State v. Romero

907 S.W.2d 858

• Court: Court of Appeals of Texas
• Decided: September 14, 1995
• Docket: 01-94-01219-CR, 01-94-01220-CR and 01-94-01221-CR
• Status: Published

Opinions

OPINION

O’CONNOR, Justice.

We are again confronted with the issue of whether a civil forfeiture is “punishment” for purposes of double jeopardy protection.

Fact summary

On January 13,1994, the State charged the defendant with the offenses of possession of marihuana (cause number 678626) and possession of a controlled substance with intent to deliver (cause number 678627). On May 10, 1994, the trial court issued a forfeiture judgment against the defendant for $69,160 in cash, a 1980 Ford, and three scales. The State requested the court set aside the final judgment in the forfeiture action, and on June 9, 1994, the trial court granted it. On August 12,1994, the court signed a judgment which returned $2,500, a 1990 Ford truck, and other miscellaneous items to counsel for the defendant, and released the rest of the money, $69,160, the 1980 Ford, and the scales to the State.

The State Comptroller assessed and sought to collect a controlled substance stamp tax of $475,726 from the defendant in connection with the marihuana seized. The State seized $3,246.04 from the defendant’s bank account to, in part, satisfy his stamp tax debt, but the remaining amount owed was put in abeyance pending resolution of the criminal proceeding.¹

The defendant filed an application for a pretrial writ of habeas corpus (cause number 9423574), asserting his criminal prosecution should be barred by double jeopardy because of the forfeiture action. After granting the writ and holding a hearing, the trial court granted the defendant’s requested relief. The State appeals.

The Habeas Hearing

At the habeas hearing, Frank Fulbright, a detective with the Harris County Sheriffs Department who works with the Harris County Organized Crime Task Force, testified as follows. On October 25, 1993, Fulbright investigated a small warehouse storage facility after obtaining information from an informant. The task force seized two pounds of cocaine, with a street value of $638,575,210 pounds of marijuana, with a street value of $410,000, and $71,660 in currency, as well as guns, scales, records, and briefcases. Fulbright spent 24 hours total working on the investigation. Six of the officers on the task force spent about eight hours in the investigation, while two others had about four or five hours involvement.

The defense attorney attempted to cross-examine Fulbright on the amount of time he took in the investigation, arguing it could not have been more than 12 hours. After several minutes of discussion, the trial court instructed the defense attorney not to get into how much time the officers spent in the investigation. Fulbright also testified he was deposed for several hours in connection with this ease.

John Couffel, City of Baytown administrative director of the Harris County Organized Crime Narcotics Task Force, stated the task force is funded through a grant program through the federal government. Couffel testified the funds recovered through the forfeiture proceedings are used to aceumu-late matching funds from the local community. The prosecutor asked the court to take judicial notice of the court’s files involving the ease, the number of appearances re- ■ quired to be made in the case, and the court staff and their appearances in connection with the case. The State put on no specific evidence regarding its costs or damages in connection with the case.

In its closing statement, the State argued the forfeiture statute was remedial, not punitive, and that the court could look at all the damages to society, not just the cost to the government for the prosecution. The State argued that by forfeiture, it took merely the proceeds of the crime.

In his closing statement, defense counsel argued the State did not prove the amount expended in the investigation was proportionate to the amount of money forfeited. The defense attorney pointed out he tried to cross-examine the officer about the amount of time that was spent on the investigation but the State objected and the court sustained the objection. Therefore, he argued, the court could not consider the “damages” the State suffered as a result of the investigation.

In its order granting the defendant’s requested relief, the court stated:

This Court, having considered said application and having heard the evidence presented, as well as the argument of counsel, and having found and concluded the forfeiture proceeding aforesaid was punitive in nature, arose out of the same occurrence as the criminal prosecutions aforesaid and the amount forfeited was overwhelmingly disproportionate to the damages allegedly caused by the Applicant, is of the opinion, and hereby rules, further criminal prosecution of the Applicant is barred by the double jeopardy provisions of the Fifth Amendment to the United States Constitution and Article 1 § 14 of the Texas Constitution, and said application should be GRANTED....²

In the State’s sole point of error, it contends the trial court erred in holding it is prevented from prosecuting the defendant for the offenses of possession of marihuana and possession of a controlled substance with intent to deliver based upon the earlier forfeiture judgment.

Standards of Review

It is the burden of the defendant at a habeas hearing to present evidence in support of his allegation of former jeopardy. Hoang v. State, 810 S.W.2d 6, 8 (Tex.App.—Dallas 1991), aff'd, 872 S.W.2d 694 (Tex.Crim.App.1993). The trial court is the sole judge of credibility of the witnesses testifying at a habeas proceeding and its ruling should not be overturned absent a clear abuse of discretion. Ex Parte Shutter, 868 S.W.2d 383, 387 (Tex.App.—Houston [1st Dist.] 1993, no pet.). This Court is not at liberty to disturb any finding that is supported by the record. Id.

Agreed Judgment

On appeal, the State argues the defendant waived the issue of double jeopardy by signing the agreed judgment.³ The State did not make this argument before the trial court at the writ hearing. We will not consider a challenge to the court’s order that was not presented to the trial court. We find the State waived the argument. Tex.R.App.P. 52(a); Daniel v. State, 877 S.W.2d 75, 77 (Tex.App.—Houston [1st Dist.] 1994, no pet.)

Forfeiture Statute

The State invites us to reexamine our decision in Johnson v. State, 882 S.W.2d 17 (Tex.App.—Houston [1st Dist.] 1994, pet. granted). We decline.

In Johnson, we held that the forfeiture statute “may not be solely remedial” and a civil forfeiture bars a later criminal prosecution if the amount forfeited is not proportionate to the cost to the government of investigating the case. 882 S.W.2d at 19. In a forfeiture action, the burden is on the defendant to raise the issue of whether there is a rational relationship between the amount of the forfeiture and the goal of compensating the government. See id. at 20 n. 8. Once the defendant raises the issue, it is the State’s burden to show the forfeiture or penalty is proportionate to the damages it incurred by the defendant’s actions. See United States v. Halper, 490 U.S. 435, 452-53, 109 S.Ct. 1892, 1903-04, 104 L.Ed.2d 487 (1989) (case remanded to the district court for the state to account for its actual costs arising from the defendant’s criminal activity).

Proportionality Test

In oral argument before this court, the State made an alternative argument that, if we re-affirm Johnson and apply the proportionality test, we should find that the State met its burden of proving proportionality. The State did not make that argument before the trial court at the writ hearing or in its brief filed in this Court. The focus of the State’s argument is that the amount of the drugs seized is worth several times more than the amount of the property forfeited.

At the hearing, the State showed the value of the drugs was $1,048,575 (value of cocaine $638,575; value of marihuana $410,000). The State proved eight officers worked on the ease, one officer for 24 hours, six officers worked for eight hours, and two officers for five hours. The State did not offer proof of the cost of the investigation. When the defendant attempted to cross-examine the officer for more details of the costs of the investigation, the court sustained the State’s objection. The trial court found the forfeiture was “overwhelmingly disproportionate” to the damages caused by the defendant.

In Johnson, we upheld the lower court’s denial of the defendant’s writ of habeas corpus. 880 S.W.2d at 20. We found $11,547 was not disproportionate to the expense to the government. In Halper, the court found the $130,000 penalty was disproportionate to the government’s actual damages of $585.

We find the trial court did not abuse its discretion in finding $69,160 is disproportionate to the expense to the government. We overrule the State’s sole point of error.

Comptrollers’ Tax

Because we overrule the State’s sole point of error, we do not need to reach the defendant’s argument that the tax was punitive. See Department of Revenue of Montana v. Kurth Ranch, - U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

Conclusion

We reaffirm our holding in Johnson; the forfeiture statute is punitive as well as remedial. We find the trial court did not abuse its discretion in finding the $69,160 forfeiture was disproportionate to the State’s cost of investigating the offense. We hold jeopardy attached and the State is barred from prosecuting the defendant. We affirm.

TAFT, J., dissenting.

1 . The notice of levy on the $3,246.04 was filed October 27, 1993.

2 . The trial court’s judgment refers to granting the application for a writ of habeas corpus, rather than granting the relief requested, i.e., that the habeas corpus applicant be either admitted to bail or discharged from custody. See Tex.Code Crim.Proc.Ann. art. 11.44 (Vernon 1977); LeBlanc v. State, 826 S.W.2d 640, 642-43 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd).

3 . Much of the testimony at the habeas hearing involved the issue of the agreed judgment. The defendant used the evidence about the agreed judgment to show he had been subjected to triple jeopardy. The defendant showed how the State and the defendant signed an agreed judgment, and that the court signed that judgment. Later, without notice to the defendant, the State filed a motion to withdraw that judgment, which the court granted. The case was then returned to the trial docket. The State then filed a second judgment, which the defendant signed and the trial court signed. During the habeas hearing and in closing arguments, the State did not argue that the agreed judgment abrogated the defendant's claim of double jeopardy.