$60,427.11 U.S. Currency v. State

• Court: Court of Appeals of Texas
• Decided: July 11, 2019
• Docket: 02-18-00165-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00165-CV ___________________________

$60,427.11 U.S. CURRENCY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 166,034-B

Before Kerr, Pittman, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Reza Vafaiyan appeals the trial court’s judgment wherein the trial court denied

the State’s request for forfeiture of $60,427.11 in United States currency but ordered

that two unpaid judgments against Vafaiyan be paid prior to the remaining funds

being returned to him. In nine issues,1 Vafaiyan argues that the trial court erred by

allowing a thirteen-year delay between when he requested return of the funds and

finally ruling on the State’s motion for forfeiture and that he suffered monetary

damages due to this delay; that the trial court erred by denying his request for a court-

appointed attorney; that the trial court erred by ordering that the two unpaid

judgments be paid prior to his collecting the remaining funds because the prior

judgments are “stale” and “void”; that the trial court erred by not requiring the State

to produce certain records and documents prior to trial; that the trial court

erroneously “switch[ed]” the parties in this case, causing him confusion and prejudice;

and that the cumulation of these errors demands a new trial. We will affirm.

II. BACKGROUND

This case arises out of Vafaiyan’s arrest and later conviction and life sentence

for the offense of money laundering wherein police seized $60,427.11 from the liner

1 Even though Vafaiyan presents nine issues in his brief, many of his issues overlap. Thus, we have consolidated the overlapping elements of his issues and have grouped them into six different categories addressed throughout this opinion.

2 of a trash can and under the cash register of Vafaiyan’s store, Krystal Mart. Vafaiyan

v. State, 279 S.W.3d 374, 378 (Tex. App.—Fort Worth 2008, pet. ref’d).

In 2007, Vafaiyan, who at the time was represented by counsel, filed a “Motion

to Release Seized Property”—the $60,427.11. This filing initiated the proceedings in

this case. The State filed a response to the motion and a motion to dismiss for lack of

jurisdiction. Through these motions, the State asserted that it had a legitimate

statutory right to wait until mandate of Vafaiyan’s conviction for money laundering

had issued before it pursued forfeiture of the $60,427.11 under Article 18.18 of the

Texas Code of Criminal Procedure.2

In July 2009, we issued our mandate after having affirmed Vafaiyan’s

conviction and sentence. From this time on, Vafaiyan proceeded pro se. After our

mandate issued, the trial court initially scheduled a July 13, 2010 hearing regarding the

State’s Article 18.18 motion, but the trial court later rescheduled that hearing for

February 8, 2011. During this time, Vafaiyan filed a mandamus petition in this court

2 In its motion and at trial, the State argued that the $60,427.11 constituted a “criminal instrument” for purposes of Texas Code of Criminal Procedure Article 18.18 and that these monies were subject to forfeiture in favor of the State under this provision. Tex. Code Crim. Proc. Ann. Art. 18.18(a). Article 18.18(a) provides that “[f]ollowing the final conviction of a person . . . for an offense involving a criminal instrument . . . the court entering the judgment of conviction shall order that the . . . instrument . . . be destroyed or forfeited to the state.” Id. Article 18.18(g)(1) states that a “criminal instrument” has “the meaning defined in the Penal Code.” Tex. Code Crim. Proc. Ann. Art. 18.18(g)(1). The Penal Code defines “criminal instrument” as being “anything, the possession, manufacture, or sale of which is not otherwise an offense, that is specially designed, made, or adapted for use in the commission of an offense.” Tex. Penal Code Ann. § 16.01(b)(1).

3 related to these funds. In re Vafaiyan, No. 02-11-00050-CV, 2011 WL 754394, at *1

(Tex. App.—Fort Worth Mar. 1, 2011, orig. proceeding) (mem. op.). Vafaiyan later

withdrew his mandamus petition. Id. This case remained pending in the trial court.

Years later, the case eventually proceeded to a bench trial. Around a month

before the bench trial, Vafaiyan filed a motion to strike the State’s motion and

requested relief on his 2007 motion wherein he sought the return of the $60,427.11.

In this motion, Vafaiyan also sought 10% interest on the monies, $7,900 in attorney’s

fees, court costs, and “$100 per day punity [sic] damage[s].” A few days before trial,

the State filed a “Notice of Receipt of Demands Against Funds and Request to

Interplead Funds Into Registry of the Court.” In the notice, the State listed a

$54,364.41 debt and a $9,108.69 debt. The $54,364.41 debt was for a $26,520

judgment and $23,035.88 in interest plus court costs, attorney’s fees, and post

judgment costs. The other debt was the remaining debt from the $10,000 fine and

court costs assessed from Vafaiyan’s criminal conviction.

At trial, Vafaiyan requested appointed counsel, but the trial court denied his

request. The only witness at the trial was investigator Mark Ball of the Department of

Public Safety, who had investigated the events that led the State to charge Vafaiyan

with money laundering. Vafaiyan, however, neither testified nor offered exhibits as

evidence at trial. The trial court eventually denied the State’s request for forfeiture

under Article 18.18 and entered a final judgment granting relief to Vafaiyan. The trial

court further ordered that the two outstanding judgments be satisfied prior to the

4 return of any monies to him. After satisfaction of the two judgments, all funds

remaining from the original $60,427.11 plus all accrued interest were ordered paid to

Vafaiyan. The “Order Regarding Request to Interplead Funds,” signed by the trial

court on January 2, 2018, reflects that $72,107.20 was to be paid into the court’s

registry. The interpleaded funds remain there pending resolution of Vafaiyan’s appeal.

The State has not appealed the adverse ruling.

III. DISCUSSION

A. The Delay in Trial

In his first, sixth, and eighth issues, and in part of his second issue, Vafaiyan

argues that the trial court abused its discretion and reversibly erred by “allowing” the

State to wait more than a decade before trying this case, complaining that the delay

caused him damages in the amount of more than $3.6 million.3

The State counters that Vafaiyan did not present any proof of damages at trial

and that because the trial court awarded him all accrued interest on the seized funds,

he was adequately compensated for any delay. We agree with the State that Vafaiyan

3 The damages Vafaiyan claims to be entitled to in his brief on appeal differ from the damages he pleaded in the trial court. In the trial court, Vafaiyan argued that in addition to the $60,427.11, he was entitled to 10% interest on the monies, $7,900 in attorney’s fees, court costs, and “$100 per day punity [sic] damage[s].” In his briefing to this court, Vafaiyan argues that, minus the “$100 per day punity [sic] damage[s],” he is entitled to the originally pleaded damages plus “[t]riple damage[s]” in the amount of $181,281; damages for pain and suffering in the amount of $1,800,000; compensation for the loss of his store in the amount of $500,000; and lost rent from tenants in the amount of $336,820.

5 failed to present any evidence at trial of the damages he now claims and that he now

fails to explain any reversible harm. Vafaiyan did not testify or offer any documentary

evidence at trial. And in his brief, Vafaiyan provides no legal authority to support his

claim that he is entitled to damages related to the delay in this case going to trial.

To be entitled to any damages, a party must present some proof of injury. See

338 Indus., LLC v. Point Com, LLC, 530 S.W.3d 729, 734 (Tex. App.—Amarillo 2017,

pet. denied) (“Because Stratified Data bore the burden to prove its damages at trial, to

sustain its issue on appeal it must demonstrate the evidence establishes, as a matter of

law, all vital facts in support of the issue.”); Strain Bros., Inc. v. Bennett, 456 S.W.2d 466,

467 (Tex. App.—El Paso 1970, no writ) (reasoning that the party seeking damages

must prove them through sufficient evidence); see also Johnston v. Houston Gen. Ins. Grp.,

636 S.W.2d 278, 281 (Tex. App.—Fort Worth 1982, no writ) (stating that when a

party has not pleaded an injury or sought such a finding at trial, there is no injury as a

matter of law). And to justify an award of exemplary damages, a plaintiff must first

prove actual damages. Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.

1993) (“Recovery of punitive damages requires a finding of . . . actual damages.”).

Here, Vafaiyan (1) produced no evidence at trial of, and he did not seek a

finding at trial regarding, any actual injury or damages incurred because of the delay in

this case reaching trial, and he has (2) provided no authority to this court to support

his argument that he is entitled to damages related to the delay in this case proceeding

to trial. Vafaiyan has also failed to explain how he was harmed, especially when, as

6 noted by the State, Vafaiyan was awarded all accrued interest, which amounted to an

additional $11,680.09 at the time of interpleader. See Tex. R. App. P. 44.1.

Accordingly, we overrule his first, sixth and eighth issues, and part of his second issue

wherein he seeks damages related to the delay of trial. See 338 Indus., LLC, 530

S.W.3d at 734; Strain Bros., 456 S.W.2d at 467.

B. The Trial Court’s Denial of a Court-Appointed Attorney

In his third issue, Vafaiyan argues that the trial court abused its discretion by

denying his request for appointed counsel. Specifically, citing Section 24.016 of the

Texas Government Code, Vafaiyan argues that he was entitled to an appointed

attorney because he is indigent, incarcerated, and disabled. See Tex. Gov’t Code Ann.

§ 24.016 (“A district judge may appoint counsel to attend to the cause of a party who

makes an affidavit that he is too poor to employ counsel to attend to the cause.”). We

disagree that the trial court abused its discretion.

There is no statutory right for appointed counsel during a civil asset forfeiture

proceeding. $567.00 in U.S. Currency v. State, 282 S.W.3d 244, 246–47 (Tex. App.—

Beaumont 2009, no pet.). And we review the trial court’s refusal to appoint counsel

in such a proceeding for an abuse of discretion. Id. Specifically, we consider whether

the party seeking the appointment of an attorney established at trial that the “public

and private interests at stake in his case are so exceptional that the administration of

justice would be best served by appointing a lawyer to represent him.” Id.

7 In this case, Vafaiyan does not direct this court to any evidence of exceptional

circumstances that would have justified appointing counsel at trial. Thus, we

conclude that the trial court did not abuse its discretion by refusing Vafaiyan’s request

for appointed counsel. Id.; see also Taylor v. Taylor, No. 02-09-00035-CV, 2009 WL

4913867, at *2 (Tex. App.—Fort Worth Dec. 17, 2009, pet. denied) (mem. op.)

(reasoning that without proof of exceptional circumstances the trial court did not

abuse its discretion by refusing appointed counsel in a civil proceeding).

Moreover, although Vafaiyan proceeded pro se in the trial court, he was the

prevailing party below; thus, he cannot show harm from the trial court’s decision to

not appoint counsel. See Tex. R. App. P. 44.1(a); Romero v. KPH Consol., Inc., 166

S.W.3d 212, 225 (Tex. 2005). We overrule Vafaiyan’s third issue.

C. The Trial Court’s Ordering Payment of Prior Judgments

In his fifth issue, Vafaiyan argues that the trial court erred by ordering the

deduction for two judgments against him from the proceeds of the judgment in his

favor in this case. Specifically, Vafaiyan argues that these past judgments were “stale”

or “void” under Section 34.001 of the Texas Civil Practice and Remedies Code

because this case did not proceed to trial for more than a decade; thus, the State was

not entitled to distribute his award against these judgments. See Tex. Civ. Prac. &

Rem. Code Ann. § 34.001(a). He also argues that these two outstanding judgments

should have been paid from a prior forfeiture judgment against him in a 2010 case

8 and that laches applies to prevent the State from demanding payment of those

judgments. We disagree.

Section 34.001 does not bar the State from seeking satisfaction of judgments in

its favor even if they are more than ten years old. Tex. Civ. Prac. & Rem. Code Ann.

§ 34.001(a); Tex. Prop. Code Ann. § 52.006(b). Indeed, Section 52.006(b) of the

Texas Property Code provides that notwithstanding Section 34.001, a judgment in

favor of the State does not become dormant. See Tex. Prop. Code Ann. § 52.006(b);

see also Tex. Att’y Gen. Op. No. GA-0903, 2011 WL 6778219, at *2 (2011) (explaining

the relationship between Section 34.001 and Section 52.006 and concluding that under

Section 52.006, “the county may revive a dormant judgment at any time”). Because

Section 34.001 does not render judgments in favor of the State dormant, we overrule

this portion of his fifth issue.

To the extent that Vafaiyan argues that these judgments should have been

satisfied from a prior forfeiture proceeding or barred by laches, he offers no authority

supporting his contentions nor any argument as to why the complained-of judgments

should have been satisfied from a prior proceeding or barred by laches. Thus, we

overrule this portion of his fifth issue. See Tex. R. App. P. 38.1(i) (“The brief must

contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.”); Fredonia State Bank v. Gen. Am. Life Ins.

Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (recognizing the longstanding rule that

9 assertions of error may be waived through inadequate briefing). We overrule the

remainder of Vafaiyan’s fifth issue.

D. Inadequate Briefing

In the remainder of his second issue and in his seventh issue, Vafaiyan argues

that the trial court erred by not requiring the State to produce certain records,

including a transcript of what Vafaiyan states was from a prior hearing on this matter

and a general list of documents that he claims he requested from the State during

discovery.4 In his fourth issue, Vafaiyan argues that the trial court erred by allowing

“the parties posi[t]ion [to be] changed by” the State and by allowing the State to

become “the plaintiff” in the proceeding below. He argues that this caused him

confusion and prejudiced his case.

The State argues that Vafaiyan has failed to adequately brief these issues and

that, as the prevailing party below, he cannot show how he was harmed. We agree

with the State.5

4 Vafaiyan admitted at trial that he did not serve any discovery requests upon the State until after the case was set for trial. 5 We are faced with a difficult task in addressing the appeal of this pro se appellant. We realize that Vafaiyan has proceeded without the assistance of counsel. But in order to prevent unfair advantage over litigants represented by counsel, pro se litigants are held to the same standards as licensed attorneys—all parties appearing in the appellate courts of Texas must conform to the Texas Rules of Appellate Procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied). Although we are to construe the rules of appellate procedure liberally, in this case, Vafaiyan’s briefing is so inadequate that we would have to make his legal arguments for him. See Republic

10 Here, other than identifying the possibility of a transcript of the reporter’s

record of a hearing that is not found in the record, Vafaiyan does not point to any

specific records or documents that he argues the State should have produced.

Further, he provides no citation to authority to support his argument that he was

entitled to these records and documents. Thus, we agree with the State that Vafaiyan

has waived this complaint for our review because he has not adequately briefed the

issue. See Tex. R. App. P. 38.1(i); Fredonia State Bank, 881 S.W.2d at 284–85.

Moreover, Vafaiyan does not argue how or why these documents would have assisted

him as the prevailing party below, how these alleged documents would have changed

the trial court’s ruling, or how his lack of these documents probably prevented him

from properly presenting his case to this court; thus, he does not present an argument

supporting a claim of reversible error. See Tex. R. App. P. 44.1(a); Romero, 166 S.W.3d

at 225. We overrule the remainder of Vafaiyan’s second issue, and we overrule his

seventh issue.

Vafaiyan likewise does not cite to any authority to support his complaint about

party-switching or explain how his case was prejudiced by his confusion. We

conclude that Vafaiyan’s fourth issue is inadequately briefed as well and thus he has

Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). We have little latitude on appeal, and we cannot remedy deficiencies in a litigant’s brief. See Strange, 126 S.W.3d at 678.

11 waived this argument on appeal. See Tex. R. App. P. 38.1(i); Fredonia State Bank, 881

S.W.2d at 284–85.

E. Cumulation of Errors and Collateral Attack on Criminal Conviction

In part of his ninth and final issue, Vafaiyan appears to argue that the

cumulation of errors that he alleges the trial court made in this case requires reversal.

But there can be no “accumulation of errors” when, like here, a reviewing court

overrules each of an appellant’s individual issues. See Buchanan v. Cent. Freight Lines,

Inc., 462 S.W.2d 391, 398 (Tex. Civ. App.—Dallas 1970, writ ref’d n.r.e.) (holding that

there was no “accumulation of errors” where court had already held that “the various

rulings complained of were in our opinion not erroneous”). We overrule this portion

of Vafaiyan’s ninth issue.

In the remainder of his ninth issue, it appears that Vafaiyan is attempting to

collaterally attack his criminal conviction for money laundering by attacking the

judgment in this case. But a party may not predicate relief in a civil case based on a

collateral attack to a final criminal conviction. Cooper v. Trent, 551 S.W.3d 325, 337

(Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing Heck v. Humphrey, 512

U.S. 477, 486–87, 114 S. Ct. 2364, 2372 (1994)). To the extent that Vafaiyan is

attempting to seek relief by attacking his money laundering conviction through the

appeal of this civil matter, he cannot. See Cooper, 551 S.W.3d at 337. We overrule the

remainder of Vafaiyan’s ninth issue.

12 IV. CONCLUSION

Having overruled all nine of Vafaiyan’s issues on appeal, we affirm the trial

court’s judgment.

/s/ Dana Womack Dana Womack Justice

Delivered: July 11, 2019