$23,900.00 v. State

899 S.W.2d 314, 1995 Tex. App. LEXIS 792, 1995 WL 225456
CourtCourt of Appeals of Texas
DecidedApril 13, 1995
DocketNo. 14-93-01170-CV
StatusPublished
Cited by11 cases

This text of 899 S.W.2d 314 ($23,900.00 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
$23,900.00 v. State, 899 S.W.2d 314, 1995 Tex. App. LEXIS 792, 1995 WL 225456 (Tex. Ct. App. 1995).

Opinion

OPINION

YATES, Justice.

This is a forfeiture case. Appellant, Samuel Fuentes Guizar, appeals from a judgment of forfeiture in favor of appellee, The State of Texas (the State). In its judgment, the trial court ordered the forfeiture of $23,900.00 cash seized during a search of a residence occupied by appellant and his wife. Appellant raises seven points of error complaining that testimony of the State’s only witness, Houston Police Department Officer Daniel A. Rosales, should have been excluded because of alleged defects in the State’s answers to interrogatories. We affirm.

In the early evening hours of May 17, 1993, Officer Rosales met appellant in the parking lot of the Stop-N-Go located at 75th and Canal in Houston. At that time, Officer Rosales obtained appellant’s written consent to search the residence at 5634 Northridge in Harris County, Texas. Officer Rosales, other HPD officers, and appellant proceeded to the residence. At appellant’s direction, the [316]*316officers found $23,900.00 cash wrapped in a plastic bag, a scale, and a large amount of tar heroin underneath a board in the bottom of a bathroom closet. Appellant told the police that the $23,900.00 was money he owed his supplier for the heroin in his possession.

In June 1993, the State filed a notice of seizure and intended forfeiture. Appellant filed an answer. Trial was before the court on November 16, 1993. On November 22, 1993, the trial court rendered judgment ordering that the $23,900.00 cash be forfeited and distributed among various government agencies. Following the denial of his Motion for Judgment Non-Obstante Veredicto, appellant perfected an appeal from the judgment of forfeiture.

In his first point of error, appellant contends the trial court erred in allowing Officer Rosales to testify because he was not properly identified by the State in its answers to interrogatories.

In interrogatory number two, appellant asked the State to “identify each person having knowledge of relevant facts, information, or opinions with respect to this lawsuit.” In its answer, the State listed several potential witnesses, including Officer Rosales. The State explained Officer Rosales’ involvement in the case; specifically, that he “assisted in the search of [appellant’s] house and his arrest” and that he “recovered the narcotics and money which is the subject of this forfeiture.” The State also provided an address and telephone number where Officer Rosales and the other potential witnesses could be reached: “61 Reinser, Houston, Texas. 713/247/9100.” The State’s answers to interrogatories were timely filed.

When the State called Officer Rosales to the stand as its first and only witness, appellant objected that Officer Rosales had not been properly identified in answers to interrogatories. The court overruled the objection. Tex.R.Civ.P. 215(6) (Vernon Supp. 1995) mandates that a party who fails to respond or to supplement his response to a discovery request shall not be entitled to present that evidence unless the trial court finds good cause to allow the admission of the evidence. Stern v. State ex rel Ansel, 869 S.W.2d 614, 627 (Tex.App.—Houston [14th Dist.] 1994, writ denied). The sanction is automatic unless good cause is shown. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex.1992) (opinion on rehearing); Stern, 869 S.W.2d at 627.

Appellant contends that Officer Rosales’ testimony should have been automatically excluded under Rule 215(5) because Officer Rosales was not properly identified in the State’s answers to interrogatories. Appellant asserts the State failed to provide Officer Rosales’ correct business address and telephone number and his residential address and telephone number. Appellant points out that according to the terms of the interrogatories, the State was required to identify Officer Rosales’ “last known or present business and residential address and last known or present business and residential telephone number.”

We disagree with appellant’s contention that Officer Rosales was not properly identified. Tex.R.Civ.P. 166b(2)(d) (Vernon Supp. 1995) provides in pertinent part:

A party may obtain discovery of the identity and location (name, address and telephone number) of any potential party and of persons having knowledge of relevant facts.

The State complied with this rule. In answer to interrogatory number two, the State sufficiently identified Officer Rosales by name and provided the address and telephone number where he could be reached. This was confirmed by Officer Rosales at trial. Officer Rosales testified that while he was not stationed at 61 Reisner (the address listed in the State’s interrogatory answer), that address was the headquarters for the Houston Police Department Personnel Division and his office could be reached by calling the telephone number listed in the interrogatory answer.

Rule 215(5) sanctions are appropriate when a party fails, under Rule 166b(2)(d), to disclose the witness’s identity and/or location in answers or supplemental answers to interrogatories. Alvarado, 830 S.W.2d at 913-914 (and cases cited therein). This case does not involve a failure to disclose the witness’s identity and location. Compare with, Varner

[317]*317v. Howe, 860 S.W.2d 458, 464 (Tex.App. — El Paso 1993, no writ) (held that witness sufficiently identified where witness’s nickname and her employer’s address and telephone number were provided in answers to interrogatories); Amsav Group v. American Sav. and Loan, 796 S.W.2d 482, 486 (Tex.App.— Houston [14th Dist.] 1990, writ denied) (held that witness was sufficiently identified where party’s answers to interrogatories merely referred to deposition in which witness was identified).

The purpose of the name, address, and telephone requirement of Rule 166(b) is to allow the opposing party to easily locate, interview, and depose the proposed witness. Varner, 860 S.W.2d at 464. Officer Rosales’ statements show that he could have been contacted by using the answers given to the interrogatories. Nothing in the record shows otherwise. In fact, appellant’s counsel admitted that he never tried to contact Officer Rosales at the address and telephone number provided by the State. Thus, we find the trial court did not err in finding that Officer Rosales was properly identified in the State’s answers to interrogatories or in admitting Officer Rosales’ testimony. Appellant’s first point of error is overruled.

In his second point of error, appellant contends the trial court erred in allowing Officer Rosales to testify because the State’s answers to interrogatories were unsworn. Appellant’s sixth point of error complains of the admission of certain testimony by Officer Rosales on the same basis.

During a discussion with the court concerning whether Officer Rosales was sufficiently identified in the State’s answers to interrogatories, appellant objected that those answers were unsworn. Appellant repeated this objection when the district attorney attempted to question Officer Rosales on direct examination about a post-arrest conversation he had with appellant.

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Bluebook (online)
899 S.W.2d 314, 1995 Tex. App. LEXIS 792, 1995 WL 225456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/2390000-v-state-texapp-1995.