State v. Rumfolo
| Decision Date | 31 December 1976 |
| Docket Number | No. B--6005,B--6005 |
| Citation | 545 S.W.2d 752 |
| Court | Texas Supreme Court |
| Parties | The STATE of Texas, Petitioner, v. Johnny RUMFOLO et al., Respondents. |
Carol S. Vance, Dist. Atty., Robert C. Bennett, Jr., Asst. Dist. Atty., Houston, for petitioner.
Joe S. Maida, Houston, for respondents.
This action was brought by the State of Texas, through the District Attorney of Harris County for forfeiture of cash claimed as gambling proceeds pursuant to Art. 18.18 Tex.Code of Crim.Proc. against respondent Johnny Rumfolo, Louis Thomas Adams, George Colonetta, Cullen Duoto, Vernon Duoto, Mike Jamail and Charles Messena. Following a raid on a dice game, Houston police seized cash from these respondents. Return was made to the justice court. After hearing, the Justice of the Peace ordered forfeiture of the proceeds. Appeal by trial de novo was brought to the county court at law. That court ordered the cash forfeited to the State. The court of civil appeals reversed and rendered judgment that the State return the proceeds, holding Art. 18.18(b) and (f) unconstitutional. 535 S.W.2d 16. We reverse the judgment of the court of civil appeals and affirm the judgment of the county court at law.
On March 12, 1975, these respondents were engaged in a dice game at 1506 Tabor Street, in Houston, Texas. Also present was an undercover policeman, C. D. Shumate. Other policemen, knowing that Shumate was present, raided the dice game. The policemen had a search warrant for a different address, 1509 Tabor Street. After raiding the dice game the policemen searched the participants and seized cash from the individuals' pants pockets and from one person's sock totaling $3,920. Shumate remained in the background and did not participate in the arrest nor searches and seizures. Shumate was supposed to have stepped outside at 11 p.m. to give a signal to the other policemen to begin the raid, but he lost track of the time and failed to do this. The other policemen became concerned for his safety and entered the apartment at 11:15 p.m. Cullen Duoto saw the police coming; and by the time they entered the garage apartment all the money used in the game had been pocketed or put in socks. Shumate was participating in the dice game with money whose serial numbers had been recorded.
The material portions of Art. 18.18 provide:
(a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, or an offense involving a prohibited weapon, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, or weapon be destroyed or forfeited to the state. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.
(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, or criminal instrument to show cause why the property seized should not be destroyed or the proceeds forfeited.
(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, or criminal instrument, and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.
Since there was no conviction or prosecution following the raid and seizure, the justice court proceeded under Art. 18.18(b) and a forfeiture of the proceeds was ordered. There was a trial de novo pursuant to Art. 44.17 Code of Crim.Proc. in the County Court at Law No. 1 of Harris County. That court, sitting without a jury, ordered all cash forfeited to the State, except for the $664 found in the sock of Donald F. West. The undercover agent testified that the money used in the dice game went into the pockets of the players, and not into the wallets or socks of the players.
In this case we have a statutory forfeiture prescribed by the legislature in the exercise of the police power of the State. The right of the State, in the reasonable exercise of such power, to declare a forfeiture of the property of private individuals has long been recognized. Skipper-Bivens Oil Company v. State, 115 S.W.2d 1016 (Tex.Civ.App.1938, writ ref'd); Phariss v. Kimbrough, 118 S.W.2d 661 (Tex.Civ.App.1938, writ ref'd). A statute providing for the forfeiture of property used in the commission of a penal offense does not violate the constitutional guaranty that conviction of crime shall not work a forfeiture of estate. Phariss v. Kimbrough, supra.
Respondents argue, and the court of civil appeals has held, that because the burden of proof is placed upon the person found in possession of the property to show cause why it should not be forfeited, Art. 18.18 operates to deny due process of law. In support of its holding, the court of civil appeals relied on Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965) for the proposition that due process requires a placing of the burden of proof upon the party seeking a forfeiture of another party's claimed right, where the right claimed is of high importance. In that case the...
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