One (1) 2000 Chevrolet Pick-Up Truck, VIN 2GCEC19T5Y1311424: Four Hundred Twenty-Four ($424.00) United States Currency; and Certain Property v. The State of Texas--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00003-CV

ONE (1) 2000 CHEVROLET PICKUP TRUCK, VIN 2GCEC19T5Y1311424 Four Hundred Twenty Four ($424.00) United States Currency and Certain Property,

Appellants
v.
The STATE of Texas,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-14318
Honorable David Berchelmann, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

James Edward Snavely, III, appearing pro se, challenges the trial court's failure to ensure his appearance at trial and argues that the trial court should have granted his petition to quash. Because Snavely's issues are waived, the judgment of the trial court is affirmed.

Background

This is an appeal from a civil forfeiture case resulting from Snavely's possession of cocaine and marijuana. Castle Hills Police Officer Wayne Davis stopped Snavely and searched him and his truck, finding drugs, cash, and a gold Krugerrand coin. Officer Davis seized the truck, the cash, and the gold coin, and the State filed a notice of forfeiture. Snavely filed an answer. The State initially moved for a trial setting of January 17, 2001, but Snavely filed a notice of dropped setting. The State again moved for a trial setting of March 7, 2001, but Snavely again filed a notice of dropped setting. Next, the State moved to reset the hearing until April 3, 2001. On February 28, 2001, Snavely filed a motion to set the case for a two-day jury trial, and the trial court set the case for December 3, 2001.

On November 27, 2001, Snavely filed a petition to quash, but never sought a ruling on it from the trial court. The record does not contain any request by Snavely for a bench warrant. Snavely did not appear on December 3 for the first day of trial. The trial court entered a default judgment that the truck, the cash, and the gold coin were contraband and were forfeited to the State. The record contains a Special Appearance Request, which is file-stamped December 4, 2001. On December 13, Snavely filed a motion for new trial and a notice of appeal. The motion for new trial was never set for a hearing or ruled upon by the trial court. Snavely raises four issues on appeal: the first three concern the trial court's failure to ensure his appearance at trial, and the fourth concerns the trial court's denial of his petition to quash.

Waiver

In order for this court to give proper consideration to an issue on appeal, the argument should include a fair, condensed statement of facts with reference to pages in the record where the facts may be found and a discussion of the facts and authorities relied upon. Champion v. Wright, 740 S.W.2d 848, 852 (Tex. App.--San Antonio 1987, writ denied); see also Tex. R. App. P. 38.1(f), (h) (noting that the statement of facts and the argument must contain citations to the record). Any issues not properly briefed will be waived. Champion, 740 S.W.2d at 852. Snavely's brief fails to indicate anywhere in the record that he made a timely application for a writ of habeas corpus ad testificandum, application for a bench warrant, or similar request. Cf. Smith v. State, 949 S.W.2d 333, 337 (Tex. App.--Tyler 1996, pet. ref'd) (finding that an application filed on the day of trial was untimely). Our review of the record reveals only the Special Appearance Request, which is file-stamped December 4, 2001--the day after the trial was set to begin. We recognize the importance of considering the requests of incarcerated individuals to attend hearings in person; however, in this case, there was no timely application for the trial court to consider. Cf. In the Interest of Z.L.T., 82 S.W.3d 100, 101 (Tex. App.--San Antonio 2002, pet. filed) (en banc) (noting the trial court's failure to rule on the prisoner's application for writ of habeas corpus ad testificandum); Ex parte Guajardo, 70 S.W.3d 202, 206 (Tex. App.--San Antonio 2001, no pet.) (same); Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.--San Antonio 1999, no pet.) (noting the trial court's failure to consider the prisoner's request for a bench warrant). As a result, Snavely's issues concerning the trial court's failure to ensure his appearance at trial are waived.

Snavely also argues that the trial court should have granted his petition to quash the notice of forfeiture. However, he never requested a hearing or sought a ruling from the trial court on the petition to quash. A motion not acted upon by the trial court does not provide a basis for an issue on appeal. Williams v. Williams, 537 S.W.2d 107, 109 (Tex. Civ. App.--Tyler 1976, no writ). Accordingly, Snavely's issue concerning his petition to quash is also waived.

Conclusion

Snavely's issues on appeal, concerning the trial court's failure to ensure Snavely's appearance at trial and its failure to grant his petition to quash, are waived. Accordingly, the judgment of the trial court is affirmed.

Karen Angelini, Justice