     Case: 12-10333   Document: 00512074287     Page: 1   Date Filed: 12/05/2012




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                              December 5, 2012

                                 No. 12-10333                     Lyle W. Cayce
                                                                       Clerk

ROBERT C. MORRIS,

                                           Plaintiff-Appellant,
v.

MIKE MCALLESTER, in his Individual and Official capacity; JOSEPH
JOHN GUTIERREZ, in his Individual and Official capacity; CITY OF
MINERAL WELLS POLICE DEPARTMENT,

                                           Defendants-Appellees.



                Appeal from the United States District Court
                    For the Northern District of Texas
                           Fort Worth Division


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant, Robert C. Morris, appeals the district court’s dismissal of his
claims pursuant to 42 U.S.C. § 1983. Because Morris has failed to prove that his
claims are not barred by Heck v. Humphrey, 512 U.S. 477 (1994), and for the
additional reasons stated herein, we AFFIRM.
                                      I.
      Morris, currently Texas prisoner # 1311083, filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 against the Mineral Wells Police Department
(MWPD) and against MWPD Officers Mike McAllester and Joseph John
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Gutierrez.     He contended that on May 12, 2000, Officers McAllester and
Gutierrez, acting on a complaint that Morris possessed child pornography,
obtained the assistance of a former tenant or roommate of Morris’s to illegally
enter his home while he was away and obtain evidence without a search
warrant. As a result of the search of Morris’s home, he was ultimately arrested
and convicted in state court of possession of child pornography. The trial court
sentenced Morris to ten years of supervised community supervision.                      In
February 2011, after Morris had served one-third of his original community
supervision period, pursuant to Tex. Code Crim. Proc. art. 42.12 § 20,1 the trial
court terminated the remainder of Morris’s probationary term, dismissed the
proceedings, and discharged Morris from any further penalties or disabilities
resulting from the offense.
      Subsequently, in December 2011, Morris filed a claim pursuant to 42
U.S.C. § 1983 in federal district court, asserted that he was entitled to monetary
damages as a result of the alleged illegal search. Morris argued that, because
the trial court had dismissed his conviction in February 8, 2011, he was now able
to present his § 1983 claims pursuant to Heck v. Humphrey, 512 U.S. 477
(1994).



      1
          Tex. Code Crim. Proc. art. 42.12 § 20(a) provides in pertinent part:

               At any time after the defendant has satisfactorily completed
               one-third of the original community supervision period or two
               years of community supervision, whichever is less, the period of
               community supervision may be reduced or terminated by the
               judge. On completion of one-half of the original community
               supervision period or two years of community supervision,
               whichever is more, the judge shall review the defendant's record
               and consider whether to reduce or terminate the period of
               community supervision, unless the defendant is delinquent in
               paying required restitution, fines, costs, or fees that the
               defendant has the ability to pay or the defendant has not
               completed court-ordered counseling or treatment.

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      The magistrate judge granted Morris in forma pauperis (IFP) status. The
district court noted that because Morris’s claims called into question the validity
of his conviction, he was required under Heck to show that the conviction had
been reversed or invalidated. See Heck, 512 U.S. at 486-87. The district court
further reasoned that, although the trial court had dismissed the criminal
proceedings and discharged Morris from further penalties and disabilities, the
trial court order did not satisfy Heck because it did not reverse or invalidate the
original conviction. Id. Consequently, the district court concluded that Morris’s
claims were barred by Heck and dismissed the complaint as frivolous and for
failure to state a claim upon which relief could be granted.                28 U.S.C. §
1915A(b)(1). The district court further found that, although Texas state law
provided the trial court with discretion to set aside a verdict and dismiss the
complaint against a defendant, Morris was not entitled to such relief because he
was required to register as a sex offender. Tex. Code Crim. Proc. art. 42.12 §
20(a),(b).
      Within 30 days of the entry of the district court’s judgment, Morris moved
to amend or alter the judgment pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure. Fed. R. Civ. P. 59(e). He asserted that the trial court’s order
satisfied Heck because the dismissal was essentially a concession that the
conviction was invalid. He also maintained that, under Texas law, the trial
court’s decision to terminate his probation early under Article 42.12 § 20 erased
the prior conviction thereby entitling him to proceed under § 1983, because it
released him from further disabilities and penalties. Tex. Code Crim. Proc. art.
42.12 § 20(a). The district court denied the motion. Morris filed the instant
appeal.2
                                             II.


      2
          The magistrate judge granted Morris leave to proceed IFP on appeal.

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       On appeal, Morris contends that the district court erred in dismissing his
§ 1983 civil rights complaint. Morris’s primary argument is that his early
release from probation constitutes an invalidation of his conviction pursuant to
Heck. Morris further maintains that his argument is supported by the Texas
Court of Criminal Appeals’s (TCCA) interpretation of Tex. Code Crim. Proc. art.
42.12 § 20(a) in Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). In that
case, the TCCA held that under a dismissal pursuant to Article 42.12 § 20, the
conviction is “wiped away” in its entirety, which according to Morris, is
tantamount to being declared “invalid.” Cuellar, 70 S.W.3d at 819-20 (citing
Tex. Code Crim. Proc. art. 42.12 § 20). Finally, Morris contends that because
the trial court order released him from further penalties and disabilities, his civil
rights were restored and the prior offense no longer constitutes a conviction.
      Section 1915A(b)(1) provides for dismissal of any claim or complaint that
“is frivolous, malicious, or fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). A claim may be dismissed as frivolous if it
does not have an arguable basis in fact or law. Martin v. Scott, 156 F.3d 578,
580 (5th Cir. 1998). This court’s precedent is inconsistent as to whether a §
1915A(b)(1) dismissal is reviewed de novo or for abuse of discretion; however,
because Morris’s appeal fails under both standards, we decline to resolve that
discrepancy herein. 28 U.S.C. § 1915A(b)(1); see Jackson v. Mizzel, 361 F. App’x
622, 625 & n.7 (5th Cir. 2010).
      Under Heck, a § 1983 plaintiff may not recover damages for an
unconstitutional conviction or for “harm caused by actions whose unlawfulness
would render a conviction or sentence invalid” until he has shown that the
conviction or sentence has been “reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.” Heck, 512 U.S. at 486-87.

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       Morris does not contend that his conviction was reversed or expunged or
that a federal court granted habeas relief. Rather, Morris argues that the
dismissal of his proceedings was tantamount to his conviction being “declared
invalid by a state tribunal authorized to make such determination.” Heck, 512
U.S. at 487. We do not agree.
       Under Texas law, a defendant who has completed one-third of his original
community supervision period in a satisfactory manner may have the period
“reduced or terminated by the judge.” Tex. Code Crim. Proc. art. 42.12 § 20(a).
After one-half of the original community supervision period or two years of
community supervision is completed, whichever is more, “the judge shall review
the defendant’s record and consider whether to reduce or terminate the period
of community supervision,” as long as the defendant has paid all required fees
and completed court-ordered treatment programs or counseling. Id. If the trial
judge elects to discharge the defendant from the remaining portion of his
community supervision, “the judge may set aside the verdict or permit the
defendant to withdraw the defendant’s plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant, who shall thereafter
be released from all penalties and disabilities resulting from the offense[.]” Id.3
       The trial court’s February 2011 order of “Early Release and Discharge
from Community Supervision” does not state that it serves to invalidate Morris’s


       3
         The early release provision is not available to a defendant convicted of an offense that
requires sex offender registration. Tex. Code Crim. Proc. art. 42.12 § 20(b). As the district
court found, Morris’s child pornography conviction requires registration. Tex. Code Crim.
Proc. Ann. art. 62.01(5)(B) (West 2001). Accordingly, it appears that the trial court granted
Morris relief to which he was not entitled. In habeas proceedings, however, this court has held
that it will not review the propriety of a state’s court’s application of state law, except to the
extent that it implicates federal law. See Springer v. Coleman, 998 F.2d 320, 324 (5th Cir.
1993). Given that no party has challenged the propriety of the trial court’s ruling, we conclude
there are no federal law implications herein. Accordingly, we decline to address the
fundamental propriety of the trial court’s ruling under art. Tex. Code Crim. Proc. 42.12 §
20(a),(b).


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conviction for possession of child pornography. The order merely concludes that
Morris satisfactorily completed a sufficient percentage of his community
supervision and that dismissal of the proceedings and the remainder of his term
was appropriate under Tex. Code Crim. Proc. art. 42.12 § 20. We do not agree
with Morris that this language is equivalent to an order invalidating his
conviction.
         Nonetheless, Morris further maintains that his argument is supported by
the TCCA’s interpretation of Article 42.12 § 20(a) in Cuellar. Tex. Code Crim.
Proc. art. 42.12 § 20(a); Cuellar, 70 S.W.3d 815. In that case, the TCCA held
that under a dismissal pursuant to Article 42.12 § 20, the conviction is “wiped
away” in its entirety, which according to Morris, is the same as being declared
“invalid.” Cuellar, 70 S.W.3d at 819-20 (citing Tex. Code Crim. Proc. art. 42.12
§ 20).
         In Cuellar, the defendant was convicted of possession of a firearm by a
convicted felon. Cuellar, 70 S.W.3d at 817. Cuellar had been sentenced to
community supervision on the underlying felony conviction, and the trial court
had ultimately entered an order “that the judgement of conviction entered in
said cause be and is hereby set aside and the indictment against said defendant
be and the same is hereby dismissed.” Id. at 816. Cuellar challenged his
felon-in-possession conviction, asserting that he was not in fact a felon in light
of the dismissal. Id. at 817-20. The TCCA ultimately agreed with Cuellar’s
assessment.      Id. at 820.   The court found that a typical discharge from
community supervision, which occurs when a defendant has satisfied his
obligation in full, does not negate the fact of conviction. Id. at 818. The TCCA
then considered Art. 42.12 § 20(a), however, and concluded that such a release
did not result in a conviction if the trial court elected to dismiss the indictment
after setting aside the verdict or allowing withdrawal of the plea. Id. at 818
(citing Tex. Code Crim. Proc. art. 42.12 § 20). The TCCA ultimately concluded

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that “[o]nce the trial court judge signs the Article 42.12, § 20, order, the felony
conviction disappears,” except in certain limited circumstances. Id. at 820
(footnote omitted).
       Morris’s case, however, is distinguishable from the factual circumstances
set forth in Cuellar. The defendant in Cuellar received relief because the order
included express language dismissing the indictment. See Cuellar, 70 S.W.3d
at 816, 820. Further, a review of the applicable case law reveals that Texas
courts do not imply the dismissal of the indictment when ordering early release
under Article 42.12 § 20; they instead include the language in the order. Tex.
Code Crim. Proc. art. 42.12 § 20(a); see, e.g., Texas Dep’t of Public Safety v.
J.H.J., 274 S.W.3d 803, 805 (Tex. App. 2008) (“IT IS THEREFORE ORDERED
that said period be declared to have terminated and the defendant discharged
from probation, that the defendant is permitted to withdraw his plea, that this
prosecution be dismissed.”); Goldberg v. Comm’n for Lawyer Discipline, 265
S.W.3d 568, 571 (Tex. App. 2008) (order terminating period of community
supervision, restoring civil liberties, releasing the defendant from all penalties
and legal disabilities, setting aside the verdict, withdrawing the defendant’s
plea, and dismissing the charging instrument and the prosecution); Smiley v.
State, 129 S.W.3d 690, 694 n.2 (Tex. App. 2004) (order terminating probation
which permitted defendant to withdraw the plea and dismissed the indictment).4
Morris’s order does not include express language dismissing his indictment, nor




       4
         Furthermore, this court has previously held that, because the order at issue did not
specifically include dismissal of the indictment, a defendant’s prior conviction could continue
to serve as the basis for a felon-in-possession charge even though he had been satisfactorily
discharged from probation under Art. 42.12 § 20. United States v. Daugherty, 264 F.3d 513,
514-18 & n.1 (5th Cir. 2001); see also United States v. Beck, No. A-09-CR-116-LY, 2009 WL
2581416, at *1-4 (W.D. Tex. Aug. 18, 2009) (holding a defendant’s prior convictions could not
support a felon-in-possession conviction because the trial court had dismissed the indictment
and released the defendant from all penalties and disabilities).

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                                       No. 12-10333

does it state that his guilty plea is withdrawn, that the verdict is set aside, or
that his civil liberties are restored.
       Accordingly, we hold that the district judge properly concluded that
Morris’s claims were barred by Heck. Heck, 512 U.S. 477.5
       Morris’s remaining two arguments are also unavailing. First, Morris notes
that, in rejecting his 28 U.S.C. § 2254 petition challenging his Texas child
pornography conviction, the district court concluded that even if the petition had
been timely, it would have been moot in light of the dismissed proceedings.
Morris contends that the trial court’s finding that Morris’s habeas case was moot
is inconsistent with its holding that Morris’s civil rights claims are Heck-barred.
       The fact that Morris is no longer a prisoner “in custody” for his offense and
thus may not seek habeas relief does not excuse him from the “favorable
termination” rule of Heck, which instead relies on the dismissal of the
indictment. See Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000). The
mootness of Morris’s habeas petition, therefore, has no effect on the cognizability
of his civil rights action under Heck. Consequently, we find Morris’s argument
on this issue to be without merit.
       Second, Morris asserts that because his civil rights were restored, his prior
offense should no longer be considered a conviction. As an initial matter, it is
not clear whether an order discharging Morris “from any further penalties and
disabilities resulting from the offense” in fact restores his civil rights. Further,
as previously noted, Texas courts do not imply the restoration of civil rights
when ordering early release; they instead include the express language in the
order. See Goldberg, 265 S.W.3d at 571 (specifically restoring civil rights to



       5
        Because we have concluded that Morris’s claims are Heck-barred, we do not reach the
merits of Morris’s final challenge that his underlying constitutional claims advanced pursuant
to 42 U.S.C. § 1983 did not warrant dismissal as frivolous or for failure to state a claim upon
which relief could be granted.

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criminal defendant through early release order). No such express language was
included in the trial court’s order granting Morris early release under Tex. Code
Crim. Proc. art. 42.12 § 20. Accordingly, this argument is also without merit.
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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