City of Cleburne v. Central Appraisal District of Johnson County and Appraisal Review Board of Johnson County

Opinion

CIty of Cleburne v. Central Appraisal District of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00154-CV

     CITY OF CLEBURNE,

                                                                              Appellant

     v.

     CENTRAL APPRAISAL DISTRICT

     OF JOHNSON COUNTY AND

     APPRAISAL REVIEW BOARD

     OF JOHNSON COUNTY,

                                                                              Appellees

From the 18th District Court

Johnson County, Texas

Trial Court # C200100264

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      The trial court dismissed the City of Cleburne’s suit against the Central Appraisal District of Johnson County, the Appraisal Review Board, and One Cobblestone Village, Ltd., a taxpayer, for want of jurisdiction. Because the City has demonstrated the basis for jurisdiction, we will reverse the order.

      In July of 2000, the Appraisal District agreed with Cobblestone to set the appraisal value of an apartment complex in Cleburne at $7,601,785. In January of 2001, Cobblestone filed a motion with the Review Board to correct a “substantial error” in the appraisal. In April, the Review Board heard the motion, and on May 1, 2001, reduced the value of the property to $4,200,000. The City was not notified of that hearing.

      After the District and the Board refused to set aside the May 1 order, the City filed suit in the 18th District Court of Johnson County, seeking an injunction to prevent implementation of the order, which it characterizes as “void,” and to compel the District to comply with the Tax Code. The District and the Board filed a plea to the jurisdiction. Cobblestone filed a separate plea to the jurisdiction. The court’s global order dismisses the City’s cause of action with prejudice, removes it from the docket of the court, taxes costs against the City, and denies all relief not specifically granted.

      A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a cause of action. City of Dayton v. Gates, 126 S.W.3d 288, 289 (Tex. App.—Beaumont 2004, no pet. h.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). The existence of subject-matter jurisdiction is a question of law; thus, we review de novo the trial court's ruling on a plea to the jurisdiction. Id. In deciding a plea to the jurisdiction, we may not weigh the claims' merits but must consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

      Section 24.119 of the Government Code creates the 18th District Court. Tex. Gov’t Code Ann. § 24.119 (Vernon 2004). Article 43.01 of the Tax Code authorizes the City to sue the Appraisal District to compel it to comply with the Code. Tex. Tax Code Ann. § 43.01 (Vernon 2001). The Supreme Court has pointed out that a district court in Texas is a court of general jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). The jurisdiction of a district court "consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Id. (citing Tex. Const. art. V, § 8). By statute, district courts have "the jurisdiction provided by Article V, Section 8, of the Texas Constitution." Id. (citing Tex. Gov’t Code Ann. § 24.007 (Vernon 2004)). A district court "may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity." Tex. Gov’t Code Ann. § 24.008 (Vernon 2004). For "courts of general jurisdiction . . . the presumption is that they have subject matter jurisdiction unless a showing can be made to the contrary." Dubai Petroleum, 12 S.W.3d at 75.

      The City has asserted a claim against the District to compel compliance with the Tax Code, a claim against the Board to prevent enforcement of an order claimed to be void, and a claim against Cobblestone as a party whose rights would be affected by the judgment. Without regard to whether the claims have merit, we believe that the district court had jurisdiction of them. We reverse the trial court’s Order of Dismissal and remand the cause for further proceedings.

 

                                                                  BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Reversed and remanded

Opinion delivered and filed July 7, 2004

[CV06]

yes'> Johnson occasionally stayed at the home where the victim lived with her mother and father.  The victim, who was seven years old at the time of the incident and eight years old at the time of her testimony, testified that one night she was sleeping on a couch in the living room and Johnson was sleeping on another couch.  She testified that he got on top of her, that she felt his penis on her leg, that he put his penis in her mouth, that he rubbed her “private” with his finger, that he put his hand on her behind, and that he put his penis in her “butt.”

Legal and Factual Insufficiency

          When reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).  We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004).

          Johnson argues that the evidence was legally and factually insufficient to establish Johnson penetrated the victim’s sexual organ with his sexual organ.  Johnson argues that there was no direct testimony that Johnson’s penis penetrated the victim’s vagina.  We first note that neither the charge nor the statute require the state to prove penetration.  It is sufficient for a conviction under section 22.021 that the defendant caused the sexual organ of a child to contact the sexual organ of the defendant.  See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2004).  The uncorroborated testimony of a child victim is sufficient to support a conviction for aggravated sexual assault.  See Tex. Code Crim. Proc. Ann. art 38.07 (Vernon Supp. 2004).    The victim made a drawing during an interview in which she drew an arrow from Johnson’s penis to her “private.”  The victim testified that she felt his penis on her “private” and she pointed to the vaginal area on a doll.  There was medical testimony that the victim’s hymen was thin, which was characterized as suspicious (but not conclusive of sexual assault having occurred).

          Johnson also argues that the evidence was legally and factually insufficient to establish Johnson penetrated the victim’s anus with his sexual organ.  We again note that the statute and the charge do not require proof of penetration and that a finding that Johnson caused the victim’s anus to contact his sexual organ would support a conviction under section 22.021.  See Tex. Pen. Code Ann. § 22.021.  The victim made a drawing during an interview on which she wrote “his penes went in my buhinne” and she testified that meant “his penis went in my butt.”  She testified that it hurt her behind “around and inside.”  

          Considering all of the evidence in the light most favorable to the verdict, we cannot say the jury was irrational in finding beyond a reasonable doubt that Johnson caused the victim’s sexual organ and anus to contact or be penetrated by his sexual organ.  Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89.  The evidence is legally sufficient.  Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Johnson caused the victim’s sexual organ and anus to contact or be penetrated by his sexual organ.  Zuniga, 2004 WL 840786, at *7.  The evidence is factually sufficient.

          Johnson also argues that the evidence was legally and factually insufficient to establish that Johnson penetrated the victim’s anus with his finger.  We presume that is the reason the jury returned a verdict of not guilty on that count.  Because Johnson was found not guilty of penetrating the victim’s anus with his finger, we need not consider this issue.

          We overrule all of Johnson’s factual and legal sufficiency issues.

 Victim’s Testimony

          Johnson argues that the trial court erred by denying Johnson’s motion to prevent the victim from testifying.  Prior to trial, Johnson filed a motion for an “identification hearing” and the motion was granted.  Johnson urges us to consider this pretrial hearing as a “taint” hearing and would have us follow the test for determining the reliability of a child witness’ pretrial statements and in-court testimony set forth by the New Jersey Supreme Court in State v. Michaels.  642 A.2d 1372 (N.J. 1994).  In Michaels, the New Jersey court recognized that “the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.”  Id. at 1379.  The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques[1] implicates “principles of due process.”  Id. at 1380.  The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of “some evidence” that the victim’s statements were the product of suggestive or coercive interview techniques.  Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence.  Id. at 1383.

          Johnson presented an expert witness that testified at the hearing that it was improper for the interviewer to bring up Johnson’s name during the forensic interview in which the child victim initially made her allegation of sexual abuse.  The expert also stated that the interview went on for too long, that many of the questions were leading, that the questions were closed rather than open, that the questioning was one-sided, and that the child was given improper incentives.  The expert concluded that as a result there was no way to be sure whether the child’s later statements concerned actual events or things suggested to her during the interview.  At the conclusion of the hearing, the trial court found that the “identification procedure” was “unduly suggestive,” but that the victim’s testimony was still reliable.[2]

          Johnson argues that he therefore met his threshold burden to show unreliability and the state failed to meet its burden to prove by clear and convincing evidence that the victim’s statements were sufficiently reliable to be admitted.  However, Texas has not adopted the rationale of State v. Michaels, and we decline to do so here.  The admissibility of the victim’s testimony and qualification to be a witness is within the discretion of the trial court.  Tex. R. Evid. 104(a).  Johnson relies almost exclusively on State v. Michaels and presents no other argument that the trial court abused its discretion in admitting the victim’s testimony.

          We overrule the issue.

Conclusion

          Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 10, 2004

Do not publish

[CRPM]

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    [1]       The court referred to two sets of guidelines for conducting interviews designed to overcome the dangers of improper interrogation of young children:  American Prosecutors Research Institute, National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse (1987) and Governor’s Task Force on Child Abuse and Neglect, Child Abuse and Neglect: A Professional’s Guide to Identification, Reporting, Investigation and Treatment (1988).

    [2]       Johnson’s characterization of the hearing notwithstanding, our review of the record persuades us that the only issue considered by the trial court in the hearing was whether to allow the use of identification testimony from a witness who was subjected to an impermissibly suggestive pretrial identification procedure.  See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988).