2004 Chevrolet Z71 Pickup VIN:1GCEK19T14E213891 (Jimmy Jenkins) v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00168-CV __________________

2004 CHEVROLET Z71 PICKUP VIN:1GCEK19T14E213891 (JIMMY JENKINS), Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV32472 __________________________________________________________________

MEMORANDUM OPINION

This is an appeal from a civil forfeiture proceeding brought by the State of

Texas against appellant Jimmy Jenkins and his interest in a 2004 Chevrolet Z71

Pickup Vin: 1GCEK19T14E213891. Jenkins, appearing pro se, appeals the trial

court’s order granting the State’s motion for summary judgment for forfeiture of his

pickup. We affirm the trial court’s judgment.

1 Background

In January 2019, the State filed a notice of seizure and intended forfeiture of

a 2004 Chevrolet Z71 Pickup Vin: 1GCEK19T14E213891 pursuant to Chapter 59

of the Texas Code of Criminal Procedure and identified Jenkins as the possessor and

owner of the pickup. See Tex. Code Crim Proc. Ann. arts. 59.01-.14. The State

alleged that the pickup was contraband as defined by Article 59.01 of the Texas Code

of Criminal Procedure and subject to forfeiture because it was used or intended to

be used in the commission of a felony, it was the proceeds gained from the

commission of a felony listed in Article 59.01, or it was acquired with proceeds

gained from the commission of a felony listed in Article 59.01. See id. art.

59.01(2)(A), (B)(i). As required by Article 59.04(b) of the Code of Criminal

Procedure, the State attached to its notice the affidavit of Officer Billy Duke. See id.

art. 59.04(b).

In his affidavit, Officer Duke stated that based on a tip from a confidential

informant that Jenkins was transporting narcotics, Officer David Ramsey stopped

Jenkins’s pickup, and Ramsey arrested Jenkins because he became belligerent and

failed to identify. Duke stated that Ramsey reported that Jenkins admitted that he

owned the pickup and claimed that he had bought it with money he had won. Duke

explained that when Ramsey conducted an inventory of the pickup, Ramsey noticed

2 the passenger side air bag had been tampered with. According to Duke, Ramsey

located a clear baggy containing methamphetamine hidden behind the passenger side

airbag and arrested Jenkins for possessing a controlled substance. Duke averred that

based on the totality of the circumstances, he had formed the opinion that Jenkins

was engaged in criminal activity that included the sale or trafficking of a felony

amount of illegal narcotics and the pickup was utilized to transport said narcotics.

Jenkins, acting pro se, filed an answer stating that he had pleaded not guilty

and requesting the return of his pickup. The State filed a motion for summary

judgment, arguing that it had proved all the essential elements of its cause of action

for forfeiture of property as a matter of law. The trial court found that the pickup

was contraband subject to forfeiture and granted the State’s motion for summary

judgment. Jenkins appealed.

Standard of Review

We review summary judgment orders de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The party moving for traditional

summary judgment must establish that no genuine issue of material fact exists and

it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall’s Food

Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If the moving party

produces evidence entitling it to summary judgment, the burden shifts to the

3 nonmovant to present evidence that raises a material fact issue. Walker v. Harris,

924 S.W.2d 375, 377 (Tex. 1996). In determining whether there is a disputed issue

of material fact precluding summary judgment, we take evidence favorable to the

nonmovant as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.

1985). We review the summary judgment record “in the light most favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts against

the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

Analysis

Jenkins filed a pro se brief arguing that the allegations against him are false

and that his pickup should be returned. We note that the Texas Rules of Appellate

Procedure require an appellant to “state concisely all issues or points presented for

review” and to make a “clear and concise argument” for each issue raised, “with

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(f), (i).

Our review of Jenkins’s brief shows that the briefing on the issues does not contain

any citations to any legal authority or the record. See Tex. R. App. P. 38.1(i). Even

interpreting Jenkins’s brief liberally, we cannot conclude that the issues are

adequately briefed. See Proctor v. White, 155 S.W.3d 438, 441 (Tex. App.—El Paso

2004, pet. denied) (concluding appellants waived challenge to summary judgment

on several claims because their argument consisted of several pages referring to

4 evidence in support of their factual allegations without a single reference to relevant

case law or legal principle).

Despite Jenkins’s inadequate briefing, we conclude that the State conclusively

established that there were no genuine issues of material fact and that it was entitled

to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Johnson, 891 S.W.2d at

644. The State’s summary-judgment proof, the affidavit of Officer Duke, is clear,

positive, and direct; credible and free from contradictions and inconsistencies; and

could have been readily controverted by Jenkins. See Tex. R. Civ. P. 166a(c).

Accordingly, the State met its initial burden of establishing that the pickup, which

was owned by Jenkins and used to transport narcotics in violation of Texas law, was

contraband that was subject to forfeiture. See State v. One (1) 2004 Lincoln

Navigator, 494 S.W.3d 690, 701 (Tex. 2016) (stating that the State’s burden is

proving the property is subject to forfeiture, which includes proving probable cause);

State v. Ninety Thousand Two Hundred Thirty-Five Dollars and No Cents in U.S.

Currency, 390 S.W.3d 289, 293 (Tex. 2013) (stating that probable cause is a

reasonable belief that a substantial connection exists between the property to be

forfeited and the criminal activity defined in the statute). Thus, the burden shifted to

Jenkins to raise a material fact issue that would preclude summary judgment. See

Walker, 924 S.W.2d at 377. However, the record shows that Jenkins failed to file a

5 response to the State’s motion for summary judgment, and thus failed to challenge

any of the State’s summary judgment evidence. We conclude that the trial court did

not err in granting the State’s motion for summary judgment. We overrule Jenkins’s

issues on appeal and affirm the trial court’s judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on January 21, 2020 Opinion Delivered March 26, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.