
NO. 07-08-0076-CR
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â NO. 07-08-0077-CR
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 30, 2008
______________________________

ARNALDO ORTIZ, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant

v.

THE STATE OF TEXAS, 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NOS. 10,937 & 11,009; HON. DAN MIKE BIRD, PRESIDING
_______________________________

Memorandum Opinion
__________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Â Â Â Â Â Â Â Â Â Â Arnaldo Ortiz was convicted of two charges of aggravated sexual assault of his
foster daughter.
  He challenges those convictions by contending that the evidence is
legally and factually insufficient to sustain them.  We affirm.
Â Â Â Â Â Â Â Â Â Â The standards by which we review the legal and factual sufficiency of the evidence
are well established.  We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)
for a discussion of them. 
Â Â Â Â Â Â Â Â Â Â Next, the State charged appellant with causing the penetration of M.V.âs sexual
organ with his finger and her anus with his penis.  At trial, the complainant testified that
appellant had done both of these acts.  The testimony of a child victim alone, if believed
by the trier of fact,  is  sufficient to sustain the conviction.  Bjorgaard v. State, 220 S.W.3d
555, 559 (Tex. App.âAmarillo 2007, pet. dismâd).  Consequently, the record contains some
evidence upon which a rational factfinder could conclude, beyond reasonable doubt, that
appellant committed the offenses at issue.   
Â Â Â Â Â Â Â Â Â Â However, appellant argues that because his child victim had a sexually transmitted
disease in her vaginal area, that he did not have a like disease at the time of testing, and
that no evidence appears of record suggesting that he had vaginal intercourse with the
child, his convictions lack the support of factually sufficient evidence.  We disagree for
testimony appears of record illustrating that appellant and his wife had twice suffered from
the same disease contracted by the child, that the disease will cure itself in time without
medication, that men can be asymptomatic carriers of it, that it can be passed through anal
intercourse, and that the victimâs rectum was dilated (which condition may be indicative of
anal sexual abuse).  This evidence when combined with the complainantâs testimony that
appellant was the person who assaulted her was enough to rationally explain why
appellantâs negative test does not overcome or otherwise negate that quantum of evidence
establishing his guilt.  In other words, the juryâs finding is not so against the great weight
of the evidence as to be unjust; nor is it supported only by weak evidence.  
Â Â Â Â Â Â Â Â Â Â According, we hold that the verdicts have the support of both legally and factually
sufficient evidence and affirm the judgments.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice  
Â 
Do not publish.

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NO. 07-10-0039-CV
Â 
IN THE COURT OF APPEALS
Â 
FOR THE
SEVENTH DISTRICT OF TEXAS
Â 
AT
AMARILLO
Â 
PANEL C
Â 
 FEBRUARY 1, 2011

Â 
Â 

Â 
Â 
SIX THOUSAND NINETY FIVE DOLLARS AND
EIGHTY-FIVE CENTS
U.S. CURRENCY ($6,095.85) (JAMES ORTIZ), APPELLANT
Â 
V.
Â 
THE STATE OF TEXAS, APPELLEE 

Â 
Â 

Â 
Â FROM THE 181ST DISTRICT
COURT OF RANDALL COUNTY;
Â 
NO. 60,312-B; HONORABLE JOHN B. BOARD, JUDGE

Â 
Â 

Â 
Before QUINN, C.J., HANCOCK and PIRTLE, JJ.
Â 
Â 
MEMORANDUM OPINION
Â Â Â Â Â Â Â Â Â Â Â  Appellant, Six Thousand Ninety Five
Dollars and Eighty-Five Cents U.S. Currency ($6,095.85) (James Ortiz)
("Ortiz"), appeals the trial court's order granting summary judgment in
the State's favor in a proceeding seeking forfeiture of $6,095.85, pursuant to
Chapter 59 of the Texas Code of Criminal Procedure.[1]Â  In two points of error, Ortiz asserts the
State's evidence in support of its motion for summary judgment was (1) legally
and (2) factually insufficient.Â  Because we
lack subject matter jurisdiction, we dismiss this appeal.[2]Â  
Subject Matter Jurisdiction---Standing
Â Â Â Â Â Â Â Â Â Â Â  A threshold question in any case is
whether the court has subject matter jurisdiction over the pending controversy.Â  Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440,
443-44 (Tex. 1993).Â  Standing is a
constitutional prerequisite to maintaining any suit; South Texas Water Authority v. Lomas, 223 S.W.3d 304, 307 (Tex.
2007), without which a court lacks subject matter jurisdiction to hear a
case.Â  Austin Nursing Center, Inc. v. Lovato,
171 S.W.3d 845, 849 (Tex. 2005); Potter
County Attorney's Office v. Stars & Stripes Sweepstakes, L.L.C., 121
S.W.3d 460, 467 (Tex.App.--Amarillo 2003, no pet.).[3]Â  Standing must exist at every stage of the
legal proceedings, including appeal; Williams
v. Lara, 52 S.W.3d 171, 184 (Tex. 2001), and may be raised by the court sua sponte for the first time on
appeal.Â  Univ. of Texas Sw. Med. Ctr. v. Loutzenhiser,
140 S.W.3d 351, 358 (Tex. 2004).Â 
Whether a court has subject matter jurisdiction is a question of law
that we review de novo.Â  First National Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010).

Â Â Â Â Â Â Â Â Â Â Â  Chapter
59 authorizes the State to pursue forfeiture of funds that constitute proceeds
from illegal drug trafficking.Â  See art. 59.01-.14.Â  A forfeiture proceeding under Chapter 59 is a
civil en rem proceeding governed by
the procedural rules applicable to civil trials and appeals generally.Â  State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004) (per
curiam).Â  See art. 59.05(a), (b).Â  In the statutory scheme, property, including
currency, is subject to seizure and forfeiture if it is found to be
contraband.Â  Art. 59.02(a).Â  Contraband is property used or intended to be
used in the commission of certain felonies, or proceeds derived from those
felonies.Â  Art. 59.01(2)(A)-(D).Â  See
Silver Chevrolet Pickup, 140 S.W.3d at 692.
Â Â Â Â Â Â Â Â Â Â Â  "Standing
focuses on the question who may bring an
action."Â  Patterson v. Planned Parenthood, 971
S.W.2d 439, 442 (Tex. 1992).Â 
Although a person need only be in possession of the property at the time
it was seized to be made a party to the forfeiture proceeding; art. 59.04(j), only
property "owners" or "interest holders"[4]
are permitted to challenge the forfeiture of property to the State.Â  Art. 59.02(h)(1).[5]Â  A person must also be either an
"owner" or "interest holder" of the forfeited property to
have standing to challenge the forfeiture on appeal.Â  See
$27,920.00 v. State, 37 S.W.3d 533, 538 (Tex.App.--Texarkana 2000, pet.
denied); $17,329.00 v. State, 880
S.W.2d 788, 789 (Tex.App.--Houston [1st Dist.] 1993, no writ).
Â Â Â Â Â Â Â Â Â Â Â  Throughout
the proceedings below, Ortiz consistently maintained that his mother owns the
cash at issue.Â  In his motion for summary
judgment and motion for a new trial filed with the trial court, he stated the
money belongs to his mother.Â  On appeal,
he continues to aver in his brief and an attached statement that the money
belongs to his mother.Â  Having asserted no property interest, ownership or
otherwise, in the money at issue, Ortiz lacks standing to appeal its forfeiture
to the State.Â  See $27,920.00, 37 S.W.3d at 538; $17,329.00, 880 S.W.2d at 789.
Conclusion
Â Â Â Â Â Â Â Â Â Â Â  Lacking
subject matter jurisdiction of Ortiz's claim, we dismiss this appeal.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Patrick
A. Pirtle
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Â Â Â Â Â  JusticeÂ  




[1]For
convenience, Chapter 59 of the Texas Code of Criminal Procedure will be cited
throughout the remainder of this opinion as "Chapter 59," and
provisions of the Texas Code of Criminal Procedure will be cited as
"article _______" or "art. _______."Â  See
art. 59.01-.14 (West 2006 and West Supp. 2010). Â Â 


[2]"When
a court lacks jurisdiction, its only legitimate choice is to
dismiss."Â  In re John G., 315 S.W.3d 519, 522 (Tex. 2010) (quoting State v. Morales, 869 S.W.2d 941, 949
(Tex. 1994)).


[3]The standing requirement, implicit in the open courts provision of
the Texas Constitution, Tex. Const. art. I, Â§ 13 ("All courts shall
be open, and every person for an injury done to him, in his lands, goods,
person or reputation, shall have a remedy by due course of law."),
contemplates access to the courts only for those litigants suffering actual injury.Â  The M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 708 (Tex.
2001).


[4]For
purposes of Chapter 59, an "owner" is "a person who claims an
equitable or legal ownership interest in property"; art. 59.01(6), and an "interest holder" is a "bona
fide holder of perfected lien or a perfected security interest in the
property.Â  Art. 59.01(4).Â  


[5]Chapter
59 states, in pertinent part, as follows:
(h)(1) An owner or interest holder's interest in property may not be
forfeited under this chapter if at the forfeiture hearing the owner or interest
holder proves by a preponderance of the evidence that the owner or interest
holder was not a party to the offense giving rise to the forfeiture and that
the contraband;Â  
(A) was stolen from the owner or interest holder before being used in the
commission of the offense giving rise to the forfeiture;
(B) was purchased with:
(i) money stolen from the owner or
interest holder; or
(ii) proceeds from the sale of
property stolen from the owner or interest holder; or
(C) was used or intended to be used without the
effective consent of the owner or interest holder in the commission of the
offense giving rise to the forfeiture.


