Gentry v. HPD (Tex.App.- Houston [14th Dist.] Jul. 16, 2009)(Anderson)
(inmate litigation, pro se, IFP)(no collateral attack of criminal conviction in civil suit)
All of the claims alleged by appellant in his original petition, if true, would
undermine the validity of his criminal conviction. Therefore, unless he has
proved his conviction has been overturned in some manner, a civil district court
is not the proper forum for his complaints and damages are not warranted.
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-01094-CV Frankie R. Gentry v. Houston Police Department
Appeal from 280th District Court of Harris County
Trial Court Judge: TONY LINDSAY
Trial Court Case #: 2008-54353
FRANKIE R. GENTRY, Appellant
HOUSTON POLICE DEPARTMENT, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2008-54353
M E M O R A N D U M O P I N I O N
Frankie Gentry, a prisoner in the Texas Department of Criminal Justice, appeals the
dismissal of his inmate case. Appellant argues the trial court erred in dismissing his lawsuit
without conducting a fact hearing.
Finding no error, we affirm the judgment of the trial court.
Factual and Procedural Background
Appellant is an inmate housed in the Texas Department of Criminal Justice O.B. Ellis Unit.
On September 8, 2008, appellant filed a petition, in forma pauperis, in the 280th District
Court of Harris County, Texas, titled “Petition against Racism, With: malice and '
Discrimination, By: Fraud, used to illegally manufacture an indictment:[sic]." Appellant
named three defendants: Houston Police Department, Harris County, and “John or Jane
Does, M.D. Chief Medical Examiner." It is difficult to decipher what causes of action
appellant alleges against the defendants. However, some of his grievances are slightly more
clear than others, such as: perjury, breach of duty of care, violation of the Texas Constitution
articles 1-12, violation of the Federal Constitution, denial of equal protection of the law, illegal
manufacturing of indictment, racial profiling, entrapment, denial of right to examining trial
before indictment, and concealment of evidence.
All of appellant's claims relate to the criminal conviction which resulted in his imprisonment.
Appellant claimed to have suffered mental anguish and requested $7,000.00 in damages
from each defendant. On September 18, 2008, the trial court dismissed appellant's petition
on the grounds his claims were frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)
(2) (Vernon 2002). In its order the trial court stated in relevant part:
The Court has reviewed the petition and finds that the petition is so poorly written that the
Court cannot tell exactly what the Plaintiff is complaining about. However, the Plaintiff
Frankie R. Gentry appears to be, in effect, attempting to appeal the result of his criminal case
that resulted in his incarceration, or to recover damages based on the fact that he was
incarcerated as a result of the criminal case. Either way, this lawsuit is not a proper claim
and is frivolous. Plaintiff may not use this civil court to attempt to appeal his criminal case. . .
. The claim's realistic chance of ultimate success is slight and the claim has no arguable
basis in law.
The defendants did not file anything in response to appellant's petition and the trial court
dismissed without holding a hearing.
Appellant's brief on appeal is as unintelligible as his original petition. His only recognizable
complaint is that the trial court erred in dismissing his case because it failed to hold a fact
hearing to determine whether his claims were frivolous.
I. Standard of Review
A court may dismiss an inmate claim if it finds the claim to be frivolous or malicious. Tex.
Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002); Retzlaff v. Texas Dep't of
Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.- Houston [14th Dist.] 2002, pet. denied). A
claim is frivolous if it has no basis in law or fact. Id. Trial courts are given broad discretion in
determining whether a case should be dismissed because: (1) prisoners have a strong
incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3)
sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the
benefit of state officials, courts, and meritorious claimants. Retzlaff, 94 S.W.3d at 653.
When a trial court dismisses a claim without conducting a fact hearing, the dismissal can be
affirmed on appeal only if the claim has no arguable basis in law. Id. Therefore, our review of
whether a claim is legally cognizable is de novo. Id.
Appellant contends the trial court erred by dismissing his lawsuit as frivolous because the
trial court held no evidentiary hearing. To determine whether a claim is frivolous or malicious,
the court may consider whether:
(1) the claim's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the claim; or
(4) the claim is substantially similar to a previous claim filed by the inmate because the claim
arises from the same operative facts.
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon 2002). A trial court has discretion
whether to hold a hearing when dismissing a suit. Id. § 14.003(c) (“the court may hold a
hearing") (emphasis added). A claim has no arguable basis in law if it is an “indisputably
meritless theory." Minx v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.- Houston [14th Dist.]
2005, no pet.). In conducting our de novo review, we take as true the allegations of the
inmate's petition. Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.- Houston [1st Dist.]
2006, no pet.). A court may not dismiss an inmate's lawsuit simply because it thinks the
inmate's allegations are unlikely. Id at 267.
The claims in appellant's original petition focus on his indictment and circumstances leading
to his final criminal conviction. In essence, appellant is attempting to appeal his criminal
conviction in civil court. Where a conviction has not been overturned, a criminal defendant
cannot recover damages resulting from his conviction. See Barnum v. Munson, Munson,
Pierce and Cardwell, P.C., 998 S.W.2d 284, 286 (Tex. App.- Dallas, 1999 pet. denied)
(affirming dismissal of inmate's malpractice action as frivolous where his conviction had not
Furthermore, the United States Supreme Court has held that to recover money damages for
Aharms caused by actions whose unlawfulness would render a conviction or sentence
invalid," a state prisoner first must show that his conviction or sentence was overturned on
appeal, expunged by executive order or state tribunal, or called into question by a writ of
habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372, 129 L.
Ed. 383 (1994); see also Brown v. Lubbock County Comm. Ct., 185 S.W.3d 499, 506 (Tex.
App.- Amarillo 2005, no pet.); Broussard v. Green, No. 01-00-01096-CV, 2001 WL 931606,
at *2 (Tex. App.- Houston [1st Dist.] Aug. 16, 2001, no pet.) (not designated for publication).
However, if the district court determines the plaintiff's action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed. Heck, 512 U.S. at 487. The Court further states that allowing
civil damages resulting from a criminal conviction would violate the longstanding bar against
collateral attacks on final judgments. See id. at 488. Although Heck applies to plaintiffs
proceeding under 42 U.S.C. § 1983, we hold that its reasoning is applicable to the claims
made by appellant because they are similar in nature to those addressed in Heck. In Heck,
the inmate plaintiff brought a § 1983 action alleging prosecutors violated his constitutional
rights when he was criminally convicted. The Heck plaintiff's claims called into question his
criminal conviction, similar to the claims made by appellant in his original petition. Therefore,
we believe it is appropriate to apply the Heck analysis to the instant case.
All of the claims alleged by appellant in his original petition, if true, would undermine the
validity of his criminal conviction. Therefore, unless he has proved his conviction has been
overturned in some manner, a civil district court is not the proper forum for his complaints and
damages are not warranted. There is nothing in our record indicating appellant's original
criminal conviction has been overturned or that he has been exonerated of the conviction in
any form. A fortiori, we hold appellant may not recover damages as a result of circumstances
surrounding his indictment and subsequent conviction. See Heck, 512 U.S. at 486-87.
Consequently, the trial court properly dismissed appellant's claims as frivolous. Accordingly,
we overrule appellant's sole issue on appeal.
Having overruled appellant's only issue, we affirm the judgment of the trial court.
/s/ John S. Anderson
Panel consists of Justices Anderson, Guzman, and Boyce.
 The trial court need not rely upon a motion of the defendant in order to exercise its discretionary
power to dismiss under Chapter Fourteen. See McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d
535, 537 (Tex. App.- Houston [14th Dist.] 1998, no pet.). Section 14.003 specifically provides a
Acourt may dismiss a claim, either before or after service of process." Tex. Civ. Prac. & Rem. Code
Ann. § 14.003(a) (Vernon 2002).
 Therefore, appellant's contention the trial court erred because it failed to hold a fact hearing is
without merit. However, we will still address whether the trial court erred as a matter of law in finding
appellant's original claims frivolous.