$100,210.00 in U.S. Currency v. State

Decision Date22 December 2022
Docket Number02-22-00016-CV
Parties$100,210.00 in U.S. Currency and 2007 Silver Infinity G35 (VIN JNKBV61E87M711079), Appellants v. The State of Texas, Appellee
CourtTexas Court of Appeals

$100,210.00 in U.S. Currency and 2007 Silver Infinity G35 (VIN JNKBV61E87M711079), Appellants
The State of Texas, Appellee

No. 02-22-00016-CV

Court of Appeals of Texas, Second District, Fort Worth

December 22, 2022

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. DC78-CV2021-1338

Before Kerr, Bassel, and Walker, JJ.



Elizabeth Kerr Justice

This is a civil-forfeiture case. We will affirm the trial court's judgment forfeiting money and a car to the State.


After being pulled over for driving in the passing-only left lane of U.S. Highway 287 North in Wichita County, Luis Modesto Gonzalez and his passenger, Davis Secin, were discovered with an odor-blocking backpack containing a vacuum-sealed package of $100,210 in cash,[1] a Glock pistol, and a scale. The sheriff's deputies who pulled them over detected the odor of marijuana in the car. During the stop, Gonzalez said that both he and Secin, whom Gonzalez identified as his uncle, were unemployed; had been driving all night; and were traveling to meet up with cousins from New York in Fresno, California, for two weeks to "see what's up." Secin had a small amount of marijuana on him that was discovered after he tried to flee the traffic stop on foot.

Law enforcement seized the cash and other items, including the silver 2007 Infiniti G35 that Gonzalez was driving, and arrested both men.[2] The State later filed a notice of seizure and of intended civil forfeiture of the cash and the car as


contraband, served written discovery on Secin and Gonzalez, and then moved for summary judgment based on what the State characterized as deemed admissions.[3] The trial court denied Secin and Gonzalez's motion to abate the forfeiture proceedings pending the outcome of any parallel criminal trial and granted summary judgment in the State's favor.

Secin and Gonzalez appeal, raising four issues:

1. Whether the trial court abused its discretion by denying their plea in abatement
2. Whether genuine fact issues or insufficient evidence precluded summary judgment
3. Whether the trial court abused its discretion by ruling that the privilege against self-incrimination is unavailable when responding to admission requests in a
civil case and by not holding an evidentiary hearing to determine the merits of the privilege's use; and
4. Whether forfeiture of the Infiniti and cash violates the Excessive Fines Clause of the United States Constitution's Eighth Amendment.

We will affirm.

Standards of Review

We review Appellants' first and third issues for an abuse of discretion. A trial court abuses its discretion if it acts without reference to any guiding rules or principles-that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours &Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

We review Appellants' second issue-whether summary judgment was appropriate-de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R.Civ.P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).


Civil Forfeitures

Texas law allows the State to seize certain property and obtain it through a forfeiture proceeding if the property is "contraband." See Tex. Code Crim. Proc. Ann. arts. 59.02(a), 59.04. Such a proceeding is "distinctly civil in nature: 'parties must comply with the rules of pleading as required in civil suits,' id. art. 59.05(a), cases 'proceed to trial in the same manner as in other civil cases,' and '[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture,' id. art. 59.05(b)." State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 693 (Tex. 2016). Seized property is contraband if it was used (or was intended to be used) in the commission of certain offenses.[4] See Tex. Code Crim. Proc. Ann. art. 59.01(2). The requisite "substantial connection" between the "property to be forfeited and the criminal activity defined by the statute" may be proved by circumstantial evidence. $27,877.00 Current Money of U.S. v. State, 331 S.W.3d 110, 114, 119 (Tex. App.-Fort Worth 2010, pet. denied) (citing State v. $11,014.00, 820 S.W.2d 783, 784, 785 (Tex. 1991), and holding evidence factually sufficient to support forfeiture where claimant was unemployed, there was no evidence of a legitimate job or other legal source of income, and $23,020 was found in various denominations tied in hair bands inside a bag).


The purpose of forfeiting contraband to the government is to keep the property and its proceeds from being used for illegal purposes. See Bennis v. Michigan, 516 U.S. 442, 452, 116 S.Ct. 994, 1000 (1996) ("Forfeiture of property prevents illegal uses . . . by imposing an economic penalty, thereby rendering illegal behavior unprofitable."); Fant v. State, 931 S.W.2d 299, 308 (Tex. Crim. App. 1996) (same). The State need not prosecute or obtain a criminal conviction against the property's owner to pursue civil forfeiture of contraband. See Tex. Code Crim. Proc. Ann. art. 59.05(d) ("A final conviction for an underlying offense is not a requirement for forfeiture under this chapter.").

Refusal to Abate (Issue One)

Rather than attempt to counter the substance of the State's summary-judgment motion with controverting evidence, Appellants asked the trial court to abate the forfeiture proceeding until any related or parallel criminal case was disposed of and to continue the summary-judgment hearing. They argued, in the trial court and on appeal, that without an abatement or continuance, they faced a Hobson's choice: exercise their right against self-incrimination-which they did by invoking the Fifth Amendment in response to the State's admission requests-or exercise their due-process interests by actively defending against the forfeiture action. This dilemma purportedly "constrained [them] from making any statements concerning the facts relating to their stop [or] the assets seized due to the pending criminal prosecution,"


leaving them "unable to proffer any defense or put on any evidence to defeat the State's motion for summary judgment."

We are unaware of any Texas case[5] in which a failure to abate a civil-forfeiture proceeding at a claimant-defendant's request was held to be an abuse of discretion- although courts have held that discretion can be abused by ordering abatement at the State's request. See In re Gore, 251 S.W.3d 696, 699-700 (Tex. App.-San Antonio 2007, orig. proceeding) (holding that State was not entitled to abatement of civil-forfeiture proceeding while criminal case pending); cf. In re Unauthorized Prac. of Law Comm., No. 13-08-00662-CV, 2008 WL 6654756, at *1 (Tex. App.-Corpus Christi-Edinburg Dec. 4, 2008, orig. proceeding) (per curiam) (mem. op.) ("As a general rule, the pendency of a criminal investigation, indictment, or other proceeding does not affect a contemporaneous civil proceeding based on the same facts or parties, and does not justify abating or staying all discovery in a civil case until resolution of the criminal matter."). Moreover, we have found no Texas case ordering a blanket or indefinite stay or abatement of a civil-forfeiture case where, as here, no criminal proceedings have been initiated and might never be.


To that latter point, commentators have observed that "[i]f the civil witness/defendant has already been indicted, then the risk of criminal prosecution (and the need for the stay) is clear. If the civil witness/defendant has not been indicted, he will have to convince a sometimes skeptical judge that the risk is real and imminent." Gerald H. Goldstein et al., The Criminalization of Civil Law, 38 The Advoc. (Texas) 4, 7 (2007).

That observation tracks with numerous cases from other jurisdictions recognizing that whether a civil litigant has been indicted is one of the factors relevant to a stay-and, if not, the lack of indictment is reason alone to deny such a request:

A stay is most appropriate when criminal charges have been filed against the moving party. Pre-indictment requests to stay parallel civil litigation are routinely denied because the defendant faces a reduced risk of selfincrimination. Further, the requested postponement is typically contingent upon a criminal investigation of indefinite duration. When a party seeking a stay has not yet been indicted, the court may deny the motion "on that ground alone."

Barker v. Kane, 149 F.Supp.3d 521, 527 (M.D. Penn. 2016) (citations omitted); see also Trs. of Plumbers &Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc., 886 F.Supp. 1134, 1139 (S.D.N.Y. 1995) (explaining how "[a] stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct"); Heller Healthcare Fin., Inc. v. Boyes, No. Civ.A. 300CV1335D, 2002 WL 1558337, at *3 (N.D. Tex. July 15, 2002) (same).

Because Appellants have not been indicted...

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