Opinion
NO. 02-16-00023-CV
07-21-2016
MICHAEL A. POWELL APPELLANT v. SHAREN WILSON AND VALLERIE ALLEN APPELLEES
FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-278031-15 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Michael A. Powell, pro se, appeals from the trial court's dismissal of the claims he filed under civil practice and remedies code section 101.002 against Appellees Sharen Wilson and Vallerie Allen, as the former trial judge and court reporter, respectively, of Tarrant County Criminal District Court No. 1. Because we hold that the trial court properly dismissed Powell's claims, we affirm the trial court's order of dismissal.
Tex. Civ. Prac. & Rem. Code Ann. § 101.002 (West 2011) (stating that chapter 101 of the civil practice and remedies code may be cited as the Texas Tort Claims Act).
Powell is currently incarcerated. In 2005, Powell was convicted on two counts of aggravated sexual assault of a child less than fourteen years of age. Wilson was the trial judge in his criminal case, and Allen was the court reporter.
See Powell v. State, No. 2-05-449-CR, 2008 WL 110181, at *1 (Tex. App.—Fort Worth Jan. 10, 2008, pet. struck) (mem. op., not designated for publication) (affirming Powell's conviction); see also Powell v. Thaler, No. 4:11-CV-089-A, 2011 WL 4950000, at *1 (N.D. Tex. Oct. 17, 2011).
In this suit, Powell alleged that Wilson had used a laptop computer to alter and manufacture a transcript in his criminal case and that Wilson and Allen had altered the testimony of his accuser. He alleged that Allen's destruction of the audio recording of the trial allowed Wilson to conspire with Powell's court-appointed attorney and the prosecutor to thwart a "corrections hearing," conspiring to cover "for the initial crime of manufacture of evidence." He contended that Wilson met with the jury outside his presence while it was deliberating and gave the jury portions of this altered transcript and that this altered transcript was used in his direct appeal. He alleged that he could bring proof "to v[e]rify the truth, that Sharen Wilson obtained a conviction by fooling a jury with [a] manufactured transcript."
Powell tied his claims to the Texas Tort Claims Act by alleging that the transcript and audio recording of his trial were state property that was used to harm him. He alleged "harm, mental anguish, and loss of property." He sought $100,000 in damages, plus $300,000 in punitive and mental anguish damages. He also sought declaratory relief "that [the trial court] will assume jurisdiction to order criminal investigation against Sharen Wilson." Powell filed a "Motion of Forma Pauperis" declaring that he was incarcerated and unable to pay a filing fee.
The trial court sua sponte dismissed Powell's claims for lack of jurisdiction. The court stated that after an exhaustive review of its file, it concluded that it had no jurisdiction over the claims or the relief sought by Powell. The court's order dismissing the case stated that jurisdiction over Powell's claims "lie[s] in the court of original jurisdiction[,] which is the Criminal District Court No. 1," and that "it appears that [Powell] has previously sought appellate review of the criminal court judgment, and it is not the jurisdictional province of the 67th District Court to review appellate decisions and rulings." Powell then filed this appeal. The trial court did not issue citations, and Wilson and Allen were not served and did not appear or participate in the trial court. Although the trial court did not mention civil practice and remedies code chapter fourteen in its dismissal order, from the context, it appears that the trial court dismissed Powell's claims under section 14.003.
See Tex. Civ. Prac & Rem. Code Ann. § 14.003 (West 2002) (allowing a trial court to dismiss an inmate's claim before service of process when, among other grounds, the claim has no arguable basis in law or is substantially similar to a previous claim filed by the inmate).
Powell raises three issues: (1) whether a trial transcript is "property" as defined in the Texas Torts Claims Act, (2) whether "the district court [had] proper jurisdiction [over a suit] to recover damages and remedy a crime during and [sic] a criminal trial," and (3) whether "the association between abuse of office and a criminal trial process, automatically bar[s] jurisdiction of civil recovery under [civil practice and remedies code section] 101.002." Most of Powell's brief is devoted to discussing the cover-up he believes that Wilson, Allen, and others have engaged in, both to convict him and to block postconviction relief. Powell argues that Wilson, assisted by Allen, manufactured a trial transcript and that "[b]ecause these transcripts and testimony were the sole convicting evidence, the entire conviction was based on manufactured evidence." Powell further argues that the original trial transcript and audio recording, which he alleges Wilson and Allen destroyed, were his property and covered by the Texas Tort Claims Act.
Powell further complains that during his criminal trial, his court-appointed attorney "presented no defense." And he alleges that in his direct appeal from his conviction, this court engaged in a conspiracy to cover up Wilson's actions and "forced an attorney on" him. He asserts that the actions he complains of were "a complete disreg[]ard of civil liberties and utter dereliction of sworn duty." He states that "[b]y filing this tort claim, [he has] facilitated an avenue to return my jury, states witness, and prove Sharen Wilson manufactured 'evidence' to convict me, and has covered it up for a decade." He concludes that "[t]he equal protection clause of the constitution has been ignored."
In their brief, Wilson and Allen assert that Powell's claims about the alteration of the trial record have been rejected in a prior state habeas action and in a prior federal habeas suit. They further contend that the trial court correctly dismissed Powell's suit under civil practice and remedies code section 14.003, based on a lack of jurisdiction because, among other reasons, the Texas Torts Claims Act does not provide a statutory basis for Powell to challenge his criminal conviction in a civil court.
Chapter fourteen of the civil practice and remedies code applies to inmate-filed actions in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. Powell filed such an unsworn declaration in this case. Accordingly, chapter fourteen applied to Powell's suit and applies to this appeal.
Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West Supp. 2015).
Seeid.
Under section 14.003 of that chapter, a trial court may dismiss a claim, even before service of process, if the court finds that the claim is frivolous or malicious. In determining whether a claim is malicious or frivolous, the trial court may consider whether the claim has no arguable basis in law or in fact. In this case, the trial court dismissed Powell's claim for lack of jurisdiction because Powell was seeking to challenge his criminal conviction in a civil court and because his claims had already been rejected by a court.
Id. § 14.003(a).
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(2).
See id. § 14.003(a), (b) (providing that an inmate's claim is frivolous or malicious if it is substantially similar to a previously-filed claim in that the claim arises from the same operative facts and that a trial court may dismiss a claim under chapter 14 if the claim is frivolous or malicious); Thaler, 2011 WL 4950000, at *2 (reviewing Powell's request in that court for habeas relief based on Powell's allegation that his right to due process had been violated "as a result of 'manufactured testimony,' inaccuracies and omissions in the reporter's and clerk's records, and the destruction of evidence (the court reporter's audio recordings of the trial)" by the trial judge in his criminal case, noting that the state court in Powell's previous habeas action on the same ground had found that there was no credible evidence of Powell's allegations, and concluding that Powell had failed to rebut the state court's findings).
A chapter 14 dismissal is reviewed under an abuse of discretion, but the issue as to whether a claim has an arguable basis in law is a legal question that we review de novo. "In conducting our review, we take as true the factual allegations in an inmate's petition and review the types of relief and causes of action set out therein to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief." "We will affirm the dismissal if it was proper under any legal theory."
Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010, no pet.).
Id.
Id.
As the trial court stated in its dismissal order, Powell is attempting to use this action to challenge his conviction; he specifically accused Wilson of obtaining his conviction by fraud, and the facts alleged in Powell's petition, if true, would undermine the validity of his conviction. And Powell recognized this fact; in his petition, he stated that he could not obtain relief under § 1983 because, under the United States Supreme Court's holding in Heck v. Humphrey, such "civil relief, investigation, would invalidate a criminal conviction." Here, Powell is essentially challenging his criminal conviction in a civil suit. And because he is seeking to recover damages for "harm caused by actions whose unlawfulness would render a conviction or sentence invalid," Heck applies. "[C]ivil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments," and thus, for Powell to recover damages based on the claims he has raised, he would have to prove that his conviction "has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Until Powell's criminal conviction has been invalidated, Powell's claims are not legally cognizable, and the trial court therefore had no jurisdiction over them. Powell's conviction has not been invalidated; he remained in prison as of the time of his suit, his conviction was not reversed on direct appeal, and he has failed to obtain relief in state or federal habeas actions. Accordingly, Powell's claims were not cognizable and therefore had no adequate basis in law, and the trial court correctly dismissed Powell's suit for lack of jurisdiction.
42 U.S.C.A. § 1983 (West 2012).
See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372 (1994) (holding that to recover damages caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus).
See id.
Id. at 486, 487, 114 S. Ct. at 2372.
See id. at 487, 489, 114 S. Ct. at 2372, 2374 (holding that "[a] claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983" and that the inmate plaintiff's § 1983 claim had not yet arisen because his criminal conviction had not been invalidated); Vargas v. Tex. Dep't. of Criminal Justice, No. 03-12-00119-CV, 2012 WL 5974078, at *3 (Tex. App.—Austin Nov. 30, 2012, pet. denied) (mem. op.) (citing Heck for the proposition that when a civil suit necessarily implies the invalidity of an inmate's conviction, it must be dismissed unless the plaintiff can demonstrate that the sentence has already been invalidated); Thomas v. Bynum, No. 04-02-00036-CV, 2003 WL 553277, at *2 (Tex. App.—San Antonio Feb. 28, 2003, no pet.) (mem. op.) (op. on reh'g) (applying Heck to an inmate's fraud claim); Spellmon v. Collins, 970 S.W.2d 578, 582 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Heck as relying on "the ancient principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments"); see also Tex. Gov't Code Ann. § 24.008 (West 2004) (providing that a district court may hear any cause that is cognizable by courts of law or equity).
SeePowell v. State, No. PD0303-08, 2008 WL 902119, at *1 (Tex. Crim. App. Apr. 2, 2008) (order, not designated for publication); Powell, 2008 WL 110181, at *1 (affirming Powell's conviction).
See Thaler, 2011 WL 4950000, at *1 n.1, *2 (referencing Powell's previous state habeas action in cause number WR-71,379-06 and denying Powell's petition); Powell v. Curry, CIV.A.4:07CV587-Y, 2008 WL 2839920, at *1 (N.D. Tex. July 14, 2008) (applying Heck to dismiss Powell's § 1983 action against various defendants, including Wilson and Allen, for allegedly conspiring to illegally obtain his conviction and thwart his appeal), aff'd, 328 Fed. Appx. 940 (5th Cir. 2009) (elaborating that Powell's suit alleged that "the defendants conspired to obtain his conviction illegally and to thwart his appeal by falsifying and altering documents and trial transcripts").
Cf. Thompson v. Aliseda, No. 13-08-00417-CV, 2009 WL 200994, at *3 (Tex. App.—Corpus Christi Jan. 29, 2009, pet. denied) (mem. op.) (holding that because an inmate was "essentially challenging the duration of his incarceration" in his suit, the trial court did not have jurisdiction to grant the inmate the relief he had requested in his petition and therefore the trial court did not abuse its discretion by dismissing the inmate's claims for lack of subject matter jurisdiction).
The trial court dismissed this suit with prejudice. Before a trial court may dismiss an inmate's suit with prejudice due to chapter fourteen filing defects, the inmate must be given a chance to amend his filing. In this case, however, the dismissal was not based on filing defects. Powell cannot assert the claims he brings here without first satisfying Heck, which he has not done. He cannot cure this defect by fixing procedural irregularities. Accordingly, the trial court did not need to provide him with an opportunity to amend his petition before dismissing his suit with prejudice.
See Pena v. McDowell, 201 S.W.3d 665, 665-66 (Tex. 2006) (stating that inmate's failure to comply with section 14.004 could be corrected by amended pleading, so in such cases, dismissal with prejudice was not appropriate). --------
Because we have held that the trial court correctly dismissed Powell's claims, we need not address his first issue asking whether a trial transcript is "property" as defined in the Texas Torts Claims Act. We overrule Powell's second and third issues and affirm the trial court's order of dismissal.
PER CURIAM DELIVERED: July 21, 2016