IN THE
TENTH COURT OF APPEALS
No. 10-97-362-CR
No. 10-97-363-CR
No. 10-97-364-CR
CHARLES BACY, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 371st District Court
Tarrant County, Texas
Trial Court Nos. 0627740A, 0632747A & 0632751A
O P I N I O N
Cause No. 10-97-362-CR (Trial Court No. 0627740A) is an appeal by Appellant Bacy of his conviction for engaging in organized crime–burglary of a habitation, for which he was sentenced to 50 years in the Texas Department of Criminal Justice—Institutional Division (TDCJ-ID).
Cause No. 10-97-363-CR (Trial Court No. 0632747A) is an appeal of his conviction for aggravated kidnaping, for which he was sentenced to 50 years in TDCJ-ID.
Cause No. 10-97-364-CR (Trial Court No. 0632751A) is an appeal by Appellant Bacy of his conviction for aggravated robbery, for which he was sentenced to 60 years in TDCJ-ID.
Appellant pled guilty in all three cases on August 26, 1997. It was an open plea. There was no plea bargain. The trial court ordered a pre-trial investigation and set the punishment hearing for October 3, 1997, at which time the trial court sentenced Appellant to 50 years in the burglary case; 50 years in the aggravated kidnaping case; and 60 years in the aggravated robbery case.
There is one reporter's record and the briefs are identical in each case.
Appellant appeals in each case on one identical point of error: "The trial court's punishment of Appellant constituted cruel or unusual punishment in violation of the Texas Constitution."
The range of punishment in each case is the same: Not less than 5 years or more than 99 years or life in TDCJ-ID and a fine not to exceed $10,000.
At the punishment hearing there was evidence that Appellant grew up with very little adult supervision. His mother was deceased, his father was a drug addict, and his sister, five years older than Appellant, was his primary caretaker. Appellant, who is 18 years old, has a child born while he has been incarcerated. Appellant has completed his GED and claims he has found the Lord since his incarceration. He testified that he is sorry for his misdeeds and that his stay in custody has given him a whole new look at life and shown him that this is not where he wants to be for the rest of his life.
Appellant's sole complaint is that the punishment assessed is cruel and unusual in violation of the Texas Constitution. If the punishment assessed is within the range provided by statute, it is not cruel or unusual under the Texas Constitution. Lambright v. State, 318 S.W.2d 653 (Tex. Crim. Ap. 1958); McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Puga v. State, 916 S.W.2d 547, 550 (Tex. App.—San Antonio 1996, no pet.); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, no pet.).
Appellant's punishment in all three cases was within the range of punishment proscribed by the Legislature for each offense. Thus no error is shown.
Appellant's point is overruled in each case. The judgment in each case is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Vance and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed September 9, 1998
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ay: Was the act of the court arbitrary or unreasonable? Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1982); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex. 1970). That an appellate court might have decided a matter within the trial judge's discretion in a different manner does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).
REVIEW OF THIS DISMISSAL
A dismissal under section 13.001(b)(3) is no longer appropriate. See Neitzke v. Williams, 490 U.S. 319, ———, 109 S. Ct. 1827, 1834, 104 L. Ed. 2d 338 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex. App.—Houston [14th Dist.] 1990, writ granted).
third cause of action
We overrule Birdo's second point insofar as his third cause of action is concerned. He alleged in this action that DeBose and Carl "negligently" beat and kicked him and that Furry and Bradley "negligently" failed to provide medical treatment. Although his petition cites section 104.001 of the Texas Civil Practice and Remedies Code, which provides for state liability for certain acts of public servants, Birdo brought suit against the employees as individuals and did not name the state or any state agency as a defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 104.001 (Vernon Supp. 1991). Therefore, the court properly dismissed this claim because the action's realistic chance of ultimate success was slight. See id. at § 13.001(b)(1). Recognizing that the test applicable under the federal statute is the one enumerated in our statute as section 13.001(b)(2) ("a complaint . . . is frivolous where it lacks an arguable basis in law or in fact") and that our duty is to affirm the dismissal if it was proper under any legal theory, we will review the dismissal of this negligence action against DeBose, Carl, Furry, and Bradley to see if Birdo's claims had an arguable basis in law and in fact. See id. at § 13.001(b)(2); Neitzke, 490 U.S. at ———, 109 S. Ct. at 1833; Ross v. Walsh, 629 S.W.2d 823, 826 (Tex. App.—Houston [14th Dist.] 1982, no writ).
The federal counterpart of section 13.001 is section 1915(d) of Title 28, which authorizes federal courts to dismiss in forma pauperis suits "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." See 28 U.S.C.A. § 1915(d) (West 1966). Although the federal statute does not contain guidelines for determining when a suit is frivolous, a dismissal is proper if the claim has no arguable basis in law and fact. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), cert. denied, ——— U.S. ———, 110 S. Ct. 417, 107 L. Ed. 2d 382 (1989); Pugh, 875 F.2d at 438. The "rationale behind granting this power to trial courts is to `prevent abusive or captious litigation' where the in forma pauperis litigant `lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Neitzke, 490 U.S. at ———, 109 S. Ct. at 1831; Thompson v. Erickson, No. 10-90-175, slip op. at 3 (Tex. App.—Waco 1991, n.w.h.). "To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at ———, 109 S. Ct. at 1833. An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit. Id. An example of factually baseless contentions occurs where the petition describes claims arising out of fantastic or delusional scenarios. Id.
Thus, the court could have concluded that Birdo's third cause of action was based on an indisputably meritless legal theory because he did not make the state a defendant. See id.; Tex. Civ. Prac. & Rem. Code Ann. §§ 13.001(b)(2), 104.001 (Vernon Supp. 1991).
first and second causes of action
As to Birdo's first two causes of action, we hold that the dismissal was improper. Birdo's first claim was that DeBose, "acting alone and in concert [with Carl] without any provocation or justification, roughly and tightly grabbed [him] by the neck" while he was handcuffed. He further alleged that he was "slammed" to the floor and hit and kicked by the men. He stated that he suffered physical injuries as well as mental anguish. The petition clearly alleged that the guards were not acting in good faith nor within the scope of their authority. Therefore, they enjoyed no immunity from personal liability. See Johnson, 799 S.W.2d at 347. This action against Carl and DeBose was based on valid legal theories—the common-law torts of assault and battery.
Birdo's second claim was also based on a valid legal theory. Section 1983 of Title 42 of the United States Code imposes liability on "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . . " 42 U.S.C.A. § 1983 (West 1981). Birdo complained in this action that DeBose and Carl violated his constitutional rights of "freedom of speech" and "petition for redress" under the 1st and 14th amendments by intentionally and maliciously, and without provocation, assaulting him in retaliation for letters Birdo had written to the Federal Bureau of Investigation and to certain female prison employees. The petition stated that the letters sent to the F.B.I. informed it that DeBose had told Birdo that certain white officers were plotting to "get [him] real good or kill [him]." Birdo alleged that, as DeBose and Carl were "repeatedly" kicking and beating him, they were saying, "No more letters, no more letters." These allegations were sufficient to raise possible 1st and 14th amendment violations. See, e.g., Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971) (holding that, under the 14th amendment, "no person subject to the power of government can be denied communication with or access to each of the three spheres of governmental authority"); Woods v. Aldworth, 561 F. Supp. 891, 892 (N.D. Ill. 1983) (recognizing that prisoners have a right under the 1st and 14th amendments to receive communication free from arbitrary or unjustified governmental interference). Although he did not specifically cite the particular constitutional violation, Birdo's petition also raises a section 1983 claim for violations of his rights under the 8th amendment. See U.S. Const. amend. VIII. The 8th amendment prohibits the infliction of cruel and unusual punishment. See id. Because prison inmates' complaints are to be construed liberally, we hold that Birdo's allegations of assault in his section 1983 claim were sufficient to allege a violation of his rights under the 8th amendment. See id.; Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. 1981); Morgan v. LaVallee, 526 F.2d 221, 224 (2nd Cir. 1975); see also Blake v. Katter, 693 F.2d 677, 682 (7th Cir. 1982) (holding that a pro se section 1983 complaint was not subject to dismissal even though plaintiff's claim should have been brought under the 14th amendment instead of the 8th amendment).
We are not saying that we believe Birdo will prevail on any or all of his claims or that he could even win a summary judgment hearing. However, as the court stated in Green v. McKaskle:
It is, of course, not always easy to determine whether a claim is frivolous simply by examining the pleadings. Prisoner complaints are notoriously difficult to decipher, and pro se pleadings must be construed liberally. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). Unless the frivolousness of a claim is facially apparent, it is `incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same.'
Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). The United States Supreme Court has held that even a petition which fails to state a claim, which would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6), is not necessarily frivolous. See Neitzke, 490 U.S. at ———, 109 S. Ct. at 1833-34; Fed. R. Civ. P. 12(b)(6).
We do not see how the court could determine, based upon the allegations in Birdo's first two causes of actions, that his realistic chance of ultimate success was slight. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(1) (Vernon's Supp. 1991). And, applying the standard set out in Neitzke, we do not believe that Birdo's claims were based on an "indisputably meritless legal theory" or that his factual allegations were "clearly baseless." See Neitzke, 490 U.S. at ———, 109 S. Ct. at 1833.
summary
We hold that the court's dismissal of Birdo's suit was unreasonable and sustain point two as to Birdo's claims against DeBose and Carl for assault and battery and for violations of section 1983. See Smithson, 665 S.W.2d at 443; Landry, 458 S.W.2d at 651; 42 U.S.C.A. § 1983 (West 1981).
CONSTITUTIONAL CHALLENGES
Point one asserts that the dismissal under (b)(1) and (3) of section 13.001 violated Birdo's constitutional rights under the 1st and 14th amendments to the United States Constitution. See U.S. Const. amends. I, XIV. Birdo made a constitutional challenge in the trial court by filing a "Motion to Vacate Final Order of Dismissal and Motion for Hearing" after his suit was dismissed.
We do not reach this point because Birdo's section 104.001 claim—the state liability claim—would have been properly dismissed under section 13.001(b)(2) even if (b)(1) and (b)(3) are unconstitutional. See Tex. Civ. Prac. & Rem. Code Ann. §§ 13.001(b)(2), 104.001 (Vernon Supp. 1991). And further, we do not reach point one because the dismissal of Birdo's first two causes of action was improper irrespective of the constitutionality of (b)(1) and (b)(3). See id. at § 13.001(b)(1),(3).
CONCLUSION
The cause is reversed and remanded for further proceedings in accordance with this opinion.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Reversed and remanded
Opinion delivered and filed October 30, 1991
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