2003 Ford Pickup, VIN 1FTRW07373KCS6182, Mikeal Glenn Stine, et al. v. The State of Texas--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION

No. 04-06-00036-CV

2003 FORD PICKUP VIN 1FTRWO737KCS6182,

Appellant

v.

The STATE of Texas ,

Appellee

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. 03-810-A

Honorable Stephen B. Ables , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: February 7, 2007

AFFIRMED

After Mikeal Stine was convicted of robbery in federal court, the State began forfeiture proceedings against the 2003 Ford pickup truck used during the commission of the robbery. Elizabeth Faye Whyte intervened in the suit, claiming that she was the owner of the vehicle. The trial court determined Intervenor Whyte failed to prove an enforceable interest in the vehicle, and further found Stine was the sole owner of the vehicle. We affirm the judgment of the trial court.

FACTUAL BACKGROUND

Intervenor Elizabeth Faye Whyte is Mikeal Stine's sister. In 2003, after being paroled on federal charges, Stine requested assistance from Whyte on a down payment for a 2003 Ford truck. Stine explained that during his incarceration, he was awarded monies resulting from a lawsuit. He signed two alleged payments over to Whyte, who deposited the "settlement checks" into her own bank account on May 5, 2003. The next day, Whyte wrote a personal check to the dealership as down payment for the vehicle. The title on the 2003 Ford pickup truck, however, was recorded in Stine's name alone. On May 9, 2003, Whyte was notified by her bank that the "settlement checks" were not negotiable, and no funds were deposited in her account.

On June 17, 2003, Whyte obtained a home equity loan and paid for the vehicle in full. On June 19, 2003, Stine and his wife used the Ford pickup during a bank robbery in Kerr County, Texas. The vehicle was subsequently seized by the State as contraband in accordance with the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon 2006). (1) The State provided notice of the civil forfeiture proceedings to Stine, the registered owner of the vehicle, who in turn notified Whyte. Whyte intervened in the suit and filed an answer, asserting she was the owner of the vehicle. Stine subsequently executed a power of attorney allowing Whyte to transfer the title of the vehicle into her name.

The case proceeded to trial on December 19, 2005. Thereafter, the trial court filed findings of fact and conclusions of law. Among other findings not in dispute, the trial court found that: (1) the transaction between Whyte and Stine constituted a gift from Whyte to Stine; and (2) Stine was the owner of the vehicle.

SUFFICIENCY OF THE EVIDENCE

In four issues, Whyte contends that the trial court's findings that the pickup truck was a gift to Stine and that Whyte is not the owner of the 2003 Ford pickup truck are unsupported by the evidence and are against the great weight and preponderance of the evidence. Whyte also complains of the trial court's failure to find that the money used to purchase the pickup truck was stolen from Whyte.

A. Standard of review

When a trial court enters findings of fact, the findings are provided the same "force and dignity" as a jury's verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We therefore review the court's findings based on the same standards applicable in a sufficiency of the evidence review supporting a jury finding. Id.

In analyzing the legal sufficiency of the evidence supporting a finding of fact, we consider only the evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). If there is more than a "scintilla of evidence" to support the finding, the legal sufficiency challenge fails. McLaughlin, Inc. v. Northstar Drilling Techs., Inc., 138 S.W.3d 24, 27 (Tex. App.--San Antonio 2004, no pet.) (citing Catalina, 881 S.W.2d at 297).

When reviewing the factual sufficiency of the evidence, we consider all of the evidence, both for and against the trial court's finding. McLaughlin, 138 S.W.3d at 27. The evidence is factually insufficient if we conclude the trial court's finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

The appellate court reviews de novo the trial court's legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We will uphold the conclusions if the judgment can be sustained on any legal theory supported by the evidence. Id. at 795. Even if we determine that a conclusion of law is erroneous, but that the trial court rendered the proper decree, the error does not require reversal. Id. at 794.

ANALYSIS

A. Forfeiture

The Code of Criminal Procedure provides for the forfeiture of property used in the commission of a felony. Tex. Code Crim. Proc. Ann. art. 59.02 (Vernon 2006). Under the Code, an owner is a person who claims "an equitable or legal ownership interest in the property." Tex. Code Crim. Proc. Ann. art. 59.01(6) (Vernon 2006). The Code further defines an interest holder as a "bona fide holder of a perfected lien or security interest in the property." Tex. Code Crim. Proc. Ann. art. 59.01(4) (Vernon 2006). Under 59.02, an owner or interest holder may assert two defenses to forfeiture: (1) the owner was an "innocent owner" or (2) the property was stolen or purchased with money stolen from the owner, or used without the owner's consent.

B. Innocent owner

Whyte argues that she is the true owner of the vehicle, and therefore, may assert an affirmative "innocent owner" defense in order to retain her property. Tex. Code Crim. Proc. Ann. art. 59.02(c)(1) (Vernon 2006). To assert the defense, the owner must demonstrate, by a preponderance of the evidence, that she: (1) acquired and perfected her interest before or during the act giving rise to the forfeiture; and (2) did not or should not have reasonably known that the act giving rise to the forfeiture was likely to occur at or before the time of acquiring or perfecting the interest. Tex. Code Crim. Proc. Ann. art. 59.02(c)(1) (Vernon 2006); $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 163 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Alternately, the innocent owner may acquire and perfect her interest after the act giving rise to the forfeiture but before the seizure of the property. However, the owner must be an owner or interest holder for value and without reasonable cause to believe the property was contraband, and did not purposefully avoid learning the property was contraband. Tex. Code Crim. Proc. Ann. art. 59.02(c)(2) (Vernon 2006).

Whyte asserts that she is the owner of the vehicle because the money she provided to Stine which was used to purchase the pickup truck was a loan, thereby giving her a security interest in the Ford pickup truck. Whyte provides no written evidence to substantiate the alleged oral loan agreement she made with her brother, or any proof that she acquired and perfected her interest in the truck prior to the initiation of the forfeiture proceedings. See Bochas v. State, 951 S.W.2d 64, 72 (Tex. App.--Corpus Christi 1997, writ denied) (upholding forfeiture when the purported owner could not prove a contract existed before the forfeiture, leaving her no interest in the property).

Under the after-seizure prong, Whyte's argument again fails. Although this theory allows the owner to acquire title after the act giving rise to the forfeiture, Whyte did not prove she was a holder for value, and that she did not know the property was contraband. Whyte certainly knew the property was contraband and subject to forfeiture because she intervened in order to stop the proceedings. Accordingly, the trial court did not err in failing to find Whyte the owner of the vehicle. There was more than a scintilla of evidence to support the finding that she did not acquire title and perfect her interest until after the forfeiture proceedings were instituted.

C. Stolen property

The Code of Criminal Procedure also allows an owner to retain her property if she proves, by a preponderance of evidence, that she was not a party to the offense giving rise to the forfeiture and that the contraband was stolen or purchased with money stolen from the owner or used without her consent. Tex. Code Crim. Proc. Ann. art. 59.02(h) (Vernon 2006). Whyte claims that the funds used for the down payment were, in effect, stolen from her because Stine's checks received before she loaned the money proved worthless. According to Whyte, the fraud committed on her by Stine should have given her an equitable interest in the vehicle and the trial court erred in failing to find that a resulting trust arose in her favor. Whyte's testimony that she intended the money to be a loan precludes such a finding. Sahagun v. Ibarra, 90 S.W.3d 860, 864 (Tex. App.--San Antonio 2002, no pet.) (holding a resulting trust cannot arise in favor of one who pays the purchase price as a mere loan to another and the conveyance is taken in the name of the borrower).

Although there was conflicting testimony by Whyte that she intended the money to be a loan and that the money was stolen from her, the fact finder is the sole judge of the credibility of witnesses, and we may not substitute our judgment for that of the fact finder, even if there is conflicting evidence upon which a different conclusion could be supported. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Here, the trial court entered a written finding that the purchase money was not stolen from Whyte. Whyte protests that the trial court "found fraud" by virtue of his comments during the forfeiture hearing. However, written findings and conclusions made by the trial court control oral announcements or comments made during the hearing. Gasperson v. Madill Nat'l Bank, 455 S.W.2d 381, 387 (Tex. Civ. App.--Fort Worth 1970, writ ref'd n.r.e.).

Because the record contains more than a scintilla of evidence to support the trial court's findings, we hold the evidence is legally sufficient to support the judgment. The evidence presented does not substantiate that these findings are clearly wrong or unjust so as to render the evidence factually insufficient. Furthermore, the trial court's conclusions of law were not erroneous as a matter of law. Because Whyte failed to prove that she was an owner within the Code's definition, we sustain the trial court's determination that Whyte was not the owner.

Conclusion

There was sufficient evidence in the record that Mikeal Stine was the owner of the 2003 Ford pickup truck prior to the forfeiture proceedings. Intervenor Whyte did not establish any legal or equitable interest in the truck. The trial court, therefore, did not err in denying Elizabeth Faye Whyte's claims as intervenor. We therefore affirm the judgment of the trial court.

Rebecca Simmons , Justice

1. The parties stipulated that the truck was used in the commission of a felony and thus, subject to forfeiture as contraband. Tex. Code Crim. Proc. Ann. art. 59 (Vernon 2006).