Romero v. State, 06-94-00002-CV

• Decision Date: 08 February 1995
• Docket Number: No. 06-94-00002-CV,06-94-00002-CV
• Citation: 893 S.W.2d 550
• Parties: Rosalinda ROMERO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 550

893 S.W.2d 550

Rosalinda ROMERO, Appellant, v. The STATE of Texas, Appellee.

No. 06-94-00002-CV.

Court of Appeals of Texas Texarkana.

Submitted Aug. 15, 1994.

Decided Nov. 4, 1994.

Rehearing Overruled Feb. 8, 1995.

David L. Joers, Crutsinger & Booth, Dallas, for appellant.

Dale Jensen, Asst. Dist. Atty., Dallas, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

This is a drug forfeiture case. In October of 1990, Rosalinda Romero participated in two sales of cocaine to undercover police officers. Romero and an acquaintance arranged with an undercover officer for the sales at Romero's house at 7318 Thurston Street in Dallas. Romero was tried for two offenses of delivery of cocaine but was only convicted for one two-ounce cocaine sale on October 5. She was tried in November of 1991 and was convicted and sentenced to five years' probation. Before trial the State filed a notice of seizure and intended forfeiture of Romero's house and lot. The State alleged that the property was contraband subject to forfeiture under Chapter 59 of the Texas Code of Criminal Procedure because it was used in the commission of the felony offense of delivery of cocaine. See TEX.CODE CRIM.PROC.ANN. art. 59.01(2)(B) (Vernon Supp.1994). In the forfeiture proceeding, the State filed a motion for summary judgment, which the trial court initially granted. The court thereafter set the summary judgment aside and granted Romero's motion for new trial. Romero then moved for summary judgment, contending that the forfeiture would amount to double jeopardy, citing United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Although the record does not contain the court's order, according to Romero's brief the trial court denied her motion.

On June 28, 1993, after the case was set for trial, Romero and the State's attorney executed a settlement agreement in which the State agreed to release Romero and the property from all claims and liabilities in exchange for her agreement to sell the house and property and pay half of the proceeds to the State. On appeal and below Romero claims that the appraised value of the house and lot is a total of $46,540.00. ¹ The settlement agreement was conditioned on its approval by the trial court and also on the trial court's granting of the parties' joint motion for dismissal. Although the record does not so indicate, the court apparently approved the settlement agreement. On June 28, 1993, the court dismissed the cause of action with prejudice.

On July 28, 1993, Romero filed a motion to modify the judgment and vacate the settlement agreement. Romero asserted that on June 28, 1993, the same day that the settlement agreement was signed, the United States Supreme Court issued its opinion in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), in which it held that forfeiture of real property in cases such as Romero's is punishment. She argued that under Austin a separate forfeiture proceeding after the criminal conviction amounts to multiple punishments for the same offense and violates the double jeopardy prohibition. She also contended that the settlement agreement she made was contrary to public policy, was induced by mutual mistake, was without consideration, and was unconscionable. She asked the trial court to modify the judgment and set aside the settlement agreement. The court held a hearing on Romero's motion. The State filed no counteraffidavits or written response, the hearing consisted only of argument of counsel, no evidence was presented, and the hearing was not recorded by the court reporter.

There being no written order regarding Romero's motion signed within seventy-five days of the judgment, her motion was overruled by operation of law. TEX.R.CIV.P. 329b(c), (g). ²

In Romero's sole point of error, she says the trial court erred in failing to grant her motion to reform the order of dismissal and in failing to set aside the settlement agreement. Her basis for this argument is essentially the same as argued below--that under Austin the forfeiture of her property constitutes double jeopardy--and therefore the settlement is voidable because it is against public policy, was induced by mutual mistake, lacks consideration, and is unconscionable.

Because Romero's motion to set aside the settlement agreement was equivalent to a motion for new trial, its denial is reviewable under an abuse of discretion standard, the same as the denial of a motion for new trial. See TEX.R.CIV.P. 329b(g); Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988). The court's decision will not be disturbed unless it acted in an arbitrary or unreasonable manner and without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The procedural history of this case is important because, even if we decide that under current law the forfeiture here violates the Double Jeopardy Clause, that does not necessarily render the trial court's denial of Romero's motion an abuse of discretion.

As noted, Romero argues that in Austin the Supreme Court held that forfeiture is punishment. The Court in Austin, however, did not address forfeiture and double jeopardy, but rather forfeiture and the Excessive Fines Clause of the Eighth Amendment. Halper addressed the issue of whether a civil penalty imposed in a separate proceeding after the imposition of criminal punishment constituted double jeopardy. The Court in that case said the penalty would constitute double jeopardy only in the rare case where a fixed penalty is overwhelmingly disproportionate to the damages caused by the crime and is therefore punitive rather than remedial. There are several courts of appeals decisions that have addressed the issues of forfeiture and double jeopardy. See Fant v. State, 881 S.W.2d 830 (Tex.App.--Houston [14th Dist.] 1994, no pet. h.); Ward v. State, 870 S.W.2d 659 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd); Walker v. State, 828 S.W.2d 485 (Tex.App.--Dallas 1992, pet. ref'd); Ex parte Rogers, 804 S.W.2d 945 (Tex.App.--Dallas 1990, no pet.). Only Fant, where the court in a split decision held that a forfeiture amounted to double jeopardy, was decided after the trial court decision here. Ward, Walker, and Rogers, which were in existence when the settlement here was made, all held that forfeiture did not constitute double jeopardy in the context of the facts existing in those cases because the forfeiture was remedial. Those decisions were clearly the law at the time the settlement agreement was executed. Even assuming, then, that under Austin forfeiture may constitute double jeopardy, that does not necessarily mean the trial court abused its discretion in this instance. At...