$217,590.00 in U.S. Currency v. State

• Decision Date: 07 May 1998
• Docket Number: No. 13-95-354-CV,13-95-354-CV
• Citation: 970 S.W.2d 660
• Parties: $217,590.00, IN UNITED STATES CURRENCY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 660

970 S.W.2d 660

$217,590.00, IN UNITED STATES CURRENCY, Appellant, v. The STATE of Texas, Appellee.

No. 13-95-354-CV.

Court of Appeals of Texas,

Corpus Christi.

May 7, 1998.

G. Rudolph Garza, Jr., Corpus Christi, for Appellant.

John Grogan Kearney, Asst. Dist. Atty., Kingsville, Brian Kelly Johnson, Office of the Attorney General, Don Clemmer, Asst. Atty., Gen., Austin, for Appellee.

Before the court en banc.

OPINION ON MOTION FOR REHEARING

YANEZ, Justice.

This is an appeal of a civil forfeiture judgment. On October 10, 1996, upon sustaining the first of appellant's nine points of error, a panel of this Court abated this appeal, in order to have the trial court make findings of fact and conclusions of law necessary to its disposition. The findings and conclusions were filed and received by this Court on November 6, 1996, and on January 27, 1997, appellant filed a supplemental brief in consideration of the findings and conclusions. On October 16, 1997, the same panel of this Court issued a majority opinion, by which the judgment of the trial court was affirmed; Justice Yanez issued a concurring opinion. On December 1, 1997, appellant filed a motion for rehearing and for rehearing en banc. We hereby grant appellant's motion and withdraw this Court's original opinions. This is now the opinion of the Court. By eight points of error, appellant challenges the trial court's denial of his plea in bar, its findings that he was not subjected to an illegal detention and arrest, the denial of his motion to suppress evidence, and the sufficiency of the evidence. We reverse and remand.

On April 3, 1994, while patrolling along U.S. Highway 59 in Bee County, Texas, Department of Public Safety (DPS) Trooper Jimmy Moore pulled over a commercial motor vehicle traveling without a tire mud flap. Henry Olvera, appellant, was the driver of the vehicle; his wife and their infant child were discovered to be passengers. Moore questioned Olvera and his wife about the nature of Olvera's cargo and destination, and performed a commercial motor vehicle inspection. Upon conclusion of this inspection, Moore inquired whether any contraband was on board the vehicle. Olvera responded in the negative. Moore, in turn, asked for permission to search the vehicle, and Olvera assented. Moore then called a narcotics-detection dog and its civilian handler to the scene. Upon arrival of the dog and its handler about twenty minutes later, Moore told Olvera that the dog alerted to the presence of contraband on the tractor portion of the vehicle. Olvera denied the presence of any contraband. Moore instructed Olvera to drive his vehicle to the Bee County Sheriff's Department for a more thorough search, whereupon a paper bag containing $217,590 in United States currency and what were believed to be marihuana cuttings were discovered in the tractor cabin. After Miranda ¹ warnings were administered, Olvera told DPS Sergeant-investigator James O'Burke that he knew the money was proceeds from drug sales.

On April 20, 1994, the State filed a notice of seizure and intended forfeiture of the $217,590 found in the possession of Olvera on April 3, 1994. On June 2, 1994, the State filed an amended notice of seizure and intended forfeiture. On May 25, 1994, Olvera filed a plea in bar, special exceptions, original answer, and motion for return of the currency. A hearing on the plea in bar was held on June 16, 1994. On July 14, 1994, the court denied the plea. On April 20, 1995, the forfeiture proceeding was tried to the court. On that same day, the court rendered a final judgment of forfeiture to the State of Texas.

By his second point of error, Olvera contends the trial court erroneously denied his plea in bar. Specifically, Olvera argues that the State failed to comply with the thirty-day limitation period of article 59.04 of the code of criminal procedure, in that the original "Notice of Seizure and Intended Forfeiture" did not have the seizing officer's affidavit attached, and Olvera was not served with a certified copy of the notice until after the State amended its petition, which was two months after the date of seizure of the currency. The failure to have fully complied with article 59.04 before the thirtieth day, appellant argues, amounted to a running of limitations which, in effect, deprived the trial court of jurisdiction to consider the State's case. Olvera also argues that the failure to meet the deadline amounted to a substantive defect which could not be cured by amending the petition.

Article 59.04 of the code of criminal procedure provides, in relevant part:

(a) If a peace officer seizes property under this chapter, the attorney representing the state shall commence proceedings under this section not later than the 30th day after the date of the seizure.

(b) A forfeiture proceeding commences under this chapter when the attorney representing the state files a notice of the seizure and intended forfeiture in the name of the state with the clerk of the district court in the county in which the seizure is made. The attorney representing the state must attach to the notice the peace officer's sworn statement under Article 59.03 of this code. Except as provided by Subsection (c) of this article, the attorney representing the state shall cause certified copies of the notice to be served on the following persons.

TEX.CODE CRIM. PROC. ANN. art. 59.04(a), (b) (Vernon Supp.1998). The statute does not mandate or suggest that a forfeiture action must be dismissed if the officer's affidavit is not attached. One court of appeals has held that this specific error can be cured beyond the thirtieth day. State v. Park, 820 S.W.2d 948, 951 (Tex.App.--Texarkana 1991, no writ). Furthermore, we have held that the purpose of the notice is to inform the opposing party, and all that is required to be filed within the thirty days is a pleading sufficient to put a defendant on notice of the State's cause of action. Giddens v. State, 818 S.W.2d 501, 502 (Tex.App.--Corpus Christi 1991, no writ) (citing Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981)). By citing and tracking the applicable statute in the petition, the State gave notice of its basic theory of recovery, and Olvera suffered no unfair surprise by the State's amended petition beyond the thirtieth day. See Giddens, 818 S.W.2d at 502; TEX.R. CIV. P. 47. Point of error two is overruled.

By point of error three, Olvera complains the trial court erred in concluding that Moore had reasonable suspicion for an investigative detention. Olvera contends that once Moore had pulled him over for the missing mud flap, obtained a satisfactory explanation for its absence, and verified that he (Olvera) had no outstanding warrants, Moore should have issued him a citation and given him permission to leave. Olvera argues that Moore's only basis for keeping him longer was a mere hunch that he was involved with some criminal activity, and a hunch does not amount to the reasonable suspicion for purposes of an investigative detention. By point of error four, appellant claims the trial court erred by not finding that Moore's detention of him after completion of the inspections and examinations amounted to an illegal arrest. The State maintains that Moore had probable cause for stopping Olvera, that reasonable suspicion for further detention developed just after the stop, and that Olvera consented to the search of his vehicle.

Searches and seizures generally must occur pursuant to warrants based upon probable cause, U.S. CONST. amend. IV; Mapp v. Ohio, 367 U.S. 643, 660, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (incorporating the exclusionary rule aspect of the Fourth Amendment into Fourteenth Amendment limitations upon states); TEX. CONST. art. 1, § 9; ² and, in general, probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Hughes v. State, 878 S.W.2d 142, 154 (Tex.Crim.App.1992). Temporary detentions of persons for the purpose of additional investigation, however, may be justified on circumstances which fall short of probable cause. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986). In order to justify such an intrusion upon an individual, the officer must have specific articulable facts, which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion. Terry, 392 U.S. at 21, 88 S.Ct. 1868. A DPS officer, however, may detain and enter a commercial motor vehicle on a highway to determine whether the vehicle is in violation of federal safety regulations or regulations for commercial motor vehicles adopted by the State public safety director. TEX. TRANS. CODE ANN. § 644.103(a) (Vernon Supp.1997); TEX.REV.CIV. STAT. ANN. art. 6675d, § 8, amended by Act of May 27, 1997, 75th Leg., R.S., ch. 364, § 8, 1997 Tex. Gen. Laws 1504, 1505, notwithstanding repeal by Act of May 21, 1997, 75th Leg., R.S., ch. 165, § 30.151, 1997 Tex. Gen. Laws 327, 671. ³

Moore testified that on the morning of April 3, 1994, while patrolling highway 59 in Bee County, he noticed through his rearview mirror that Olvera kept looking at him after Olvera's and his vehicles passed each other on the highway, heading in opposite directions. Moore testified that in the process of looking at Olvera through his rearview mirror, he noticed Olvera's vehicle was missing its right rear tire mud flap. He decided to pull Olvera over. A video camera in Moore's vehicle recorded the stop, and the videotape is a matter of record. Moore testified that he found it suspicious that Olvera exited the vehicle and came to meet...