Opinions Released August 24, 2017

Caruso v. Young, No. 13-16-00376-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Contreras and Benavides)

In this appeal from an action originally filed in a justice court, the Thirteenth Court of Appeals discussed the deadline for appealing a justice court’s judgment in a forcible detainer suit.

Nathaniel Young filed suit against Nathan Caruso and Jennifer Donner (collectively, “Caruso”) in justice court for forcible detainer. Young requested possession of the property, and the justice court signed an agreed judgment awarding possession to Young on March 17, 2015. However, the judgment indicated that Caruso signed the judgment to facilitate a quick de novo appeal to the county court at law, and that no bond would be required.

On April 7, Caruso filed a notice of appeal, and the case was transferred to the county clerk’s office. Young moved to dismiss the appeal as untimely, but the trial court proceeded to the merits and awarded Young possession of the property. Caruso appealed, and Young challenged the Thirteenth Court of Appeals’ jurisdiction and moved to set aside the county court’s judgment and dismiss the appeal.

Held: Caruso did not file a timely appeal of the justice court’s judgment. The county court at law thus lacked jurisdiction, and its judgment was vacated.

The key issue before the Thirteenth Court was the deadline for an appeal from the justice court’s judgment. Young argued that Caruso filed his appeal of the justice court’s judgment outside the 5-day filing deadline applicable to forcible detainer actions, while Caruso argued that the case was governed by the 21-day deadline for appeal because the substance of the claim was just a breach of lease.

The Thirteenth Court held that the 5-day deadline for appeal governed the suit because it was a forcible detainer action. A forcible detainer action allows a person to recover possession of real property from another who refuses to surrender possession, and Young explicitly pleaded this cause of action in his justice court suit. Young alleged that Caruso violated the lease and that he had provided Caruso with a notice to vacate, and Young sought possession of the property and a judgment for court costs and attorney’s fees. The Thirteenth Court thus held that the case was a forcible detainer action, governed by the 5-day deadline for appeal to a county court. Here however, the parties both acknowledged that Caruso did not file a notice of appeal until 19 days after the judgment had been signed. Thus, Caruso failed to perfect a timely appeal of the justice court’s judgment.  Caruso next argued that, even if the 5-day deadline applied, the appeal was proper because the parties and justice court agreed to the appeal. However, the Thirteenth Court of Appeals noted that jurisdiction cannot be created by stipulation or waiver.

The Thirteenth Court vacated the judgment of the county court at law, and dismissed the case.

Read the Full Opinion Here

Lopez v. State, No. 13-16-00502-CR, 13-16-00503-CR & 13-16-00504-CR (Memorandum Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Longoria)

In this appeal, the Thirteenth Court discussed when and how a defendant may collaterally attack the charges alleged in his indictment, even after he has agreed to be placed on—and then violated the terms of—deferred adjudication as punishment for the offense.   

Alex Justin Lopez was indicted for sexual assault, indecency with a child, and child pornography.  In September 2014, he was placed on deferred adjudication for ten years for each offense.

In January 2015, Lopez was indicted for unlawful possession of a firearm based on his felony charge of sexual assault in 2014. The trial court placed Lopez on six years deferred adjudication community supervision for this offense.

The State later moved to revoke Lopez’s community supervision in all causes. In September 2016, the State and Lopez entered into an open plea agreement, in which Lopez agreed to plead true to the allegations in the State’s motion to revoke in exchange for twelve years’ confinement for all three offenses. The trial court rejected the recommendation and sentenced Lopez to twenty years for sexual assault and indecency with a child, and ten years for child pornography and unlawful possession of a firearm. The two twenty-year sentences were ordered to run concurrently, and the two ten-year sentences were ordered to run concurrently, but the twenty-year and ten-year sentences were ordered to run consecutively.

Lopez’s attorney filed Anders briefs in the cause numbers related to the initial three charges—sexual assault, indecency with a child, and child pornography—but challenged Lopez’s conviction for unlawful possession of a firearm. Specifically, Lopez claimed he was not a felon at the time he possessed a firearm.

Held: Lopez’s conviction for unlawful possession of a firearm was void because it was based on no evidence, and the corresponding judgment was reversed and rendered. Lopez’s remaining convictions however, provided no grounds for even alleging reversible error under the controlling authorities, and were affirmed.

Unlawful Possession

The Thirteenth Court of Appeals began by clarifying the procedural posture of Lopez’s challenge to his unlawful possession conviction, noting that Lopez was collaterally attacking the underlying charge rather than attacking the most immediate decision to revoke his community supervision for unlawful possession of a firearm. Generally, the Court of Criminal Appeals has held that a defendant placed on deferred adjudication cannot attack the original plea on appeal. However, there is an exception where the conviction is void. A conviction is void if the evidence is legally insufficient.

The crime of unlawful possession of a firearm under Section 46.04 of the Texas Penal Code requires as an element of the offense that the defendant have a felony conviction at the time the relevant firearm is possessed. Deferred adjudication is not the same as a conviction, and does not satisfy the requirements of Section 46.04. Since Lopez was only on deferred adjudication for sexual assault when he possessed the relevant firearm, there was legally insufficient evidence to support a conviction for unlawful possession.

Having found the conviction legally insufficient, the court was required to consider whether the evidence could support a lesser included offense. However, even assuming unlawful carrying  of a weapon was a lesser included offense of unlawful possession of a firearm, unlawful carrying is based on the defendant’s location at the time of the carrying—specifically, the fact that the defendant is not on his own property or inside or en route to his motor vehicle or watercraft. Since the record contained no evidence regarding Lopez’s location when he possessed the firearm, there was no evidence to support an unlawful carrying charge.

Thus, Lopez’s conviction for unlawful possession of a firearm was reversed and the Thirteenth Court of Appeals rendered an acquittal.

Anders Brief

The Thirteenth Court next turned to the Anders briefs, in which Lopez’s counsel moved to withdraw and documented that his review of the record produced no grounds for alleging reversible error of Lopez’s convictions for sexual assault, indecency with a child, and child pornography. Lopez’s counsel properly detailed why there was no reversible error under the controlling authority, and affirmed that he had notified Lopez that he filed an Anders brief and motion to withdraw; that he provided Lopez with copies of the pleadings and informed him of his rights to file a pro se response and to seek discretionary review; and that he had provided Lopez with a form motion for pro se access to the appellate record. Lopez did not file a pro se response, and the Thirteenth Court—after independently reviewing the record—agreed with Lopez’s counsel that there was no grounds for alleging reversible error.  Thus, the trial court’s judgment was affirmed as to the sexual assault, indecency with a child, and child pornography charges, and Lopez’s counsel was permitted to withdraw from the corresponding cause numbers.

Read the Full Opinion Here