Opinion

Victor Cruz Gonzales v. Maritza Antu

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jun 7, 2012
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued June 7, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00890-CV

———————————

victor cruz Gonzales , Appellant

V.

maritza antu , Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2011-46689

MEMORANDUM OPINION

Appellant,

Victor Cruz Gonzales, [1] an inmate in the Texas

Department of Criminal Justice-Institutional Division (the “Department”),

challenges the trial court’s order dismissing, under Chapter 14 of the Texas

Civil Practice and Remedies Code, [2] his lawsuit against

appellee, Maritza Antu , for wrongfully accusing him

of criminal conduct, “incarcerating him,” “taking” his liberty and real

property, violating the Texas Tort Claims Act [3] through various “acts or

omissions,” and breaching her duty as a public servant. [4] In four issues, Gonzales contends that the “criminal

prosecution against [him] was devoid of evidentiary support”; “exculpatory

evidence proves his innocence”; he is entitled to “compensatory and punitive

damages stemming” from his “wrongful imprisonment” and “deprivation of civil

rights”; there was a “conspiracy” relating to his criminal conviction; Antu and Judge Mary Bacon “misuse[d] state property and

abuse[d] their offices”; he has been “deprived of property, [and] loss of

liberty without due process”; and he is entitled to “actual and exemplary

damages for unlawful action.”

We affirm.

Background

Gonzales was convicted of the

offense of aggravated assault [5] in the 183rd district court

of Harris County, and, on May 8, 2008, the Fourteenth Court of Appeals affirmed

his conviction. Gonzales v. State , No. 14-07-00277-CR, 2008

WL 1991776 , at *1 (Tex. App.—Houston [14th Dist.] May

8, 2008, pet. ref’d )

( mem . op.). The

Honorable Mary Bacon presided over the trial in which Gonzales was convicted,

and Antu was the assistant district attorney who

prosecuted the aggravated assault case against him. On August 8, 2011, Gonzales filed

in the underlying court his “Civil Action for Damages for Wrongful Acts in

Deprivation of a Right Secured by the Constitution and Laws of this

State.” In this petition, Cruz alleged

that Antu and Bacon had, among other things, misused

governmental property, committed official misconduct, violated the Texas Tort

Claims Act, and wrongfully incarcerated him for a period of 20 years. Cruz further alleged that Antu

had committed her conduct while acting as a public servant.

Antu filed an answer

in which she asserted the affirmative defenses of prosecutorial immunity,

qualified immunity, and official immunity. The trial court, citing section 14.003 of

Chapter 14, [6] dismissed

Gonzales’s claims. In its dismissal

order, the trial court found that Gonzales’s claims had “no realistic chance of

ultimate success” and “no arguable basis in law or in fact”; Gonzales could not

“prove facts in support of the claim[s]”; Gonzales had failed to serve Judge Bacon

with his suit; even if Gonzales had served Judge Bacon with the suit there was

nothing “in his pleadings that would suggest she [] waived her absolute

judicial immunity”; and “[t]here [was] nothing in the record or [] Gonzales’s

pleadings that would negate any of Maritza Antu’s

affirmative defenses.”

Standard of Review

We generally review a trial court’s

dismissal of an inmate’s suit under Chapter 14 for abuse of discretion. See

Thompson v. Tex. Dep’t of Criminal Justice-Inst. Div. , 33 S.W.3d 412, 414

(Tex. App . —Houston [1st Dist.] 2000, pet. denied); Wilson v. TDCJ-ID , 268 S.W.3d 756, 758

(Tex. App.—Waco 2008, no pet.). When a

lawsuit is dismissed as frivolous for having no basis in law or in fact, and no

fact hearing was held, our review focuses on whether the inmate’s lawsuit has

an arguable basis in law, which we review de novo. Scott v. Gallagher , 209 S.W.3d 262, 266 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). A claim

has no arguable basis in law if it is based on an indisputably meritless legal

theory. Id . In conducting our de novo review, we take as true the

allegations of the inmate’s petition. Id .

Dismissal

Within the substantive argument

portion of his appellate brief, Gonzales asserts that the “alleged victim” of

the aggravated assault “did not direct [his] arrest,” Antu

and the “grand jury exercised sole discretion in deciding to prosecute,” “the

jury should not have concluded that the prosecution ended in the State’s

favor,” there was no “probable cause to commence the criminal proceeding,”

there was a conspiracy between Antu and Judge Bacon

in “allowing grand jury proceedings,” Antu and Bacon

“cannot successfully maintain the defense of immunity,” “malice can be inferred from the initiation of a

prosecution without probable cause,” Antu and Bacon

have misused State property and “prevented” a fair proceeding to determine his

“actual innocence,” he was deprived of property and liberty without due

process, and the “illegal conviction reflected negatively on [his] character.”

Chapter 14 of the Texas Civil

Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac . & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002

& Supp. 2011). Under Chapter 14, a

trial court may dismiss an inmate suit brought in forma pauperis ,

either before or after service of process, by finding that it is frivolous or

malicious. Id . § 14.003(a )( 2). In determining whether

a claim is frivolous or malicious, the trial court may consider whether: (1)

the claim’s realistic chance of ultimate success is slight; (2) the claim has

no arguable basis in law or in fact; (3) it is clear that the party cannot

prove facts in support of the claim; or (4) the claim is substantially similar

to a previous claim filed by the inmate because the claim arises from the same

operative facts. Id . § 14.003(b )( 1)–(4).

In finding that a claim is frivolous or

malicious, the court “may” hold a hearing “before or after service of process”

and “it may be held on motion of the court, a party, or the clerk of the

court.” Id . § 14.003(c).

First, to the extent that Gonzales

appears to be challenging matters that could have been or were raised in his direct

appeal, we note that our sister court has previously affirmed Gonzales’s

conviction following his direct appeal. Gonzales , 2008 WL

1991776 , at *1. Second, we note

that many of the issues raised by Gonzales in his appellate brief, which are

not entirely consistent with those matters that he raised in his petition, would

more appropriately be brought in an application for writ of habeas corpus

rather than in a civil lawsuit brought against the prosecutor and trial judge

of the convicting court. See Blakeney v.

State , No. 06-07-00064-CV, 2007 WL 2947576 , at *2 (Tex. App.—Texarkana Oct.

11, 2007, pet. denied) ( mem . op.) ( dismissing

inmate civil suit pursuant to chapter 14 and noting that “relief ultimately

sought . . . [was] more properly the subject of an application for writ of

habeas corpus”).

Third, we conclude that to the

extent that Gonzales has alleged any facts that relate to any possible claim

against Antu , in either his petition or his appellate

briefing, Gonzales’s claims, as alleged, are barred by prosecutorial

immunity. See Charleston v. Pate ,

194 S.W.3d 89, 90 (Tex. App.—Texarkana 2006, no pet.) (“District attorneys and

other prosecutors are absolutely immune from liability when performing their

prosecutorial functions.”); Bradt v. West , 892 S.W.2d 56 , 69–70 (Tex.

App.—Houston [1st Dist.] 1994, writ denied) (“ Under the functional approach, a prosecutor’s acts that are intimately

associated with the judicial phase of the criminal process are protected by

absolute immunity.”) (citation omitted); see

also Blakeney , 2007 WL 2947576 , at *1 (stating

that district attorneys and prosecutors are “absolutely immune from liability

when performing their prosecutorial functions,” and holding that trial court

correctly dismissed inmate litigation brought against prosecutors because

alleged acts “were all performed in representing the State in prosecuting the

multiple criminal cases” and were “intimately connected with the judicial

process”).

Additionally, to the extent that Gonzales

has alleged any facts that relate to any possible claim against Judge Bacon, Gonzales’s

claims, as alleged, are barred by judicial immunity.

See Bradt , 892 S.W.2d at 66 (citation omitted) (“The

judges of Texas courts have absolute immunity for their judicial acts unless

such acts fall clearly outside the judge’s subject-matter jurisdiction.”).

Accordingly, we hold that the trial

court did not abuse its discretion in dismissing Gonzales’s claims.

We overrule Gonzales’s four issues.

Conclusion

We affirm the order of the trial

court.

Terry

Jennings

Justice

Panel

consists of Chief Justice Radack and Justices Jennings and Keyes.

[1] Cruz represents himself on appeal.

[2]

Tex. Civ. Prac . & Rem. Code Ann.

§§ 14.001–.014 (Vernon 2002 & Supp. 2011).

[3] See

id. §§ 101.001–.109 (Vernon 2005).

[4]

Gonzales also named as a defendant the Honorable Mary

Bacon, who he alleges was the presiding judge of the district court in which he

was convicted of aggravated assault, but he did not serve her, and she is not a

party to this appeal.

[5] See

Tex. Penal Code Ann. § 22.02 (Vernon 2011).

[6] See Tex.

Civ. Prac . & Rem. Code Ann. §§ 14.003(a )( 2) (Vernon 2002) (providing that court may dismiss claim,

either before or after service of process, if the court finds that claim is

frivolous or malicious).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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