Fifty-Six Thousand, Seven Hundred Dollars in U.S. Currency v. State

• Decision Date: 12 February 1986
• Docket Number: FIFTY-SIX,No. 08-84-00331-CV,08-84-00331-CV
• Parties: THOUSAND, SEVEN HUNDRED DOLLARS IN UNITED STATES CURRENCY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 65

710 S.W.2d 65

FIFTY-SIX THOUSAND, SEVEN HUNDRED DOLLARS IN UNITED STATES

CURRENCY, Appellant, v. The STATE of Texas, Appellee.

No. 08-84-00331-CV.

Court of Appeals of Texas,

El Paso.

Feb. 12, 1986.

Rehearing Denied May 7, 1986.

Duane A. Baker, Joseph (Sib) Abraham, Jr., Charles Louis Roberts, El Paso, for appellant.

Steve Simmons, Dist. Atty., El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.

OPINION

SCHULTE, Justice.

This is an appeal from a judgment of forfeiture, the court below finding the sum of $56,700.00 in United States currency to be subject to forfeiture under Article 4476-15 Tex.Rev.Civ.Stat.Ann. (Controlled Substances Act) (Vernon Supp.1986). We affirm.

Pursuant to a search warrant, on June 29, 1984, the following items were seized in the apartment of Harry Farah at the places therein indicated and were received in evidence:

In the office portion of the apartment: in a desk drawer:

White envelope containing marihuana.

Vial with cocaine residue.

Brown wood box containing gold plated scale kit.

In the kitchen of the apartment:

Two syringes.

In the vault-like walk-in closet-bathroom combination with a dead-bolted steel door:

In the bathroom portion in the safe inside a cabinet next to the sink:

Vial with over three grams of cocaine.

Money totalling $56,700.00.

In the bathroom portion in a locked drawer:

Student I.D. card from Texas A & M bearing name of Harry Farah.

Two statements to Harry M. Farah from Merrill-Lynch.

Jar with cocaine.

Bags containing vials.

Grinder used for blending, with cocaine residue.

Powder similar to Anositol powder.

Vial with custom top and cocaine spoon with cocaine residue.

Two amber vials with residue.

Seven vials with cocaine residue.

Snorting tubes with cocaine residue.

Pill bottle with cocaine residue.

Paraphernalia--mirror.

Amber pill bottles.

Paper fold with cocaine residue.

Two zip-lock baggies with cocaine residue.

In the bathroom portion either in a locked drawer or in an adjacent cabinet:

Jar with cocaine

Another jar with cocaine.

Cutting agent, Anositol powder.

Plastic vial with cocaine residue.

In the closet portion of the vault inside a suitcase on a shelf:

A name tag from Dallas Market Center bearing name of Harry Farah.

Kit with box, scales, etc., as used by distributors or dealers of cocaine.

Grinder with quantity of cocaine on it.

Box containing thirteen Dilaudid pills--pharmaceutical type of heroin.

Zip-lock baggie with quantity of cocaine.

White bottle containing marihuana.

Paper folds as used for sniffing or sale of cocaine with residue.

Glass vial with cocaine residue.

A magazine article from Esquire entitled "Cocaine, You Can Bank On It."

Two baggies containing marihuana.

Sixteen amber glass vials and plastic, some with residue.

300-400 one gram vials without residue--not used.

Glass bottle with four Dilaudid pills.

Bottle with contents marked "Black Bombers, Black Mollys, Heavy Driving Speed."

Amber bottle with pills.

In apartment--specific place not clear:

Two funnels with cocaine residue.

Two containers of Anositol cutting powder.

Mike Tibuni, a lieutenant in the Narcotics Division who participated in the search, testified without objection that he located approximately a thousand photographs in Farah's apartment. The photographs were not offered or received in evidence. He said he inspected about twenty percent of the photographs. A number of them appeared to have been taken in the apartment, mainly in the bedroom. Some depicted marihuana and cocaine usage involving young men, "young boys involved with narcotics...."

Mr. Rudd, a supervising chemist with the Texas Department of Public Safety, testified. He stated that the substance in the glass jar, which was found in the safe with the money, was determined to be cocaine with a net weight of 3.187 grams. The substance in the jar, located in the bathroom, contained cocaine with a net weight of 17.065 grams. Another jar, found in the bathroom, contained cocaine in the amount of 20.129 grams. The vials in the bag, found in the bathroom, in two separate samplings, contained .82 grams and 1.881 grams of cocaine, respectively. He testified that the 20.129 gram sample was ninety-seven percent pure as was the .82 gram sample. The purity of the 1.881 gram sample was thirty-six percent. A vial found in the bathroom proved cocaine content in the amount of .1555 grams. Other exhibits testified to contained only traces of cocaine. In regard to the amber pill bottles located in the bathroom, the content was determined to be pharmaceutical pills and tablets including Oxycodone, Methaqualone, methylphenidate, amphetamine, Meprodine, phenmetrazine Diazepam and methamphetamine. The white envelope found in the desk drawer in the office was determined to contain 10.59 grams of marihuana. The grinder, found in the suitcase, contained cocaine powder weighing .29 grams, thirty-one percent pure. The pills in the box, found in the suitcase, were analyzed as Dilaudid. The zip-lock baggie, located in the suitcase, contained .404 grams cocaine, ninety-six percent pure. The white bottle, located in the suitcase, contained 12.56 grams of marihuana. A glass bottle, located in the suitcase, contained Dilaudid. The amber pill bottle, located in the suitcase, contained phenmetrazine.

In summary, Rudd calculated that the cocaine found could have been cut or diluted to "respectable street cocaine" to produce between 80 and 85 grams, assuming twenty-five percent purity. Detective Bogdan testified to a gram being a popular sale amount with a gram bringing $150.00 and a half-gram $80.00 to $90.00.

That the paraphernalia seized was commonly used to prepare and package drugs for sale was established by the State's evidence. A notice of seizure and intention to forfeit was filed July 13, 1984. Hearings were held on August 15 and 22, 1984. At the hearings, in defense, several people testified that Mr. Farah had contracted with them for goods and services to be used in remodeling a hotel and bar in Juarez, Mexico. Mr. Carranza Martinez testified that he was employed by the owner of the hotel/bar to act as an interpreter for him in dealing with Mr. Farah. He testified that from time to time the owner gave him cash to take to Mr. Farah to pay for the goods and services. He stated that the cash ultimately added up to about $58,000.00. One receipt for forty-eight $100 bills was introduced into evidence. The police testified that the money was seized in the same place as the drugs, but no actual purchase was observed. Mr. Farah did not testify.

Mr. Farah's counsel objected to the introduction of all evidence seized in the search and all testimony that referred to the search. The court reserved ruling on the objection. A suppression hearing was being held on the warrant in another trial court. No ruling was ever made by this trial court. The trial court ordered the forfeiture of all funds seized. No requests for findings of fact or conclusions of law were filed.

The Appellant asserts that there was insufficient evidence or no evidence to support the forfeiture, that the court erred in receiving the evidence without ruling on the objection and that the search warrant is invalid under both state and federal law. We first consider the no evidence point and then the insufficiency point. Henderson v. State, 669 S.W.2d 385 (Tex.App.--San Antonio 1984, no writ). Since no findings of fact or conclusions of law were filed, we assume that all findings necessary to support the judgment were found. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979); Steward v. Jones, 633 S.W.2d 544, 545 (Tex.App.--Texarkana 1982, no writ). In determining a no evidence point, the court is to look at all supporting evidence and disregard all evidence contrary to the judgment. Glover v. Texas General & Indemnity Company, 619 S.W.2d 400, 401 (Tex.1981); Behring International, Inc. v. Greater Houston Bank, 662 S.W.2d 642, 648 (Tex.App.--Houston [1st Dist.] 1983, no writ). In reviewing an insufficiency point, the court is to look at all the evidence. Carter, supra; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In his no evidence point, the Appellant asserts that this case contains even less circumstantial evidence than that utilized in Henderson v. State, supra. In Henderson, the court held that circumstantial evidence may be used to show a link between narcotics and money to demonstrate trafficking for forfeiture, but it also held that an inadequate link was shown in that case. Id. at 387. See also : Freeman v. Texas Compensation Insurance Co., 586 S.W.2d 172 (Tex.Civ.App.--Fort Worth 1979), affirmed as modified, 603 S.W.2d 186 (1980); Valles v. State, 646 S.W.2d 636 (Tex.App.--Houston [1st Dist.] 1983, no writ). In Henderson, the defendant was searched upon arrest and $903.00 was found in his pocket. The next day, drug paraphernalia was found in his apartment and several months later, his car was found with illegal drugs inside. The court held that the State failed to show any links between the money and the narcotics. In the present case, the money was found with the drugs and with equipment like that used in preparation of drugs for sale. The money was banded by a bank, thus contradicting the Appellant's assertion that he had accumulated the money over a period of time. In a forfeiture proceeding, after a verified denial, a link must be established by a preponderance of the evidence. Tex.Rev.Civ.Stat.Ann. art. 4476-15 5.07(b) (Vernon Supp.1986). The State need only show that the funds were more probably than not derived from the sale of narcotics. Valles v. State, supra at 638. Due to the location of the drugs, manufacturing equipment, articles and money, there is some evidence of a link. Appellant's Point of Error No. Two is overruled.

In his first point, the Appellant alleges the evidence is insufficient to support the forfeiture. Forfeiture statutes are to be strictly construed....