Zaid Albana v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00083-CR

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ZAID ALBANA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 114th Judicial District Court

Smith County, Texas

Trial Court No. 241-1413-03

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Zaid Albana appeals from his conviction for murder. Albana pled guilty to the murder of Rouzheen Arainpour, and the trial court sentenced him to life imprisonment. On appeal, Albana argues that the Texas defense of insanity is unconstitutional on its face and as applied to him because it results in cruel and unusual punishment by excluding serious mental illnesses. We affirm the judgment of the trial court.

            Albana and Arainpour had been friends since childhood, but recently had some differences. Kelly O'Dell, Arainpour's girlfriend, testified that it bothered Arainpour "a lot" that he had lost his childhood friend. Albana and Arainpour arranged to meet at Barnes & Noble in Tyler, Texas. Albana confronted Arainpour in front of the store. During the confrontation, Albana shot Arainpour with a rifle. Arainpour stumbled into the Barnes & Noble store bleeding profusely. Albana followed Arainpour into the store while carrying the rifle and screamed: "How do you like that now? How does it feel now?" Albana then fired a second shot into the ceiling of the store, stated that he had "no beef with any of the rest of you," and then calmly left the store. Arainpour eventually died from the gunshot wound.

            During the punishment phase, the defense presented several experts who testified that Albana was suffering a delusional disorder, which the experts referred to as a persecutory delusion. Delusion results from a fixed false belief, which the victim believes is true. Albana believed that Arainpour posed a threat to him and wanted to put an end to the fear he felt Arainpour posed. According to the experts, there was a causal connection between the delusional disorder and the commission of the offense. The experts, though, testified Albana knew that his conduct was wrong.

            On appeal, Albana argues that the Texas insanity defense is unconstitutional on its face and as applied to him. According to Albana, the standard results in cruel and unusual punishment because the standard does not consider major mental illnesses which affect the defendant's culpability.

            In Helms v. State, the Texas Court of Criminal Appeals held that, "Where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claimed deprivation of federal due process are waived." Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972), overruled in part, Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000). The Helms rule was modified in Young, 8 S.W.3d at 666–67. Under Young, a defendant's right to challenge errors occurring before his or her guilty or nolo contendere plea are waived "only when the judgment of guilt was rendered independent of, and is not supported by, the error." Id. (finding that the judgment of guilt was not independent of a pretrial ruling on a motion to suppress). While both bargaining and nonbargaining defendants can appeal rulings on written pretrial motions and jurisdictional issues, "a non-bargaining defendant pleading guilty may be able to appeal an error not raised on a written pre-trial motion, if it is otherwise preserved and survives Young." Monreal v. State, 99 S.W.3d 615, 619–20 (Tex. Crim. App. 2003).

            Albana did not raise the constitutionality of the defense of insanity at trial. Albana at no time objected on the basis that the Texas insanity defense was unconstitutional, and he filed no pretrial motions challenging the constitutionality of the insanity defense. In general, the Texas Rules of Appellate Procedure require a timely, specific objection as a prerequite to presenting a complaint for appellate review except for fundamental error. Because Albana did not preserve error, he cannot complain for the first time on appeal that the Texas insanity defense is unconstitutional as applied to him.

            A defendant may raise a facial challenge to the constitutionality of a statute for the first time on appeal. To succeed on a facial challenge to a statute, the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992); Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990). Because Albana has failed to demonstrate that no set of circumstances exists under which the statute would be valid, he has not met his burden concerning his facial challenge.

            We affirm the judgment of the trial court.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          February 22, 2005

Date Decided:             March 17, 2005

Do Not Publish

, serif">Standing

            Implicit in the concept of subject-matter jurisdiction, standing is a prerequisite to maintaining a suit. It "stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision." Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001); Tex. Ass'n of Bus., 852 S.W.2d at 443–44. As such, standing is essential to the authority of a court to decide a case, identifies those suits appropriate for judicial resolution, and cannot be waived. Brown, 53 S.W.3d at 305; Tex. Ass'n of Bus., 852 S.W.2d at 443, 445–46. If a plaintiff lacks standing, the trial court has no jurisdiction and must dismiss the entire case. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707–08 (Tex. 2001); Am. Nat'l Ins. Co. v. Cannon, 86 S.W.3d 801, 806 (Tex. App.—Beaumont 2002, no pet.).

            A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a dilatory plea is not to force the plaintiff to preview his or her case on the merits, but to establish a reason why the merits should never be reached. Id. Thus, our task is not to decide the merits of Forth's case, but rather to examine her pleadings, taking as true the facts pled, to determine whether those facts support jurisdiction in the trial court. Penley v. Westbrook, 146 S.W.3d 220 (Tex. App.—Fort Worth 2004, no pet. h.). "When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226; Bland, 34 S.W.3d at 555.  

            Unless standing is conferred by statute, a plaintiff must show an interest in a conflict distinct from that of the public at large. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). That is, "standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and 'a real controversy between the parties, which . . . will be actually determined by the judicial declaration sought.'" Brown, 53 S.W.3d at 305 (quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995)).

Forth Has No Standing as to Future Claims or Claim Practices

            Fatal to Forth's request for prospective relief is the standing requirement that a plaintiff's alleged injury will be redressed by the judicial declaration sought. See Brown, 53 S.W.3d at 305. When Forth conceded she was no longer an Allstate insured, she effectively removed herself from among those who could potentially sustain future harm resulting from Allstate's ongoing claims review process. Because Forth is no longer insured by Allstate, she cannot be injured or threatened with injury by any of Allstate's future practices and, thus, would have no personal stake in any litigation that might arise from them. See Novak, 52 S.W.3d at 707–08.

            In Williams, the Texas Supreme Court was asked to determine whether two former inmates had standing to pursue declaratory and injunctive relief against Tarrant County in an attempt to stop a religious education program alleged to be in violation of constitutional protections. 52 S.W.3d at 175–76. The court reasoned that, because the plaintiffs were no longer inmates, they no longer faced the allegedly unconstitutional conduct about which they complained and would, thus, not be affected by the requested relief. Id. at 184. Similarly, a plaintiff, who sought to enjoin a manufacturer's continuing distribution of certain health products that allegedly injured him, lacked standing because he testified he had no intention of ever again using the product. MET-Rx USA, Inc. v. Shipman, 62 S.W.3d 807, 810–12 (Tex. App.—Waco 2001, pet. denied).

            Once the controversy between two parties ceases to exist, the case becomes moot. That is, "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Williams, 52 S.W.3d at 184 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Because Forth is no longer an Allstate insured, she has no standing to seek an injunction against Allstate's ongoing policies. That relief will not redress any injuries she suffered in the past. See Shipman, 62 S.W.3d at 811.

Forth Has Standing as to Her Past Claims

            Forth does, on the other hand, have standing to seek to require Allstate to review her previously processed claims. If she can prove her allegations—that she has suffered a distinct injury from Allstate's alleged wrong—a real controversy exists between the parties (i.e., Forth's injury is causally connected to Allstate's allegedly unlawful conduct), and the controversy will be actually determined by the judicial remedies sought. See Brown, 53 S.W.3d at 305. Allstate presses two principal arguments on this issue.

            Allstate first argues that, because Forth has abandoned any request for damages, she cannot seek an injunction requiring the review of earlier claims. But one can seek an injunction and declaratory relief without seeking a money judgment for damages. The question is whether she seeks redress of a justiciable issue. If Forth ultimately is awarded the relief she seeks, Allstate will be required to review her claims. She also asks that the order contain language that if, on Allstate's ordered review of her claims, Allstate determines she has not been paid a "reasonable" amount for her claims, Allstate should then pay her enough to bring her total payments from Allstate to that newly-determined reasonable total. Though that payment, if any, would not be specified in the judgment Forth now seeks, such does not negate the fact that she has pled a justiciable controversy as to her past claim. A fair reading of her live pleading would provide her payment, not of a numerical sum reduced to judgment, but of whatever sum Allstate determines she is due, once it has reviewed her claim using the alternate method she describes.

            Allstate also argues Forth does not have standing because she cannot demonstrate actual or even threatened injury. That is, even though Forth maintains that Allstate has refused to pay her medical bills in full, she has failed to allege that she has had to pay any of the disputed balance or that her medical providers have pursued her for any unpaid services. This position, however, is insupportable in light of Allstate's contractual obligations. By the terms of its own policy, Allstate agreed to pay the reasonable expenses incurred for necessary medical services, not those actually paid by the insured.

            The relevant portion of Forth's personal injury protection coverage benefits under her Allstate policy confirms this:

Insuring Agreement

A. We will pay Personal Injury Protection benefits because of bodily injury:

            1. resulting from a motor vehicle accident; and

            2. sustained by a covered person.

Our payment will only be for losses or expenses incurred within three years from the date of the accident.

B. Personal Injury Protection benefits consist of:

            1. Reasonable expenses incurred for necessary medical and funeral services.

(Emphasis added.) There is no requirement under the policy that an insured first demonstrate out-of-pocket expenses or potential future liability in order to demand payment. Under the circumstances, payment is restricted only by set policy limits and the reasonableness of the expenses incurred for medical services made necessary because of bodily injury resulting from a motor vehicle accident. There is nothing in the record indicating any policy conditions have not been met beyond the disputed reasonableness of the expenses.

            In Texas, PIP benefits are recoverable regardless of whether an insured has been made to pay for necessary medical services. In Am. Indem. Co. v. Olesijuk, 353 S.W.2d 71, 72 (Tex. Civ. App.—San Antonio 1961, writ dism'd w.o.j.), for example, a United States Navy physician suffered bodily injuries when he was involved in a motor vehicle accident. After incurring expenses for the treatment he received at a civilian hospital, the physician was reimbursed by the Navy. Id. at 73. The defendant insurance company argued that, because the plaintiff's treatment expenses were paid by the government, he owed no debt, suffered no loss, and consequently incurred no actual expenses. The insurer, therefore, maintained it was not obligated under its policy to pay for the already-satisfied expenses. Id. The court disagreed:

The fact that the insured has other arrangements for the reimbursement of his expenses does not operate to relieve [the insurer] of its obligation as expressed in its contract in plain, certain and unambiguous language. If [the insurer] desired to limit its liability to actual loss or damage ultimately suffered by the insured, it could have and should have done so in its policy.

Id. (citation omitted).

            In a similar case, which relied in part on Olesijuk, the Texas Supreme Court determined that an insurer was still obligated to pay expenses incurred despite direct payment of those expenses by Medicare. Black v. Am. Bankers Ins. Co., 478 S.W.2d 434 (Tex. 1972). The court noted that the word "incur" means simply to become liable and that the insured, who selected the treatment facility, "occasioned," "caused," or "brought on" the obligation to pay for the services rendered. Id. at 437 (citing Olesijuk, 353 S.W.2d at 72). The court held, as a matter of law, that, when an insured receives healthcare services, there is created an implied contract to pay for those services, and the insured is liable until he or she (or a third party) pays the bill. Id. The fact that an insured's action may create a derivative obligation on the part of a third party to pay or reimburse the expenses does not in any way affect the insured's obligation under the implied contract between the insured and the healthcare provider. Id. If a derivative obligor fails to pay, the healthcare provider would still have some legal remedy against the insured. Id. at 437–38.

            The facts—that Forth did not have any out-of-pocket expense or that Forth's healthcare providers are now likely barred by the applicable statute of limitations from collecting from Forth the portion of her expenses left unpaid—do not change this analysis. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002). The point is that Forth incurred necessary medical expenses because of bodily injuries resulting from a motor vehicle accident and that Allstate, by the terms of its own policy, agreed to pay those expenses, if reasonable. Anything less than the payment of a reasonable amount of those expenses would result in a distinct injury to Forth—that is, receiving less than the sums for which she contracted. Therefore, Forth has standing to seek a new review, using a reasonableness standard, of her claim previously reviewed by MBRS and its eighty-fifth percentile standard.

Conclusion

            Although the trial court was correct in dismissing that portion of Forth's case addressing Allstate's use of MBRS or its methodology on future claims, it erred in granting Allstate's motion to dismiss as to its review of Forth's past claim, because Forth does have standing to pursue declaratory and injunctive relief seeking Allstate's re-evaluation of the process by which it determined the reasonableness of her personal injury protection claims. Accordingly, we vacate the trial court's order of dismissal, to the extent it covered Forth's past claims and those of the putative class, and remand for further proceedings consistent with this opinion.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 12, 2004

Date Decided:             December 8, 2004