Gary Gray v. State of Texas

• Court: Court of Appeals of Texas
• Decided: November 4, 1999
• Docket: 03-99-00235-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00235-CV

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Gary Gray, Appellant

v.

State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. A-97-1435-C, HONORABLE DICK ALCALA, JUDGE PRESIDING

This is an appeal from a judgment of forfeiture. The district court ordered forfeiture of $1314 in U.S. currency, a Cadillac automobile, and $602 in U.S. currency. See Tex. Code Crim. Proc. Ann. art. 59.02 (West Supp. 1999). The car and $1314 were owned by and seized from Gary Gray. The $602 was seized from Dwayne Clemons. ⁽¹⁾

In four issues, Gray, appearing pro se in this appeal, contends that the seizure and forfeiture of the $1314 and the vehicle were improper because: (1) the trial court erred when it denied his innocent owner defense; (2) the forfeiture was in violation of due process because the car was under a mechanic's lien; (3) the State seized the property during an illegal search; and (4) the confiscation, in general, was unconstitutional. We conclude that these grounds have no merit, and we affirm the trial court judgment.

The record on appeal is slight, and the facts presented are few. On November 20, 1997, officers of the Rio Concho Multi-Agency Drug Enforcement Task Force executed a warrant for the arrests of Gray and Clemons. They were stopped and arrested in Gray's Cadillac. The officers seized $1314 from Gray and $602 from Clemons. Officers observed Gray's wife, who was also present in the car, throwing a rolled-up sock out the passenger window. The sock contained three bags of cocaine.

On December 1, 1997, the State filed a notice of seizure and intended forfeiture of the $1314 and Cadillac automobile seized from Gray and the $602 seized from Clemons. On December 14, 1998, after a bench trial, the district court found that the seized items were contraband and ordered that they be forfeited. Gray challenges the forfeiture of the $1314 and the Cadillac vehicle. The forfeiture of the $602 seized from Clemons is not challenged on appeal.

Property that is contraband is subject to seizure and forfeiture under chapter 59 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 59.02(a). "Contraband" includes property of any nature, including real, personal, tangible, or intangible, that is used or intended to be used in the commission of any felony under chapter 481 of the Texas Health and Safety Code, the Texas Controlled Substances Act. See id. art. 59.01(2). The notice of seizure and intended forfeiture alleged that the moneys and vehicle seized were contraband and that they were subject to forfeiture because they were used in the commission of a felony under chapter 481.

In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and therefore is subject to forfeiture. See State v. $11,014, 820 S.W.2d 783, 784 (Tex. 1991). The State must show probable cause for seizing a person's property. In this context, probable cause is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. See id. Here, the court heard evidence and found that the property constituted contraband and directed that it be forfeited.

Where, as in this case, no findings of fact and conclusions of law are either filed or requested, the appellate court must presume that the trial court made all the findings necessary to support the judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds, 763 S.W.2d 768, 770 (Tex. 1989). We must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. See Lassiter, 559 S.W.2d at 358. Although the record is meager, we conclude it is adequate to reach the merits. Therefore, each issue raised will be addressed on the record that is before us.

Innocent Owner Defense

In his first issue, Gray argues that he is an "innocent owner" of the Cadillac because he did not have knowledge of his wife's possession of cocaine. According to an affidavit filed by the seizing officer, the act giving rise to forfeiture of the car was Gray's use of the vehicle in the commission of a felony offense, to wit, the transportation of cocaine. Because Gray asserts the "innocent owner" defense, he bears the burden of proof. See $18,000 in U.S. Currency v. State, 961 S.W.2d 257, 261 (Tex. App.--Houston [1st Dist.] 1997, no writ). Gray must first prove that he acquired and perfected his ownership interest in the vehicle before or during the act giving rise to the forfeiture. See id. There is no dispute that Gray has satisfied the first part of the defense. The State does not allege otherwise in its notice of seizure and has failed to file a brief in dispute of any of Gray's contentions. Second, Gray must prove he did not know or could not reasonably have known of the act giving rise to the forfeiture. See id. The only evidence before us is the affidavit of the seizing officer. Since appellant participated in the act giving rise to forfeiture, he cannot be an "innocent owner." See Bochas v. State, 951 S.W.2d 64, 71 (Tex. App.--Corpus Christi 1997, writ denied) (no evidence shown of lack of knowledge).

Even if the act giving rise to forfeiture is the commission of a felony by his wife, Gray has not sustained his burden of proving the innocent owner defense. Although Gray generally denied in his original answer each of the State's allegations, including that the seized items are contraband as defined in article 59.01 of the Texas Code of Criminal Procedure, nothing in the record shows he affirmatively asserted that he had no knowledge of his wife's criminal activities or should not have reasonably known of them. See id. at 262.

Assuming, first, that it was his wife's act that gave rise to forfeiture, and further, that Gray did affirmatively assert his lack of knowledge of his wife's criminal activity, Gray's innocent owner defense still fails. We are required to assume that the trial court made all necessary findings to support the judgment. The trial court may have found that the Cadillac was community property owned by both appellant and his wife. Community property is not exempt from forfeiture where such property is used by a spouse in a manner that violates the Texas Controlled Substances Act, even though the property is used by one spouse without the knowledge or consent of the other spouse. See Bochas, 951 S.W.2d at 67 n.2; Gaston v. State, 641 S.W.2d 261, 264 (Tex. App.--Houston [14th Dist.] 1982, no writ). In any event, Gray did not establish as a matter of law his "innocent owner" defense. Appellant's first issue is overruled.

Due Process

In Gray's second issue, he complains that the forfeiture violated his right to due process because a first and second lien exists on the Cadillac, is a variation on the innocent owner defense. The Texas Code of Criminal Procedure provides that if an interest holder establishes facts sufficient to support the innocent owner defense, the holder's interest in the property may not be forfeited. See Tex. Code Crim. Proc. Ann. art. 59.02(c). The code defines an "interest holder" as "the bona fide holder of a perfected lien or a perfected security interest in property." Id. art. 59.01(4). Any interest a lien holder may have in the Cadillac must be asserted by the interest holder and not by Gray. Therefore, Gray's second issue is overruled.

Unlawful Search

In a third issue, Gray contends that the State seized his property pursuant to an unlawful search. It is clear that the Fourth Amendment applies to evidence offered by the State at a forfeiture trial. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696-98 (1965). Here, the items in issue were seized pursuant to a search incident to an arrest. The car was seized based on its use in the commission of a felony, proof of which is based on three bags of cocaine that were found on the side of the road after being tossed from the car, and based on money found on Gray and Clemons. Because the items were seized pursuant to a search incident to the arrest of Gray and Clemons, two of the cases cited by appellant are not on point. See Caldarera v. State, 504 S.W.2d 914, 915-16 (Tex. Crim. App. 1974) (affidavit for search warrant based on hearsay failed to state probable cause); Stoddard v. State, 475 S.W.2d 744, 752 (Tex. Crim. App. 1972) (search warrant was insufficient to justify search of automobile).

According to the affidavit of the seizing officer, Gray and Clemons were searched pursuant to an arrest warrant. There is nothing in the record to support Gray's contention that the warrant was not valid. In the absence of any showing that the arrest warrant was not valid, we will assume its validity.

Further, Gray contends that the seizure of the money on his person exceeded the limits of a search incident to arrest. In support, he cites Nicholas v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973) (seizure of film negatives exceeded limits of search incident to arrest). This case is distinguishable from Nicholas in that the negatives seized in that case were beyond the defendant's area of immediate control. Here, the items were located on Gray's person and thus were within his immediate control. It is well settled that an arresting officer may search a person incident to an arrest. Even the authority cited by Gray concludes that "the scope of a search [incident to arrest] is limited to 'a search of the arrestee's person and the area within his immediate control.'" Id. at 171 (quoting Chimel v. California, 395 U.S. 752 (1969)). Appellant's third issue is overruled.

Constitutionality

Appellant argues that it was unconstitutional for the State to seize and forfeit his personal property. In support, appellant points out that the purpose of the Confiscation Acts of 1861 and 1862 was to suppress the rebellion, also known as the Civil War. See Semmes v. United States, 91 U.S. 27 (1875). Appellant also cites the Confiscation Cases reported in 19 L. Ed. 196 (1869). These cases speak to confiscation by the federal government and not the states. In addition, none of these cases holds that forfeiture under these circumstances is unconstitutional. Accordingly, appellant's fourth issue is overruled.

The judgment of the district court is affirmed.

Jan P. Patterson, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: November 4, 1999

Do Not Publish

1. A statutory proceeding for forfeiture of personal property is one in rem against the property itself and not one in personam against the owner of the property seized. See State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976). This case was originally styled The State of Texas vs. One Thousand, Three Hundred Fourteen Dollars in U.S. Currency; One Cadillac Automobile; Six Hundred Two Dollars in U.S. Currency.

t issue is overruled.

In Gray's second issue, he complains that the forfeiture violated his right to due process because a first and second lien exists on the Cadillac, is a variation on the innocent owner defense. The Texas Code of Criminal Procedure provides that if an interest holder establishes facts sufficient to support the innocent owner defense, the holder's interest in the property may not be forfeited. See Tex. Code Crim. Proc. Ann. art. 59.02(c). The code defines an "interest holder" as "the bona fide holder of a perfected lien or a perfected security interest in property." Id. art. 59.01(4). Any interest a lien holder may have in the Cadillac must be asserted by the interest holder and not by Gray. Therefore, Gray's second issue is overruled.

In a third issue, Gray contends that the State seized his property pursuant to an unlawful search. It is clear that the Fourth Amendment applies to evidence offered by the State at a forfeiture trial. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696-98 (1965). Here, the items in issue were seized pursuant to a search incident to an arrest. The car was seized based on its use in the commission of a felony, proof of which is based on three bags of cocaine that were found on the side of the road after being tossed from the car, and based on money found on Gray and Clemons. Because the i