) an administrative remedy under sections 501.007 and 501.008 of the Government Code. See Tex. Gov’t Code Ann. §§ 501.007, 501.008 (Vernon 2004); Pechacek, 319 S.W.3d at 814. Fernandez’s due-process claim has no arguable basis in law.            AD-03.72: Fernandez asserts that AD-03.72 is unconstitutional because it has no legitimate basis and does not “serve any logical and penological interest.” He also claims that AD-03.72 was enforced against him in an arbitrary and capricious manner. These assertions are claims that AD-03.72 is unconstitutional on its face and that Fernandez’s right to equal protection was violated by the manner in which the regulation was enforced.            “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987); accord Williams v. Lara, 52 S.W.3d 171, 193 (Tex. 2001). The inmate bears the burden of proving the invalidity of the challenged regulation. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 2168, 156 L.Ed.2d 162 (2003).            We consider four factors in deciding whether the regulation withstands constitutional challenge: (1) whether the regulation has a “valid, rational connection” to a legitimate governmental interest; (2) whether alternative means are available to exercise the asserted right; (3) what impact an accommodation of the right would have on prison personnel and resources; and (4) whether “ready alternatives” to the regulation exist. Id.; Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-62.            The defendants proffered several interests that they contend AD-03.72 serves. They note that this regulation enhances inmate safety and diminishes the threat of inmate violence by removing a de facto currency and by mitigating the hoarding of materials that may pose a fire hazard. In addition, they note that an inmate who maintains possession of a commissary item for more than 60 days can procure a new receipt from the commissary for that item.            Fernandez offers limited argument in response to these assertions. He does not question the legitimacy of the interests asserted by the defendants other than to deny that the regulation serves any legitimate interest. His claim that AD-03.72 serves no legitimate penological interest has no arguable basis in law. See Johnson v. Tex. Bd. of Crim. Just., No. 07-20396, 2008 WL 5069357, at *1 (5th Cir. Dec. 2, 2008) (rejecting inmate’s challenge to constitutionality of restrictions on storage space in AD-03.72). However, Fernandez’s assertion that AD-03.72 was enforced against him in an arbitrary and capricious manner states an equal-protection claim with an arguable basis in law. See Conway v. Castro, No. 12-03-00373-CV, 2004 WL 1103584, at *3 (Tex. App.—Tyler May 12, 2004, no pet.) (mem. op.).            Inverse Condemnation: Fernandez claims that his property was taken for a public use without just compensation. This is an inverse-condemnation claim. See Sw. Bell Tel., L.P. v. Harris County Toll Rd. Auth., 282 S.W.3d 59, 61 (Tex. 2009) (“To recover on an inverse-condemnation claim, a property owner must establish that ‘(1) the State intentionally performed certain acts, (2) that resulted in a “taking” of property, (3) for public use.’”) (quoting Gen. Servs. Comm’n v. Little Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)). Specifically, Fernandez asserts that his property was taken for a public use because AD-03.72 requires that seized property either be re-issued to another inmate or donated to a charitable organization. The disposition of seized property in either fashion under AD-03.72 does not establish that the property was taken for a public use. See Tex. Dep’t of Crim. Just. v. Jackson, No. 01-07-00477-CV, 2008 WL 2209350, at *4-5 (Tex. App.—Houston [1st Dist.] May 29, 2008, no pet.) (mem. op.). Fernandez’s inverse-condemnation claim has no arguable basis in law.            Conversion: Fernandez asserts that Reid and Barkin unlawfully converted his personal property.            To establish conversion of personal property, a plaintiff must prove that: (1) the plaintiff owned or had legal possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights as an owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.—Austin 1997, pet. denied). If the defendant originally acquired possession of the plaintiff’s property legally, the plaintiff must establish that the defendant refused to return the property after the plaintiff demanded its return. Presley v. Cooper, 155 Tex. 168, 284 S.W.2d 138, 141 (1955); Apple Imports, 945 S.W.2d at 899.  Lopez v. Lopez, 271 S.W.3d 780, 784 (Tex. App.—Waco 2008, no pet.).            Fernandez makes no allegation or showing that Reid or Barkin has the power or duty to return wrongfully seized property. Accordingly, his conversion claim has no arguable basis in law. See Simmonds v. TDCJ, No. 10-07-00361-CV, 2010 WL 654498, at *6 (Tex. App.—Waco Feb. 24, 2010, no pet.) (mem. op.).            Section 1983: Fernandez makes various claims against the individual defendants under section 1983. He contends that Quarterman violated his rights “by making or authorizing a policy that he knew or should have known would cause offenders to be deprived of their du[e] process right to own personal property.” He asserts that Brisher and Johnson violated his rights by failing “to stop the unlawful and unconstitutional acts of [their] subordinates,” by acquiescing in their actions, and by providing false information to conceal the subordinates’ alleged misconduct. He similarly asserts that Curry violated his rights by failing “to stop unlawful acts of his subordinates” and by acquiescing in their actions. He also claims that Curry violated his rights by denying him the right to call witnesses and confront his accusers and by violating TDCJ policies. He asserts that Reid violated his rights by illegally confiscating his property. He contends that Barkin violated his rights by illegally confiscating his property and by fraudulently completing the required TDCJ paperwork. And he contends that Hightower violated his rights by refusing to return his property once he produced receipts for most of the seized items as required by TDCJ policy.            Fernandez’s section 1983 claim against Quarterman hinges on AD-03.72 being found unconstitutional. We have already concluded, however, that AD-03.72 is constitutional on its face because it “is reasonably related to legitimate penological interests.” See Overton, 539 U.S. at 132, 123 S.Ct. at 2167; Turner, 482 U.S. at 89, 107 S.Ct. at 2261; Williams, 52 S.W.3d at 193. Accordingly, this claim has no arguable basis in law.            Fernandez’s section 1983 claims against Brisher, Johnson, Curry, Reid, Barkin, and Hightower all hinge on their alleged failure to comply with various TDCJ policies regarding the seizure of contraband and the conduct of disciplinary hearings. “[A] prison official’s failure to follow the prison’s own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.”  Brewster, 587 F.3d at 768 (quoting Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996)). Fernandez has at least two constitutionally adequate post-deprivation remedies: (1) the tort of conversion; see id.; and (2) an administrative remedy under sections 501.007 and 501.008 of the Government Code. See Tex. Gov’t Code Ann. §§ 501.007, 501.008; Pechacek, 319 S.W.3d at 814. Thus, his section 1983 claims against the remaining defendants have no arguable basis in law.            In conclusion, all of Fernandez’s claims, except his equal-protection claim, have no arguable basis in law.  Aside from the equal-protection claim, the trial court did not abuse its discretion in dismissing his claims with prejudice. See Hamilton, 298 S.W.3d at 340. We sustain in part and overrule in part Fernandez’s fifth and sixth issues. Opportunity to Amend            Fernandez asserts in his fourth issue that the trial court abused its discretion by failing to rule on his motion for leave to amend his complaint to correct defects. Dismissal with prejudice is a ruling on the merits and is improper if based on procedural defects that the inmate can correct. Id. But if the claim has no arguable basis in law, then dismissal with prejudice is appropriate and no opportunity to amend need be given. See id.            The trial court properly dismissed all but the equal-protection claim with prejudice because the claims have no arguable basis in law. Accordingly, the trial court did not abuse its discretion by failing to rule on Fernandez’s motion for leave to amend his complaint. Fernandez’s fourth issue is overruled. Open Courts            Fernandez claims in his second issue that the trial court violated the open-courts provision of article I, section 13 of the Texas Constitution by dismissing his claims, rather than permitting him to have a jury trial. Several courts have concluded that the provisions of Chapter 14 do not violate the open-courts provision. See Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—Beaumont 2001, no pet.); Sanders v. Palunsky, 36 S.W.3d 222, 226-27 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Thomas v. Bush, 23 S.W.3d 215, 218 (Tex. App.—Beaumont 2000, pet. denied); see also Gowan v. Tex. Dep’t of Crim. Just., 99 S.W.3d 319, 323 (Tex. App.—Texarkana 2003, no pet.). We agree and overrule Fernandez’s second issue. In conclusion, having sustained in part Fernandez’s fifth and sixth issues, we reverse in part the trial court’s order dismissing Fernandez’s suit as frivolous and remand this case for further proceedings. We otherwise affirm the trial court’s dismissal order.   REX D. DAVIS Justice  Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, that he would affirm the trial court’s judgment in its entirety and assess all appellate costs against appellant.) Affirmed in part; reversed and remanded in part Opinion delivered and filed December 22, 2010 [CV06] [1] The TDCJ Disposition of Confiscated Offender Property form indicates that Reid seized only 10 pot roasts, 37 packages of tuna, 19 packages of coffee, 16 packages of chili with beans, and 6 packages of chili without beans. Fernandez disputes these numbers. [2] The Disposition of Confiscated Offender Property form reflects that the “Reason for Confiscation” of the items was “Ownership Questioned,” not “Improperly Stored.” [3] The Court remanded the case for reconsideration of the inmate’s claims for prospective relief that did “not necessarily imply the invalidity of a previous loss of good-time credits.” Edwards, 520 U.S. at 648-49, 117 S.Ct. at 1589. [4] The predominant focus of the hearing on the defendants’ motion to dismiss Fernandez’s suit as frivolous was on the defendants’ argument that Fernandez’s claims were barred by Heck v. Humphrey.