ACCEPTED 03-14-00704-CV 5027089 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/24/2015 2:58:04 PM JEFFREY D. KYLE CLERK NO. 03-14-00704-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS COURT OF APPEALS 4/24/2015 2:58:04 PM OF THE THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE Clerk
2004 Dodge Ram 1500 TX LP#CPL1988 and 2000 Buick TX LP#CV1N8187 v. The State of Texas
APPELLEE’S BRIEF
Appeal from the 20th Judicial District Court Milam County, Texas Trial Court Cause No. CV36,279
Milam County District Attorney’s Office 204 N. Central Cameron, Texas 76520 (254) 697-7013 (254) 697-7016 – Facsimile jjohnson@milamcounty.net State Bar No. 24092587
ORAL ARGUMENT REQUESTED NAMES OF THE PARTIES TO THE FINAL JUDGMENT
State of Texas The Honorable W. W. Torrey Milam County District Attorney 204 N. Central Cameron, Texas 76520
Appellant’s Counsel
Benton Ross Watson 120 E. 1st Street P.O. Box 1000 Cameron, Texas 76520
Trial Court Judge
The Honorable John Youngblood 20th District Court Judge 102 S. Fannin Ave., 2nd Floor Cameron, Texas 76520
ii TABLE OF CONTENTS
NAMES OF THE PARTIES TO THE FINAL JUDGMENT……………………..ii TABLE OF CONTENTS……………………………………………………..…...iii INDEX OF AUTHORITIES…………………………………………………….…v REQUEST FOR ORAL ARGUMENT……………………………………..….....vii STATEMENT OF THE CASE…………………………………………………...vii ISSUES PRESENTED…………………………………………………………...viii STATEMENT OF FACTS…………………………………………………………1 SUMMARY OF THE ARGUMENT………………………………………………6 ARGUMENT……………………………………………………………………….8 ISSUE ONE: FORFEITURE OF THE VEHICLES IS NOT BARRED BY THE STATUTE OF LIMITATIONS DESPITE THE STATE’S FAILURE TO SERVE APPELLANT WITHIN THIRTY DAYS OF SEIZURE BECAUSE APPELLANT’S FILING OF AN ANSWER DISPENSED WITH THE NECESSITY OF SERVICE AND ALTERNATIVELY THE STATE EXERCISED DUE DILIGENCE IN SEEKING TO SERVE ALL KNOWN STATUTORY CLAIMANTS AND OFFERED REASONABLE EXCUSE……..8 1. APPELLANT’S ANSWER AND OTHER DEFENSIVE MEASURES DISPENSED WITH THE NECESSITY OF SERVICE OF PROCESS AND CONSTITUTES WAIVER OF APPELLANT’S STATUTE OF LIMITATIONS DEFENSE………………………………………………….8 2. THE STATE USED DUE DILIGENCE IN ATTEMPTING SERVICE OF PROCESS ON ALL STATUTORY CLAIMANTS THAT THE STATE KNEW OF OR HAD REASON TO KNOW OF AND OFFERED A REASONABLE EXCUSE FOR LACK OF TIMELY SERVICE ON APPELLANT………………………………………………………..……..11 ISSUE TWO: THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT WAS APPROPRIATE BECAUSE THE STATE ESTABLISHED PROBABLE CAUSE AND ESTABLISHED THAT THE VEHICLES WERE USED IN THE COMMISSION OF A FELONY, AND FINALLY APPELLANT’S DEFENSES LACK MERIT…………………………………………………………………….15 1. THE STATE ESTABLISHED PROBABLE CAUSE TO SEIZE THE VEHICLES AND USE OF THE VEHICLES IN THE COMMISSION OF A FELONY BASED ON THE CONFIDENTIAL INFORMANT’S INFORMATION FOUND IN DEPUTY WHITE’S AFFIDAVIT………...15 2. APPELLANT’S STATUTE OF LIMITATIONS, INNOCENT OWNER, AND EIGTHTH AMENDMENT PROPORTIONALITY DEFENSES LACK MERIT……………………………………………………………...18
iii a. STATUTE OF LIMITATIONS DEFENSE………………………...18 b. INNOCENT OWNER DEFENSE…………………………………..18 c. EIGHTH AMENDMENT PROPORTIONALITY DEFENSE……..19 PRAYER FOR RELIEF.………………………………………………………….22 CERTIFICATE OF SERVICE……………………………………………………23 CERTIFICATE OF COMPLIANCE……………………………………………...24
iv INDEX OF AUTHORITIES
United States Supreme Court Cases United States v. Bajakajian, 524 U.S. 321 (1998)………………………………………………………..20
Texas Supreme Court Cases Gant v. Deleon, 786 S.W.2d 259 (Tex. 1990)………………………………………………...1
Texas Court of Criminal Appeals State v. Duarte, 389 S.W.3d 349 (Tex. Crim. App. 2012)…………………………………..16
Texas Appellate Court Cases $18,800 in United States Currency v. State, 961 S.W.2d 257 (Tex. App. Houston 1st Dist. 1997, no writ)…..................19 $24,156.00 in United States Currency v. State, 247 S.W.3d 739 (Tex. App. Texarkana 2008, rehearing overruled)…............................................................................................10, 11 $27,920.00 in United States Currency v. State, 37 S.W.3d 533 (Tex. App. Texarkana 2001, writ denied)………………9, 10 1996 Dodge X-Cab Truck v. State, 122 S.W.3d 422 (Tex. App. Beaumont 2003, no pet.)……………………..20 Amrani-Khaldi v. State, 575 S.W.2d 667 (Tex. Civ. App. Corpus Christi 1978, no writ)……………………………………………………………...4, 13, 18, 19 Gaston v. State, 641 S.W.2d 261 (Tex. App. Houston 14th Dist. 1982, writ denied)………… ……………………………………………………………………………..19 Hopkins v. State, 2003 Tex. App. LEXIS 1448 (Tex. App. Fort Worth Feb. 13, 2003)………... ……………………………………………………………………………...19 Tyler Car & Truck Ctr. v. Empire Fire & Marine Ins. Co., 2 S.W.3d 482 (Tex. App. Tyler 1999)………………………………..…....12
Texas Code of Criminal Procedure TEX. CODE CRIM. PROC. art. 59.04(a)………………………………………………1 TEX. CODE CRIM. PROC. art. 59.04(b)………………………………………………1 TEX. CODE CRIM. PROC. art. 59.04(j)……………………………………………...13 v Texas Rules of Civil Procedure TEX R. CIV. P. 22………………………………………………………………..…8 TEX R. CIV. P. 120……………………………………………………………….…9 TEX R. CIV. P. 121………………………………………………………………….9
Texas Family Code TEX. FAM. CODE. ANN. § 3.202………………………………………………..…19
vi REQUEST FOR ORAL ARGUMENT
Appellee requests that oral argument be granted. Appellee believes oral
argument would benefit the Court’s understanding of the details of the case.
STATEMENT OF THE CASE
This case involves Appellant’s challenge to the trial court’s grant of
summary judgment in favor of the State in an asset forfeiture case pursuant to
Texas Code of Criminal Procedure Article 59.
vii ISSUES PRESENTED
I. Whether Appellant may assert the statute of limitations defense as such
to bar forfeiture in this case? Or, if Appellant may indeed assert such
defense, whether the State acted with due diligence in seeking to serve all
statutory claimants and provided reasonable excuse for lack of timely
service on Appellant?
II. Whether the trial court erred in granting of State’s Motion for Summary
Judgment to the State?
viii STATEMENT OF THE FACTS
Sedderick Alcorn (hereinafter “Mr. Alcorn”) was arrested based on motions
to revoke probation in two counts of Delivery of Controlled Substance Less Than
One Gram, Enhanced, a third degree felony. Mr. Alcorn pled true to the motions to
revoke and was sentenced to ten years in prison.
Prior to that on March 6, 2014, Chief Deputy Chris White of the Milam
County Sheriff’s Office seized the contraband (hereinafter “the vehicles”) in this
case, both the 2004 Dodge Ram 1500 (hereinafter “Dodge”) and the 2000 Buick 4-
door sedan (hereinafter “Buick”).1 Both vehicles were seized from Mr. Alcorn’s
residence in Rockdale, Texas. LaToya Williams, later identified in Appellant’s
Response to State’s Motion for Summary Judgement as LaToya Alcorn
(hereinafter “Mrs. Alcorn”), was at the house at the time of seizure. She signed
inventory forms and retrieved some items from the vehicles.2
A certificate of title search was performed on the vehicles to determine the
registered owners according to the Texas Department of Motor Vehicles.3 The
Dodge came back registered to a James Rackley (hereinafter “Mr. Rackley”). The
Buick came back registered to a Gil Shamsher (hereinafter “Mr. Shamsher”).4 On
1 I C.R. 10. 2 Id. at 225-6. 3 Id. at 10-1. 4 Id. 1 March 18, 2014, the State filed the Original Notice of Seizure and Intended
Forfeiture.5 On March 28, 2014, the State served citation on registered owners, Mr.
Shamsher and Mr. Rackley, and Mr. Alcorn, as either a possible owner or one
merely in possession of the vehicles.6
Initially, the only statutory claimant who responded to the service was Mr.
Alcorn. On April 7, his response came in the form of a handwritten answer stating,
among other things, “I detest all allegations.”7 Mr. Alcorn was sent interrogatories
on April 25, 2014, which he failed to answer.8 On May 28, 2014, Mrs. Alcorn filed
an answer in this case. It came in the form of a general denial and it did not provide
the court or the State any basis as to why Mrs. Alcorn should be a party in the suit.9
Despite Mrs. Alcorn’s failure to provide the State with any basis for a claim on the
vehicles, either as a potential owner, a possessor, or other interest holder, the State
sent Mrs. Alcorn interrogatories.10 In her answer to the interrogatories, Mrs. Alcorn
finally notified the State that she was claiming an ownership interest in the
vehicles. Mrs. Alcorn explained that she was claiming both a “monetary and
community property interest” in the vehicles.11
5 Id. at 5. 6 Id. at 5-12. 7 Id. at 25. 8 Id. at 54. 9 Id. at 26. 10 Id. at 68. 11 Id. at 74, 79. 2 The State subsequently filed a First Amended Notice of Seizure and
Intended Forfeiture.12 In that amended notice, the State added Mrs. Alcorn as a
statutory claimant.13 The State’s First Amended Notice of Seizure and Intended
Forfeiture was served on Mrs. Alcorn’s counsel.14
Eventually, though not formally answering in the suit, Mr. Rackley did
contact the State regarding his interest. In his writing, Mr. Rackley disclaimed any
interest in the Dodge. Subsequently, a stipulated agreement was made between the
State and Mr. Rackley, which waived any interest that Mr. Rackley may have had
in the Dodge.15 Likewise, a default judgment was rendered against Mr. Shamsher’s
interest in the Buick.16 At that time, no party produced a bill of sale or other
document indicating a transfer of title.
At that point, the only potential claimants remaining in the case were Mr.
and Mrs. Alcorn. The State filed State’s Motion for Summary Judgment against
both Mr. and Mrs. Alcorn.17 Because Mr. Alcorn failed to respond to any
discovery, The State moved to deem admissions against Mr. Alcorn.18 Mr.
12 Id. at 331. 13 Id. at 332. 14 Id. at 336. 15 Id. at 28. 16 Id. at 107. 17 Id. at 35. 18 Id. at 37, 54. 3 Alcorn’s deemed admissions proved that the vehicles were contraband and
forfeited any ownership or possessory rights Mr. Alcorn had to either vehicle.19
In the State’s Motion for Summary Judgment against Mrs. Alcorn, the State
relied on the rule from Amrani-Khaldi v. State.20 The State argued that Mrs. Alcorn
was an improper party. Specifically, it was the State’s contention that Mrs. Alcorn
lacked standing based on the rule from Amrani-Khaldi. The State further argued
that Mrs. Alcorn produced no evidence proving either element of the innocent
owner affirmative defense, the only affirmative defense provided by statute in a
forfeiture suit.21
Mrs. Alcorn filed a First Amended Answer along with a response to the
State’s Motion for Summary Judgment.22 For the first time, Mrs. Alcorn asserted
the innocent owner, statute of limitations, and Eighth Amendment proportionality
defenses.23 Ultimately, the trial court recognized that Mrs. Alcorn had standing as a
statutory claimant.24 Despite that, the trial court granted the State’s Motion for
Summary Judgment on all counts and found that Mrs. Alcorn was not pleading
19 Id. at 54. 20 Id. at 35, 38-43; Amrani-Khaldi v. State, 575 S.W.2d 667, 669 (Tex. Civ. App. Corpus Christi 1978). 21 Id. at 38-43. 22 Id. at 127, 130. 23 Id. at 130-329. 24 Id. at 347-8. 4 affirmative defenses in good faith.25 Mrs. Alcorn moved for a new trial, but the
trial court denied her motion.26 Mrs. Alcorn then appealed to this court.27
25 Id. at 351-3. 26 I C.R. Supp 138. 27 I C.R. 369. 5 SUMMARY OF THE ARGUMENT
The Court should affirm, or alternatively remand for further proceedings, the
judgment of the trial court for two primary reasons.
First, despite the lack of timely service on Appellant, Appellant’s answer is a
general appearance that dispensed with the necessity of service of process and
waived Appellant’s statute of limitations defense.
Even if Appellant’s answer did not waive Appellant’s statute of limitations
defense, the State acted with due diligence where it sought timely service on all
known potential claimants. The State’s lack of knowledge is a reasonable excuse in
light of the steps it took to ascertain all potential claimants. Once the State became
aware that Appellant was claiming an interest in the vehicles, the State quickly
confirmed Appellant’s status as a potential claimant.
Second, the trial court’s grant of summary judgment was appropriate
because the State’s confidential informant supplied credible and reliable
information to the affiant which established probable cause to support the seizure.
The same information proved that the vehicles were used in the commission of a
felony.
Additionally, Appellant’s affirmative defenses against summary judgment
lack merit. Appellant either waived the statute of limitations defense or the State 6 has a reasonable excuse for lack of timely service. Appellant cannot assert the
innocent owner defense because community property is not exempt from forfeiture
even though such property is used by one spouse without the knowledge and
consent of the other spouse. Appellant’s Eighth Amendment proportionality
defense fails to consider the higher level of culpability in this case as such to
warrant forfeiture of the vehicles.
7 ARGUMENT
ISSUE ONE: FORFEITURE OF THE VEHICLES IS NOT BARRED BY THE STATUTE OF LIMITATIONS DESPITE THE STATE’S FAILURE TO SERVE APPELLANT WITHIN THIRTY DAYS OF SEIZURE BECAUSE APPELLANT’S FILING OF AN ANSWER DISPENSED WITH THE NECESSITY OF SERVICE AND ALTERNATIVELY THE STATE EXERCISED DUE DILIGENCE IN SEEKING TO SERVE ALL KNOWN STATUTORY CLAIMANTS AND OFFERED REASONABLE EXCUSE. 1. APPELLANT’S ANSWER AND OTHER DEFENSIVE MEASURES DISPENSED WITH THE NECCESSITY OF SERVICE OF PROCESS AND CONSTITUTES WAIVER OF APPELLANT’S STATUTE OF LIMITATIONS DEFENSE. Service of process in civil asset forfeiture is governed by the Texas Rules of
Civil Procedure.28 The general rules regarding service of process in asset forfeiture
requires that the State shall “commence proceedings . . . not later than the 30th day
after the date of seizure.”29 A civil action commences with the filing of suit, but
such suit must be filed within the applicable statute of limitations.30 Generally,
even when the petition is timely filed, suit will be barred by the statute of
limitations unless the plaintiff exercises due diligence in serving the defendant with
process within the statute of limitations period.31
In some cases, however, service of process may be waived. A defendant
may, in person or by his agent, enter an appearance in open court which “shall
28 TEX. CODE CRIM. PROC. art. 59.04(b). 29 TEX. CODE CRIM. PROC. art. 59.04(a). 30 TEX R. CIV. P. 22. 31 Gant v. Deleon, 786 S.W.2d 259, 260 (Tex. 1990). 8 have the same force and effect as if citation had been duly issued and served as
provided by law.”32 Rule 121 expands on this provision by stating that “an answer
shall constitute an appearance of the defendant so as to dispense with the necessity
for the issuance or service of citation upon him.”33
In $27,920.00 in United State Currency v. State, the State did not attempt to
serve process on the owner of a vehicle from which contraband was seized.34 The
owner, making a claim on the contraband, answered in the suit and filed a Motion
to Return Funds. The owner argued on appeal that the State’s failure to serve him
barred seizure. However, the court found that the owner’s answer and “filing of the
motion in court constituted an appearance and waived the necessity of service of
process.”35 The court explained further that the filing of such a “defensive
measure”, coupled with no effort to make a special appearance, waived the
owner’s limitations defense.
Here, the facts are analogous to those upheld on in $27,920.00. Appellant
made an appearance when she intervened in the suit by filing an answer to defend
against the State.36 Additionally, Appellant took further defensive measures when
32 TEX R. CIV. P. 120. 33 TEX R. CIV. P. 121. 34 $27,920.00 in United States Currency v. State, 37 S.W.3d 533 (Tex. App. Texarkana 2001). 35 Id. at 536. 36 I C.R. 26. 9 she filed a motion to contest State’s Motion for Summary Judgment.37 There is no
evidence in the record that Appellant made – or even sought to make – a special
appearance or otherwise challenge the court’s jurisdiction. Under these facts and
the rules in $27,920.00, Appellant made an appearance by filing an answer in the
court and taking defensive measures which dispensed with the necessity of service
of process.
Appellant cites $24,156.00 in United States Currency v. State as authority
for the proposition that service of process is not waived by generally appearing in
suit.38 Appellant fails to cite the whole rule. The rule states that a party’s general
appearance does not waive service of process, but only where service of process
occurs outside of the statute of limitations period and the State has not used due
diligence in serving the defendant.39 $24,156.00 is factually distinguishable from
the instant case. In that case, the defendant did not file an answer or otherwise
make a general appearance in the case. In fact, defendant’s counsel made only a
request for admissions on the State “several months” after the Notice of Seizure
and Intended Forfeiture was received.40 Even when Defendant finally challenged
37 I C.R. 130. 38 $24,156.00 in United States Currency v. State, 247 S.W.3d 739, 740 (Tex. App. Texarkana 2008). 39 Id. at 747. 40 Id. at 741. 10 the statute of limitations, he did so via a bill of review.41 Here, Appellant filed an
answer, took other defensive measures, and did not ever proceed on a bill of
review. Thus, the rules as applied in $24,156.00 do not fit with the facts in the
instant case. Conversely, the facts in $27,920.00 are strikingly similar to those in
the instant case, and offer clearer precedent.
2. THE STATE USED DUE DILIGENCE IN ATTEMPTING SERVICE OF PROCESS ON ALL PARTIES THAT THE STATE KNEW OF OR HAD REASON TO KNOW OF AND OFFERED A REASONABLE EXCUSE FOR LACK OF TIMELY SERVICE ON APPELLANT. Even if the Court decides that the rule announced in $27,920.00 does not
control and instead $24,156.00 does, then the State has still met its obligations. As
mentioned supra, the rule in $24,156.00 is “[a] party's general appearance in a suit
does not waive service of process when the appearance occurs after the limitations
period has run and the plaintiff has not used due diligence in serving the party.” 42
$24,156.00 also explains the standard for whether due diligence has been
exercised:
Generally, the question of reasonable diligence is a fact question; however,
if no excuse for the lack of timely service is offered, or the time passed
between filing of the suit and the State's actions negate the possibility that
reasonable diligence existed, lack of diligence will be found as a matter of
41 Id. at 742. 42 Id. at 747. 11 law. One 1991 Chevrolet Blazer, 905 S.W.2d at 445; Three Thousand Six
Hundred Thirty-Nine Dollars ($ 3,639.00) in U.S. Currency v. State, 133
S.W.3d 698, 700-01 (Tex. App.--Corpus Christi 2003, no pet.). The two
controlling factors that establish due diligence are (1) whether the plaintiff
acted as an ordinary [sic] prudent person would act under the same
circumstances, and (2) whether the plaintiff acted diligently up until the time
the defendant was served. $ 6,453.00, 63 S.W.3d at 536.43
At the time of seizure, the State knew Mr. Alcorn was a potential claimant
and he was duly served. 44 The State’s next effort to determine other potential
claimants on the vehicles was to run the certificate of title with the Texas
Department of Motor Vehicles.45 The State found that Mr. Rackley and Mr.
Shamsher were listed as owners of one of the vehicles each.46 The owner listed on
a certificate of title creates a presumption of ownership, but it is not conclusive.47
Despite that, the State served both Mr. Rackley and Mr. Shamsher anyway.48 In
conclusion, the record shows that the State promptly served process via citation on
43 Id. at 744-5. 44 I C.R. 10, 21. 45 Id. at 10-1. 46 Id. 47 Tyler Car & Truck Ctr. v. Empire Fire & Marine Ins. Co., 2 S.W.3d 482, 485 (Tex. App. Tyler 1999). 48 I C.R. 19-22. 12 all known parties by March 28, 2014, which was twenty-three days after seizure.49
Service of these parties was well within the statute of limitations.
The State did not serve Appellant because the State did not know that
Appellant was a potential claimant. The record does not show that Appellant was
listed as an owner on any certificate of title. Furthermore, there was no other
evidence in the record at that time to suggest that Appellant was an owner. Indeed,
it was not until July 10, 2014, when Appellant responded to the State’s request for
admission that Appellant asserted a “monetary and community property interest.”50
Later that month, in affidavits made by Appellant and her counsel, Appellant
finally asserted her status as co-owner of the vehicles.51 Once the State was made
aware of Appellant’s interest in the vehicles, the State amended its Notice of
Seizure and Intended Forfeiture on August 5, 2014 to include Appellant.52
The record also does not show that Appellant was a possessor at the time of
seizure and thus entitled to service of process.53 The Appellant’s affidavit shows
only that Appellant was present on the premises at the time the vehicles were
49 Id. at 19-24. 50 I C.R. 247; Please note that although Appellant claims a community property interest in the vehicles here, the fact that property to be forfeited is community property is no bar to forfeiture. Amrani-Khaldi, supra note 20. 51 Id. at 226, 234. 52 Id. at 331. 53 TEX. CODE CRIM. PROC. art. 59.04(j). 13 seized.54 Appellant was allowed to remove items from the vehicles, but the mere
fact that Appellant had personal property in the vehicle does not show control and
dominion over the vehicle as such to give rise to the inference that she was in
actual possession at the time of the seizure – rather, it shows, along with
Appellant’s contentions that she occasionally drove the cars, that at best Appellant
may have been in possession of the vehicles at some point in the past.55
Considering the argument supra, the record shows that the State was not
aware that Appellant was a potential claimant. Therefore, she was not served. The
record also shows that, as required by $24,156.00, the State acted as a prudent
person in the same situation would have; the State consulted official records to
ascertain potential owners,56 the State promptly served all known parties,57 and
there was no other delay by the State.58 Moreover, the lack of knowledge of
Appellant’s status as potential claimant is a reasonable excuse for lack of timely
service as contemplated by $24,156.00.
In conclusion, the Court should affirm the ruling of the trial court and find
that that forfeiture is not barred by the statute of limitations. The Appellant’s
answer, which is a general appearance, dispensed with the necessity of service of
54 I C.R. 225. 55 Id. 56 I C.R. 10-1. 57 Id. at 19-24. 58 Id. at 10-24. 14 process as set forth in $27,920.00. However, should the Court find that $24,156.00
controls, then alternatively the State acted with due diligence because the State has
set forth a reasonable excuse to explain the lack of timely service on Appellant.
ISSUE TWO: THE TRIAL COURT’S GRANT OF SUMMARY JUDGMENT WAS APPROPRIATE BECAUSE THE STATE ESTABLISHED PROBABLE CAUSE AND ESTABLISHED THAT THE VEHICLES WERE USED IN THE COMMISSION OF A FELONY, AND FINALLY APPELLANT’S DEFENSES LACK MERIT. 1. THE STATE ESTABLISHED PROBABLE CAUSE TO SEIZE THE VEHICLES AND USE OF THE VEHICLES IN THE COMMISSION OF A FELONY BASED ON THE CONFIDENTIAL INFORMANT’S INFORMATION FOUND IN DEPUTY WHITE’S AFFIDAVIT. Appellant contends that Deputy White’s affidavit is insufficient to establish
probable cause and use of the vehicles in the commission of a felony for a number
of reasons. Appellant points to (1) the affiant’s lack of personal knowledge with
regard to what is depicted on the videos, (2) the inapplicability of Mr. Alcorn’s
deemed admission to Appellant, and, finally, (3) the lack of credibility and
reliability of the affiant’s confidential informant. Even assuming the Court finds
merit in Appellant’s first two contentions, the credibility and reliability of the
confidential informant has been shown.
In State v. Duarte, the court explains the rules regarding information gained
from confidential informants:
15 Confidential informants—even though culled from the "criminal milieu"—
may be considered reliable tipsters if they have a successful "track
record." As Professor LaFave points out, "Lower courts have with virtual
unanimity held that a declaration that the informant's past information has
led to convictions is a sufficient showing of the informer's credibility." But
tips from anonymous or first-time confidential informants of unknown
reliability must be coupled with facts from which an inference may be drawn
that the informant is credible or that his information is reliable.59
Here, there is no evidence to show that affiant’s confidential informant has a
track record that has led to past convictions. As such, it is necessary to couple the
confidential informant’s tips with facts that show he or she was credible or
reliable.60 The affidavit shows on its face a number of details that lead to
inferences establishing the confidential informant’s credibility or reliability. First,
the affidavit shows that the confidential information knew exactly what sort of
drug Mr. Alcorn was selling at the present time when he arranged the sale.61 The
fact that the confidential informant knew that Mr. Alcorn was specifically selling
crack cocaine, out of the wide spectrum of illicit substances that are known to be
available in the State of Texas, shows credibility or reliability. Second, the
59 State v. Duarte, 389 S.W.3d 349, 357 (Tex. Crim. App. 2012). 60 Id. 61 I C.R. 10 16 affidavit shows that the confidential informant was able to set up multiple drug
sales with Mr. Alcorn in order to prove Mr. Alcorn was engaged in the ongoing
sale of drugs.62 This shows a great deal more credibility and reliability than a one-
time sale would tend to. Finally, the fact that the affidavit shows that the
confidential informant helped arrange sales that confirm Mr. Alcorn’s modus
operandi, which is to meet at a given location and conduct the sale via automobile,
tends to show credibility and reliability.63
All these facts taken together show that the hearsay information garnered
from the confidential informant was indeed credible and reliable. Thus, even
assuming the Court finds merit in Appellant’s contentions that (1) the affiant
lacked personal knowledge with regard to what occurred in the videos and that (2)
Mr. Alcorn’s deemed admissions are inapplicable against Appellant, the credible
and reliable nature of the hearsay information independently establishes probable
cause to support the seizure. Additionally, the same information shows that the
vehicles at issue were used in the commission of a felony.
It is important to note a minor point here. As mentioned supra, Appellant
contends that the affidavit cannot show that the vehicles are proceeds or acquired
with proceeds of illegal activity. Even assuming that is true, that contention does
62 Id. 63 Id. 17 not address the fact that the vehicles were used in the commission of a felony. The
information from the confidential informant shows that the vehicles were used in
two separate drug sales.64 Appellant further contends that the State can only show
use of the vehicles in these two instances. Even if that is true, Appellant admits that
the vehicles were indeed used in the commission of a felony.
2. APPELLANT’S STATUTE OF LIMITATIONS, INNOCENT OWNER, AND EIGTHTH AMENDMENT PROPORTIONALITY DEFENSES LACK MERIT.
A. STATUTE OF LIMITATIONS DEFENSE For a full discussion of this issue, please see Issue One, Subsection One,
supra.
B. INNOCENT OWNER DEFENSE
Appellant asserts the innocent owner defenses and, furthermore, contends
that Amrani-Khaldi is bad law and should therefore be overruled. Amrani-Khaldi
holds that community property is not exempt from forfeiture where such property
is used by a spouse in such a manner as to contravene TEX. REV. CIV. STAT. ANN.
art. 4476-15 § 5.03 (1976), even though such property is so used by one spouse
without the knowledge and consent of the other spouse.65 This rule is well-settled
64 Id. 65 Amrani-Khaldi, 575 S.W.2d at 668-9. 18 and has been followed by numerous other cases since it was decided.66 Appellant
argues that Amrani-Khaldi should be overturned because (1) forfeiture suits are in
rem and, thus, there is no personal liability to pass onto the spouse, (2) the Texas
Family Code allows one spouse to create liability but does not require it, and (3)
that Amrani-Khaldi essentially allows a corruption of blood style liability.
Despite Appellant’s contentions, the reasoning in Amrani-Khaldi is well-
founded. Were Appellant’s rules to be applied in future cases, virtually any
forfeiture of property from a married person would be barred by testimony from
the other spouse that he or she did not know that the property in question was
either proceeds of or being used in the commission of illicit activity. This would
effectively allow any married person to shield property gained by or used in illicit
activity from asset forfeiture simply by virtue of his or her status as a married
person. Such a rule would completely undermine the well-settled rule that spouses
may incur liability on community property through unilateral action.67
C. EIGHTH AMENDMENT PROPORTIONALITY DEFENSE
Appellant contends that the Excessive Fines Clause of the Eighth
Amendment, as applied in United States v. Bajakajian, bars forfeiture in this
66 See Gaston v. State, 641 S.W.2d 261, 262 (Tex. App. Houston 14th Dist. 1982, writ denied); $18,800 in United States Currency v. State, 961 S.W.2d 257, 259 (Tex. App. Houston 1st Dist. 1997); Hopkins v. State, 2003 Tex. App. LEXIS 1448, 3 (Tex. App. Fort Worth Feb. 13, 2003). 67 TEX. FAM. CODE. ANN. § 3.202. 19 case.68 Bajakajian holds that in order to satisfy the Excessive Fines Clause, (1) the
property must have been an instrumentality of the crime committed and (2) the
value of the property must be proportional to the culpability of the crime
committed.69 Appellant cites 1996 Dodge X-Cab Truck v. State to illustrate this
principle.70 In Dodge X-Cab, the police arrested the owner of a vehicle for an
outstanding warrant. While inventorying the vehicle, the police discovered straws
containing trace amounts of drugs.71 The owner was convicted of misdemeanor
possession instead of the original state jail felony charge.72 The vehicle was
forfeited by the State.73
On appeal, the court ruled that the forfeiture was violative of the Excessive
Fines Clause insofar as the mitigation from felony punishment to misdemeanor
punishment showed the court that there was a diminished level of culpability in
this case.74 The court further remarked that the amount of drugs in the owner’s
possession was so small that it could barely be measured – prompting the court to
68 United States v. Bajakajian, 524 U.S. 321 (1998). 69 Id. at 327. 70 1996 Dodge X-Cab Truck v. State, 122 S.W.3d 422, 423 (Tex. App. Beaumont 2003, no pet.). 71 Id. at 423. 72 Id. at 427. 73 Id. at 422. 74 Id. at 427. 20 find an even lower level of culpability.75 The court then goes on to observe that had
the owner been charged with the felony, the forfeiture would have been warranted.
Comparing Dodge X-Cab to the instant case, the facts are distinguishable.
Here, Mr. Alcorn pled to Delivery of Controlled Substance Less Than One Gram,
Enhanced. This charge accounts for the sale of drugs as opposed to the possession
of a trace amount of drugs. The disparity in the level of culpability between these
two offenses is self evident – one can see that the forfeiture arose from a set of
facts indicting a far higher level of culpability. Therefore, the forfeiture cannot be
thought to implicate the Excessive Fines Clause and Appellant’s Eighth
Amendment proportionality defense ultimately lacks merit.
In conclusion, all of the Appellant’s defenses, for the reasons detailed supra,
lack merit. First, Appellant’s answer in this case waived the statute of limitations
defense or the State’s due diligence and reasonable excuse provide for the lack of
timely service. Second, Appellant cannot assert an innocent owner defense because
the rule in Amrani-Khaldi controls. Third, Appellant’s Eighth Amendment
proportionality defense is lacking because the felony conviction in this case shows
a heightened level of culpability as such to justify the forfeiture.
75 Id. 21 PRAYER FOR RELIEF
Appellee prays that this Court find that Appellant may not assert the statute of
limitations defense and affirm the trial court’s grant of summary judgment to the
State. Alternatively, Appellee prays that the Court remand the case to trial court.
Respectfully submitted, Joseph P. Johnson Assistant County & District Attorney 204 N. Central Cameron, Texas 76520 Telephone: 254/697-7013 Fax: 254/697-7016 Email: daoffice@milamcounty.net
/s/Joseph P. Johnson_______ JOSEPH P. JOHNSON Texas State Bar Number 24092587 ATTORNEY FOR THE STATE
22 CERTIFICATE OF SERVICE
This is to certify that on April 24, 2015, a true and correct copy of the above
and foregoing document was served on Benton Ross Watson, counsel for the
Appellant, by electronic transmission at ross@texastopdefense.com. Electronic
transmission was reported as complete.
____________ /s/Joseph P. Johnson___ Joseph P. Johnson
23 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitations of TEX. R. APP. P. 9.4(i) because this brief contains 4,749 words, excluding the parts of the brief exempt by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style requirements of Tex. R. App. P. 9.4(e) because this brief has been produced on a computer in conventional typeface using Microsoft Word in Times New Roman 14 point font in the body of the brief and Times New Roman 12 point font in the footnotes.
3. The electronic file is virus and malware free.
___ /s/Joseph P. Johnson___________ Signature of Filing Party
___Joseph P. Johnson______________ Printed Name
Milam County District Attorney’s Office Firm
______April 24, 2015_______________ Date