Fant v. State

• Decision Date: 16 October 1996
• Docket Number: No. 1047-94,1047-94
• Citation: 931 S.W.2d 299
• Parties: Danny FANT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 299

931 S.W.2d 299

Danny FANT, Appellant, v. The STATE of Texas, Appellee.

No. 1047-94.

Court of Criminal Appeals of Texas En Banc.

Oct. 16, 1996.

Stanley G. Schneider, W. Troy McKinney, Tom Moran, Houston, for appellant.

Alan Curry, Asst. Dist. Atty., Houston, Matthew Paul, States Atty., Austin, for the state.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Harris County authorities arrested appellant on February 2, 1993, and charged him with possession of a controlled substance with intent to deliver. Pursuant to TEX.CODE CRIM.PROC.ANN. art. 59 the State then initiated forfeiture proceedings against the cash, pistols, and cellular telephone which were seized from appellant when he was arrested. The Original Notice of Seizure and Intended Forfeiture set out that it was "brought under and by virtue of Chapter 59 of the Texas Code of Criminal Procedure." The State alleged that the United States currency and property seized from appellant at the time of his arrest was "contraband as defined by Article 59.01 of the Code of Criminal Procedure, ..., and is thereby subject to forfeiture."

Appellant and the State entered into an agreed judgment on June 21, 1993. This agreement stipulated that $1,500.00 in currency and the two pistols were "not subject to forfeiture." Pursuant to this agreement, appellant forfeited $3,823.00 in United States currency and a Motorola cellular telephone. The State and appellant agreed that this money and property were thereby "forfeited to the City of Baytown, trustee for the Harris County Organized Crime Narcotics Task Force in compliance with Tex.R.Crim.P. Chp. 59."

On September 23, 1993, appellant filed a pre-trial application for a writ of habeas corpus based upon Cause Number 656,133, wherein the State indicted appellant for possession with intent to deliver a controlled substance. In his application, appellant claimed the State was barred from prosecuting him for the possession with intent to deliver offense under the double jeopardy provisions of the Fifth Amendment, U.S.CONST. The trial court denied the application but stayed further proceedings pending appeal of the denial.

The Fourteenth Court of Appeals reversed the trial court's decision and rendered a judgment granting appellant's application for writ of habeas corpus. Fant v. State, 881 S.W.2d 830 (Tex.App.--Houston [14 Dist.] 1994).

In its only ground for review before this Court, the State argues the Fourteenth Court of Appeals "erred in holding that, in Texas, a narcotics defendant's right against double jeopardy is necessarily violated when he is prosecuted for a criminal narcotics offense after his property has been subjected to an in rem forfeiture in a separate, but related, civil forfeiture proceeding." We will reverse.

I. THE DECISION OF THE TRIAL COURT

At the hearing on appellant's application for writ of habeas corpus, appellant introduced into evidence the State's Original Notice of Seizure and Intended Forfeiture and the Agreed Final Judgment in that action. ¹ The first document showed the State originally seized from appellant $5,323.00 in U.S. currency, one .22 caliber pistol, one .45 caliber pistol, and one Motorola cellular phone. The second document proved the parties agreed that $1,500.00 in U.S. currency and the two pistols were not subject to forfeiture, with the currency being returned to appellant and the pistols being returned to his attorney of record. The second document also proved that the remaining $3,823.00 in currency and the Motorola cellular telephone were "forfeited to the City of Baytown, Trustee for the Harris County Organized Crime Narcotics Task Force in compliance with Tex.R.Crim.P. (sic) Chp. 59."

Appellant argued before the trial court that forfeitures can constitute punishment within the meaning of the Eighth Amendment, and that punishment for purposes of the Eighth Amendment also applies to the Fifth Amendment. Appellant cited United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), contending that the forfeiture of his money and cellular phone caused a jeopardy bar to criminal prosecution in his case. The State responded that Halper and Austin stood for the proposition that the forfeiture was unreasonable and excessive and involved "property not contraband," and that there were no Texas cases which reached the same conclusion as Halper and Austin. The State also argued that jeopardy restrictions against punishing someone twice did not apply to civil forfeitures. The State argued that civil forfeitures did not involve the same elements as a criminal indictment. The trial court denied the application for writ of habeas corpus.

II. THE DECISION OF THE COURT OF APPEALS

On direct appeal, appellant claimed that he was entitled to relief under the jeopardy provisions of both the Fifth Amendment, U.S. CONST., and Art. I, § 14, TEX.CONST. The Court of Appeals analyzed this claim solely on Federal grounds because it believed that "State and Federal double jeopardy provisions are identical." Fant v. State, 881 S.W.2d at 832. ² Therefore, we will only determine whether the instant forfeiture violated appellant's Fifth Amendment right to be protected from receiving a multiple punishment for the same offense.

The Court of Appeals analyzed whether the forfeiture of appellant's money and cellular phone was punitive or was only remedial in nature. They relied on three opinions of the Supreme Court to conduct their analysis. The Court of Appeals first discussed U.S. v. Halper, 490 U.S. at 440-441, 109 S.Ct. at 1897-1898 (1989). The Court of Appeals viewed Halper to stand for the ruling that a civil, as well as a criminal sanction, can constitute punishment when the sanction serves the goal of punishment. The majority below relied on the following language from Halper,

"[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Halper, at 448, 109 S.Ct. at 1902.

Fant v. State, 881 S.W.2d at 832. ³

The Court of Appeals then discussed the decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), wherein the Supreme Court determined whether the Excessive Fines Clause of the Eighth Amendment ⁴ applied to forfeitures under the forfeiture provisions of the federal controlled substances act. ⁵ In Austin, the United States government sought an in rem forfeiture of the defendant's mobile home and auto body shop after the defendant pled guilty in a South Dakota state court to possession of cocaine with intent to distribute, pursuant to 21 U.S.C. §§ 881(a)(4) and (7). ⁶ The Court of Appeals viewed the Supreme Court's decision as critical of the forfeiture provisions because the value of the property seized under them can vary so dramatically, that any relationship between the government's actual costs and the amount of the forfeiture is coincidental. The Court of Appeals believed the Austin Court concluded that forfeiture under the statute did not serve only a remedial purpose, but instead constituted "payment to a sovereign as punishment for the same offense." Fant v. State, 881 S.W.2d at 832. The Court of Appeals pointed out the Supreme Court decided in Austin that forfeiture under the provisions of the federal controlled substances act was "subject to the limitations of the Eighth Amendment's Excessive Fines Clause." Fant v. State, id.

Lastly, the Court of Appeals discussed the decision in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In Kurth Ranch, the Supreme Court decided whether the state's tax, imposed on the possession and storage of dangerous drugs, had punitive characteristics which subjected it to the Double Jeopardy Clause. U.S. CONST. Amend. V. ⁷ The Court of Appeals relied on the Supreme Court's explanation that "criminal fines, civil penalties, civil forfeitures, and taxes all share certain features," citing Austin v. United States, 509 U.S. at 621-623, 113 S.Ct. at 2812. "They generate government revenues, impose fiscal burdens on individuals, and deter certain behavior. All of these sanctions are subject to constitutional restraints." Kurth Ranch, 511 U.S., at ----, 114 S.Ct. at 1945. The Court of Appeals pointed out that the Supreme Court decided Montana's drug tax was "fairly characterized as punishment, and thus could not be imposed in a second proceeding following the first punishment for the criminal offense." Fant v. State, 881 S.W.2d at 833. However, the Court of Appeals chose not to rely on Kurth Ranch in making its decision in appellant's case.

The Court of Appeals chose to follow the decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, to determine "whether appellant has already been punished by the forfeiture of his property under TEX.CODE CRIM.PROC.ANN. art. 59.02." Fant v. State, 881 S.W.2d at 833. In the course of making this decision, the Court of Appeals sought to resolve whether Chapter 59 could be characterized as punitive or remedial. Fant v. State, 881 S.W.2d at 834.

First, the Court of Appeals adopted the conclusion of the Supreme Court in Austin that "forfeiture has been historically understood as punishment." Fant v. State, id. Second, the Court of Appeals reviewed the Supreme Court's "focus" on the innocent owner defense in the federal forfeiture statutes, 21 U.S.C. §§ 881(a)(4)(C) & (a)(7), and their finding that the inclusion of an innocent owner defense revealed a congressional intent to punish only those involved in drug trafficking. Fant v. State, 881 S.W.2d at 833. Because the Texas forfeiture statute also included an innocent owner defense, TEX.CODE CRIM.PROC.ANN. art. 59.02(c)(2), the Court of Appeals decided...