Ysidro Castillo, Sr., et al v. The State of Texas--Appeal from 13th District Court of Navarro County

REVERSED & REMANDED 19 APRIL 1990

NO. 10-88-206-CV

Trial Court

#'s 352-87

356-87

576-88

575-88

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

YSIDRO CASTILLO, SR., ET AL,

Appellants

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 13th Judicial District Court

Navarro County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

This is an appeal by various members of the Castillo family from judgments of forfeiture in 4 separate cases, 3 of which were tried together, and in all of which separate judgments were rendered.

Cause 352-87, State of Texas v. 1985 Ford Ranger Truck, sought forfeiture of a vehicle belonging to Ralph Castillo allegedly used in violation of the Controlled Substances Act. This case was reset from December 31, 1987, to June 20, 1988.

Cause 356-87, State of Texas v. Various Livestock, sought forfeiture of 27 head of cattle belonging to Ysidro Castillo, Sr. and wife. This cause was reset from December 21, 1987, to December 31, 1987, and tried on that date and January 5, 1988.

Cause 575-88, State of Texas v. One 1974 Chevrolet Corvette, was severed out of cause of like name, as to vehicles owned by Ysidro Castillo, Jr., Chris Castillo, and Cast Construction Company. This case was reset from December 31, 1987, to June 20, 1988.

Cause 576-88, State of Texas v. Tracts of Real Estate, was severed out of cause of like name, as to land owned by Ralph Castillo. This case was reset from December 31, 1987, to June 20, 1988.

Separate judgments were entered on August 31, 1988, forfeiting the 1985 Ford Ranger Truck belonging to Ralph Castillo; the 27 head of cattle belonging to Ysidro Castillo, Sr. and wife; the 1974 Chevrolet dump truck owned by Chris Castillo, the 1981 Chevrolet 3/4th-ton truck owned by Cast Construction Company, and the boat with trailer owned by Ysidro Castillo, Jr. and Cast Construction Company; and 2 tracts of land owned by Ralph Castillo.

Appellant Ralph Castillo appeals from the judgment forfeiting the 1985 Ford Ranger; Ysidro Castillo, Sr. and wife appeal from the judgment forfeiting the 27 head of cattle; Ysidro Castillo, Jr., Chris Castillo, and Cast Construction Company appeal from the judgment forfeiting the dump truck, the 3/4th-ton bed truck and the boat with trailer; and Ralph Castillo appeals from the judgment forfeiting tracts of real estate belonging to him.

All 4 appeals are briefed together in a consolidated brief of 11 points of error.

Point 1 assert "the trial court erred in denying appellants' timely request for a jury trial".

Point 2 asserts "the trial court erred in taking judicial notice of the testimony of a prior criminal trial involving defendant parties".

Points 3 and 4 assert there was no evidence or insufficient evidence that the 1985 Ford Ranger truck was used or intended for use in violation of the Texas Controlled Substances Act.

Points 5 and 6 assert there was no evidence or insufficient evidence that the cattle forfeited were derived from any undertaking violative of the Texas Controlled Substances Act.

Points 7 and 8 assert there was no evidence or insufficient evidence that the dump truck, the 3/4th-ton truck, boat and trailer were used or intended for use in activities violative of the Controlled Substances Act.

Points 9 and 10 assert there was no evidence or insufficient evidence that the real property seized was derived from any undertaking violative of the Controlled Substances Act.

Point 11 asserts the trial court erred in failing to exclude evidence seized as a result of an illegal search and seizure.

The individual appellants were involved with others in organized criminal activity centered around traffic in marijuana. Defendants also had legitimate business interests and income from farming, cattle raising, automobile selling, and the installation of septic tanks and sewage systems.

The individual appellants were convicted of organized criminal activity, assessed time in the Texas Department of Corrections and their convictions are now pending in the appellate process.

Point 1 asserts "the trial court erred in denying appellants' timely request for a jury trial".

Appellants are entitled to a jury trial in a forfeiture case. Article I, Section 15 of the Texas Constitution provides that the right of trial by jury shall remain inviolate and that the Legislature shall pass laws as may be needed to regulate the same and maintain its purity and efficiency. Article V, Section 10 provides that in the trial of all causes in the district courts, the plaintiff or defendant shall upon application have the right of trial by jury, if the jury fee be paid and with such exceptions as may be prescribed by the Legislature.

Exceptions to the right of trial by jury are narrowly construed and a sound reason must exist for the denial of a trial by jury. State v. Credit Bureau of Laredo, Inc., S.Ct., 530 S.W.2d 288. And all persons are entitled to a trial by jury of any facts affecting their property rights. Clayton v. Clayton, CCA (Texarkana) NWH, 308 S.W.2d 557; Harris v. Harris, CA (Dallas) Writ Denied, 697 S.W.2d 75.

A forfeiture case brought under Article 4476-15, V.A.T.S. involves fact issues. The State must prove by a preponderance of the evidence that the property alleged for forfeiture was derived from activity violative of the Controlled Substances Act. And because forfeiture cases present issues of fact concerning a defendant's property interest, a defendant is entitled to a jury trial upon timely demand. There is no language in Article 4476-15 denying a jury trial in a forfeiture case. Thus the general constitutional right to a jury trial in a civil case remains applicable.

Appellants made a timely demand for a jury trial and timely deposited the jury fee. Rule 216 T.R.C.P. // , in effect in 1987 provided in pertinent part: "No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee of five dollars if in the district court * * [be paid] on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance".

The 4 cases here were first set for non-jury trial for September 14, 1987; and thereafter reset for December 21, 1987, at 9:00 A.M. On December 21, 1987, the trial judge reset these cases for December 31, 1987. At 11:30 A.M. on December 21, 1987, after the court reset the cases for December 31, 1987, request for jury was made in each case, in writing, and the required fee tendered.

The trial court tried Cause 356-87, the livestock case on January 5, 1988, and tried the other 3 cases on June 20, 1988, and rendered judgment in the 4 cases on August 31, 1988.

Appellants made application for a jury and paid the jury fee not less than 10 days in advance of the date the cases were set for trial.

Having timely demanded a jury and depositing the correct jury fee with the proper officer, appellants' right to a trial by jury became fixed. Barker v. Kidd, CCA (Austin) NWH, 357 S.W.2d 490; Meyer v. Henery, CCA (Austin) NRE, 400 S.W.2d 933; Jerrell v. Jerrell, CCA (San Antonio) NWH, 409 S.W.2d 885; Lopez v. Lopez, CA (San Antonio) NWH, 691 S.W.2d 95; First Bankers Ins. Co. v. Lockwood, CCA (Amarillo) NWH, 417 S.W.2d 738.

While it has been held that payment of the jury fee, made more than 10 days in advance of trial, does not in all instances, make payment timely as a matter of law, Texas Oil & Gas Corp. v. Vela, S.Ct., 429 S.W.2d 866, there is nevertheless a presumption in such case that it was paid in a reasonable time and the trial court abuses its discretion in denying jury trial unless the record reflect that: (1) granting the jury trial will injure the adverse party; or (2) granting the jury trial will disrupt the court's docket or seriously interfere with and impede the ordinary handling of the court's business. Hardy v. Port City Truck Sales, Inc., CA (Houston 14) NRE, 693 S.W.2d 578; Aronoff v. Texas Turnpike Authority, CCA (Dallas) NWH, 299 S.W.2d 342; W. L. Moody Co. Bankers v. Yarbrough, CCA (Houston 1) NRE, 510 S.W.2d 396; Coleman v. Sadler, CCA (Amarillo) NWH, 608 S.W.2d 344; MMM v. Central State Repository of Criminal Records, CA (Fort Worth) NWH, 681 S.W.2d 908; McKern v. McCann, CA (Austin) NWH, 675 S.W.2d 222.

There is no evidence in this record to rebut the above presumption.

The State contends that the jury request and jury fee paid, must be 10 days in advance of the first setting of the case on the non-jury docket, and that the passage of time following a continuance of the non-jury setting cannot operate to reopen the time in which to file a jury request and pay jury fee 10 days in advance of the later non-jury setting, citing Browner v. Arellano, CA (San Antonio), 757 S.W.2d 526.

Coleman, supra, is directly contra to Browner. In Coleman the request for jury and payment of fee was permitted and jury granted when the request and payment were 10 days in advance of a subsequent setting on the non-jury docket after postponement from the original non-jury setting.

Moreover, the Supreme Court granted a writ in Browner but dismissed the cause as moot when the parties advised the court the case had been settled. The court of appeals case in Browner thus stands for nothing. Browner v. Arellano, S.Ct., 758 S.W.2d 757.

See also Sections 23 and 24 Jury, 49 Tex.Jur.3d, p. 44, et seq; Section 11.03.1 Demand for Jury, 3 McDonald Texas Civil Practice, p. 88, et seq; which are in accord with the foregoing.

Point 1 is sustained and requires a reversal and remand of these cases.

Point 2 asserts "the trial court erred in taking judicial notice of the testimony of a prior criminal trial involving the appellants".

Point 2 is sustained. Traweek v. Larkin, CA (Tyler) NRE, 708 S.W.2d 943.

In view of another trial, we express no opinion on points 3 through 11.

The judgment in each of the 4 cases is reversed and each case is remanded for new trial.

REVERSED & REMANDED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means, and Chief Justice (Retired) McDonald]