Curtis Lee Sheppard, Jr. v. Wichita County District Attorney's Office, Wichita County District Clerk's Office, 78th District Court of Wichita County, and All Political Subdivisions of the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CURTIS LEE SHEPPARD, JR., §
Appellant, § No. 08-19-00106-CV
v. § Appeal from the
WICHITA COUNTY DISTRICT § 98th District Court of
ATTORNEY’S OFFICE, WICHITA
COUNTY DISTRICT CLERK’S OFFICE, § Travis County, Texas
78TH DISTRICT COURT OF WICHITA
COUNTY, and ALL POLITICAL § (TC# D-1-GN-16-004721)
SUBDIVISIONS OF THE STATE OF
TEXAS, §
Appellees.
OPINION
Curtis Lee Sheppard, Jr., a pro se inmate, appeals from an order dismissing his lawsuit
against Appellees Wichita County District Attorney’s Office, Wichita County District Clerk’s
Office, 78th District Court of Wichita County, and Judge Barney Fudge (Judge of the 78th District
Court). The trial court dismissed that lawsuit as frivolous pursuant to Chapter 14 of the Texas Civil
Practice and Remedies Code (“Chapter 14”) and for lack of jurisdiction. We affirm.1
1
This case was transferred from the Third Court of Appeals, our sister court in Austin, and we decide it in accordance
with the precedent of that court. TEX. R. APP. P. 41.3.
BACKGROUND
Sheppard was convicted in 2010 of possession of a controlled substance (1–4 grams),
enhanced by prior convictions, and was sentenced to 50 years’ imprisonment. Sheppard v. State,
No. 05-11-00852-CR, 2011 WL 6228341, at *2 (Tex. App.—Dallas Dec. 14, 2011, pet. ref’d) (not
designated for publication). That felony conviction was affirmed on appeal by the Dallas Court of
Appeals. Id., at *6.
Sheppard subsequently filed numerous pro se legal actions attempting to overturn his
conviction. See Sheppard v. State, No. 02-12-00320-CR, 2012 WL 4121221, at *1 (Tex. App.—
Fort Worth Sept. 20, 2012, no pet.) (mem. op.) (not designated for publication) (dismissed for lack
of jurisdiction); In re Sheppard, No. 02-12-00423-CV, 2012 WL 5258707, at *1 (Tex. App.—Fort
Worth Oct. 25, 2012, orig. proceeding) (mem. op.) (denying petition for writ of mandamus); In re
Sheppard, No. 02-13-00011-CV, 2013 WL 135749, at *1 (Tex. App.—Fort Worth Jan. 11, 2013,
orig. proceeding) (mem. op.) (dismissing petition for writ of mandamus for lack of jurisdiction);
In re Sheppard, No. 05-13-00415-CV, 2013 WL 1688360, at *1 (Tex. App.—Dallas Apr. 18, 2013,
orig. proceeding) (mem. op.) (dismissing petition for writ of habeas corpus for lack of jurisdiction);
Sheppard v. State, No. 02-12-00234-CR, 2013 WL 3488264, at *1 (Tex. App.—Fort Worth July
11, 2013, pet. ref’d) (mem. op.) (not designated for publication) (affirming denial of Chapter 64
motions for forensic DNA testing); Sheppard v. State, No. 02-14-00079-CR, 2014 WL 2047924,
at *1 (Tex. App.—Fort Worth May 8, 2014, pet. ref’d) (mem. op.) (not designated for publication)
(dismissing appeal for lack of jurisdiction); In re Sheppard, No. 02-17-00141-CV, 2017 WL
2351094, at *1 (Tex. App.—Fort Worth May 5, 2017, orig. proceeding) (mem. op.) (dismissing
petition for writ of mandamus for lack of jurisdiction).
2
The Texas Court of Criminal Appeals eventually barred Sheppard from filing further
challenges in that court finding the pattern of conduct showed an abuse of the writ of habeas
corpus:
This Court’s records reflect that Applicant has filed many prior applications
pertaining to this conviction. It is obvious from the record that Applicant continues
to raise issues that have been presented and rejected in previous applications or that
should have been presented in previous applications. The writ of habeas corpus is
not to be lightly or easily abused. Sanders v. U.S., 373 U.S. 1 (1963); Ex parte Carr,
511 S.W.2d 523 (Tex. Crim. App. 1974). Because of his repetitive claims, we hold
that Applicant’s claims are barred from review under Article 11.07, § 4, and are
waived and abandoned by his abuse of the writ.
Ex parte Sheppard, No. WR-19,359-24, 2019 WL 2363145, at *1 (Tex. Crim. App. June 5, 2019),
cert. denied sub nom. Sheppard v. Texas, 140 S. Ct. 441 (2019); see Sheppard v. Davis, No. 7:18-
CV-178-O-BP, 2019 WL 764477, at *1 (N.D. Tex. Feb. 20, 2019) (dismissing suit as barred by
Fifth Circuit sanctions order for repeatedly filing frivolous pleadings challenging his conviction).
In September 2016, amid this flurry of legal actions, Sheppard filed the present lawsuit
against Appellees. While Sheppard frames the suit as one for declaratory and injunctive relief, the
crux of the suit is a challenge to his 2010 conviction2 and the relief he ultimately requests is that
that conviction be “reverse[d] and dismiss[ed].”
Appellees filed pleas to the jurisdiction and motions to dismiss Sheppard’s suit pursuant to
Chapter 14. The trial court conducted a telephonic hearing, at which Sheppard appeared and argued
that “ain’t nothing I filed was frivolous. Everything I filed was—had meritorious challenges to this
conviction.” The trial court informed Sheppard that it was not the right court in which to challenge
his conviction; and, thus, it granted the pleas to the jurisdiction and motions to dismiss. The
2
Sheppard’s primary complaint appears to be that the State used an improper enhancement charge in the punishment
phase of his 2010 trial.
3
following day, the court signed an order dismissing the lawsuit as having no arguable basis in law
and for lack of jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2), (b)(2).
Sheppard appealed to the Third Court of Appeals. Thereafter, the Texas Supreme Court transferred
the appeal to this Court.
DISCUSSION
Sheppard raises various arguments challenging his prior criminal conviction and sentence,
as he did in his petition in the court below. The issue before this Court is whether the trial court
properly dismissed those claims as frivolous.
A. Dismissal under Chapter 14
Chapter 14 of the Texas Civil Practice and Remedies Code governs litigation brought by
an inmate who files an affidavit or unsworn declaration of inability to pay costs. TEX. CIV. PRAC.
& REM. CODE ANN. § 14.002(a). Because Sheppard filed such an affidavit, his lawsuit is subject
to Chapter 14.
Section 14.003 of Chapter 14 provides that a court may dismiss a claim if it finds that the
claim is frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In making
that determination, the court may consider whether the claim has no arguable basis in law or in
fact. Id. at § 14.003(b)(2). “A claim has no arguable basis in law only if it is based on (1) wholly
incredible or irrational factual allegations; or (2) an indisputably meritless legal theory.” Camacho
v. Rosales, 511 S.W.3d 82, 86 (Tex. App.—El Paso 2014, no pet.). In making this assessment, we
take the inmate’s allegations as true and review his pro se pleadings “by standards less stringent
than those applied to formal pleadings drafted by lawyers . . . .” Id. Whether a claim lacks an
arguable basis in law presents a legal question which we review de novo. Id. at 85.
4
B. Sheppard’s challenge to his prior felony conviction and sentence
The Court of Criminal Appeals is “the only court with jurisdiction in final post-conviction
felony proceedings.” Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App.
1991). And the procedure set out in Code of Criminal Procedure article 11.07 is “the exclusive
State felony post-conviction judicial remedy available in Texas.” Ex parte Adams, 768 S.W.2d
281, 287 (Tex. Crim. App. 1989) (citing Ex parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983));
see Luttrell v. El Paso Cty., 555 S.W.3d 812, 831 (Tex. App.—El Paso 2018, no pet.); TEX. CODE
CRIM. PROC. ANN. art. 11.07. “In such cases, a convicted defendant is not permitted to seek
equitable, injunctive relief as a ‘post-conviction remedy.’” Luttrell, 555 S.W.3d at 831. A collateral
attack on the procedures or results of a prior criminal trial are not proper matters to be litigated in
a civil proceeding. Kennedy v. Staples, 336 S.W.3d 745, 753 (Tex. App.—Texarkana 2011, no
pet.).
It is apparent from Sheppard’s pleadings in the trial court and his briefing in this Court that
the purpose of his lawsuit is to challenge, and ultimately overturn, his 2010 felony conviction and
sentence. For example, Sheppard alleges in his petition that his indictment and conviction are void
and that an improper enhancement charge was used in his sentencing. The relief he seeks is reversal
and dismissal of his conviction. In his response to the motions to dismiss, he complains of “illegal
restraint/void indictment/void sentence/and/no subject matter jurisdiction” in relation to his prior
conviction and sentence. In objecting to the motions to dismiss, he similarly complains of “illegal
sentence/illegal restraint/void indictments.” And in his brief on appeal, he asserts that his
conviction was the product of corruption and treason.
We conclude that Sheppard’s challenge to his felony conviction and sentence, as raised in
5
this civil proceeding, lacks any arguable basis in law as the trial court has no power or authority to
hear it. See Ater, 802 S.W.2d at 243; Ex parte Adams, 768 S.W.2d at 287. The trial court did not
err by dismissing his lawsuit as frivolous.
CONCLUSION
The order of dismissal is affirmed.
GINA M. PALAFOX, Justice
January 6, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
6