State v. 1998 Cadillac 4-Door or Frank Stewart ( 2004 )

NO. 07-04-0392-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 20, 2004
______________________________
STATE OF TEXAS, APPELLANT
V.
1998 CADILLAC 4 DOOR, ET AL., APPELLEES
_________________________________
FROM THE 4TH DISTRICT COURT OF RUSK COUNTY;
NO. 2002-220; HONORABLE J. CLAY GOSSETT, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION ON MOTION TO DISMISS
The State of Texas, acting through the Office of the Attorney General, seeks to
appeal an order granting a bill of review of a prior order forfeiting money. Because no
appeal may be brought from the order at issue, we will dismiss the appeal.
The briefs and record before us indicate the State seized property in May 2002
pursuant to warrants alleging the property was either gambling devices or gambling
proceeds. The State then initiated three proceedings. In cause number 2002-220 it sought
forfeiture of three automobiles owned by Frank Stewart. Cause numbers CR2002-120 and
CR2002-124 charged Stewart with engaging in organized criminal activity based on the
operation of gambling devices. In those proceedings the State sought forfeiture of
gambling devices, $38,704.47 in cash, $16,519.91 seized from two bank accounts, and
several items of miscellaneous personal property.
On January 22, 2003, the trial court rendered an agreed judgment in cause number
2002-220 returning two of the vehicles to Stewart and forfeiting the other vehicle to the
State. Stewart was convicted of possession of a gambling device in both criminal
proceedings pursuant to pleas of guilty. In cause number CR2002-124 the court rendered
an order on January 23, 2003 forfeiting 25 gambling devices, $28,103.14 in cash and
$7,447.45 seized from a bank account as gambling proceeds. It ordered return of six other
items. A March 25, 2003, order nunc pro tunc in cause number CR2002-124 added
forfeiture of an additional $9,072.46.
In cause number CR2002-120 the court’s initial order, rendered January 23, 2003,
also forfeited 25 devices, the same money forfeited in CR2002-124, and ordered return of
the same six items as the order in CR2002-124. An amended order signed February 11,
2003, directed forfeiture of 23 machines and $10,601.33 in cash.
In September 2003 Stewart filed a bill of review petition under cause number 2002-
220 seeking reformation of the forfeiture judgments in CR2002-120 and CR2002-124 to
direct return of the money on the basis the State failed to show it was gambling proceeds.
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The State’s answer asserted, inter alia, that forfeiture of gambling proceeds is automatic
under article 18.18(a) of the Code of Criminal Procedure, without any judicial determination
that funds are gambling proceeds.
Following a hearing on February 18, the trial court signed an order on March 3,
2004, directing the State to deposit the money seized in connection with cause numbers
CR2002-120 and CR2002-124, totaling $55,224.38, into the registry of the court clerk
pending “a final hearing to determine ownership of said funds.”
The trial court overruled the State’s motion for new trial, and the State filed a notice
of appeal on June 1, 2004.
Contemporaneous with filing his brief, appellee Stewart has filed a motion to dismiss
the appeal for want of jurisdiction, arguing the trial court’s March 3 order is interlocutory and
not appealable. We agree. In Jordan v. Jordan, 907 S.W.2d 471 (Tex. 1995), our supreme
court considered a challenge to an order similar to the one at issue here. The court held
“[a] bill of review which sets aside a prior judgment but does not dispose of the case on the
merits is interlocutory and not appealable.” Id. at 472. The order here, like the order in
Jordan, does not purport to dispose of the merits of the case, but contemplates a future
hearing and resolution.
Because this court therefore lacks jurisdiction over the appeal we must, and hereby
do, dismiss the appeal. Tex. R. App. P. 42.3(a).
James T. Campbell
Justice
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