State v. Ninety Thousand Two Hundred Thirty-Five Dollars, 08-09-00151-CV
| Decision Date | 27 May 2011 |
| Docket Number | No. 08-09-00151-CV,TC# 2008-2016,08-09-00151-CV |
| Parties | THE STATE OF TEXAS, Appellant, v. NINETY THOUSAND TWO HUNDRED THIRTY-FIVE DOLLARS AND NO CENTS IN UNITED STATES CURRENCY ($90,235.00) AND 2000 BLACK LINCOLN NAVIGATOR VIN: 5LMPU28A7YLJ10865, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the Criminal District Court No. 1 of El Paso County, Texas
The State of Texas brought forfeiture action for currency and vehicle seized from Mr. Hermenegildo Godoy Bueno ("Respondent") after a traffic stop. On Respondent's motion, the trial court granted his motion for summary judgment and ordered the seized property returned to him. The State challenges the court's order granting summary judgment arguing that it cannot be sustained on any of the grounds presented by Respondent, and that it granted more relief to Respondent than he was entitled. We affirm.
On May 6, 2008, Deputy Armando Gomez stopped Respondent at the 6600 block of Montana Avenue in El Paso, Texas for allegedly failing to use a turn signal at the intersection of Robert E. Lee and Montana. At the time, Respondent was driving a 2000 black Lincoln Navigator. After approaching the driver's side, Deputy Gomez requested proof of insurance and a driver's license from Respondent. A passenger identified as Mr. Mauro Arturo Ayala wastraveling with Respondent. After running a warrants check and discovering that Mr. Ayala had six outstanding traffic warrants, Deputy Gomez placed Mr. Ayala in the back of his patrol unit. During the stop, Deputy Gomez noticed a light blue tote bag and a navy blue backpack on the rear seat's floorboard of the vehicle. When the deputy asked Respondent what was inside those bags, Respondent replied that they contained his son's clothes. Based on Respondent's alleged nervous demeanor, Deputy Gomez believed he may have been transporting contraband with his vehicle, and so he asked Respondent for his consent to search his vehicle. Respondent, however, refused to provide his consent to the search.
Then, Deputy Gomez requested Deputy Luis Almonte, a narcotics K-9 handler, to arrive on the scene so as to conduct a narcotics canine sniff search of the vehicle. After Respondent exited his vehicle, Deputy Almonte used his K-9 to search the vehicle's exterior. The K-9 alerted positively to the odor of narcotics near the rear driver's side, and to the rear cargo of the vehicle. The officers then entered into the vehicle to conduct a search, and uncovered six clear plastic zip lock bags containing stacks of United States currency wrapped in rubber bands inside the tote bag and the backpack. The currency amounted to $90,235. Deputy Almonte conducted a narcotics sniff search of the currency with his K-9, and the K-9 alerted positively to the odor of narcotics as to the currency. Deputy Gomez then advised Respondent that he was seizing the Lincoln Navigator and the $90,235, and informed him that the State would be initiating an action to seize these as contraband. Later, Detectives Mario Garcia and Jose Guzman arrived on the scene to assist. Deputy Gomez informed them of the seizure, and the detectives interviewed Respondent regarding the seized currency.
On May 21, 2008, the State instituted forfeiture proceedings against the $90,235 and theLincoln Navigator as alleged proceeds of felony criminal activity, engaged in by Respondent. Deputy Garcia executed the forfeiture affidavit, which was attached to the original notice of seizure and intended forfeiture. On April 1, 2009, Respondent filed his first amended motion for summary judgment, in which he argued the forfeiture proceeding should be dismissed, and for the seized property to be returned to him. Respondent asserted in his motion that he was the owner of both the Lincoln Navigator and the $90,235, and that the currency was not contraband, but a partial payment an individual offered him for the purchase of a ranch Respondent owned in Mexico. Respondent also challenged the claim that Deputy Garcia possessed "personal knowledge of the facts," as stated in his affidavit to the notice of seizure, on the grounds that the deputy did not arrive at the traffic stop location until after Respondent's vehicle had been stopped, and the currency was seized from the vehicle. In his motion for summary judgment, Respondent set forth three grounds: (1) the State did not have subject-matter jurisdiction to prosecute the forfeiture action; (2) there was less than a scintilla of evidence to support a reasonable belief that a substantial connection or nexus existed between the seized property and illegal drug dealing activities; and (3) the warrantless search of the vehicle was illegal. Attached to Respondent's first amended motion for summary judgment was Mr. Bueno's affidavit, in which he asserted that he did not commit any traffic violations to warrant a stop of his vehicle, that he did not consent to a search of his vehicle, that the currency found in his possession constituted lawful proceeds from a sale of his ranch, and that he had lawfully acquired his vehicle. The State filed responses to Respondent's motion for summary judgment. On May 1, 2009, the trial court granted Respondent's motion for summary judgment without stating the basis for its decision. The State then filed a motion for new trial, along with an attached swornaffidavit from Deputy Garcia, as well as an affidavit from Deputy Almonte. The State now appeals the summary judgment order.
In its sole issue, the State challenges the trial court's order granting summary judgment on the basis that it cannot be sustained on any ground asserted by Respondent. In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. See Tex.R.Civ.P. § 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.--El Paso 2000, no pet.). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Wyatt, 33 S.W.3d at 31. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the nonmovant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the nonmovant's favor. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). When a plaintiff moves for summary judgment against a defendant's counterclaim, the plaintiff must negate one or more of the essential elements of the defendant's counterclaim. Martin v. McDonnold, 247 S.W.3d 224, 229 (Tex.App.--El Paso 2006, no pet.).
Because the trial court's order did not specify the ground(s) on which the summary judgment was granted, and because there were multiple grounds on which summary judgment may have been granted in the instant case, the State is required to negate all grounds on appeal.See Star-Telegram, Inc., v. Doe, 915 S.W.2d 471, 474 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993); Lewis v. Adams, 979 S.W.2d 831, 833 (Tex.App.--Houston [14th Dist.] 1998, no pet.)( that summary judgment must be affirmed where multiple grounds are asserted and the appellant does not attack all grounds on appeal); Evans v. First Nat'l Bank of Bellville, 946 S.W.2d 367, 377 (Tex.App.--Houston [14th Dist.] 1997, writ denied). If an appellant fails to negate each ground upon which the judgment may have been granted, the appellate court must uphold the summary judgment. See Star-Telegram, Inc., 915 S.W.2d at 474; State Farm Fire & Cas. Co., 858 S.W.2d at 381; Lewis, 979 S.W.2d at 833; Evans, 946 S.W.2d at 377.
The State challenges the order granting summary judgment by contesting the three grounds set forth by Respondent in his motion for summary judgment. In its first argument under its sole issue, the State contends that Respondent was not entitled to summary judgment based on the first ground in his motion for summary judgment because (1) the failure to file an officer's affidavit with the notice of seizure did not divest the trial court's jurisdiction, and (2) the attachment of Deputy Garcia's sworn statement to the State's notice of seizure complied with Article 59.04(b) of the Texas Code of Criminal Procedure, and his sworn statement was not deficient in any respect under Article 59.03(c).
The State first argues that any failure on its part to file an officer's sworn statement with the notice of seizure did not divest the trial court of its subject-matter jurisdiction. In his motion for summary judgment, Respondent asserted that Deputy Garcia's affidavit, which was attached to the notice of seizure, failed to comply with Articles 59.03 and 59.04 of the Texas Code of Criminal Procedure because Deputy Garcia was not the deputy who seized the property indispute. Respondent claimed that under these facts, "one could say that no affidavit has been attached to the State's Notice of Seizure," and thus under relevant laws, such a failure deprived the court of subject-matter jurisdiction over the forfeiture action.
The State's right to bring a forfeiture cause exists by statute, and not by virtue of the constitution or common law. 1976 Harley Davidson Motorcycle VIN # 2C16410H6 v. State, 106 S.W.3d 398, 401 (Tex.App.--Corpus Christi 2003, no pet.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.--Corpus Christi 1989, writ denied). In the statutory scheme, property, including currency, is subject to seizure and forfeiture if it is found to be contraband. TEX.CODE Crim.Proc.Ann. art. 59.02(a)(West Supp. 2010)...
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