Brown v. Barlow

• Citation: 685 S.W.2d 406
• Decision Date: 21 January 1985
• Docket Number: No. 04-84-00560-CV,04-84-00560-CV
• Parties: Theresa BROWN and Jefferson Vaughn, Relators, v. Honorable James E. BARLOW, Respondent.
• Court: Court of Appeals of Texas

Page 406

685 S.W.2d 406

Theresa BROWN and Jefferson Vaughn, Relators, v. Honorable James E. BARLOW, Respondent.

No. 04-84-00560-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 21, 1985.

Stephen E. Vangaasbeck, Eric Turton, San Antonio, for relators.

Charles Estee, San Antonio, for respondent.

Before BUTTS, CANTU and REEVES, JJ.

OPINION

PER CURIAM.

We are asked in this original mandamus proceeding to vacate a district court order that orders the destruction of several items of personal property under the forfeiture provisions of TEX.CODE CRIM.PROC.ANN. art. 18.18 (Vernon Supp.1984). The petition for writ of mandamus is denied.

The record in this proceeding consists only of a certified copy of the order signed by respondent James Barlow, Judge of the 186th Judicial District Court of Bexar County, Texas, and a statement of facts of the hearing held below before Judge Barlow. This forfeiture proceeding apparently was originated by the State seeking forfeiture and destruction of the following items:

One (1) spiral note pad containing the names, preferences and prices charged persons seeking the services of prostitutes;

Four (4) steno pads containing the dates, times, payments and names of customers of the Respondent's [Brown's] prostitution business; and

Several loose pieces of paper containing the names of customers, dates and times (of appointments) and charges to customers of the prostitution business.

These pads and papers were seized in connection with the prosecution of relator Brown in a prior proceeding for the offense of aggravated promotion of prostitution. They were admitted into evidence at a hearing on a motion to suppress evidence but were not a part of the stipulated evidence admitted at trial. Brown's conviction for aggravated promotion of prostitution was affirmed by this Court in an unpublished opinion.

Subsequent to our affirmance of Brown's conviction, this proceeding was originated, and a hearing was held at which both sides appeared and argued but offered no evidence.

Judge Barlow's order found that the pads and papers were criminal instruments and contraband as defined by TEX.PENAL CODE ANN. § 16.01(b) (Vernon Supp.1984). He ordered them destroyed but delayed their destruction "for 30 days to allow Relator [Brown] to take any appellate steps available to her." The order was signed under the cause number of the original criminal proceedings against Brown.

Brown claims that the pads and papers are her property. She argues in her brief that these documents are not criminal instruments, and that by offering no evidence at the hearing the State failed to meet its burden of proof. The State's primary contention is that we have no jurisdiction in this matter because Brown has an adequate remedy at law by way of appeal. In response to the State's contentions, Brown maintained at oral argument that she could not have appealed the order because it was filed under a criminal cause number. Brown reasons that since a forfeiture proceeding is in rem and civil in nature in that it is a suit against the thing and not against the person, there is no sentence imposed, but since the order bears a criminal cause number, the appellate timetables would begin to run from sentencing. See TEX.CODE CRIM.PROC.ANN. art. 44.08 (Vernon Supp.1984). She therefore argues that an appeal of this matter is impossible since there is no sentence to trigger the time when the appeal begins to run.

The exercise of mandamus jurisdiction is authorized only in cases where no other adequate remedy is available. If an appeal would provide an adequate remedy, our mandamus jurisdiction will not be invoked. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 829 (1961). In a case involving article 18.18, the Supreme Court impliedly held that such orders are appealable. State v. Rumfolo, 545 S.W.2d 752 (Tex.1976) . ¹ See also State v. Dugar, 553 S.W.2d 102 (Tex.1977); Alexander v. State, 553 S.W.2d 825 (Tex.Civ.App.--Beaumont 1977, no writ). Destruction of the property could have been stayed by a supersedeas bond, TEX.R.CIV.P. 364, or perhaps by an original injunction proceeding in this court after perfection of the appeal. TEX.REV.CIV.STAT.ANN. art. 1823 (Vernon 1964). As we have noted, Judge Barlow's order suspended its execution for 30 days to provide Brown adequate time to pursue such remedies. ² Brown cited us to Rumfolo in her brief and recognized at oral argument that that case was before the Supreme Court by way of appeal. Admittedly, she recognized that such orders are appealable but deliberately chose to pursue this petition for writ of mandamus rather than an appeal.

We reject Brown's contention that the fact that the order bore a criminal cause number somehow circumvented her right to appeal. Bond forfeiture cases, for example, arise out of criminal proceedings but are controlled by the laws and rules applicable to the review of civil actions. TEX.CODE CRIM.PROC.ANN. art. 44.44 (Vernon 1979); Surety Insurance Co. of California v. State, 514 S.W.2d 454, 455 (Tex.Crim.App.1974). Proceedings of such nature are not beyond the scope of this Court's...