                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00283-CV

ANTOINE M. SHIELDS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 52nd District Court
                              Coryell County, Texas
                          Trial Court No. FCM-07-18812


                                    OPINION

      Antoine M. Shields wants personal property that was seized pursuant to a search

warrant returned to him. The primary obstacle to his ability to have a court order the

return of the items is the identification of the proper procedural vehicle. He filed a

motion seeking return of the property in the court which rendered his related criminal

conviction.

                                    BACKGROUND

      According to one of the pleadings Shields filed in the trial court, Shields was

staying in a hotel with his wife and children. While at the hotel, Shields and his wife,

Tashawna VanHardenberg were charged with the murder of or injury to one of their
children. A search warrant was obtained and executed by the Copperas Cove Police

Department. Pursuant to the warrant, the police seized a number of items of personal

property.      The items seized which are the subject of this proceeding were two

disposable cameras. Photographs had been taken with each camera.

        It is not clear from the record before us whether the film in the cameras was

developed before or after Shields pled guilty to murder and VanHardenberg was tried

and convicted for injury to a child. What is clear, however, is that the photographs

were not used in either criminal trial or in the trial to terminate their parental rights to

their other children.

        It appears Shields initially sought the return of the cameras after his conviction

and before the trial of VanHardenberg. Further, it appears Shields was initially told he

could not have the photographs because they may be needed in VanHardenberg’s trial

or the retrial of either case if the appeals resulted in reversal of either conviction. The

criminal trials have now been conducted, Shields did not appeal and VanHardenberg’s

appeal has been exhausted, and the mandate has issued. The convictions are now final

for all purposes.

        Jurisdiction

        …over seized property extends to different courts at different times and
        for different purposes: for example, to the magistrate to whom return was
        made, for the seized property's pre-charge or pre-indictment safekeeping
        and for the property's or person's release before examining trial; n19 to
        any magistrate in the county of seizure, for removing the property pre-
        charge or pre-indictment from the county in which it was seized; n20 to a
        magistrate presiding over an examining trial; n21 to the judge of the court
        in which indictment is presented, for any matter concerning the property;
        n22 to the judge of the court in which the accused is convicted, for
        forfeiture of certain property; n23 to the magistrate to whom the return

Shields v. State                                                                      Page 2
        was made, for article 18.18 forfeiture proceedings when no prosecution or
        conviction occurs; n24 etc.

        19 TEX. CODE CRIM. P. ANN. arts. 18.10-.12 (Vernon 1977 & Supp. 2000).

        20 Id. art. 18.10.

        21 See id. art. 18.03 (search warrant may include arrest warrant); id. art.
        18.13 (allowing the magistrate to release defendant and restore property if
        no good ground for warrant's issuance); id. art. 18.14 (Vernon 1977)
        (allowing examining trial "as in other cases" if magistrate concludes there
        was good cause for arrest warrant's issuance); see also id. art. 15.16 (Vernon
        1977) (requiring "magistration" before magistrate who issued or is named
        in warrant, if in same county); id. art 15.17(a)-(d) (Vernon Supp. 2000)
        (allowing "magistration" before any magistrate in county of arrest or
        bordering county, apparently for non-warrant arrests).

        22 TEX. CONST. art. V, § 12(b) (presentment of indictment or information
        vests court with jurisdiction of cause); McBee v. State, 981 S.W.2d 694, 697
        (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (attachment of jurisdiction
        in district court gives it power to determine all essential questions and do
        anything pertaining thereto that is authorized by Constitution, statute, or
        law).

        23 TEX. CODE CRIM. P. ANN. art. 18.18(a) (Vernon Supp. 2000).

        24 See id. art. 18.18(b).

In re Cornyn, 27 S.W.3d 327, 336 (Tex. App.—Houston [1st Dist.] 2000, original

proceeding).

        Rather than “etc.,” it would have been a service to the judiciary for Justice Cohen

to continue with his listing of all the courts that have the authority to deal with seized

property and for what purposes. Notwithstanding that his compilation may not be

complete, we believe that this proceeding is proper where it was filed. Shields brought

this issue “to the judge of the court in which indictment is presented, for any matter

concerning the property.” Id. We see no prohibition to bringing the issue before the


Shields v. State                                                                         Page 3
trial court by way of a motion. And because ruling on the motion is a discrete ruling

regarding the return of the property, we believe the ruling is final.

        This brings us to the question of whether the ruling is appealable which depends,

in part, on whether it is treated as a civil appeal or criminal appeal. If it is a criminal

proceeding, we must find express authority for the appeal. Abbott v. State, 271 S.W.3d

694, 697 (Tex. Crim. App. 2008). Property which is the subject of the motion was not

used in the criminal prosecution of either defendant. Further, there is no sentence or

judgment of conviction or acquittal that is impacted by the court’s ruling. Accordingly,

we conclude that it is not a criminal appeal. Further, we see no reason not to categorize

it as a civil proceeding.1 Because Shields timely sought appellate review of the denial of

his motion, which we have already determined was a final judgment for purposes of

appeal, we find that we have jurisdiction of this proceeding.

        What is unusual about this proceeding is that the property seized, disposable

cameras containing exposed but undeveloped film, has undergone a metamorphosis

and now consists of only negatives and developed prints from the negatives.2 What is

also unusual about this proceeding is that due to the nature of the property items,

multiple prints may be made without loss of quality or giving up possession of a

duplicate original of the photographs.

        The State did not file a brief. We have examined the photos and see no obvious

1 We note that if the method we have identified is not proper for any reason, the only other remedy
would be for Shields to sue the County in civil court for inverse condemnation or some other civil
remedy. Judicial policy thus demands a more efficient mechanism than having to file a separate civil
proceeding.

2Original copies of the prints have been submitted to the Court for review. We did not order the
negatives to be forwarded to this Court.

Shields v. State                                                                             Page 4
reason a set of prints should not be delivered to Shields. They do not appear to be

contraband by any definition applicable to a free person. We note, however, that

Shields is not free but rather is incarcerated for murder, and although we are unable to

determine for certain from the record, the deceased child victim may be depicted in

some of the photographs.

           Shields, who is representing himself in this proceeding, had first sought delivery

of the photographs to his lawyer and then to his mother. We have found nothing to

justify the State’s refusal to deliver to Shields or his designee a full set of prints made

from the film in the two cameras.

           We hold that Shields is entitled to the property; that being, a full set of original

prints made from the seized cameras. We do not know if Shields is authorized to have

the photographs in prison; thus, Shields must designate a person to receive the prints

within 28 days after the date the opinion and judgment in this proceeding are issued.

Absent a timely designation, the prints will be delivered to his former attorney, who the

record shows initially offered to assist Shields in seeking the return of the photographs.

           Accordingly, the trial court’s order denying Shields’ motion to return property is

reversed and the Clerk of this Court is ordered to deliver the set of prints in this Court’s

possession to the designee of Shields, or his previous attorney, within 10 days after the

mandate issues in this proceeding.3


                                                      TOM GRAY
                                                      Chief Justice



3   The Clerk is ordered to retain full color photocopies of the prints for the Court’s file.

Shields v. State                                                                                Page 5
Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
(Justice Davis concurs without an opinion)
Reversed
Opinion delivered and filed February 22, 2012
[CV06]




Shields v. State                                Page 6
