$32,960.00 In U.S. Currency, et al. v. The State of Texas--Appeal from 267th District Court of Refugio County

   NUMBER 13-04-526-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

$32,960 IN U.S. CURRENCY, ET AL., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 267th District Court

of Refugio County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is an appeal from a summary judgment granting forfeiture of cash currency and a 1998 Chevrolet truck under the Contraband Forfeiture Statute.[1] The State alleges that appellant obtained the currency and personal property as part of a money laundering scheme. The trial court granted the State=s motion for summary judgment and adjudged that the property be forfeited. We affirm.

Background Facts

On August 25, 2003, Refugio County Sheriff Deputy Wayne Hill stopped appellant, Domingo Reyes, for a traffic violation. Because appellant only spoke Spanish, Officer Jeff Raymond of the Refugio Police Department was dispatched to the scene to assist in translation. After receiving a written warning, appellant consented to a search of the 1998 Chevrolet truck that he was driving at the time of the stop. The ensuing search resulted in the discovery of the currency made subject of this suit. United States currency in the amount of $32,960 was discovered hidden in the jack compartment under the rear passenger seat wrapped in duct tape. The State filed a Notice of Seizure and Intention to Forfeit pursuant to Chapter 59 of the Texas Code of Criminal Procedure.[2] The State subsequently charged appellant with money laundering.[3] Appellant pled nolo contendere pursuant to a plea bargain and was placed on deferred adjudication with community supervision.

In the ensuing civil forfeiture proceeding, both parties filed motions for summary judgment.[4] Appellant filed a no-evidence motion for summary judgment pursuant to Texas Rule of Civil Procedure 166a(i). See Tex. R. Civ. P. 166a(i). The State responded to appellant=s motion and shortly thereafter filed a traditional motion. See Tex. R. Civ. P. 166a(a). The State attached as summary judgment evidence in its response to appellant=s motion and for its own motion the following items: (1) an affidavit of the State=s attorney setting forth the facts of the case together with documentation; (2) Officer Hill=s affidavit; (3) a copy of the indictment in cause number 2003-11-4444;[5] (4) a copy of the deferred adjudication judgment; (5) a copy of the Judicial Confession wherein appellant admitted that the allegations contained in the indictment were Atrue and correct;@ (6) a copy of the Plea Memorandum; and (7) a copy of the response to Interrogatory Number 11 and Request for Admission Number 7, wherein appellant stated that he made approximately $41,000 during the preceding four years and the currency subject to this suit was discovered where alleged. The trial court denied appellant=s motion and rendered judgment in favor of the State.

 Appellant=s No-Evidence Summary Judgment

Appellant raises four issues as to why the trial court=s judgment should be reversed. However, appellant=s arguments all allege that the trial court considered inadmissible evidence in granting the State=s motion and without the alleged inadmissible evidence there is no evidence to support the State=s allegations.

Since both parties filed motions for summary judgment we will review both motions.[6] We first turn to appellant=s no-evidence motion for summary judgment. Rule 166a(i) of the Texas Rules of Civil Procedure provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i). Thus, the Texas Supreme Court has held that a Ano-evidence summary judgment is essentially a pretrial directed verdict,@ and therefore, the standard of review for reviewing a no-evidence summary judgment is the same standard used when reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Therefore, when reviewing a no-evidence motion for summary judgment an appellate court reviews the evidence in the light most favorable to the non-movant, and disregards all contrary evidence and inferences. Id. A no evidence motion for summary judgment will be granted only Awhen (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital point, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (d) the evidence conclusively establishes the opposite of the vital fact." See id. at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted)).

Appellant contests admission of the following evidence: (1) the nolo contendere plea; (2) the affidavit of Officer Hill; and (3) appellant=s answer to an interrogatory propounded upon him whereby he answered that he made $41,000 in the four preceding years, and his admission that the currency was discovered by Hill in the jack compartment of the truck. Assuming arguendo that this evidence was inadmissible,[7] the State still proffered other sufficient evidence to show that the money was proceeds from an illegal activity and therefore constituted laundered money.[8] When there is no direct evidence linking the seized property to illegal activity, as is the case presently, the State must present sufficient circumstantial evidence linking the two. See Forty-Seven Thousand Two Hundred Dollars U.S. Currency v. State, 883 S.W.2d 302, 308 (Tex. App.BEl Paso 1994, writ denied). The State does not have to prove that a specific crime was committed as appellant alleges. See Spurs v. State, 850 S.W.2d 611, 613 (Tex. App.BTyler 1993, writ denied).

The State offered circumstantial evidence that was not objected to sufficient to warrant denial of appellant=s no evidence motion for summary judgment. For example, the State attached as evidence a copy of appellant=s judicial confession, wherein appellant admitted that the allegations contained in the indictment were Atrue and correct.@[9] Thus, even without consideration of the challenged evidence, the State did have evidence that the money subject to this suit was contraband and therefore subjected to forfeiture. Accordingly, appellant=s no-evidence motion for summary judgment was properly denied since the evidence offered was more than a mere scintilla. Chapman, 118 S.W.3d at 751.

 The State=s Motion for Summary Judgment

We now turn to the State=s traditional motion for summary judgment. The propriety of a summary judgment is a question of law; therefore, an appellate court reviews the trial court=s granting of summary judgment de novo. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); see Ortega v. City Nat=l Bank, 97 S.W.3d 765, 771-72 (Tex. App.BCorpus Christi 2003, no pet.); Mobil Producing Tex. & N.M. v. Cantor, 93 S.W.3d 916, 918 (Tex. App.BCorpus Christi 2002, no pet.). A summary judgment will only issue when the movant has shown the right to summary judgment as a matter of law. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). To be entitled to a traditional summary judgment, the movant needs to establish its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively establishing all essential elements of its cause of action or defense as a matter of law. Tex. R. Civ. P. 166a(c); see Johnson County Sheriff=s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

The summary judgment proof must establish, as a matter of law, that there is no genuine issue of fact concerning one or more of the essential elements of the plaintiff=s cause of action or the defendant=s affirmative defenses. See Hermann & Andreas Ins. Agency, Inc. v. Appling, 800 S.W.2d 312, 315 (Tex. App.BCorpus Christi 1990, no writ). In deciding whether a material fact issue exists, which precludes granting summary judgment, all evidence favoring the non-movant will be taken as true, with reasonable inferences indulged and doubts resolved in favor of the non-movant. Nixon, 690 S.W.2d at 548-49; Appling, 800 S.W.2d at 315.

Again, the State=s motion for summary judgment contained several attached items of summary judgment evidence to which appellant did not object. This evidence shows a substantial link that the money was contraband and as such it was subjected to forfeiture. The most probative evidence is appellant=s judicial confession, in which appellant admitted Athat all the allegations contained in the indictment are true and correct.@ Through the judicial confession and the other non-objectionable evidence, the State conclusively proved a substantial connection between the cash currency to be forfeited and the criminal activity of money laundering as defined by the statute. See $18,800 in U.S. Currency v. State, 961 S.W.2d 257, 260 (Tex. App.BHouston [1st Dist.] 1997, no writ). Furthermore, by adopting the language of the indictment in his Judicial Confession, appellant did not contest that he had been involved in the Atransfer and transport [of] the proceeds of criminal activity.@ This admission regarding Atransfer and transport@ is considered sufficient to establish a link between appellant=s seized 1998 Chevrolet truck and the underlying crime of money laundering. See, e.g., 1991 Nissan Pickup v. State, 896 S.W.2d 344 (Tex. App.BEastland 1995, no writ) (holding that truck used to transport heroin from Mexico was used in commission of offense); $ 47,200.00 v. State, 883 S.W.2d 302 (Tex. App.BEl Paso 1994, writ denied) (surmising that vehicles used to transport marihuana were used in commission of a felony). Therefore, we conclude that, regardless of the admissibility of the objected-to evidence, the State has adequately established a reasonable belief that a substantial connection exists between the property to be forfeited and the underlying criminal activity. See Tex. Const. art. 1, '9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991).

 Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 13th day of October, 2005.

[1]See Tex. Code Crim. Proc. Ann. arts. 59.01-59.11 (Vernon Supp. 2004-05).

[2]Article 59.02(a) of the code of criminal procedure states that property that is contraband is subject to seizure and forfeiture under the statute. Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon Supp. 2004-05). Contraband is defined as Aproperty of any nature, including real, personal, tangible, or intangible, that is used or intended to be used in the commission of any felony under Chapter 34, Penal Code.@ Id. at 59.01(2)(b)(iv). In order to be "used in the commission" of a crime, the property must be used "before or during" the completion of the offense, unless it is a continuing offense. See One 1985 Chevrolet v. State, 852 S.W.2d 932, 935 (Tex. 1993).

[3]See Tex. Pen. Code Ann. ' 34.02(a) (Vernon 2004).

[4]A suit under the Contraband Forfeiture Statute is civil in nature. Tex. Code Crim. Proc. Ann. art. 59.05(a); Ex parte Baucom, 928 S.W.2d 748, 752 (Tex. App.BBeaumont 1996, pet. ref=d). Consequently, the State=s burden of proof in such a proceeding is that of the civil standard, or in other words, the State must prove the allegations by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 59.05(b); Ex parte Baucom, 928 S.W.2d at 752.

The State must show probable cause, or a reasonable belief that a Asubstantial connection exists between the property to be forfeited and the criminal activity defined by the statute." Hardy v. State, 102 S.W.3d 123, 129 (Tex. 2003) (quoting Fifty-Six Thousand Seven Hundred Dollars in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987) (citations omitted)); see also $ 18,800 in U.S. Currency v. State, 961 S.W.2d 257, 260 (Tex. App.-Houston [1st Dist.] 1997, no writ). Where there is no direct evidence linking the seized property to illegal activity, the State must present sufficient circumstantial evidence linking the property to illegal activity. $ 162,950 in Currency of the United States v. State, 911 S.W.2d 528, 529 (Tex. App.BEastland 1995, writ denied) However, the State does not have to prove that a specific crime was committed. $ 162,950 in Currency of the United States, 911 S.W.2d at 529.

[5]The criminal indictment reads in pertinent:

On or about August 25, 2003, and anterior to the presentment of this Indictment, in Refugio County, Texas, did then and there knowingly acquire, receive, conceal, and possess and maintain an interest in and transfer and transport the proceeds of criminal activity, to-wit: money, in the value of $20,000 or more but less than $100,000; against the peace and dignity of the State.

[6]The general rule is that a party cannot appeal the denial of a motion for summary judgment because it is interlocutory and therefore not appealable. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). However, when both parties move for summary judgment and the trial court grants one of the motions and denies the other, the unsuccessful party may appeal both the granting of the prevailing party=s motion and the denial of its own motion. See Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). As such, we will review the summary judgment evidence presented by both sides, answer all the legal issues presented, and render the judgment the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Comm=rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).

[7]We note that appellant=s plea of nolo contendere was inadmissible in this civil proceeding. See Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon Supp. 2004-05) (establishing that a nolo contendere plea Amay not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.@).

[8]Money laundering is defined in section 34.02 of the penal code and reads in pertinent part:

(a) A person commits an offense [of money laundering] if the person knowingly:(1) acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity;(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; or (3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity.

Tex. Pen. Code Ann. ' 34.02(a) (Vernon 2004).

[9]While appellant=s plea of nolo contendere was inadmissible and could not have been properly considered an admission of guilt in this proceeding, see Tex. Code Crim. Proc. Ann. art. 27.02(5), we do not consider appellant=s judicial confession equivalent to his plea of nolo contendere. See Barnes v. State, 103 S.W.3d 494, 497 (Tex. App.BSan Antonio 2003, no pet.) (AA defendant who pleads nolo contendere does not need to concede the veracity of the stipulated evidence; however, if the defendant concedes, the courts consider the stipulation a judicial confession.@).