### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00862
- CV

Gerald Allen Perry, Appellant

v. The State of Texas, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 002386, HONORABLE TODD A. BLOMERTH, JUDGE PRESID ING

M E M O R A N D U M O P I N I O N

Gerald Allen Perry , an i nmate actin g pro se , appeals the district court ’ s August 27, 2019 final order dismissing his suit to declare his aggravated

- robbery conviction void and adjudicating him a vex atious litig an t

. S ee Tex. Civ. Prac. & Rem. Code § § 11.05 4 (au thorizing trial cour t to find plaintiff vexatious litigant if statutory cri teria are met ) , .101(c) ( permitting appeal from prefiling order designating person vexatious litigant) , 1 4.003( a) (2) (au th orizing trial

c ourt to dismiss inmate ’ s frivolous claim in civil suit )

. Perry c ontend s that the Travis County district court erred because it had juri sdiction to declare his aggravated

- robbery conviction in a Harris County district court void ; that the State ’ s vexatio us - litigant motion was untimely filed ; and that his conviction should have be en declared “ presumptively void ” as a sanction for the
State ’ s alleged failure t o produce r elevant records in support of its vexatious

- litigant motion

. We will mod ify the distric t court ’ s final order and as modified, affirm it

.2 BACKGROUND Perry sued the State in a Travis County district court o n May 31, 2017, alleging wrongful imprisonment and seeking damages

. See id. § 103.001

. In his petition , Perry con ten d s that his 1993 fi na l conviction by a jury in H arris County for aggravated robbery , affirmed by the
F irst Court of Appeals , is void because it was based on a n indictment resulting from a perjured witness st atement made to pol ice by Paul P atrick Carrier. Se e P erry v. State , N o. 01

- 93

- 00207

- CR, 1994 Tex. App. LEXIS 380, at * 1 n.1 (Tex. App.

— Houston [ 1st Dist.] Feb. 24, 1994, no pet. ) ( not designated for publication) (noting that affidavit for Perry ’ s arrest in Harris Coun ty district court c ause n umb er 607,922 was based on swo rn written statements from three witnesses , including Carrier , and that “ Carrier changed parts of his story and confessed to committing the murder ” in his second statement to police )

. Carrier ’ s first state ment to police identified
in dividuals involved in th e robbery and implicated Perry as the shooter , reporting

[t ]hat on 7

- 28

- 91, [ Pat Carrier] saw a person he knows by s ight and by name as Ruben the paperboy, get out of his truck and walk up to [Perry],

. . . as [Perry] was standing in t he street with sev er al other males, and asked [Perry] for a cigarette. Pat further told affiant that [Perry] told Pat that “they were going to jack him.” Pat told affiant that he felt that [Perry] meant they were going to rob Ruben. Pat to ld affiant tha t he saw a person he knows by sight and by name as Money,

. . . sneaking around behind Ruben. Pat stated that he saw Money grab Ruben from behin d and [Perry] grabbed a gun from the waistband of Ruben and both then beat Ruben to the ground. Pat stated tha t he saw both Mone y and [Perry] going through Ruben ’ s pockets

. Pat also stated that he saw [Perry] take the pistol and shoot Ruben one time in the mouth during the robbery. Pat stated that he also saw both Money and [Perry] ru n away after robbing Ruben a nd [Perry] shootin g him. Pat also stated that he helped Alfredo Almedia load Ruben into Ruben ’ s vehicle and saw Mr. Almedia drive Ruben away to the hospital.

Id. at *2

- 3. Perry ’ s petition complained of Carrie r ’ s statement “ t h at he witnessed [Perry] sho ot and kill Ruben Gr ajeda and rob him in Cause No. 607922 and that he was an innocent3

bystander.” Perry contended that his indictment was void because it ste mmed from Carrier ’ s false statement and tha t “it logicall y follows th at a conviction based on a v oid indictment, is a nullity, [and] therefore not a final conviction.”

On March 16, 2018, t he State a nswer ed Perry ’s civil suit by filing a combined plea to the jurisd iction and motion to dismiss

. Perry filed an a mended petit ion the next month. On July 11, 2019, the Stat e filed a nother motion to dismiss and plea to the jurisdictio n, this time adding a motion to declare Perry a vexatious litigan t. See T ex. Civ. Prac. & Rem. Code § 11.054

. The district court held a hearing on the State’s motion s . Du ring the hearing, P er ry

a cknowledged hi s history of civil litigation and the dismissal of his lawsuits. Rely ing on a default

- judgment case and other civil c ases that d id not involve collateral attacks on final criminal convicti ons, Perry said that his T ra vis County suit sou gh t postconviction relief for his Harris County aggravated

- robbery conviction b ecause he “ didn ’t actually do the shooting ” and his conviction was “null and void ” :

Court: Where does this Court in Travis Count y have the jurisd iction for the relief that you a re asking for, sir?
P erry: They say a void conviction can be attacked anytime, anywhere, in any court. C ourt : Okay. Perry : A party may collaterally attack a judgment of a court of general jurisdiction i n another court of equal jur isdiction if the un de rlying judgment is void. That ’ s Armentor v. Kern

. . . 178 S.W. 3d, Page 147.

. . . . Court: Let m e ask you a question: Is your lawsuit just asking for money damages in some of this?4

Perry : No. I’m a lso trying on [sic] get out of prison. I’m also a sking for, you know, rele ase. The only ground which I can receive that kind of relief is it’s got to be a v oid judgment, you know. . . . While the writ habeas corpus may be granted by any district judge , the hearing thereunder must be in the county whe re the indictment was filed.
Court: Well, then why are we here, sir? . . . Sir? Perry: Yes. Court: Did you just hea r what you just said about the county where the court is, sir? Perry: Yes. Court: This is Tr avis County here a nd that was in Harri s County, was it not? Perry: Yes, I want [to] understand that, sir.
Court: Okay. Then how do you get arou nd that, sir? Perry: Well, you know if you can’t grant habeas corpus relief, well, you know, I’l l have to go back.

T he Sta te pointed out that a postconviction complaint is presented through a writ of habeas corpus and not a civil suit filed in Travis County :
First of all, as the Court briefly alluded to, Mr. Perry was convicted of a crime in the 199 0s, and the conviction has bee n upheld by the co urt of appeals and a petition for discretionary review was denied by the court of criminal appeals. The only remedy to challenge a criminal conviction, even if Mr. Perry is right, that the conviction is not sound and should be set aside, the only remedy f or that

— the e xclusive remedy, is by Chapter 11 of the code of criminal procedure, which is the habeas corpus writ. Mr. Perry is very familiar with that writ, because in the 14 prior litigations, about a thir d of those cases were him exer cising his petit io n for writ of h abeas corpus. They were all denied. This Court is not sitting here today as a habeas court.

The State also noted that Perry had previously sought the identical relief requested in his Travis
Coun ty suit

. See In re Perry , No. 01

- 16

- 005 67

- CR, 2016 Tex. App. LEXIS 8105, at * 1

- 2 (Tex.5

App.

— Houston [1st Dist.] 2016 , orig. proceeding ) (dismissing for want of jurisdiction Perry ’ s petition for writ of mandamus challenging his conviction) ; Perry v. State , No. 01

- 14

- 00577

- CR,
2014 Tex. App. LEXI S 12034, at * 2

- 3 (Tex. App.

— Houston [1st Dist.] Nov. 4, 2014 , no pet. ) (mem. op., not desi gna te d f or publi cation ) (d ismiss ing for want of jurisdiction Perry ’ s appeal seeking recall of First Court of Appeals ’ s mandate affirming his felony convictio n for agg ra vated robbery and noting that relief Perry sought could be granted only by postconviction writ of habeas corpus under art icle 11.07 of Code of Crim inal P rocedure and that Court of Criminal Appeals was court o f proper jurisdiction )

.

A t the conc lusion of t he hearing, the district court stated that it lacked jurisdiction to hear the matter , granted the State ’s dismissal “ on all bases , ” and decl ar ed Perry a vexatious litigant

. In its written order , t he district court found that Perry ’ s “ action is frivolous ” and that his

“ allegations have no a rguable basis in law and are barred by sovereign immunity, limitations, and issue preclus ion ” and g ran ted the State ’ s motio n to dismiss. Th is appe al f ollowed.

D ISCUSSION N o jurisdiction over Perry ’ s claim for post con vi ction relief

In its combined ple a to the jurisdiction and motion to dismiss , the State challenge d the district court ’ s subject

- matter jur isdiction and requested dismissal of Perry ’ s suit under subsection 14.003(b)(2) of the Texas Civ il Prac tice and Re me dies Code because it had “ no basis in law. ” See Tex. Civ. Prac. & Rem. Code § 14.003(b)(2) (authorizing trial court to consider whether claim has “ no arguable basis in law or fact ” in determining whether a claim is frivolous and s ubject to dismissal und er subsectio n 14.003(a)( 2 ) ) ; Perez v. City of Fort Worth , No. 03

- 16

- 00545

- CV, 2017 Tex. App. LEXIS 167, at *8 (Tex. App.

— Austin Jan. 11, 2017 , no6

pet. ) (noting that “ claim is considered to have no basis in law when either the legal theory on which it is ba se d is indisputably meritless or the factual allega tions on which it is based are wholly incredible or irrational ” (citing Nabelek v. District Att ’ y of Harris Cty ., 290 S.W.3d 222, 228 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied ) ) )

. Specifi cally, th e State contended that Perry failed t o plead any facts that would bring his claim within a statute that unambiguously waived the State ’ s sovereign immunity , see Tex. Gov ’ t Code § 311.034 , and that the State ’ s immunity was not waived for Perry ’ s re quested d ec laratory relief as to his wrongful

imprisonment claim

. See Tex as Parks & Wi ldlife Dep ’ t v. Sawyer Tr ., 354 S.W.3d 384, 388 (Tex. 2011) ( noti ng that “ a litigant ’ s couching its requested relief in terms of declaratory relief does not alter the un derlying na ture of the suit ” and that “ soverei gn immunity will b ar an otherwise proper DJA claim that has the effect of establishing a right to relief against the State for which the Legislature has not waived sovereign immunity ” ). Perry responded that th e Travis
Co unty district court did have jurisd iction to declare void his aggravated

- robbery conviction rendered by a Ha rris County district court and e rr ed by dismiss ing his suit

.

W e review a trial court ’ s ruling on a plea to the jurisdiction de novo. H ouston
B e lt & Terminal Ry. v. City of Housto n , 487 S.W.3d 154, 160 (Tex. 2016)

. When a plea to the jurisdictio n “ challenges the pleadings, we determine i f the pleader has alleged facts that affirmatively demonstrate the court ’ s jurisdiction to hear the cause. ” T e xas Dep ’ t of Crim

. Just

. v. Rangel , 595 S.W.3d 198, 205 (Tex. 2020) (quoting Texas Dep ’ t of Parks & Wi ldlife v. Miranda , 133 S.W.3d 217, 226 (T ex . 2004) )

. “ [ W ] e liberally construe the pleadings, taking all factual assertions as true and looking to [the p l aintiff ’ s] intent ” in determining w hether the plaintiff has met that burden

. Id. (quoting City of I ng leside v. City of Corpus Christi , 469
S.W .3 d 589, 590 (Tex. 2015) ). “ [ W ] hen a plea to the jurisdiction challenges the existence of7

jurisdictio nal facts, we look beyond the pleadings and co nsider evidence submitted by the parties

‘ when necessar y to resolve the jurisdictional issues raised, ’ even if the evidence implicates both the court ’ s jurisdiction and the merits of a claim. ” Id. (quoting Mir anda , 133 S .W.3d at 227 ).

“ ‘ [I] f the relevant evidence is undisputed or fails to raise a fact question on the jur isdictional issue, ’ a court rules ‘ on th e plea to the jurisdiction as a matter of law. ’ ” Id. (quoting Miranda , 133 S.W.3d at 22 8 ). Similarly, w e review de novo whether a plaintiff ’ s clai ms hav e no basis in law such that dismissal on that ground is authorized. Perez , 2017 Tex. App. LEXIS 167, at *6

.

“ We examine the claims asserted and the relief requested to determine whether the petition stated

a cause of action that could authorize relie f. ” Id.

H ere, Pe rr y ’ s a mended complaint a llege s that “ the complaint and indictment fo r aggravated robbery is void as it is based o n material perjury of Patrick Paul Carri er , ” who stated

“ that he witnessed [Pe rry] shoo t and kill Ruben Grajeda and rob him

. ” Pe rry ’ s brief s tates , “This is a collateral attack in another district court in Texas where appellant is attempting to avoid the effect of the finding of guilty and fort y five year sentence for aggravated robbery, Ar t. 29.03 of the Texas P enal Code beca use it is complete ly void.” Thus, Perry sought postconviction relief in Travis County district court f rom his f

inal felony convicti on by a Harris County jury for aggravate d robbery

. See Perry , 1994 Tex. App. LEXIS 380 , a t * 9 (affirming Perry ’ s aggravated

robbery convictio n in Harris County trial court cause number 607,922 )

.

Perry sought postconviction relief from the Travis Count y district court through his civil suit fo r wro ngful imprisonment , but such relief is a vailable only by application for writ of habeas corpus

. Article 11.07 of the Texas C o de of Criminal Procedure “ provides the exclusive means to challenge a final felony convict ion.” Board of Pardons & Paroles e x rel

. Keene v. Court of App eals for Eighth D ist

. , 910 S.W.2d 481, 483 (Tex. Crim. App. 1995)

.8

Arti cle 11.07 specifies that it “establishes the procedures for an application fo r writ of habeas corpus in which the applica nt seek s relief from a felony judgm ent i mposing a penalty other than death.” Te x . Code Crim. P roc . art. 11.07, § 1

. Ju risdiction to g rant post conviction habeas corpus relief on a final felony conviction rests excl usively with the Texas Court of Criminal Appeals

. Keene , 910 S.W.2d at 483 ; see Davis v. State , No. 03

- 16

- 00852

- CR, 2017 T ex. App. LEXIS 295,
at * 1 (Tex. App

. — Austin Jan. 13, 2017 , no pet. ) (mem. op., not designated f or publication ) ( noting that this Court “ lacks jurisdiction to grant habeas cor pus reli ef from final felony convic tions .”)

. 1 “Any other pro ceeding shall be vo id and of no force and effect in dis c harging the prison er.” Keene , 910 S.W.2d at 483 (citing Tex. Code Crim. P roc . art. 11.07, § 3 ).

Moreover, “ [a] party may not predicate relief in a civil case based on a co llateral attack to a final criminal convictio n. ” Cooper v. Trent , 551 S.W.3d 325, 337 (Tex. App.

— Ho uston [14th Dist.] 2018, pet. denied)

. A convicted criminal defendant can not bring a civil action for damages that “ necessarily require [s] the plaintiff to prove the un lawfulness of his conviction or co nf

ineme nt, ” unless he can demonstra te that his convic tion or sentence has already been reversed on direct appeal, expunged by executive order, or declared invalid in a collateral proceeding. Id. ; s ee $60,427. 11 U .S. Currency v. State , No. 02

- 18

- 00165

- CV , 2019 Tex. App. LEXIS 59 35, at *11

- 1 2 (Tex. Ap p.

— Fo rt Worth July 11, 2019 , no pet. ) (mem. op.) (concluding that inmate could not seek relief by attacking his money

- laundering conviction through appeal of civil matter )

. Because Perry ’ s challenge to the va li dity of his final felony

1 Subsection 3(b) of article 11.07 states that “ [a] n application for writ of habeas corpus filed after final con viction in a felony case, other t ha n a case in whic h the death penalty is imposed, must be filed with the clerk of the court in w hich the conviction being challen ged was obtained, and t he clerk shall assign the application to that court. When the applicat ion is received by that court, a wr it of habeas corp us, returnable to the Court of Criminal Appeals, s hall issue by operation of law. ” Tex. Code Crim. Proc. art. 11.07 § 3(b)

.9

conviction for aggra va ted ro bbery is governed by a rticle 11.07 , a writ of habeas corpus

— and not a civil suit

— provides the exclusive means to challenge his final felony conviction. See K eene , 910 S.W.2 d at 483

. And b ecause juris di ction for such p ostconviction relie f rests wi th th e C ourt of Criminal Appeals, the district court had no juris diction over Perry ’ s claim for that relief and did not err by dismissing his s uit against the State

. See Perez , 2017 Tex. App. LEXIS 167, at *8 ( concluding that trial court did not have jurisdiction to grant inmate relief requested in his petition , which was available only thro ugh post conviction application for habeas corpus , and that trial court did not abuse its discretion by concluding that in ma te ’ s claims had no arguable basis
i n law and dismissin g his claims as frivolous ).

Similarly, Perry failed to show that the di strict court erred by dis missing hi s wrongful

- impr iso nment claim

. Perry filed suit against the State for compensatory damages

un der s ection 103.001 of the Civil Pr actice and Remedies Code seek ing “ a damages h earing for unlawful c onfinement of 28 yea rs and continuing injuries. ” S ubs ection 103.001 (a ) provide s that a person is entitled to compensation if:
(1) The person has served in wh ole or in part a sentence in prison under the laws of this state; and (2) the person: (A ) has received a full pardon o n the basis of i nnocenc e for the crime for which t he perso n was sentenced; (B) has been granted relief in accordance with a writ of habeas corpus that is based on a co urt finding or determination that the pe rson is actually innocent of the crime for wh ich the person was sent enced; or (C) has been gra n ted reli ef in accordance with a writ of habeas corpus and: (i) the state distric t court in w hich the charge against t he person was p ending has entered an order d ismissing the charge; and10 (ii) the dis trict court’s dismissal order is ba sed on a motio n to dis miss in which the state’s attorney states that no credible evidence exists that inculpates th e defendant and, either in the motion or in an affidavit, the state’ s attorney states that the state’s attorney believes that the defendan t is actually innocen t of the crime for which the person was sentenced.

T e x . C i v . P r a c . & R e m . C o d e § 103.001(a)

.

Here, Perry h as not shown that he received a pardon on th e basis of innocence for the crime of aggra vated robbery , that he wa s grant ed habeas corpus r elief , that there has been any court determination that he is actually innocent of the crime of aggravat ed robbery , or that the 180th District Court of Harris Coun ty entered an order dismissing the c harge o f aggravated robbery agains t him

. Thus , Perry fa i led to show any entitle ment to damages for wrongful imprisonment under the express provi sions of s ection 103.001

. See id

.

P erry ’ s requested declar atory relief as to his claim of wrongful imprisonment was an attempt to establish a right to relief against the St ate for which the Legislature has n ot waived sovereign immunity

. See Saw yer Tr. , 354 S.W.3d at 388

. Perry’s wrongful

- imprisonment claim is indisputably meritless and has no arguable basis in law. See Perez , 2017 Tex. App. LEXIS 167, at *6. B ecause Perry ’ s claim ha s “ no argu able basis in law , ” it was subject to dismiss al as a frivolo us claim

. Se e Tex. Civ. Pra c. & Rem. Code § 14.003 (a)(2), ( b)(2)

. Accordi ngly, we overrule Perry ’ s issue co nten ding th at the district court erred by dism issing h is suit bec ause it had jurisdiction to declare hi s conviction void or to award damag es on his wrongful

im p risonment claim

.11

State ’ s v exatious
- litigant mo tion was un t imely

Perry further contends tha t the State ’ s motion to declare him a vexatious litigant was untimely because it was not filed within nin e ty days of the filing of the State ’ s original

answer . Perry r equests r evision or reversal of the distr ict court ’ s final or der declaring him a vexatious lit igant. The State acknowledges the untimeliness of its motion and th e error of Perry ’ s designation a s a vexatious litigant

.

Sectio n 11.051 of the Texas Civil Practice and Re medies Code provides :

I n a litigation i n this state, the defendant may, on or before the 90th day after the date the defen dant files the o riginal answer or makes a special appea r ance, move the court for an order: (1) determining that th e plaintiff is a vexatious litigant; and (2) requir ing the plaint iff to furnish security.

Id. § 11.051 ; see B rown v. Texas S tate Bd. of Nu rse Exam’rs , No. 03

- 05

- 00508

- CV, 2007 Te x. App. LEXIS 8276, at *1 3 (Tex. App.

— Austin Oct. 18, 2007 , no pet.) (mem. op.) (“The plain
lan guage of section 11.05 1 simply p rovides a deadline after which defendants may no longer file vexatious

- li ti gant motions.” )

. Texas cases have concluded that a plaintiff may not be declar ed a vexatious litigant on the de fendant ’ s motion when the defendant f ail s to file that motion within ninety days of its original answer. See D ishner v. Huitt

- Zo llars, Inc ., 162 S.W.3d 370, 377 (Tex. App.

— Dallas 2005 , no p et. ) ( concluding that vexatious

- l itigant declaration s ought as par t of defendant ’ s summ a ry -

judgment mot ion and filed after expirati on o f statutory 90

- day period was untime ly and th at “[i] t was, t herefore, er ror for the trial co urt to grant relief under that circumstance ”) ; see also In re Grossnickle , 115 S.W.3d 238, 252 (Tex. App.

— Texarkana 2003 ,

no pet. ) ( concluding that trial court did not err by declining to find that pl aintiff was vexatious12

li tigan t because “ the ‘ ve xatious

- l itigant statute ’ applies only when [motion is] filed within ni nety day s after the date on which a defenda nt files hi s or her origina l answer”)

. Here, as we have

no ted, t he State filed its original an swer as part of its m oti on to dismiss and plea to the j u risdiction on March 16, 2018. Th us, the statutory n inety

- day deadline for the State ’ s filing o f a motion to declare Perr y a vexatio us litiga nt was June 1 4 , 2018

. See Tex. Civ. Prac. & Rem. Code § 11 .051

. T he State did not file its motion to declare Perr y a vexatious litigant until July 11, 2019. B ecause the State failed to file its motion seekin g to decla re Perry a vexatious litiga nt within ninety days of fil ing its original a nswer, w e sustain Perr y ’ s issue complaining of the vexatious

- litigant order is sued on the State ’ s untimel y motion and modify the order to re move the district court ’ s adjudic ation of P erry as a v exatious litigan t. See id

. ; Dishne r , 162 S.W.3d at 377 ( making similar modification to judgment de claring p laintiff vexatious litigant on d efendant ’ s untimely m otion ).

B ecause the district c ourt lack ed jurisdiction over Perry ’ s post conviction complaint collaterally att acking his 19 9 3 aggravated rob be ry conviction and because t he district
court ’ s final order i s modified to remove th e vexatious

- litigant adjudication, we need not address Perry ’ s remainin g co ntention that his conviction should be declared “ p resumptively voi d ” as a sanction for the State’s alleged failure to produce relevant records in support of i ts motion to declare Pe rry a vexatious li tigant

.13 CO NCLUSION We modify the district court’ s A ugust 27, 2019 final order to rem ove the adjudication of Perry as a ve xatious litigant and , as mo di fie d , affirm the order

.

______________________________________ ____ Gisel a D. Triana , Justice Before Justices Goodwin, Tri ana, and Smith Mod if ied and , as Modified, Affir med Filed: February 11, 2021