State v. $90,235 & No Cents in United States Currency

• Decision Date: 25 January 2013
• Docket Number: No. 11–0642.,11–0642.
• Citation: 56 Tex. Sup. Ct. J. 236,390 S.W.3d 289
• Parties: The STATE of Texas, Petitioner, v. NINETY THOUSAND TWO HUNDRED THIRTY–FIVE DOLLARS AND NO CENTS IN UNITED STATES CURRENCY ($90,235) and 2000 Black Lincoln Navigator VIN: 5LMPU28A7YLJ10865, Respondents.
• Court: Texas Supreme Court

390 S.W.3d 289

56 Tex. Sup. Ct. J. 236

The STATE of Texas, Petitioner,

v.NINETY THOUSAND TWO HUNDRED THIRTY–FIVE DOLLARS AND NO CENTS IN UNITED STATES CURRENCY ($90,235) and 2000 Black Lincoln Navigator VIN: 5LMPU28A7YLJ10865, Respondents.

No. 11–0642.

Supreme Court of Texas.

Argued Nov. 7, 2012.

Decided Jan. 25, 2013.

Jaime E. Esparza, El Paso District Attorney, Erin Delaney Koenemann, Toni Raven Johns Estaville, El Paso County District Attorney's Office, El Paso, TX, for the State of Texas.

James Darrell Lucas, Attorney at Law, El Paso, TX, Joe E. Boaz, Anson, TX, for Respondent Hermenegildo Bueno.

Justice JOHNSON delivered the opinion of the Court.

In this case the State brought an action for forfeiture of a vehicle and $90,235 found in it following a traffic stop. The driver of the vehicle, who claimed ownership of the vehicle and money, sought recovery of the property and filed a traditional motion for summary judgment. He asserted three grounds for summary judgment: (1) the trial court lacked subject-matter jurisdiction; (2) the State did not produce evidence of probable cause to seize the property; and (3) the search of the vehicle was illegal. The trial court granted the motion without stating its reasons. The court of appeals affirmed.

We conclude that the court of appeals erred by affirming on the basis that the State did not produce evidence of probable cause to seize the property. We reverse and remand to the court of appeals for further proceedings.

I. Background

On May 6, 2008, El Paso Sheriff's Deputy Armando Gomez stopped a black Lincoln Navigator driven by Hermenegildo Godoy Bueno. Deputy Gomez requested that Bueno show proof of liability insurance and a driver's license, which he did. After running a warrants check on Bueno and his passenger, Deputy Gomez arrested the passenger for outstanding traffic warrants but neither arrested Bueno nor issued a traffic ticket to him. During the stop, however, Deputy Gomez noticed a backpack and a tote bag in the rear floorboard of the vehicle. Bueno said they contained his son's clothes. After Bueno denied Deputy Gomez's request for consent to search the vehicle, Deputy Gomez called a K–9 unit to the scene. According to a sworn statement by Detective Mario Garcia that was attached to the State's pleadings, the K–9 unit's dog alerted positively for the odor of narcotics on the Navigator's exterior. Deputy Gomez and the dog's handler searched the vehicle. Inside the backpack and the tote bag they discovered six clear plastic bags containing rubber band-wrapped bundles of cash totaling $90,235. According to Detective Garcia's sworn statement, the dog alerted positively to the odor of narcotics on the money. Bueno told Detective Garcia the money was partial payment for a ranch he sold and that he was going to deliver it as the final payment for an El Paso service station he purchased.

The officers seized the money and vehicle (“the property”), and the State instituted forfeiture proceedings. Detective Garcia's sworn statement was attached to and incorporated into the State's pleadings by reference. SeeTex.Code Crim. Proc. art 59.04(b). The pleadings alleged that the property was seized by a peace officer incident to a search to which the owner or agent-in-charge of the property consented or pursuant to a lawful arrest, lawful search, or lawful search incident to arrest. They also alleged that the property was contraband based on one of two alternative statutory provisions. First, they alleged that the property was used in, intended to be used in, or gained from commission of a felony under Chapter 481 of the Texas Health and Safety Code (the Texas Controlled Substances Act). SeeTex. Health & Safety Code §§ 481.001–.314. Second, they alleged that the property was contraband because it was used in, intended to be used in, or proceeds from commission of a felony under Chapter 34 of the Penal Code (Money Laundering). SeeTex. Penal Code §§ 34.01–.03.

Bueno answered the suit, asserted that he owned the property, and eventually filed what he described and represented to the trial court to be a traditional motion for summary judgment. He requested dismissal of the forfeiture action and return of the property on “three distinct grounds”: (1) “[t]he State of Texas does not have subject-matter jurisdiction to prosecute this forfeiture action”; (2) no evidence will support a reasonable belief that a substantial connection existed between the property and illegal drug dealing activities; and (3) the warrantless search of the vehicle was illegal because it exceeded the temporal scope of the stop necessary for Deputy Gomez to inspect Bueno's driver's license and insurance, run a warrants check, and issue a traffic citation. In his motion to the trial court, Bueno specifically referenced Deputy Garcia's sworn statement and adopted some of the facts set out in it. He also attached his own affidavit to the motion as summary judgment evidence. His affidavit, in its entirety, was as follows:

My name is HERMENEGILDO GODOY BUENO and I am over eighteen (18) years of age and of sound mind. I am the same HERMENEGILDO GODOY BUENO who was stopped by law enforcement officers on May 6, 2008, for no valid reason. At the time that I was stopped by law enforcement officers I wasn't doing anything wrong or breaking any driving laws and I did not give the law enforcement officer consent to search my vehicle. My vehicle and the money from the sale of my ranch were seized from me. I have complied with all of the State's discovery requests and I hereby incorporate them herein by reference for all intents and purposes as if recited herein verbatim. My vehicle was acquired legally and lawfully and the money that was in my possession was acquired legally and lawfully. The money represents partial payment on the sale of my ranch. I received this money in El Paso County after it was brought to me in El Paso.

Referencing Texas Code of Criminal Procedure articles 59.01(2) and 59.05(b), and our decision in State v. $11,014.00, 820 S.W.2d 783, 784 (Tex.1991) (per curiam), Bueno asserted that the State must satisfy a two-part test to prevail in a forfeiture proceeding. The first part of the test is that probable cause existed for seizure of the alleged contraband. The second part is that the seized property is in fact contraband. In his motion, Bueno sought summary judgment as to the first part but specifically disclaimed seeking summary judgment under the second part. That is, he disclaimed having conclusively proved the property was not contraband.

The State responded to Bueno's motion for summary judgment but neither attached any evidence to the response nor filed any evidence in opposition to the motion. The trial court granted Bueno's motion without giving its reasons.

The court of appeals affirmed. 346 S.W.3d at 747. As to Bueno's first ground, it agreed with the State that the trial court had jurisdiction. Bueno does not challenge that ruling here. But, because we may not address the merits of a case absent jurisdiction, see Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517 n. 15 (Tex.1995), we note that we agree with the analysis and conclusion of the court of appeals.

The appeals court then rejected the State's arguments as to Bueno's second ground. The court determined that: (1) Bueno presented evidence sufficient to “conclusively establish[ ] the State lacked a reasonable belief that a substantial connection or nexus existed between the property seized ... and any illegal drug dealing activities, and therefore negated this element of the State's forfeiture action”; (2) the State could not rely on Detective Garcia's affidavit attached to the Notice of Seizure as summary judgment evidence because the State did not direct the trial court's attention to it; and (3) because the State did not present evidence controverting Bueno's affidavit, it did not raise a genuine issue of material fact. 346 S.W.3d at 746–47. The court did not address Bueno's third ground for summary judgment—that the search was illegal.

The appeals court also concluded that the State was required to specially except to Bueno's motion to complain on appeal that his second ground did not encompass all of the State's forfeiture claims because it did not address the State's claim that the property was connected to money laundering. Id. at 744. Because the State did not do so, the court concluded that it failed to preserve error on this issue. Id.

In this Court the State challenges the decision of the court of appeals on two grounds. It first argues that the determination of whether the officers had probable cause to seize the property, that is, a reasonable belief in a substantial connection between the property and illegal activities, must be assessed in light of the facts as the seizing officers reasonably believed them to be, and Bueno could not conclusively negate such a belief through his own affidavit. It then argues that a special exception to Bueno's motion for summary judgment was not necessary to preserve error for its assertion that Bueno's motion did not address all the State's claims.

We reverse the court of appeals' judgment on the State's first ground and do not address its second in light of our disposition of the appeal.

II. Probable Cause to Seize Property

Although the language of Bueno's second ground for summary judgment might appear to have been a no evidence assertion, the record reflects that he specified to the trial court and court of appeals that his motion was a traditional one. See346 S.W.3d at 743 n. 1. The court of appeals addressed it as such and so will we.

A. Standard of Review

We review a grant of summary judgment de novo. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 422 (Tex.2010). When the trial court does not...