Arnaldo Ortiz v. State

NO. 07-08-0076-CR

                                                     NO. 07-08-0077-CR

 

                                             IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 30, 2008

______________________________

ARNALDO ORTIZ,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 46^TH DISTRICT COURT OF WILBARGER COUNTY;

NOS. 10,937 & 11,009; HON. DAN MIKE BIRD, PRESIDING

_______________________________

Memorandum Opinion

__________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Arnaldo Ortiz was convicted of two charges of aggravated sexual assault of his foster daughter. He challenges those convictions by contending that the evidence is legally and factually insufficient to sustain them. We affirm.

          The standards by which we review the legal and factual sufficiency of the evidence are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for a discussion of them.

          Next, the State charged appellant with causing the penetration of M.V.’s sexual organ with his finger and her anus with his penis. At trial, the complainant testified that appellant had done both of these acts. The testimony of a child victim alone, if believed by the trier of fact, is sufficient to sustain the conviction. Bjorgaard v. State, 220 S.W.3d 555, 559 (Tex. App.–Amarillo 2007, pet. dism’d). Consequently, the record contains some evidence upon which a rational factfinder could conclude, beyond reasonable doubt, that appellant committed the offenses at issue.

          However, appellant argues that because his child victim had a sexually transmitted disease in her vaginal area, that he did not have a like disease at the time of testing, and that no evidence appears of record suggesting that he had vaginal intercourse with the child, his convictions lack the support of factually sufficient evidence. We disagree for testimony appears of record illustrating that appellant and his wife had twice suffered from the same disease contracted by the child, that the disease will cure itself in time without medication, that men can be asymptomatic carriers of it, that it can be passed through anal intercourse, and that the victim’s rectum was dilated (which condition may be indicative of anal sexual abuse). This evidence when combined with the complainant’s testimony that appellant was the person who assaulted her was enough to rationally explain why appellant’s negative test does not overcome or otherwise negate that quantum of evidence establishing his guilt. In other words, the jury’s finding is not so against the great weight of the evidence as to be unjust; nor is it supported only by weak evidence.

          According, we hold that the verdicts have the support of both legally and factually sufficient evidence and affirm the judgments.

 

                                                                           Brian Quinn

                                                                          Chief Justice

 

Do not publish.

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NO. 07-10-0039-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL C

 

 FEBRUARY 1, 2011

 

 

 

 

SIX THOUSAND NINETY FIVE DOLLARS AND EIGHTY-FIVE CENTS

U.S. CURRENCY ($6,095.85) (JAMES ORTIZ), APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

 

 

 

 FROM THE 181^ST DISTRICT COURT OF RANDALL COUNTY;

 

NO. 60,312-B; HONORABLE JOHN B. BOARD, JUDGE

 

 

 

Before QUINN, C.J., HANCOCK and PIRTLE, JJ.

 

 

MEMORANDUM OPINION

            Appellant, Six Thousand Ninety Five Dollars and Eighty-Five Cents U.S. Currency ($6,095.85) (James Ortiz) ("Ortiz"), appeals the trial court's order granting summary judgment in the State's favor in a proceeding seeking forfeiture of $6,095.85, pursuant to Chapter 59 of the Texas Code of Criminal Procedure.[1]  In two points of error, Ortiz asserts the State's evidence in support of its motion for summary judgment was (1) legally and (2) factually insufficient.  Because we lack subject matter jurisdiction, we dismiss this appeal.[2] 

Subject Matter Jurisdiction---Standing

            A threshold question in any case is whether the court has subject matter jurisdiction over the pending controversy.  Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).  Standing is a constitutional prerequisite to maintaining any suit; South Texas Water Authority v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007), without which a court lacks subject matter jurisdiction to hear a case.  Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Potter County Attorney's Office v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 467 (Tex.App.--Amarillo 2003, no pet.).[3]  Standing must exist at every stage of the legal proceedings, including appeal; Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), and may be raised by the court sua sponte for the first time on appeal.  Univ. of Texas Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004).  Whether a court has subject matter jurisdiction is a question of law that we review de novo.  First National Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010).

            Chapter 59 authorizes the State to pursue forfeiture of funds that constitute proceeds from illegal drug trafficking.  See art. 59.01-.14.  A forfeiture proceeding under Chapter 59 is a civil en rem proceeding governed by the procedural rules applicable to civil trials and appeals generally.  State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per curiam).  See art. 59.05(a), (b).  In the statutory scheme, property, including currency, is subject to seizure and forfeiture if it is found to be contraband.  Art. 59.02(a).  Contraband is property used or intended to be used in the commission of certain felonies, or proceeds derived from those felonies.  Art. 59.01(2)(A)-(D).  See Silver Chevrolet Pickup, 140 S.W.3d at 692.

            "Standing focuses on the question who may bring an action."  Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1992).  Although a person need only be in possession of the property at the time it was seized to be made a party to the forfeiture proceeding; art. 59.04(j), only property "owners" or "interest holders"[4] are permitted to challenge the forfeiture of property to the State.  Art. 59.02(h)(1).[5]  A person must also be either an "owner" or "interest holder" of the forfeited property to have standing to challenge the forfeiture on appeal.  See $27,920.00 v. State, 37 S.W.3d 533, 538 (Tex.App.--Texarkana 2000, pet. denied); $17,329.00 v. State, 880 S.W.2d 788, 789 (Tex.App.--Houston [1st Dist.] 1993, no writ).

            Throughout the proceedings below, Ortiz consistently maintained that his mother owns the cash at issue.  In his motion for summary judgment and motion for a new trial filed with the trial court, he stated the money belongs to his mother.  On appeal, he continues to aver in his brief and an attached statement that the money belongs to his mother.  Having asserted no property interest, ownership or otherwise, in the money at issue, Ortiz lacks standing to appeal its forfeiture to the State.  See $27,920.00, 37 S.W.3d at 538; $17,329.00, 880 S.W.2d at 789.

Conclusion

            Lacking subject matter jurisdiction of Ortiz's claim, we dismiss this appeal.

 

                                                                                                Patrick A. Pirtle

                                                                                                      Justice 

---

[1]For convenience, Chapter 59 of the Texas Code of Criminal Procedure will be cited throughout the remainder of this opinion as "Chapter 59," and provisions of the Texas Code of Criminal Procedure will be cited as "article _______" or "art. _______."  See art. 59.01-.14 (West 2006 and West Supp. 2010).   

[2]"When a court lacks jurisdiction, its only legitimate choice is to dismiss."  In re John G., 315 S.W.3d 519, 522 (Tex. 2010) (quoting State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994)).

[3]The standing requirement, implicit in the open courts provision of the Texas Constitution, Tex. Const. art. I, § 13 ("All courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have a remedy by due course of law."), contemplates access to the courts only for those litigants suffering actual injury.  The M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 708 (Tex. 2001).

[4]For purposes of Chapter 59, an "owner" is "a person who claims an equitable or legal ownership interest in property"; art. 59.01(6), and an "interest holder" is a "bona fide holder of perfected lien or a perfected security interest in the property.  Art. 59.01(4). 

[5]Chapter 59 states, in pertinent part, as follows:

(h)(1) An owner or interest holder's interest in property may not be forfeited under this chapter if at the forfeiture hearing the owner or interest holder proves by a preponderance of the evidence that the owner or interest holder was not a party to the offense giving rise to the forfeiture and that the contraband; 

(A) was stolen from the owner or interest holder before being used in the commission of the offense giving rise to the forfeiture;

(B) was purchased with:

(i) money stolen from the owner or interest holder; or

(ii) proceeds from the sale of property stolen from the owner or interest holder; or

(C) was used or intended to be used without the effective consent of the owner or interest holder in the commission of the offense giving rise to the forfeiture.