1.70 Acres, .20 Acres, and .28 Acres of Real Property and Structures Thereon (Mizell) v. State

• Decision Date: 27 November 1996
• Docket Number: Nos. 09-95-051,s. 09-95-051
• Citation: 935 S.W.2d 480
• Parties: 1.70 ACRES, .20 ACRES, AND .28 ACRES OF REAL PROPERTY AND STRUCTURES THEREON (Robert and Wendi MIZELL), Appellants, and One Hundred Thirty-Five Dollars and Twenty-Six Cents ($135.26) (Robert and Wendi Mizell), Appellants, v. The STATE of Texas, Appellee. CV, 09-95-052 CV.
• Court: Texas Court of Appeals

Page 480

935 S.W.2d 480

1.70 ACRES, .20 ACRES, AND .28 ACRES OF REAL PROPERTY AND STRUCTURES THEREON (Robert and Wendi MIZELL), Appellants and One Hundred Thirty-Five Dollars and Twenty-Six Cents ($135.26) (Robert and Wendi Mizell), Appellants, v. The STATE of Texas, Appellee.

Nos. 09-95-051 CV, 09-95-052 CV.

Court of Appeals of Texas,

Beaumont.

Submitted March 21, 1996.

Decided Nov. 27, 1996.

Joseph C. Hawthorn, Beaumont, for Appellants.

R.F. "Bo" Horka, Silsbee, for Appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

For purposes of judicial efficiency, these separate appeals, involving forfeiture of real property and structures thereon and United States currency in the amount of $135.26, will be disposed of in a single opinion.

In both cases before us, the State of Texas, by and through the Southeast Texas Narcotics and Intelligence Task Force, filed on March 19, 1992, a Notice of Seizure and Intended Forfeiture of certain real and personal property allegedly owned by Robert and Wendi Mizell. The real property was generally described as 1.70 acres, .20 acres, and .28 acres of real property and structures thereon; the personal property consisted of $135.26 in United States currency. Some two and one-half years later, on November 17, 1994, the cases were tried simultaneously to the bench; judgments of forfeiture were granted in both cases in favor of the State.

APPLICABLE LAW

Concerning forfeiture cases, this court recently held in Ex parte Baucom, 928 S.W.2d 748 (Tex.App.--Beaumont 1996, pet. filed), that such proceedings are civil in nature; in addition, the Code of Criminal Procedure provides that a forfeiture proceeding under the forfeiture of contraband statute is a civil proceeding. TEX.CODE CRIM.PROC ANN. art. 59.05(b) (Vernon Supp.1997). The State, therefore, has the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. $22,922.00 v. State, 853 S.W.2d 99, 101 (Tex.App.--Houston [14th Dist.] 1993, writ denied). Since the forfeiture proceeding is a civil case, we rely on the Texas Rules of Civil Evidence, rather than the Texas Rules of Criminal Evidence, to govern the admission and exclusion of evidence. ¹ See art. 59.05(b).

FACTS

David Laine, an investigator for the Southeast Texas Narcotics and Intelligence Task Force, testified he stopped Ethel Potter for a traffic violation on or about February 27, 1992. Laine testified that during that stop he observed a "halfburnt" marijuana cigarette in the ashtray. After placing Potter under arrest, he recovered a baggie of marijuana and a couple of packs of hand-rolled cigarettes. Potter did not testify at trial. Over the objection of appellant, the officer was allowed to relate at trial the statement Ethel Potter made to him regarding the source of the narcotics. The officer testified Potter told him she had bought the substance from a person called "John Ed"; she also described the appearance of the house and the individual ("John Ed") from whom she had purchased the narcotics. After recognizing the description fit Robert Mizell, Officer Laine testified he obtained a search warrant for the Mizell residence.

The search warrant was executed at approximately 7:50 p.m. on February 27, 1992. Officer Laine testified that, in the process of executing the warrant, he saw Robert Mizell exit from the rear of the house and flee into the woods. Laine further testified he saw Mizell's arms making a flying upward motion just as Mizell entered the woods. The State introduced several pictures depicting the marijuana found during the search, some baggies (sandwich bags), and a set of scales, all allegedly discarded by Robert Mizell. The State further introduced a photograph purporting to show the residence and garage of Mizell. The officer testified that $135.26 in currency, a check in the amount of $200, the residence, land surrounding it, and the outbuildings were all seized.

Upon cross-examination, Officer Laine admitted that, in exchange for Ethel Potter's cooperation and testimony against Robert Mizell, she was not being prosecuted. He further admitted that the only marijuana found at the time of the execution of the warrant was not in the Mizell house, but was located in the woods, some 150 feet away from the house. The total amount of marijuana recovered was 1.25 ounces, which would calculate, according to figures testified to by Officer Laine to be worth less than $200. At the time of the execution of the warrant, approximately ten officers were present at the scene; three officers and a canine conducted the actual search. Total time at the scene was approximately four hours.

POINTS OF ERROR

Appellant brings forward five points of error concerning the real property forfeiture and two points of error on the personal property forfeiture.

In Points of Error One and Two in the real property forfeiture case, appellant alleges there was no evidence or, in the alternative, insufficient evidence to show that the real property described in the Original Notice of Seizure and Intended Forfeiture was the property used or intended to be used in the alleged commission of a felony offense.

In a nonjury trial where no findings of fact are requested or filed, we presume that the trial court made all necessary findings in support of its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992); State v. One Residence Located at 1204 North 12th Street, Alamo, Tex., 907 S.W.2d 644, 645 (Tex.App.--Corpus Christi 1995, no writ). When, as in this case, a statement of facts is brought forward, these implied findings may be challenged by factual or legal insufficiency points the same as jury findings or a trial court's findings of fact. Holt Atherton, 835 S.W.2d at 84; One Residence, 907 S.W.2d at 645. When deciding a no evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). We will uphold the finding if more than a scintilla of evidence supports it. Id., at 499; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Crye, 907 S.W.2d at 499. In the instant case, the evidence is legally insufficient to show that the property described in the pleadings is the same property alleged at trial to have been used or intended to be used in the commission of a felony under Chapter 481. Consequently, we never reach Point of Error Two, the factual insufficiency point.

In its Original Notice of Seizure and Intended Forfeiture, the State describes the real property sought to be forfeited as "1.70 ACRES, .20 ACRES, AND .28 ACRES OF REAL PROPERTY AND STRUCTURES THEREON" and asserts that those tracts are contraband and subject to seizure and forfeiture "as provided by Chapter 59 of the Texas Code of Criminal Procedure." In paragraph VII of the pleading, the State makes specific reference to "[the] officer's affidavit and Real Property descriptions attached herein describing property to be seized." The attachments include four warranty deeds purportedly describing the property sought to be forfeited.

In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the seized property is contraband and, therefore, subject to forfeiture. TEX.CODE CRIM.PROC.ANN. art. 59.05(b). "Contraband" is defined as "property of any nature, including real, personal, tangible, or intangible, that is ... (B) used or intended to be used in the commission of (i) any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act) ..." TEX.CODE CRIM.PROC.ANN. art. 59.01(2) (Vernon Supp.1997).

The State was required to prove at trial that the property, which it alleged in its pleading to be subject to forfeiture, is the same property alleged at trial to have been used or to have been intended to be used in the commission of a felony under Chapter 481. The State, however, never introduced into evidence at trial the deeds containing property descriptions of the tracts in question. The mere fact that deeds are attached to the pleadings does not constitute evidence that the property described in the pleadings is the property that was intended to be used in the commission of a felony under Chapter 481. Instruments attached to pleadings are not evidence unless they are introduced as such. American Fire and Indem. Co. v. Jones, 828 S.W.2d 767, 769 (Tex.App.--Texarkana 1992, writ denied).

Although there is no documentary evidence in the trial record concerning the real property, there is testimony from Officer David Laine concerning directions on how to get the real property:

Q. (By Mr. Hardy) Where was the search warrant for, David?

A. The search warrant was for a wood-framed dwelling, blue and white trim with gray shingles, composite roof, having a back porch with a tin roof, front door facing west.

The directions to the residence is traveling southbound on U.S. 69 from the intersection of FM 3063. Go .7 miles, turn westward on Old Highway 69. Travel approximately one tenth of a mile south. Turn due west on an unnamed dirt road. Travel approximately 150 feet. Turn south on an unnamed dirt road, being the first residence on the east side of the road. And that will be the location of the residence.

Q. Is that the residence of Robert and Wendi Mizell?

A. Yes, sir, in Village Mills, in Hardin County.

The directions, however, are no evidence that the property referred to in the pleadings is the property to which Officer Laine is giving directions. No connection is made between the two.

The same is true of another portion of Officer Laine's testimony in which he stated that the...