The State of Texas v. Two Hundred Thirty-Nine Thousand Eight Hundred Dollars And NO/100 ($239,800.00) U.S. Currency--Appeal from 198th Judicial District Court of Kimble County

No. 04-98-00980-CV
The STATE of Texas,
Appellant
v.
$239,800.00 U.S. CURRENCY,
Appellee
From the 198th Judicial District Court, Kimble County, Texas
Trial Court No. 97-1934
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 8, 1999

AFFIRMED

The State appeals the trial court's judgment denying forfeiture of property under chapter 59 of the Texas Code of Criminal Procedure, arguing the evidence is factually insufficient to support the judgment. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

On December 12, 1996, Officer Ruben Galindo stopped a rental car driven by Ivan Gomez for speeding. Gomez explained he and Albeiro Uribe, a passenger in the car, were on their way from California. After some questioning, Gomez and Uribe allowed Galindo to search the car. During the search, Galindo discovered a brown paper bag full of bundles of money in the trunk of the car. Gomez and Uribe then accompanied Galindo to the sheriff's office where they were questioned about the money. Gomez claimed the money was awarded to him in a lawsuit, and he was going to use the money to buy computer equipment and clothing for resale in Columbia. Galindo then ran a narcotics dog around the rental car. The dog alerted to the trunk, particularly that part of the trunk where the money had been stashed. Galindo also placed a portion of the money in an envelope and hid it behind a doorway in the Sheriff's Office. When he ran the dog around the office, the dog alerted to the doorway and the envelope. According to Galindo, the dog was certified to alert on the scents of marijuana and cocaine. Although Gomez and Uribe were allowed to leave, the Sheriff's department kept the money believing it to be contraband.

The State subsequently filed a notice of seizure and intention to forfeit the $239,800.00 under chapter 59 of the Texas Code of Criminal Procedure. After a bench trial, the trial court rendered judgment denying relief to the State and ordering the State to return the money to Gomez. Findings of fact and conclusions of law were neither requested nor filed.

The State appeals the trial court's judgment, arguing "the trial court erred in finding the evidence insufficient to support forfeiture."

Standard of Review

We review a trial court's findings under the same sufficiency standards that we apply in reviewing a jury's findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When an appellant attacks the factual sufficiency of a trial court's finding on an issue on which it had the burden of proof, we review the entire record to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56, 60 (Tex. App.--San Antonio 1997, writ denied). However, the trial court, as the fact finder, "is the sole judge of the credibility of the witnesses and the weight to be given their testimony," and we will not substitute our judgment for that of the trial court simply because we would have reached a different conclusion on the facts. Cohn v. Commission for Lawyer Discipline, 979 S.W.2d 694, 696 (Tex. App.--Houston [14th Dist.] 1998, no pet.). Furthermore, "[w]hen an appellant does not request or file findings and conclusions by the trial court, the appellate court presumes the trial court found all fact questions in support of its judgment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence." IKB Indus. (Nigeria) v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997).

Discussion

"Property that is contraband is subject to seizure and forfeiture ." Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon Supp. 1998). In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and is therefore subject to forfeiture. $18,800 in U.S. Currency v. State, 961 S.W.2d 257, 260 (Tex. App.--Houston [1st Dist.] 1997, no writ); $162,950 in Currency of U.S. v. State, 911 S.W.2d 528, 529 (Tex. App.--Eastland 1995, writ denied); see State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991) (per curiam); Antrim v. State, 868 S.W.2d 809, 812 (Tex. App.--Austin 1993, no writ). "Contraband" includes money "derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance."State v. $11,014.00, 820 S.W.2d at 784; see Tex. Code Crim. Proc. Ann. art. 59.01(2). Evidence that tends to show (1) a large sum of money was found on a person traveling a known drug trafficking route, (2) the person acted nervously when stopped by the police, and (3) a narcotics dog alerted to the money can be both legally and factually sufficient to support a finding that the money was derived from or intended for use in the sale of a controlled substance and thus was subject to forfeiture. See State v. $11,014.00, 820 S.W.2d at 784-85; $162,950 in Currency of U.S. v. State, 911 S.W.2d at 530; Antrim, 868 S.W.2d at 814.

The State argues the evidence is sufficient to support a finding that the money was subject to forfeiture. However, the issue on appeal is slightly different from that posed by the State. Because we must presume the trial court found the State failed to prove the money was subject to forfeiture, the question on appeal is whether the trial court's finding is against the great weight and preponderance of the evidence, not whether a finding in favor of the State would have been supported by sufficient evidence.

The State introduced evidence that Gomez was carrying a large amount of money in a manner common to drug traffickers and acted nervously when stopped, and a certified narcotics dog alerted to the money. However, Gomez offered contradicting evidence concerning the origins of the money and the reliability of the canine alert. Gomez testified the money originated from a $943,000.00 settlement he received in a prior lawsuit. According to Gomez, he used the settlement money to invest in a Columbian business and in real estate, to make loans to friends and relatives, and to buy a house for his mother. The $239,800.00 in cash he was carrying on December 12, 1996, came from the liquidation of the Columbian business, rental payments he received on his properties, and repayments of loans. Gomez' attorney from the prior lawsuit supported Gomez' claim he had received $943,000.00 in the settlement. Gomez also brought an expert to testify concerning the reliability of the canine test performed in this case. The expert testified Galindo's act of hiding the money himself totally tainted the dog's response to the door and the envelope.

The State argues Gomez' testimony was "unreliable on its face" because Gomez changed his explanation of the origin of the money between the time he was stopped and the time of trial. However, the trial court, as the finder of fact, was the ultimate judge of Gomez' credibility and the weight to be given to Gomez' testimony and the State's circumstantial evidence.(1) Cohn, 979 S.W.2d at 696. Based on the conflicting evidence adduced at trial, we hold the trial court's finding that the money was not contraband subject to forfeiture was not against the great weight and preponderance of the evidence. See Guerra, 943 S.W.2d at 60.

We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. The State correctly notes that the trial judge indicated after trial he believed the money was drug related; however, the trial judge further indicated the evidence did not weigh in favor of such a finding.