$9,050.00 in U.S. Currency v. State

• Decision Date: 10 March 1994
• Docket Number: No. C14-93-00513-CV,C14-93-00513-CV
• Citation: 874 S.W.2d 158
• Parties: $9,050.00 IN U.S. CURRENCY and Carla Saenz, Appellants, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 158

874 S.W.2d 158

$9,050.00 IN U.S. CURRENCY and Carla Saenz, Appellants, v. STATE of Texas, Appellee.

No. C14-93-00513-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 10, 1994.

Rehearing Overruled April 7, 1994.

Robert Heath, Houston, for appellants.

Vic Wisner, Alan Curry, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

CANNON, Justice.

This is an appeal from a judgment of forfeiture. Claimant Carla Saenz complains that there was no evidence or insufficient evidence that $9050.00 seized by police was proceeds gained from the commission of a felony under the Texas Controlled Substances Act. We affirm.

On September 22, 1993, Officer Ashabranner was contacted by an officer with the Harris County Sheriff's Department and learned that Steve Solis had sold cocaine to a juvenile out of Graham's Liquor store. Solis had been arrested approximately two years before for the same conduct--selling cocaine out of the liquor store. Officer Ashabranner met with the juvenile and obtained her parents' permission to make a controlled buy at the liquor store. After the juvenile was thoroughly searched, she was given a marked twenty dollar bill with which to purchase the cocaine. Officer Ashabranner and the raid team accompanied the juvenile to the location. The juvenile entered the store, then exited a few moments later and went around the corner where Officer Ashabranner picked her up. She gave him a small bag of white powdery substance which field tested positive as cocaine. The cocaine weighed about one gram. A search warrant was prepared and signed by a judge.

When officers arrived at the store to execute the search warrant, Steve Solis was the only person in the store. A search revealed that there was 9.25 grams of cocaine and .2 ounces of marihuana located on a shelf under the cash register. They were packaged for sale. A semi-automatic pistol was also located under the register. There was $243.00 in cash and $591.95 in checks in the register itself.

The twenty dollar bill used in the controlled buy was located on a shelf behind the cash register. A number of steaks from a local grocery store and a chain saw were also found in the store. Steve Solis told the officers that he got them in exchange for cocaine.

After talking with Steve Solis the officers went to a floor safe and found $9050.00. Steve Solis originally stated that the money was his, but later recanted and stated it belonged to the store and was used to pay vendors. Officer Ashabranner testified that the store seemed well stocked with liquor, and that Steve Solis paid two vendors who made deliveries with cash from the register. Finally, Officer Ashabranner stated that the money found in the floor safe was in various denominations and that this was consistent with funds received in illegal narcotics transactions.

Steve Solis was able to telephone Jose Castillo, a Columbian man, and had Mr. Castillo bring two ounces of cocaine to the store. Furthermore, during the course of the raid, a juvenile walked into the store and made an apparent attempt to purchase illegal narcotics. However, Mr. Solis told the juvenile that he did not have any narcotics, and no sale was made. Finally, as the raid team was finishing up their raid, another raid team, this one from the Montgomery County Sheriff's Department, arrived at the liquor store with the same goal, e.g., to make a controlled buy of illegal narcotics.

Steve Solis, Beatrice Solis (appellant Saenz's mother), and Carla Saenz, all testified that the money was kept in the floor safe to pay vendors. They testified that they were on a "cash only" basis with vendors until they could establish sufficient credit to write checks. They further testified that there had been a billing mix-up with one of the alcohol vendors, and, that, pursuant to TEX.ADMIN.CODE § 45.121, their permit to purchase alcohol had been suspended until the bill was paid. The suspension lasted for two weeks, and appellant's witnesses said that the cash in the safe grew to more than was normally kept there. Appellant introduced a letter from the Texas Alcoholic Beverage Commission to support her statements, but attempts to introduce invoices prepared by the various vendors was unsuccessful in the face of the State's objections. Appellant brought no bank statements or other records to trial.

Appellant's first and fourth points of error allege that the court erred in entering the jury's verdict because there was no evidence as a matter of law to support the jury's answers to special questions number one and two in the jury charge. Special Question One asked: "Was any portion of the $9050.00 in United States currency made the subject of this suit proceeds gained from the commission of a felony offense under Chapter 481, Health and Safety Code (Texas Controlled Substances Act)?" Special Question Two asked: "What portion of the amount referred to in number 1 constitutes proceeds gained from the commission of a felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act)?"

Money is subject to forfeiture if it is "proceeds" gained from the commission of a felony under the Texas Controlled Substances Act. TEX.CODE CRIM.PROC.ANN. art. 59.01(2)(C) (Vernon Supp.1994). This includes manufacturing, delivering, or selling a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.001 et seq. (Vernon 1992). A forfeiture proceeding is a civil proceeding in which the State must prove by a preponderance of the evidence that the property is subject to forfeiture. TEX.CODE CRIM.PROC.ANN. art. 59.05(b) (Vernon Supp.1993). In order to prevail, the State must show probable cause for seizing the money. TEX. CONST. art. I, § 9; Fifty-Six Thousand Seven Hundred Dollars In United States Currency v. State, 730 S.W.2d 659, 661 (Tex.1987). The State must prove that there is a substantial connection or nexus between the property and the illegal activity. Fifty-Six Thousand Seven Hundred Dollars In United States Currency v. State, 730 S.W.2d 659, 661 (Tex.1987); see also, A 1985 Cadillac Limousine v. State, 835 S.W.2d 822 (Tex.App.--Houston [1st Dist.] 1992, writ denied) (interpreting art. 59.01 et. seq.). This means that the State must prove, considering all the evidence, that it was more reasonably probable than not that the seized money was either intended for use in, or derived from, a violation of the offenses enumerated in the forfeiture statute. $22,922.00 v. State, 853 S.W.2d 99, 101 (Tex.App.--Houston [14th Dist.] 1993, writ denied).

In determining the sufficiency of evidence under a "no evidence" point of error, this Court may only consider the evidence and inferences tending to support the trial court's judgment and disregard all evidence and inferences to the contrary. State v. $11,014.00 in U.S. Currency, 820 S.W.2d 783, 784 (Tex.1991). A "no evidence" point must be sustained when the record discloses a complete absence of vital fact, rules of law or evidence bar the court from considering the only evidence offered to prove a vital fact, there is no more than a mere scintilla of evidence offered to prove a vital fact, or the evidence offered established conclusively the opposite of the vital fact. Cecil v. Smith, 804 S.W.2d 509, 510 n. 10 (Tex.1991).

These are not the only rules which guide appellate courts in weighing the legal sufficiency of the evidence, however. For example, it is well established that an inference of fact cannot be based upon another inference of fact. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968) (may not establish vital fact by piling inference upon inference); see also, MCDONALD, 6 TEXAS CIVIL PRACTICE § 44:15 (1992). Also, when the evidence gives rise to opposing inferences of fact, each of which is equally reasonable, and nothing shows that one fact is more probable than the other, neither fact can be inferred by the jury. The evidence fails to qualify as "some evidence" to support either inference of fact. Fifty-Six Thousand Seven Hundred Dollars In United States Currency v. State, 730...