Lown, Lanny Blake v. The State of Texas--Appeal from 179th District Court of Harris County

Dismissed and Opinion filed November 16, 2004

Dismissed and Opinion filed November 16, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00611-CR

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LANNY BLAKE LOWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 942,168

O P I N I O N

Appellant, Lanny Blake Lown, appeals the trial court=s order directing his bail bond collateral be turned over to the receiver in a related civil proceeding. Appellant was indicted in cause number 942,168 on March 12, 2003, for sale of an unregistered security. See Tex. Rev. Civ. Stat. Ann. art. 581-29 (Vernon Supp. 2004). The State alleged that appellant was the manager of an investment program in which he falsely represented to investors that he would use investor funds to purchase precious metals for resale to the United States government. The State contends no precious metals were purchased, and that appellant used the investor funds for his own benefit.

Appellant was arrested and search warrants were executed on appellant=s office and residence on March 11 and 12, 2003. Approximately 39 boxes of business records and accounting files were seized. On March 17, 2003, appellant was released from custody after Lori Franz, one of appellant=s associates, posted a $100,000 bond. However, the State filed a motion on the following day to freeze the funds in two bank accounts owned by appellant. The State alleged that during its inspection of the documents seized on March 11 and 12, its financial analysts and investigators had discovered that appellant deposited approximately $3,600,000.00 in investor funds acquired during the months of January and February, 2003. The State also alleged that approximately $1,000,000.00 was withdrawn from these accounts on March 17, 2003. To maintain the status quo, the 179th District Court ordered the accounts frozen on March 18, 2003.

On March 28, 2003, the State offered evidence to the district court that appellant had used stolen monies to pay his bonding fees, the collateral for his bond, and his attorney fees. On March 31, 2003, the State moved to freeze funds in an account owned by Franz. The trial court granted the motion and froze the account to prevent any further dissipation of the funds.

On April 10, 2003, the Texas Attorney General=s Office, on behalf of the State Securities Board, sought a temporary restraining order in the 250th District Court of Travis County against appellant, the stated purpose of which was, to prevent any further fraudulent activity. The court granted the temporary restraining order, subsequently issued a temporary injunction, and appointed Janet Mortenson as AReceiver for the company, money, property, and assets of One West Financial Services, an assumed name of Lanny Blake Lown, and One West Financial LLC, and for all money, property, and assets of Defendants Lanny Blake Lown and Lori Ann Franz as appear to the Receiver to contain or be derived from proceeds of Defendant=s sale of securities or used in furtherance thereof.@

On April 11, 2003, the Harris County District Attorney=s Office filed a motion to Aunfreeze@ the funds previously frozen by order of 179th District Court to permit their acquisition by the 250th District Court=s receiver, Ms. Mortenson. That same day, the Harris County District Attorney=s Office presented evidence that its investigators had discovered appellant had used stolen monies to purchase 28 motor vehicles valued at 1.5 million dollars, several expensive dwellings, and jewelry valued at 1.2 million dollars. The State, therefore, requested the court to order the Sheriff of Harris County to withhold acceptance of any new bond pending a hearing to establish the source of the bond fees and collateral. The 179th District Court granted both requests.

On April 16, 2003, a demand was made on Burns Bail Bonds to deliver to Mortenson the bond collateral paid to it by Franz. However, on April 23, 2003, Franz sought return of the $100,000 in bond collateral by surrendering the bond.

In an effort to prevent Franz=s acquisition of the funds, the State presented evidence at a hearing on April 28, 2003, that all the monies in Franz=s account and, thus, the money used to collateralize appellant=s bond, had come from investor deposits. Mortenson testified at this hearing and requested that the funds be turned over to her in her capacity as receiver. The 179th District Court subsequently granted the request and ordered Burns Bail Bond Company to deliver the $100,000 to Mortenson.

Appellant filed a notice of appeal seeking review of the order of the 179th District Court to surrender the bond collateral to the receiver of the 250th District Court. Before proceeding, we must inquire into our subject matter jurisdiction, even if it is necessary to do so sua sponte. See Condit v. Nueces County, 976 S.W.2d 278, 279 (Tex. App.CCorpus Christi 1998, no pet.); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex. App.CDallas 1994, writ denied).

AA defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and [the Texas Rules of Appellate Procedure].@ Tex. R. App. P. 25.2(a)(2) (emphasis added). Moreover, Article 44.02 of the Code of Criminal Procedure provides that a Adefendant in any criminal action has the right of appeal under the rules hereinafter prescribed.@ Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon Supp. 2004B2005) (emphasis added). However, in Chapter 44, the defendant is authorized only to appeal from (1) any order imposing bond pending appeal,[1] (2) a final judgment rendered upon a bond of twenty dollars or more,[2] and (3) an order certifying a juvenile defendant to stand trial as an adult.[3]

Appellant=s appeal is not from an order imposing bond pending appeal. The appeal is not from a final judgment rendered upon a bond because the bond was never forfeited. Finally, the appeal is not from an order certifying a juvenile defendant to stand trial as an adult. Thus, our only possible subject matter jurisdiction arises here if the appeal is from a Acriminal case or action.@

The Texas Supreme Court has defined a Acriminal case@ as Aan action, suit, or cause instituted to secure conviction and punishment for crime.@ Hankamer v. Templin, 187 S.W.2d 549, 550 (Tex. 1945). Likewise, in Hardin v. State, 248 S.W.2d 487, 487 (Tex. Crim. App. 1952), the Texas Court of Criminal Appeals held a criminal defendant could not appeal from a jury=s finding that he was sane because the accused had not been Afound guilty of anything, and no punishment ha[d] been assessed.@[4]

Here, the proceeding is ancillary to a criminal proceeding based upon a criminal complaint, but appellant=s appeal is not from a conviction for violating any penal statute. Accordingly, this is not an appeal from a criminal case or action. For example, the Texas Court of Criminal Appeals has held that a purported appeal from the denial of an application for the restoration of allegedly stolen property was not a Acriminal case.@ Bretz v. State, 508 S.W.2d 97, 97B98 (Tex. Crim. App. 1974).

Further, appellant=s notice of appeal states that the appeal is brought under the authority of Tex. R. App. P. 25.2; Chapter 47 of the Texas Code of Criminal Procedure; and Tex. R. App. P. 26.2(a). All of these references are to the appeal of a conviction or appealable order in a criminal case. Here, the 179th District Court, as a matter of comity, acquiesced to a request by the 250th District Court to surrender all investor proceeds to its receiver. We find this is neither a criminal case nor an appealable order in a criminal case. Accordingly, the appeal is dismissed for want of jurisdiction.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed November 16, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Tex. Code Crim. Proc. Ann. art. 44.04(g) (Vernon Supp. 2004B2005).

[2] Tex. Code Crim. Proc. Ann. art. 44.42 (Vernon 1979) (emphasis added).

[3] Tex. Code Crim. Proc. Ann. art. 44.47(a) (Vernon Supp. 2004B2005).

[4] See also Gambling Paraphernalia, Devices, Equipment, and Proceeds v. State, 22 S.W.3d 625, 628 (Tex. App.CDallas 2000, ) (holding that the forfeiture of property under Article 18.18(b) of the Code of Criminal Procedure is not a matter arising out of a criminal case).