The State of Texas v. Seventeen Thousand Three Hundred Fifty Dollars in U. S. Currency and One 1995 Chevrolet Camaro Automobile--Appeal from 112th District Court of Crockett County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

Appellant,

v.

SEVENTEEN THOUSAND THREE HUNDRED FIFTY DOLLARS IN U.S. CURRENCY AND ONE 1995 CHEVROLET CAMARO AUTOMOBILE,

Appellee.

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No. 08-01-00151-CV

Appeal from the

112th Judicial District Court

of Crockett County, Texas

(TC# 00-03-06262-CR)

O P I N I O N

This is an appeal from a forfeiture proceeding. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

 

On February 23, 2000, Nick Richter, an officer with the Rio Concho Multi-Agency Drug Enforcement Task Force, stopped a 1995 Chevrolet Camaro for speeding in Crockett County, Texas. Marco Duncan was driving the car while Angel Green was a passenger. The owner of the vehicle, Terrence Roberts, was not present. Officer Richter obtained consent to search the vehicle from Duncan and Green. During the search Officer Richter and his partner, DuWayne Castro, found an envelope under the front passenger seat that contained seventeen thousand dollars ($17,000) in cash. The agents also found $350 in Green=s purse.[1] Additionally, the agents found an arrest report that showed Green had been arrested six days earlier in Okaloosa County, Florida, for trafficking fifty-four (54) grams of crack cocaine. The report stated that William Tracy McGowan had been arrested for the same charge and had $3,696 in cash on his person. The cocaine was found in Green=s pants but McCowan claimed that the cocaine belonged to him. The report also reflected that McCowan admitted that the cash he had was proceeds from sales of crack cocaine. The report showed that Duncan was present during the arrest and was driving the vehicle in which McCowan and Green were riding. Duncan informed the officers that the marijuana was his and told them where it was located inside the vehicle. The report indicated that the officers located 4.3 grams of marijuana.

After finding the arrest report, the agents found a Western Union wire receipt showing that Duncan wired Catherine Rose $5,000 on February 21, 2000, two days prior to the asset seizure. The agents also found air travel documentation for Duncan, reflecting round trip travel from San Jose, California to Orlando, Florida, on February 5, 2000, and returning on February 10, 2000. Finally, a notebook was found in the vehicle that was identified as a drug ledger.

 

During the search, Duncan told Agent Richter that the vehicle belonged to his cousin, Roberts, and Duncan had the car because he needed to get home. Duncan explained that he was going to freight the car back to Roberts after he arrived in California. After the agents found the $17,000 in the vehicle, Duncan told Agent Richter that he was taking the vehicle from Florida to California to have a hydraulic system and a custom paint job done.

Green told Agent Richter that she and Duncan were going back to California after being on vacation together in Florida. She explained that the money was theirs and was brought to buy things because prices were cheaper in Florida. Green stated that they were driving the vehicle to California because they were in a hurry to get home and that they were going to freight the car back to Duncan=s cousin in Florida when they arrived.

Of the $17,350 that was seized, Roberts claimed $13,000, Duncan claimed $4,000, and Green claimed $350. The Camaro was claimed by Stan Williams on behalf of Saturn of Pensacola.

Lieutenant Kevin Holloway testified that fifty-four (54) grams of crack cocaine would make approximately 675 rocks, or personal dosage units, of crack cocaine with a street value of around $13,500. He also testified that he spoke with Williams, the general manager of the Saturn dealership that sold the vehicle to Roberts. Williams stated that Roberts purchased the Camaro on February 22, 2000, by paying $7,000 cash as a down payment. The salesman, Richard Hatcher, advised Lt. Holloway that Roberts came in on February 23, 2000, and asked to pay the balance of the sales price in cash, approximately $4,800.

 

In its Findings of Fact and Conclusions of Law, the court noted that the State=s attorney did a Acredible job presenting circumstantial evidence of the bad reputation of the parties involved, and that the money had been tainted.@ However, the trial court specifically found that the evidence was legally insufficient to support a forfeiture because the State Afailed to establish a substantial connection or nexus between the seized property and a defined criminal activity.@ This appeal follows.

II. DISCUSSION

In it=s sole issue on appeal, the State contends the trial court abused its discretion by requiring the State to prove a nexus between the seized funds and criminal activity by tying the funds to a specific underlying criminal offense.[2] We begin with a discussion of the standard of review.

A. Abuse of Discretion Standard of Review

 

AA [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden.@ Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court=s actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex. App.--El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W.2d at 242 (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)); Amador, 855 S.W.2d at 133. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242 (citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965)). A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).

Property, including money, is subject to seizure and forfeiture if it is shown to be Acontraband.@ Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon Supp.2001). AContraband@ is property used or intended to be used in the commission of certain felonies, or proceeds derived from those felonies, including drug related offenses described in Section 481.112 of the Health and Safety Code. Tex. Code Crim. Proc. Ann. art. 59.01(2)(A) (C) (Vernon Supp. 2001); Tex. Health & Safety Code Ann. '' 481.102, 481.112 (Vernon 1992). The character of seized money as contraband, subject to forfeiture, must be proved by the State by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 59.05(b) (Vernon Supp.2001). The proof may consist of circumstantial evidence. State v. $11,014.00, 820 S.W.2d 783, 785 (Tex.1991). However, without a showing of a substantial connection between the property to be forfeited and the statutorily defined criminal activity that establishes the required probable cause, the State lacks authority to seize a person=s property. $56,700 v. State, 730 S.W.2d 659, 661 (Tex. 1987).

 

Here, the State established that Green had been arrested six days earlier in Florida for trafficking fifty-four (54) grams of crack cocaine. While the cocaine was found in Green=s pants, McCowan claimed that the cocaine belonged to him. The report also showed that Duncan was present during the arrest and was driving the vehicle in which McCowan and Green were riding. Finally, Duncan admitted that the marijuana inside the vehicle was his. The officers subsequently located 4.3 grams of marijuana.

The question of the nexus connection was debated at trial. The following exchange occurred:

The Court: But where is the nexus, the nexus or connection to what offense? I mean, what offense did they commit?

The State: They are engaged in the ongoing criminal enterprise of delivery of controlled substances.

The Court: Where? Where did they engage in it?

The State: In Florida and California we have convictions, Judge.

The Court: No. No. No. The convictions are out of the question. To forfeit something, there has got to be an offense. Now, I can=t figure out where the offense was.

The State: Judge, the offenses in the past go to show the ongoing business.

The Court: Wait a minute. You have got the right to prove by circumstantial evidence about the car, but the nexus question, you have got to prove the commission of an offense, and I haven=t heard any proof of an offense yet. That=s my problem. I=m not saying -- I=m not ruling on it. I=m saying I would like a case on that.

The State: You bet, Judge. The Court: Do you see my point?

Defense Counsel: Yes, sir, but that=s our whole argument is [sic], there is no underlying felony. There is no connection.

 

The Court: That=s what I need, a case on that to -- it seems to me in these -- you know, I have been to these seminars and so forth and they talk about the nexus problem. And, of course, this recent Texas case here that I have does, too. So I need -- I need a case -- if you can -- if you can show me where you can have a forfeiture just in general principles, because a lot of these cases -- and the text refers to the commission of an offense. And if you can prove that offense was committed, and then by circumstantial evidence you can prove it was in the car, then you have got something, but, to begin with, you have got to prove an offense was committed. And I don=t see where you have got any evidence that these people committed an offense. That=s my problem. Do you see what I mean?

As noted previously, without a showing of a substantial connection between the property to be forfeited and the statutorily defined criminal activity that establishes the required probable cause, the State lacks authority to seize a person=s property. $56,700, 730 S.W.2d at 661. The trial court clearly applied this standard in making its determination that Athe State has failed to establish a substantial connection or nexus between the seized property and a defined criminal activity.@ The State has failed to show that the trial court acted without reference to any guiding rules and principles. Accordingly, we find that the trial court did not abuse its discretion. Issue No. One is overruled and the judgment of the trial court is affirmed.

June 13, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

 

[1] After the vehicle and cash were seized, a narcotics detection dog alerted to the vehicle.

[2] We note that the State does not challenge the sufficiency of the evidence, only the trial court=s alleged improper application of the standard.