.39 Acres v. State

• Decision Date: 29 February 2008
• Docket Number: No. 06-07-00101-CV.,06-07-00101-CV.
• Citation: 247 S.W.3d 384
• Parties: .39 ACRES, .748 Acres, and .5 Acres (With Improvements) In The J. Johnson Survey, Marion County, Texas, and A .22 Caliber Ruger Semi-Automatic Pistol, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

247 S.W.3d 384

.39 ACRES, .748 Acres, and .5 Acres (With Improvements) In The J. Johnson Survey, Marion County, Texas, and A .22 Caliber Ruger Semi-Automatic Pistol, Appellant, v. The STATE of Texas, Appellee.

No. 06-07-00101-CV.

Court of Appeals of Texas, Texarkana.

Submitted December 6, 2007.

Decided February 29, 2008.

Rehearing Overruled March 25, 2008.

James P. Finstrom, Jefferson, TX, for appellant.

William K. Gleason, Marion County Dist. Atty's Office, Jefferson, TX, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

The previous ruling in this case as decided on January 16, 2008,¹ is withdrawn and this opinion is rendered in its stead.

Henry Doke appeals from a judgment after a bench trial of the forfeiture pursuant to Chapter 59 of the Texas Code of Criminal Procedure of three contiguous tracts of .39 acres, .748 acres, and .5 acres in Marion County. Although a .22 caliber Ruger pistol is also subject to the forfeiture proceedings, no mention is made of it in the proceedings except to declare its forfeiture.

Pursuant to Article 59.01 of the Texas Code of Criminal Procedure, "contraband" is defined as being property of any nature, including real, personal, tangible, or intangible that is used in the commission of any first- or second-degree felony under the Texas Penal Code and a wide variety of other criminal activities specified in the statute. TEX.CODE CRIM. PROC. ANN. art. 59.01(2) (Vernon Supp.2007).

Some kind of establishment generally known in the area as the "Dew Drop Inn" was located in Marion County, Texas. The evidence adduced at trial never fully developed the nature of any overt legal business activity which was represented to the public to be conducted on the premises, but it is apparent that it was a gathering place of sorts and that it seemed to have been attractive to people having criminal records. Suffice it to say that, judging from the criminal records of the patrons of the business and Doke's renters of the place, the Dew Drop Inn was never intended to be a competitor of the Chuck E. Cheese family fun restaurants.

On appeal, Doke raises five issues, each of which deals with the sufficiency of the evidence as to different elements which the State was obligated to prove in urging the forfeiture or which Doke was obligated to show in combating the forfeiture.²

More specifically than previously mentioned, the issues raised by Doke on appeal are:

(1) That the acquittal of Lamarcus Morton raised a presumption pursuant to Article 59.05 of the Texas Code of Criminal Procedure that the property is nonforfeitable and that there was no evidence raised to rebut that presumption. See TEX.CODE CRIM. PROC. ANN. art. 59.05 (Vernon 2006).

(2) That there was no evidence that Doke gave his effective consent to the use of the Dew Drop Inn as contraband pursuant to Article 59.02(h)(1)(C) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 59.02(h)(1)(C) (Vernon 2006).

(3) That the evidence was factually insufficient to prove that the realty was subject to forfeiture.

(4) That any forfeiture should include only the tract of realty upon which the domed building (the only site on the property wherein drugs were located) is located and not the other two parcels of land.

(5) That there is no evidence that the realty described in the petition is the same property allegedly used in the commission of a felony which would generate a cause of action for forfeiture.

STANDARD OF REVIEW

Legal and factual sufficiency of the evidence standards of review govern appeals of nonjury trials on the merits. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex.1992). A legally correct judgment based on findings of fact made after a trial on the merits cannot be set aside on appeal if the findings are supported by sufficient evidence. Harris County Flood Control Dist. v. Shell Pipe Line Corp., 591 S.W.2d 798, 799 (Tex. 1979). A court of appeals should consider whether disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. In re C.H., 89 S.W.3d 17, 25 (Tex.2002). A court of appeals should consider whether disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).

If a party is attacking the factual sufficiency of an adverse finding on an issue to which the other party had the burden of proof, the attacking party must demonstrate that there is insufficient evidence to support the adverse finding.

When the circumstantial evidence of a vital fact is meager, a reviewing court must consider not just favorable but all the circumstantial evidence, and competing inferences as well, City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex.2005). However, if the evidence at trial would enable, reasonable and fair-minded people to differ in their conclusions, then the fact-finder must be allowed to do so. Id. at 821; Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex.2004); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

There were findings of fact and conclusions of law entered by the trial court. Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

As the trial court is the sole trier of fact, it is free to resolve any conflicts or inconsistencies in the evidence. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); City of Houston v. Harris County Outdoor Adver. Ass'n, 879 S.W.2d 322, 331 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Therefore, "great deference must be given to the judge's determination of the witnesses' credibility and the weight of their testimony." Slusher v. Streater, 896 S.W.2d 239, 243 (Tex.App.-Houston [1st Dist.] 1995, no writ).

EVIDENCE AT TRIAL

At the trial to the court, it was shown that Ricky Blackburn (who had previously been employed with the Ark-La-Tex Narcotics Task Force) spoke with Doke on two occasions about reputed drug use at the Dew Drop Inn before having obtained a search warrant and conducting the drug raid which resulted in the discovery of cocaine on the premises. During the first interview, in April 2005, Blackburn mentioned the reported drug use at the Dew Drop Inn and called Doke's attention to the detritus of drug use scattered about the premises. On the second of those interviews, one of the participating officers mentioned to Doke near the beginning of their conversation that the property could be subject to forfeiture. Doke, who distrusts law enforcement officers, insisted on videotaping the balance of the interview. Present with Doke at the second interview was Terrance "Toot" Banks, who was represented as being the person who ran the Dew Drop Inn; Banks had at least one previous conviction for possession of a controlled substance and had previously assaulted one of the interviewing officers during a clandestine drug operation in which the officer had participated.

After the interviews, on June 17, 2005, a confidential informant working with the Ark-La-Tex Narcotics Task Force purchased cocaine from Banks at the Dew Drop Inn.

After these encounters, Blackburn and others obtained a search warrant to the Dew Drop Inn and conducted a drug raid on the premises on June 30, 2005, during which cocaine was found dissolved in a liquid in a microwave oven that was located in the "dome" building on the premises, a building on the premises which is a geodesic dome structure with projecting arms which radiate from it. Rathel Doddy was found with rock cocaine on his person in a nearby structure on the Dew Drop Inn premises. In addition, there was drug paraphernalia located in and around the "smoke house" structure located elsewhere on the site and the grounds were littered with small plastic bags, propane lighters, steel wool, and other items commonly used in the drug culture. The drug task force arrested four individuals for possession of controlled substances, those being Lamarcus Morton, Frederick Hopkins, and Jeremy Byrd (found outside the dome building), and Doddy. Morton went to trial before a jury and was acquitted; the charges against Hopkins, Byrd, and Doddy were dismissed.

Before the raid and the arrests, Doke had never had a written lease agreement with a tenant, preferring month-to-month oral rental agreements of his various rental properties on the basis of, "If you don't pay, you don't stay." Subsequent to the raid which precipitated the forfeiture proceedings, Doke had instituted a policy of obtaining written lease agreements which admonished his tenants to refrain from unlawful conduct on the demised premises.

At a time before the raid occurred, Doke had rented the Dew Drop Inn to Gloria Robbins, who had been twice previously convicted of delivery of a controlled substance, and to Charles Melvin Douglas, convicted of...