COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-06-434-CV
$ 5 7 4 .3 7 U .S . C O IN A N D APPELLANT CURRENCY; ONE 1998 DODGE PICKUP; AND ALL ITEMS LISTED ON EXHIBIT “A”
V.
THE STATE OF TEXAS APPELLEE
------------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
This is an appeal from the civil forfeiture of $537.44 2 and a 1998 Dodge
pickup truck under chapter 59 of the Texas Code of Criminal Procedure. In two
1 See T EX. R. A PP. P. 47.4. 2 Although the State sought forfeiture of $574.37, the trial court determined that $36.93 of that amount was not contraband, so the forfeited amount at issue here is $537.44. points, Freddie Bone alleges that (1) the evidence is legally and factually
insufficient to support the trial court’s finding that the money in the amount of
$537.44 and the Dodge truck were contraband and (2) thus that both were
improperly forfeited to the State. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In June 2005 Officer Bud Murphy of the Lakeside Police Department,
acting on a tip from another law enforcement agency, began investigating Bone
for dealing drugs. Officer Murphy began his investigation by questioning people
coming from Bone’s residence and conducting trash searches, both of which
confirmed Officer Murphy’s suspicions that Bone was dealing drugs and that
drugs were present in Bone’s house.
Based on this evidence, Officer Murphy obtained a search warrant for
Bone’s house, the Dodge pickup truck that Bone drove, and another pickup
truck that is not relevant to this appeal.3 While the police were executing the
search warrant, Bone drove up to the house in the Dodge truck with a female
companion in the passenger seat.
The search of the house, and specifically of Bone’s room, yielded a
variety of property that Officer Murphy believed Bone was using in the delivery
3 Bone does not challenge the validity of this search warrant.
2 and distribution of narcotics. Among the discovered items were cash, safes,
police scanners, cameras, and cellular telephones. The police also discovered
in Bone’s room a large amount of drug paraphernalia, including 500 clear
baggies that Officer Murphy testified were normally used for narcotics
distribution, glass pipes and scales with white residue that the officer believed
to be methamphetamine, pipes with marijuana residue, and needles.
After searching Bone’s room, the police turned their attention to the
Dodge truck. In the floorboard of the single-cab truck, the police noticed a
speaker box with a hole drilled in it. Inside the speaker box, the police
discovered a clear baggie containing a white powdery substance, which later
tested positive for methamphetamine. On Bone’s person, the police discovered
more cash and the title to the truck.
The police also searched the woman who arrived with Bone in the Dodge
truck. On her, police discovered a bag containing several clear baggies with a
white residue on them, one bag containing a green leafy substance which later
tested positive for marijuana, a syringe, five blue pills, two green pills, and eight
white broken pills.
The State sought a ruling from the trial court that the property discovered
in Bone’s bedroom along with the Dodge truck and the cash were subject to
forfeiture. The State alleged that all items of property were contraband under
3 chapter 59 of the Texas Code of Criminal Procedure because they were used
or intended to be used in the commission of a felony under Chapter 481 of the
Texas Health and Safety Code (the Texas Controlled Substances Act).
At a hearing on the seizure and intended forfeiture of the property, the
State presented the testimony of Officer Murphy; Bone did not present any
testimony. At the conclusion of the hearing, the trial court ruled that the cash
on Bone’s person ($537.44) and the Dodge truck were contraband subject to
forfeiture but that the items and the cash ($36.93) found in the bedroom were
not. The trial court reasoned that because the Dodge truck was the only place
where the police discovered an illegal substance (and not merely residue),
anything from inside the vehicle, including items found on Bone’s person, was
subject to forfeiture. Bone now appeals, challenging the legal and factual
sufficiency of the evidence to support the trial court’s judgment as to the
money found on his person and the Dodge truck.
III. S TANDARD OF R EVIEW
In a trial to the court where, as in this case, no findings of fact or
conclusions of law are filed, the trial court’s judgment implies all findings of fact
necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948
(Tex. 1996). Where a reporter’s record is filed, however, these implied findings
are not conclusive, and an appellant may challenge them by raising both legal
4 and factual sufficiency of the evidence points. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Where an appellant raises such
points, the applicable standard of review is the same as that to be applied in the
review of jury findings or a trial court’s findings of fact. Roberson v. Robinson,
768 S.W.2d 280, 281 (Tex. 1989). The judgment must be affirmed if it can
be upheld on any legal theory that finds support in the evidence. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
A. Legal Sufficiency
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the trial court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no
more than a mere scintilla; or (4) the evidence establishes conclusively the
opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d
328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert,
"No Evidence" and "Insufficient Evidence" Points of Error, 38 T EX. L. R EV. 361,
362–63 (1960). In determining whether there is legally sufficient evidence to
support the finding under review, we must consider evidence favorable to the
finding if a reasonable fact-finder could and disregard evidence contrary to the
5 finding unless a reasonable fact-finder could not. City of Keller v. Wilson, 168
S.W.3d 802, 807, 827 (Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support
the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the
evidence offered to prove a vital fact is so weak as to do no more than create
a mere surmise or suspicion of its existence, the evidence is no more than a
scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists if the
evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l
Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
Any ultimate fact may be proved by circumstantial evidence. Russell v.
Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by
circumstantial evidence when the fact may be fairly and reasonably inferred
from other facts proved in the case. Id. However, to withstand a legal
sufficiency challenge, circumstantial evidence still must consist of more than
a scintilla. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).
6 B. Factual Sufficiency
An assertion that the evidence is factually insufficient to support a fact
finding means that the evidence supporting the finding is so weak or the
evidence to the contrary is so overwhelming that the answer should be set
aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.
1965). We are required to consider all of the evidence in the case in making
this determination, not just the evidence that supports the finding. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S.
1017 (1998).
IV. C IVIL F ORFEITURE L AW
Chapter 59 of the Texas Code of Criminal Procedure prescribes the
procedures governing civil forfeiture, which is an in rem proceeding against
contraband. State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692-93 (Tex.
2004); Hardy v. State, 102 S.W.3d 123, 126-27 (Tex. 2003). Under chapter
59, personal property that has been used in the commission of a felony in
violation of chapter 481 of the Texas Health and Safety Code (the Texas
Controlled Substances Act) is contraband subject to forfeiture. T EX. C ODE C RIM.
P ROC. A NN. art. 59.01(2)(B)(i) (Vernon Supp. 2007); Real Prop. Located at 4125
Blanton, Wichita Falls v. State, 230 S.W.3d 476, 481 (Tex. App.—Fort Worth
2007, pet. denied). Similarly, money is subject to forfeiture if it is derived from
7 manufacturing, delivering, selling, or possessing a controlled substance. T EX.
C ODE C RIM. P ROC. A NN. art. 59.01(2); Antrim v. State, 868 S.W.2d 809, 812
(Tex. App.—Austin 1993, no pet.). Methamphetamine is a controlled
substance, and possession of it is a felony. T EX. H EALTH & S AFETY C ODE A NN.
§§ 481.102(6) (Vernon Supp. 2007), 481.115 (Vernon 2003).
In a Chapter 59 forfeiture hearing, the trial court must first determine
whether the property in question is indeed “contraband” as defined by the
statute. T EX. C ODE C RIM. P ROC. A NN. arts. 59.01(2), 59.05 (Vernon 2006);
1996 Cadillac and 2002 Lincoln Automobiles v. State, No. 02-07-00017-CV,
2008 WL 163552, at *4 (Tex. App.— Fort Worth Jan. 17, 2008, no pet. h.)
(mem. op.). The State must establish, by a preponderance of the evidence, a
substantial nexus or connection between the property to be forfeited and the
statutorily defined criminal activity. State v. $11,014.00, 820 S.W.2d 783,
785 (Tex. 1991); Forty-Seven Thousand Two Hundred Dollars U.S. Currency,
et al. v. State, 883 S.W.2d 302, 306 (Tex. App.—El Paso 1994, writ denied);
1991 Cadillac and 2002 Lincoln Automobiles, 2008 WL 163552, at *4. Thus,
the State must prove, considering all the evidence, that it is more reasonably
probable than not that the seized property was either intended for use in, or
derived from, a violation of the offenses enumerated in the forfeiture statute.
8 $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 161 (Tex.
App.—Houston [14th Dist.] 1994, writ denied).
The State may prove the required substantial nexus through
circumstantial evidence. $11,014.00, 820 S.W.2d at 785. When relying on
circumstantial evidence, the State must offer evidence that raises more than a
mere surmise or suspicion regarding the source of the property or money. Id.
However, the State is not required to exclude every possible means by which
a person may have acquired the seized property. $7,058.84 in U.S. Currency
v. State, 30 S.W.3d 580, 586 (Tex. App.—Texarkana 2000, no pet.); Four
Thousand One Hundred Eighty-Two Dollars in U.S. Currency v. State, 944
S.W.2d 24, 27 (Tex. App.—Texarkana 1997, no writ). The trial court many
draw any and all reasonable inferences from the circumstances shown by the
evidence. $7,058.84, 30 S.W.3d at 586.
V. F ORFEITURE OF $537.44
In his first point, Bone contends that the evidence was legally and
factually insufficient to support the trial court’s determination that $537.44
was contraband and thus subject to forfeiture under chapter 59 of the code of
criminal procedure.
9 A. Evidence Offered at the Forfeiture Hearing
Officer Murphy, who was the only witness at the forfeiture hearing,
testified that, based on information from another law enforcement agency, he
suspected Bone of dealing drugs. Acting on that information, Officer Murphy
stopped cars coming from the house, and the drivers of those cars verified that
Bone was dealing drugs out of the house. Trash from the house contained drug
paraphernalia that tested positive for methamphetamine. Officer Murphy also
knew from people living with Bone and from his own observations on more than
ten occasions that the Dodge truck was driven exclusively by Bone.
Officer Murphy also testified that the search of Bone’s residence revealed
several items of drug paraphernalia in Bone’s room, including approximately 500
baggies and weighing scales traditionally used in drug dealing, both of which
had a white residue on them (the officer testified that the residue was, in his
opinion, methamphetamine), and items such as needles and pipes commonly
used to ingest drugs. A drug-detecting canine alerted on needles and one of
the safes discovered in Bone’s bedroom. Furthermore, the police discovered a
camcorder in Bone’s bedroom. Inside the camcorder was “a video of [Bone]
holding a meth pipe in his hand, smoking it.”
In addition to describing his own investigation just prior to the execution
of the search warrant, Officer Murphy additionally testified to Bone’s prior
10 criminal history of distributing narcotics. The State supported this testimony
by submitting into evidence several past judgments from cases in which Bone
had pleaded guilty to either possession of a controlled substance or possession
of a controlled substance with the intent to deliver.
On the day that police were executing the search warrant, Bone arrived
in a vehicle containing methamphetamine and several other drugs. Furthermore,
even though Bone had told the police that he was unemployed at the time, he
was carrying $537.44 in cash. Officer Murphy also stated that, in his training
and experience, drug dealers often possessed sums of cash to purchase items
to make more drugs. Based on these observations, Officer Murphy testified
that, in his opinion, the money, the Dodge truck, and all of the other items that
the police discovered when they executed the search warrant were proceeds
from or otherwise used in the commission of narcotics distribution by Bone in
violation of chapter 481 of the health and safety code.
During cross examination, however, Officer Murphy testified that the
police did not take any fingerprints off of the speaker box or the baggie
containing the methamphetamine. The officer further stated that he had no
personal knowledge that the cash was a proceed gained from the commission
of a felony under chapter 481 of the health and safety code.
11 B. Legal and Factual Sufficiency of the Evidence
Here, Bone had an extensive criminal history of dealing drugs; people
leaving Bone’s house verified that he was currently dealing drugs, and trash
from Bone’s house indicated that drugs were present in the house. Several
items in Bone’s bedroom indicated that he was dealing drugs, a canine unit
alerted to the presence of drugs on needles and in a safe discovered in Bone’s
room, and a videotape in a camcorder in his room proved that Bone had used
methamphetamine.
Additionally, Officer Murphy testified that in his training and experience,
drug dealers carry quantities of cash on their person for use in purchasing items
for making more drugs; Officer Murphy’s testimony directly linked the
unemployed Bone to over $500 in cash. While this evidence alone might be
insufficient to establish the nexus between the cash and felonious activity, the
additional evidence from Bone’s history, current dealings, and items discovered
in his room support the trial court’s determination. Cf. $2067 in U.S. Currency
v. State, 745 S.W.2d 109, 111 (Tex. App.—Fort Worth 1988, no writ.)
(stating that “[t]he fact that the forfeited property was found at, or near, the
controlled substance does not establish the nexus between the property and the
sale or commercial distribution of a controlled substance”).
12 Therefore, the evidence raises more than a mere surmise or suspicion that
the source of the money on Bone related to drug dealing. See $11,014.00,
820 S.W .2d at 785. Given all the evidence that the only plausible source of
income for Bone (the only source explained to the trial court, as Bone presented
no alternative explanation) was from drug dealing activities, and Bone’s past
and present use of drugs himself, the State demonstrated that it was more
probable than not that the cash was either intended for use in or derived from
a violation of chapter 481 and thus constituted contraband subject to forfeiture.
See cf. Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State,
730 S.W.2d 659, 662 (Tex. 1987) (holding that a plausible alternative
explanation for the presence of a large sum of money made seized property not
subject to forfeiture); $9,050.00 in U.S. Currency, 874 S.W.2d at 161.
Furthermore, considering only the evidence in support of the trial court’s
judgment, and disregarding the contrary evidence that a reasonable juror could,
there is at least a scintilla of evidence that the money was derived from or
otherwise used in the sale or distribution of a controlled substance. See
Uniroyal Goodrich Tire Co., 977 S.W.2d at 334; $11,014.00, 820 S.W.2d at
785. The evidence is therefore legally sufficient to support the trial court’s
judgment. See Cont’l Coffee Prods. Co., 937 S.W.2d at 450. Additionally,
considering all of the evidence, we cannot say that the foregoing is so weak or
13 the evidence to the contrary of the finding (of which there was little) is so
overwhelming that the trial court’s judgment should be set aside. See Garza,
395 S.W.2d at 823. Thus, the evidence is factually sufficient to support the
trial court’s judgment.
Despite the evidence discussed above, Bone rests his argument on the
Antrim case, in which the Austin Ccourt of Appeals set forth five factors for
determining whether evidence is sufficient to support a judgment granting
forfeiture. See Antrim, 868 S.W.2d at 814. While this court has not adopted
the same five-factor approach to reviewing forfeiture cases, the factors
nevertheless support the trial court’s determination in this case. First, the
police discovered the money on Bone, a man with a long history of dealing
drugs and who they confirmed had recently dealt drugs; additionally, Bone
alighted from a vehicle containing illegal drugs. See id. at 814 (noting that a
factor for consideration is suspicious activity consistent with drug trafficking).
Additionally, even though, under the Antrim factors, the amount of
money at issue in this case is not a large amount, the low amount of money is
not dispositive; Bone was an unemployed man carrying over $500 of
unexplained cash. See id.; $7,058.84, 30 S.W.3d at 589. Finally, Officer
Murphy consistently testified that, in his opinion the cash, the Dodge truck, and
the other property was all being used by Bone in delivering and distributing
14 narcotics. Accordingly, we hold that the evidence is legally and factually
sufficient to support the trial court’s determination. We therefore overrule
Bone’s first point.
VI. F ORFEITURE OF THE D ODGE T RUCK
Bone’s second point is that the evidence is legally and factually
insufficient to support the trial court’s judgment forfeiting the Dodge pickup
truck to the State.
A. Standing to Contest Forfeiture
As it did during the hearing at the trial court, the State contends on
appeal that Bone does not have standing to contest the forfeiture of the Dodge
truck. The State bases its argument on the fact that Bone was not the
registered owner of the vehicle. The record reflects that the title to the truck
was in Bone’s wallet when the police arrested him. Officer Murphy testified
that the title was an “open title.” The trial court verified that by “open title,”
Officer Murphy meant “the original title, like, an open title where you can go
and sign your name over,” that “a person could take, if it [sic] had the right
signatures, and go down to transfer the title.”
Bone qualifies as an owner under the forfeiture statute if he is “a person
who claims an equitable or legal ownership interest in the property.” See T EX.
C ODE C RIM. P ROC. A NN. art. 59.01(6). Officer Murphy testified that not only
15 was the Dodge truck driven exclusively by Bone but that someone who lived
with Bone said that the Dodge truck was Bone’s. Additionally, Officer Murphy
testified that although the vehicle was technically registered in someone else’s
name, it is common for drug dealers to drive vehicles that they do not
technically own. The evidence established that as the owner of the truck who
had not yet registered his title, Bone had at least an equitable interest in the
Dodge truck and therefore had standing to contest its forfeiture to the State.
See id.; First Nat. Bank of El Campo, TX v. Buss, 143 S.W.3d 915, 922 (Tex.
App.—Corpus Christi 2004, pet. denied) (noting that a person in possession of
a vehicle who is the intended owner of the vehicle has an equitable possessory
right in the vehicle even if that person is not named on the vehicle’s title).
B. Grounds for Forfeiture
Officer Murphy testified that on the day the police executed the search
warrant, Bone arrived at the house driving the Dodge truck. Inside the Dodge
truck, police discovered methamphetamine. This uncontroverted testimony
established that the truck was contraband—it was used in the commission of
a felonious act, i.e. possessing and transporting methamphetamine. See T EX.
C ODE C RIM. P ROC. A NN. art. 59.01(2)(B)(i); T EX. H EALTH & S AFETY C ODE A NN.
§§ 481.102(6), 481.115. Bone did not present or elicit any conflicting
evidence as to this point.
16 Therefore, there is more than a scintilla of evidence to support the trial
court’s finding that the Dodge truck was subject to forfeiture, and the evidence
is legally sufficient to support the trial court’s judgment. See Cont’l Coffee
Prods. Co., 937 S.W.2d at 450. Furthermore, the evidence supporting the
finding is not so weak, nor is the evidence to the contrary so overwhelming that
the trial court’s judgment should be set aside. See Garza, 395 S.W.2d at 823.
Thus, the evidence is also factually sufficient to support the trial court’s
judgment. See id.
Bone nevertheless relies on the rule enumerated in One 1983 Chevrolet
Blazer v. State for the proposition that mere possession of a felony weight of
narcotics in a vehicle does not allow the State to seize that vehicle. See 737
S.W.2d 39, 40 (Tex. App.—El Paso 1987, writ ref’d n.r.e.). Bone’s reliance on
this case, however, is misplaced, as the statute relied on in that case has since
changed and now includes a specific provision stating that possessing and
transporting methamphetamine (which is a felony) makes the property in which
the drugs were hidden and transported contraband subject to forfeiture. See
T EX. C ODE C RIM. P ROC. A NN. art. 59.01(2)(B)(i); T EX. H EALTH & S AFETY C ODE A NN.
§§ 481.102(6), 481.115. Accordingly, Bone’s second point is overruled.
17 VII. C ONCLUSION
Having overruled both of Bone’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL B: WALKER, DAUPHINOT, and HOLMAN, JJ.
Delivered: March 6, 2008