$18,800 in U.S. Currency v. State

• Decision Date: 05 June 1997
• Docket Number: No. 01-95-01182-CV,01-95-01182-CV
• Citation: 961 S.W.2d 257
• Parties: $18,800 IN U.S. CURRENCY and One 1990 Nissan Automobile Model 240SX VIN JN1HS36POLW144462, Appellants, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 257

961 S.W.2d 257

$18,800 IN U.S. CURRENCY and One 1990 Nissan Automobile Model 240SX VIN JN1HS36POLW144462, Appellants, v. The STATE of Texas, Appellee.

No. 01-95-01182-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 5, 1997.

Greg Gladden, Houston, for Appellants.

Rikke Burke Graber, Houston, for Appellee.

Before O'CONNOR, HEDGES and HUTSON-DUNN, ^* JJ.

OPINION

O'CONNOR, Justice.

This is an appeal from a judgment of forfeiture. The trial court ordered $18,800 in U.S. currency forfeited to the Houston Police Department (70%), Harris County District Attorney's Office (Harris County Treasurer's Fund No. 5922, 27%), and Harris County Treasury Fund no. 5940 (three percent). ¹ The trial court also ordered the Nissan 240SX forfeited to the State of Texas and awarded to the Houston Police Department. The cash was owned by and seized from Alexander Guzman; the car is owned by Tiffany Jones, the registered owner.

In three points of error, Jones, a respondent below, contends (1) the trial court erred when it denied her innocent owner defense; (2) the forfeiture was overwhelmingly disproportionate to her and violated due process; and (3) the forfeiture was punitive and did not serve the purposes for which the forfeiture statute was enacted. In three points of error, Guzman, the other respondent below, argues (1) the State failed to show a reasonable belief there was a substantial connection between the money and criminal activity; (2) it was error to allow Officer Walker to give an expert opinion; and (3) the forfeiture judgment was based on unreliable and prejudicial evidence, i.e., a narcotics detection dog who was rewarded each time it made a positive alert. We affirm.

A. The Facts

On July 5, 1994, Houston police arrested Guzman and charged him with possession with intent to deliver over 400 grams of cocaine. At the time of Guzman's arrest, he was driving the Nissan, and police found a kilo of cocaine in his waist band and the $18,800 at issue in a duffel bag in the rear of the car. On October 28, 1994, after pleading guilty, Guzman was sentenced to 20-years confinement and a fine of $1.00.

On August 3, 1994, the State filed its notice of seizure and intended forfeiture of the $18,800 and the Nissan. The cash and the car were seized based on the same violation for which Guzman was prosecuted, convicted, and sentenced. Guzman claimed the $18,800 in cash, but denied any ownership interest in the car. Jones claimed the Nissan.

Jones is a mail carrier for the U.S. Postal Service and has been since 1992. She has no history of felony convictions, drug convictions, or probation. She was not present at Guzman's arrest and has not been charged with any crime.

Officer Walker testified the Houston police received information from an informant that a black male known only as "Alex" was working the 6800 block of Luddington in southwest Houston dealing crack cocaine, driving a Nissan. Walker and other officers went out to the 6800 block and "set up" there. They saw "Alex" driving the Nissan that had been described to them by the informant. As Guzman approached the gates of the apartment complex the police had been told he frequented, Walker and his partner pulled in front of the Nissan, and a marked police car pulled up in back of the Nissan. Walker watched Guzman and saw him "stuffing something in his pants and moving around the car." The officers got out of their cars with their guns drawn and ordered Guzman to get out of the Nissan and lay down in the street. He complied. The police searched Guzman and found the kilo of cocaine; they also searched the Nissan.

Walker testified that Guzman said he had a recent "falling out" with his girlfriend, Jones, and she put Guzman out of the apartment they were sharing. At the time of his arrest, Guzman claimed the Nissan belonged to him. Walker testified that he found several receipts in the Nissan for repairs to the Nissan's transmission and air conditioning. The receipts showed that Guzman had paid for the repairs in cash. In the glove compartment of the Nissan, Walker found a traffic ticket issued to Guzman while he was driving the Nissan.

Other police officers found the $18,800 in the rear cargo area of the Nissan in a black duffel bag. Walker testified he asked Guzman where the money came from. According to Walker, Guzman told him "he had just sold a kilo of cocaine at the Fiesta Food Mart." Guzman also told Walker that he was selling drugs so he could get a place to live and some furniture.

Walker testified that "a canine was run" on the black duffel bag containing the $18,800. The canine gave a positive alert, consistent with what Walker had previously observed as a positive reaction to contraband, i.e., when the dog found contraband he became aggressive, tearing at the contraband and barking very loudly.

B. The Law

Property that is contraband is subject to seizure and forfeiture under chapter 59 of the Texas Code of Criminal Procedure. TEX.CODE CRIM.P. art. 59.02(a). "Contraband" means property of any nature, including real, personal, tangible, or intangible, that is used or intended to be used in the commission of any felony under chapter 481 of the Texas Health and Safety Code, the Texas Controlled Substances Act. TEX.CODE CRIM.P. art. 59.01(2)(B)(i). The offense of "possession with intent to deliver more than 400 grams of cocaine" is a felony under the Controlled Substances Act. TEX.HEALTH & SAFETY CODE §§ 481.033(1)(D), 481.113.

In a forfeiture proceeding, the State must prove by a preponderance of the evidence the property seized is contraband and, therefore, the property is subject to forfeiture. State v. $11,014, 820 S.W.2d 783, 784 (Tex.1991); 1985 Cadillac Limousine v. State, 835 S.W.2d 822, 825 (Tex.App.--Houston [1st Dist.] 1992, writ denied). The State must show probable cause for seizing a person's property, where probable cause is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. State v. $11,014, 820 S.W.2d at 784; $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex.1987); 1985 Cadillac, 835 S.W.2d at 825.

There is an "innocent owner" defense which provides an owner's interest in property may not be forfeited under chapter 59 if the owner: (1) acquired and perfected her interest before or during the act giving rise to the forfeiture; and (2) did not know or should not reasonably have known of the act giving rise to the forfeiture or that it was likely to occur at or before the time of acquiring and perfecting the interest. TEX.CODE CRIM.P. art. 59.02(c). The claimant making the innocent owner defense has the burden to prove it. $9,050 v. State, 874 S.W.2d 158, 163 (Tex.App.--Houston [14th Dist.] 1994, writ denied); Mitchell v. State, 819 S.W.2d 659, 661 (Tex.App.--El Paso 1991, no writ); see also McDorman v. State, 757 S.W.2d 905, 907 (Tex.App.--Eastland 1988, writ denied) (holding that under a predecessor statute, the burden was upon the owner of the property to be forfeited to prove the act precipitating forfeiture was committed without his knowledge or consent); Gaston v. State, 641 S.W.2d 261, 264 (Tex.App.--Houston [14th Dist.] 1982, no writ) (same).

C. Jones's Points of Error

1. The innocent owner defense

In point of error one, Jones insists the trial court erred when it denied her innocent owner defense. She maintains that she established this defense at trial with evidence of judicial notice of the record, including discovery admissions and interrogatories. Jones argues the State did not show a substantial connection between the property to be forfeited, the Nissan, and the criminal activity defined by the State, i.e., Guzman's conviction for possession of cocaine with intent to deliver.

We construe this point of error to be there is neither legal nor factually sufficient evidence to support the trial court's finding in its findings of facts that "The 1990 Nissan, Model 240SX VIN JN1HS36POLW144462 made the subject of this suit is contraband as defined by Tex.C.Crim.P. Article 29.01(2)(B)(I)," ² or its oral denial on the record of the innocent owner defense raised by Jones.

We review the evidence to support the trial court's findings of fact by the same standards we use to review the evidence to support jury findings, that is, by applying the legal and factual sufficiency tests. $24,180 v. State, 865 S.W.2d 181, 185 (Tex.App.--Corpus Christi 1993, writ denied); Pizzitola v. Galveston Cty. Cent. Appraisal Dist., 808 S.W.2d 244, 246 (Tex.App.--Houston [1st Dist.] 1991, no writ). If an appellant attacks the legal sufficiency of an adverse finding on an issue on which she had the burden of proof, the appellant must demonstrate the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Pizzitola, 808 S.W.2d at 246. In reviewing these "as a matter of law" points of error, we must first examine the record for evidence that supports the finding and ignore all evidence to the contrary. Sterner, 767 S.W.2d at 690; Pizzitola, 808 S.W.2d at 246-47. If no evidence supports the findings, only then do we look to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Pizzitola, 808 S.W.2d at 247. When an appellant argues there is "no evidence" to support an adverse finding to an issue on which she did not have the burden of proof, we consider only the evidence and inferences tending to support the trial court's judgment and disregard all evidence and inferences to the contrary. State v. $11,014, 820 S.W.2d at 784; 1985 Cadillac, 835 S.W.2d at 825.

If an appellant challenges the "factual sufficiency" of the evidence to support an adverse finding, we must consider and weigh all the evidence, both that in support of and contrary to the challenged finding. 1985 Cadillac, 835 S.W.2d at 825. We must uphold the finding...