$19,070.00 v. State

869 S.W.2d 608, 1994 Tex. App. LEXIS 2, 1994 WL 1856
CourtCourt of Appeals of Texas
DecidedJanuary 6, 1994
DocketNo. C14-92-00864-CV
StatusPublished
Cited by10 cases

This text of 869 S.W.2d 608 ($19,070.00 v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
$19,070.00 v. State, 869 S.W.2d 608, 1994 Tex. App. LEXIS 2, 1994 WL 1856 (Tex. Ct. App. 1994).

Opinion

OPINION

CANNON, Justice.

This is an appeal from a judgment of forfeiture in favor of the State. The subject of the forfeiture is $19,070 found inside a safe in the bedroom closet of the claimant, Dennis Womack. Claimant complains in three points of error that the evidence was insufficient to establish a link between the seized funds and commission of a felony under the Texas Controlled Substances Act, that the police exceeded the scope of the search warrant, and that the trial court improperly refused his motion to strike the trial court judge. We affirm.

On January 3, 1990, Houston Police officers executed a search warrant for a residence directing the officers to search for and seize any and all controlled substances. The warrant also directed the officers to arrest Dennis Womack, claimant of the seized funds. The officers searched the residence and recovered the following: six pyrex mixing cups containing wet cocaine residue found on the foot of Womack’s bed; a plate with trace amounts of cocaine found in the same area of the bedroom; a scale with trace amounts of cocaine found on Womack’s bed; another plate with trace amounts of cocaine and a razor blade found on top of the safe; $19,070 in U.S. currency found inside the safe; and a gram of marijuana found in another bedroom.

Womack was present during the search, knew the combination to the safe, and opened it at the officers’ request. When he opened the safe, Womack stated that the money was his and that he was going to use the money to buy a house for his mother, Shirley Womack. The money, mostly in denominations of tens and twenties, was wadded up and was bound with rubber bands. No drugs were found inside the safe. Also in Womack’s bedroom were a nine millimeter Smith and Wesson semi-automatic weapon with 28 live rounds and a Winchester 12 gauge shotgun with six live rounds.

At trial, Officer Charles Jefferson, who furnished the affidavit supporting the search and arrest warrant and who was present at the execution of the warrant, testified. The probable cause affidavit was based on information from a reliable anonymous source and the personal surveillance of Officer Jefferson. The informant had seen cocaine inside the house and stated that Womack was selling cocaine out of the house. Jefferson had observed numerous persons, some recognized as known drug users, come to the house and leave after staying only a short period of time. Based on his experience, Jefferson testified that he knew cocaine was mixed with other substances in containers like the seized pyrex containers to manufacture crack cocaine. He also testified that, based on his experience, the pyrex mixing bowls, the razor blade and the scale with trace amounts of cocaine found in the bedroom were evidence of narcotics sales.

Officer Gary Doyle was present during the search and testified based on his experience investigating the narcotics trade and his knowledge about the conversion of powder cocaine to crack cocaine. He stated that after a liquid is mixed with the powder and the substance cooked, it then cools and a razor blade is used to slice the crack into the size rock that is desired. Officer Doyle also testified that the house was located in a high crime area.

[611]*611Womack was not present at the forfeiture trial, but his family testified that only $1,500 of the seized money belonged to him. Three of Womack’s relatives testified that they had contributed funds to the safe, and the purpose of the money was to purchase a house for Dorothy Smith, Womack’s grandmother. Each of these relatives was employed, and they testified that they put extra money in the safe whenever they could afford it, although there was no explanation offered for the source of the funds contributed by Wom-ack.

Womack lived in the home where the search was conducted with his mother, disabled grandmother, and younger sister. His mother, Shirley Womack, testified that she had been contributing to the fund in the safe since 1971 at the rate of $50 to $75 per month. She testified that she did not know the combination to the safe, but had it written down. She stated that approximately $10,470 of the money belonged to her, even though she had kept no written accounting of her contribution.

Womack’s uncle, Lawrence Smith, also testified he had contributed to the fund to pin-chase a home for his mother. He testified that whenever he could afford it over the past twenty years, he gave money to his sister, Shirley, to be placed in the safe. He estimated his contributions totaled $3,600. He also had no written records of his contributions.

Huey Smith, another uncle, testified he had been making contributions since 1971. He claimed to have deposited about $3,500 in the safe towards the purchase of a home for his mother. He stated that everyone who contributed to the fund kept up with how much was in the safe and how much each contributed.

At the conclusion of the trial, the court ordered the $19,070 forfeited to the State, final judgment was entered on July 29, 1992, and this appeal resulted. Womack contends in the first point of error that the evidence is insufficient to meet the State’s burden of proving that the currency seized was tainted by illegal activity.

A forfeiture proceeding is a civil proceeding. Tex.Code Crim.Proc.Ann. art. 59.05(b) (Vernon Supp.1993). The State has the burden to prove by a preponderance of the evidence that the property is subject to forfeiture. Id. In order to prevail, the State must show probable cause for seizing the currency. TEX. CONST. art. I, § 9; Fiftysix Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex.1987). The State must establish a substantial connection between the seized currency and the defined criminal activity. $56,-700 v. State, 730 S.W.2d at 661. Thus, the State had the burden to show that, considering all the evidence, it was more reasonably probable than not that the seized money was either intended for use in, or derived from, the manufacture, delivery, sale, or possession of a controlled substance. State v. $11,-014.00, 820 S.W.2d 783, 784 (Tex.1991); Money of the U.S. in the Amount of $8,500.00 v. State, 774 S.W.2d 788, 792 (Tex.App.—Houston [14th Dist.] 1989, no writ).

Point of error one is styled only as an insufficiency of the evidence point.1 In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence. The trial court’s findings can be set aside only if they are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

In the absence of findings of fact and conclusions of law, as in this case, we presume the trial court made all necessary findings to support the judgment. Roberson v. Robinson,

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Bluebook (online)
869 S.W.2d 608, 1994 Tex. App. LEXIS 2, 1994 WL 1856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/1907000-v-state-texapp-1994.