Opinion
No. 05-08-00984-CR
Opinion Filed August 28, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 002-81238-06.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
Richard John Florance, Jr. was charged by information with failure to release a fraudulent lien or claim, a class A misdemeanor. See Tex. Penal Code Ann. § 32.49 (Vernon 2008). A jury found him guilty and the trial court sentenced him to six months in jail and a $2,000 fine. The background of this case and some of its related litigation are detailed in opinions of this Court and other courts; we do not repeat them here. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Florance is appearing pro se. We hold pro se litigants to the same standards as a licensed attorney and do not grant them any special consideration. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). While we broadly construe appellant's issues in the interest of justice, we have no duty to make an independent review of the record and applicable law to determine whether the complained-of errors occurred. See Cavender v. State, 42 S.W.3d 294, 296 (Tex. App.-Waco 2001, no pet.). We will not make appellant's arguments for him, nor will we address any issues that are inadequately briefed. See Tex. R. App. P. 38.1(h); Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (agreeing with court of appeals that inadequately briefed complaint was properly overruled). Appellant's first point challenges the trial court's jurisdiction. He argues that his interlocutory appeal of a transfer order and an appeal from the denial of his pretrial petition for habeas corpus deprived the trial court of jurisdiction under the "collateral order doctrine." Florance cites no authority in his brief that the collateral order doctrine, even if it applied to state court criminal proceedings, would deprive the trial court of jurisdiction to proceed to trial. See Taylor v. State, 268 S.W.3d 752, 754 (Tex. App.-Waco 2008, pet. ref'd) (collateral order doctrine is federal doctrine of appellate jurisdiction for certain collateral orders, but not recognized in Texas), cert. denied, ___ U.S. ___, 129 S.Ct. 2161 (2009). We overrule Florance's first point. In his second point, Florance argues the State did not have standing to prosecute him because it did not show an actual grievance. This point appears to challenge the State's standing to sue as if this were a civil proceeding. This is, however, a criminal proceeding and criminal proceedings are prosecuted in the name of the State of Texas against the accused. See Tex. Code Crim. Proc. Ann. art. 3.02 (Vernon 2005). The district attorneys and county attorneys shall represent the State in all criminal cases. Id. arts. 2.01, 2.02; Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002) (Texas "Constitution gives the authority to prosecute criminal cases to the county attorneys, criminal district attorneys, and district attorneys, under the regulation of the legislature"). Thus, the State has standing to prosecute a violation of the penal code. In the argument under this point, Florance asserts the "Florance's First Notice of Lien" was not admissible in evidence. We disagree. The notice was a certified copy of the document filed in the county court proceeding and the trial court did not abuse its discretion in overruling Florance's general objections of no foundation and relevance. See Tex. R. Evid. 103(a)(1), 401, 901; Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002) (abuse of discretion standard of review); Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985) (no foundation objection does not preserve error). We overrule Florance's second point. Florance's points three through six challenge the constitutionality of penal code section 32.49 and government code section 51.901. Tex. Penal Code Ann. § 32.49; Tex. Gov't Code Ann. § 51.901 (Vernon Supp. 2008). We rejected these arguments in Florance I and Florance presents no additional reasons for changing our analysis. See Florance I, 2007 WL 2460088, at *2-*6. We overrule points three through six. In his seventh point, Florance argues that unequal enforcement vitiates the statute. A claim of selective prosecution must be supported by evidence showing others similarly situated have not been prosecuted for similar conduct and that the State's selection of the defendant for prosecution was based on an impermissible classification such as race, religion, or other arbitrary classification. See Armendariz v. State, 529 S.W.2d 525, 527 (Tex. Crim. App. 1975); Garcia v. State, 172 S.W.3d 270, 273-74 (Tex. App.-El Paso 2005, no pet.) ("An appellant claiming selective prosecution must come forth with 'exceptionally clear evidence' that the prosecution was initiated for an improper reason."). The record here does not support either requirement. Florance merely developed testimony that other notices of lien have been filed in Collin County. There is no evidence in the record that those notices were fraudulent as described by government code section 51.901, or that others who refused to execute a release within twenty-one days of receipt of a notice requesting such release were not prosecuted for refusing to do so. We overrule Florance's seventh point. In his eighth point, Florance raises a double jeopardy argument regarding the civil proceeding under government code section 51.903. See In re Purported Lien or Claim against Taylor, 219 S.W.3d 620, (Tex. App.-Dallas, pet. denied [mand. denied]), cert. denied, ___ U.S. ___, 128 S.Ct. 317 (2007). He claims he is being subjected to multiple punishments for the same offense. See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006) (three distinct types of double jeopardy claims are: (1) second prosecution for same offense after acquittal; (2) second prosecution for same offense after conviction; and (3) multiple punishments for same offense). Florance argues the civil findings in the 401st district court were punitive because they compelled forfeiture "of a perfectly lawful claim, and of the secured creditor status that accompanies that claim" in an ex parte proceeding. However, as we explained in Taylor, the 401st district court entered the findings and conclusions following the statutory language in section 51.903. Taylor, 219 S.W.3d at 623. Those findings and conclusions were merely a ministerial determination that the purported lien was fraudulent under section 51.901(c); the district court made "no finding as to any underlying claims of the parties involved, and expressly limit[ed] its findings of fact and conclusions of law to the review of a ministerial act." Further, the findings imposed no penalty on Florance; the findings simply directed the county clerk to file them in the same records as Florance's notice of lien. See Tex. Gov't Code Ann. § 51.903(e) (after reviewing documentation or instrument district judge shall enter appropriate finding of fact and conclusion of law, which must be filed and indexed in same class of records in which documentation or instrument was filed). Even if this civil finding amounted to a forfeiture, a civil in rem forfeiture is not punishment for purposes of double jeopardy. See United States v. Ursery, 518 U.S. 267, 278, 287 (1996). We conclude the civil proceedings in the 401st district court under government code chapter 51 were not so punitive either in purpose or effect as to transform the civil findings into a criminal penalty. See Hudson v. United States, 522 U.S. 93, 104 (1997). We overrule Florance's eighth point. In his ninth point, Florance argues neither the original nor the amended information presents facts and circumstances constituting an offense. He appears to raise again his constitutional challenges to the statutes. We have already rejected Florance's constitutional challenges to the statutes and do not repeat that analysis here. See Florance I, 2007 WL 2460088, at *2-*6. Subject to rare exceptions, a charging instrument tracking the language of the statute satisfies constitutional and statutory notice requirements. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The amended information here tracked the language of penal code section 32.49 and government code section 51.901(c)(2)(A) and (B) and gave additional information descriptive of the offense. We conclude the amended information provided sufficient notice for Florance to prepare a defense. See Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2056 (2008). We overrule Florance's ninth point. Florance's tenth point is inadequately briefed, but appears to challenge the county court at law's ability to "produce the demanded Venire." Florance fails to explain or show in the record how the composition or selection of the venire panel violated his right to an impartial jury. His comment that "[t]o understand the 'funny money' scam, which is discussed at length in the Motion to Quash, is to understand a great deal about 'this state', its relation to TX, and its distinction from Texas" presents nothing for review. See Tex. R. App. P. 38.1; Roberts, 273 S.W.3d at 326 (inadequately briefed complaint properly overruled). We overrule Florance's tenth point. Florance's eleventh point asserts the jury charge improperly shifted the burden of proof and did not instruct the jury on the State's burden to negate "exceptions." Throughout his brief, Florance asserts-without meaningful analysis or citation of relevant authority-that government code section 51.901(c)(2)(A) is an "exception" to the offense defined in penal code section 32.49. See Tex. Penal Code Ann. § 2.02(b) (State must negate existence of exception in charging instrument and prove beyond a reasonable doubt defendant's conduct does not fall within exception). Under penal code section 2.02(a), "[a]n exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of. . . .'" Tex. Penal Code Ann. § 2.02(a). The offense at issue is defined in penal code section 32.49. Id. § 32.49. The language of section 32.49 does not define an exception to the offense using the required language of section 2.02(a). Thus, we reject the assertion that government code section 51.901(c) is an exception to the offense defined in penal code section 32.49. See Hafley v. State, 781 S.W.2d 642, 646 (Tex. App.-Dallas 1989, no pet.). As we said in Florance I, under penal code section 32.49, "the prohibited conduct is the owning, holding, or being a beneficiary of a fraudulent lien or claim and refusing to execute the release of such lien within twenty-one days after receiving notice requesting a release of the lien or claim." Florance I, 2007 WL 2460088, at *4. A person who engages in the prohibited conduct "with intent to defraud or harm another" commits a class A misdemeanor. Tex. Penal Code Ann. § 32.49(a), (c). The purported lien or claim is one that "is fraudulent, as described by Section 51.901(c), Government Code." Id. § 32.49(a)(1); Tex. Gov't Code Ann. § 51.901(c). Government code section 51.901 is not void for vagueness, "imposes no duty upon, nor does it prohibit any conduct of, a defendant charged under 32.49 for refusing to release a lien," and "in no way shifts the State's burden of proof under section 32.49 of the penal code to prove beyond a reasonable doubt that a defendant committed a criminal offense under that section by refusing to release such a lien." Florance I, 2007 WL 2460088, at *5. The application paragraph of the charge included the elements of the offense as defined by penal code section 32.49, and included the relevant portions of government code section 51.901(c). It asked if the jury found beyond a reasonable doubt "that the purported lien was fraudulent, in that the defendant's document purported either to create a lien or assert a claim against property, or to create an interest in property; and that the filed document was neither provided for by the constitution or laws of this state or of the United States, nor created by the implied or express consent or agreement of the obligor, debtor, or the owner of the property, Brenda Taylor, or by an owner of an interest in the property, if an interest-owner's consent or agreement is required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person." The jury charge instructed the jury on the law applicable to the case and applied the law to the facts of the case. The jury was instructed that the burden of proof was on the State and never shifts to the defendant. The charge included the instruction regarding permissive presumptions set out in penal code section 2.05(a)(2). Tex. Penal Code Ann. § 2.05(a)(2). Thus, we again conclude penal code section 32.49 "is neither void for vagueness nor does it shift the State's burden of proving appellee's guilt of the charged offense beyond a reasonable doubt." Florance I, 2007 WL 2460088, at *6. We overrule Florance's eleventh point. In his twelfth point, Florance asserts his sentence was illegal because there "was no evidence of any criminal violation from trial, and nothing submitted for sentencing was agreed to." The cases he cites involve the requirement for jury findings to support punishment enhancements and do not apply here because Florance's sentence was not enhanced. See, e.g., Blakely v. Washington, 542 U.S. 296 (2004). Florance was sentenced within the range of punishment for a class A misdemeanor. Tex. Penal Code Ann. § 12.21 (fine not to exceed $4,000; confinement in jail for term not to exceed one year; or both). We overrule Florance's twelfth point. In his thirteenth point, Florance asks "[m]ay the trial court compel the defendant to agree to specific waiver language?" He refers to pretrial proceedings where he waived his right to representation of counsel, but objected to the language in the standard form used by the court for waiver of the right to counsel. See Tex. Code Crim. Proc. Ann. art. 1.051(g). Florance eventually signed the form under protest and conducted his own defense throughout these proceedings. Florance does not contend he was denied the right to represent himself without counsel or that he did not knowingly or voluntarily waive his right to counsel. He objects only to the language in the form, but fails to show how he was harmed or that his substantial rights were affected. Tex. R. App. P. 44.2(b). This argument presents nothing for review. We overrule Florance's thirteenth point. In his fourteenth point, Florance argues, citing only civil cases and rules of civil procedure, that the district attorney and his assistants failed to prove their authority as agents of the State to prosecute this case. The district and county attorneys of Texas are authorized to represent the State in all criminal prosecutions. See Tex. Const. art. V, § 21; Tex. Code Crim. Proc. Ann. arts. 2.01-.02; Saldano, 70 S.W.3d at 876. A district attorney may employ, hire or retain any assistant prosecuting attorneys, or any other personnel, that he deems necessary for the proper operation and administration of his office. Tex. Gov't Code Ann. § 41.102. An assistant prosecuting attorney may "perform all duties imposed by law on the prosecuting attorney." Id. § 41.103(b). The civil laws cited by Florance do not apply in this criminal proceeding. See, e.g., Tex. Code Crim. Proc. Ann. art. 1.02 (code of criminal procedure governs all criminal proceedings); Tex. R. Civ. P. 2 (rules of civil procedure govern procedure in justice of the peace, county, and district courts in all actions of a civil nature). There is no authority requiring a criminal district attorney and his assistants to offer evidence of their authority to act as attorneys representing the State at the request of a defendant in a criminal prosecution. We overrule Florance's fourteenth point. Having overruled all of Florance's points on appeal, we affirm the trial court's judgment.
See State v. Florance, No. 05-07-00088-CR, 2007 WL 2460088 (Tex. App.-Dallas Aug. 31, 2007, pet. dism'd) (not designated for publication) ( Florance I); In re a Purported Lien or Claim Against Taylor, 219 S.W.3d 620 (Tex. App.-Dallas, pet. denied [mand. denied]), cert. denied, 128 S.Ct. 317 (2007); see also Florance v. Buchmeyer, 500 F.Supp.2d 618, 628-31 (N.D. Tex.) (discussing background of cases and dismissing Florance's federal court case against the state judge, federal judge, county district attorney's office, county investigator, county clerk, deputy clerks, attorneys and law firm representing county clerk, city prosecutor, assistant attorney general, county, State of Texas, and United States), appeal dism'd, 258 Fed.Appx. 702 (5th Cir. 2007), cert. denied, 128 S.Ct. 2905 (2008).
As relevant here, section 51.901(c)(2) states:
(c) For purposes of this section, a document or instrument is presumed to be fraudulent if:
. . .
(2) the document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and:
(A) is not a document or instrument provided for by the constitution or laws of this state or of the United States;
(B) is not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person; or
(C) is not an equitable, constructive, or other lien imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States;
Tex. Gov't Code Ann. § 51.901(c) (emphasis added).