Ramon Astorga Lopez v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-244-CR

RAMON ASTORGA LOPEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-304-C

O P I N I O N

Ramon Astorga Lopez appeals from the denial of his application for a pre-conviction writ of habeas corpus. Because the trial court correctly denied the application, we affirm.

On May 10, 1995, Lopez was charged by a McLennan County grand jury with the theft of two pickup trucks. Each truck was alleged to have had a value of more than $750 but less than $20,000 at the time they were taken. Act of June 19, 1983, 68th Leg., R.S., ch. 497, 3, 1983 Tex. Gen. Laws 2917, 2918-19 (now codified as amended at Tex. Penal Code Ann. 31.03 (Vernon 1994 & Supp. 1996)). Lopez has been ordered by the 82nd District Court, sitting in Robertson County but also including Falls County, to forfeit approximately $21,000 worth of his own personal property pursuant to Texas' forfeiture statutes, Tex. Code Crim. Proc. Ann. arts. 59.01-.11 (Vernon Supp. 1996) (hereafter referred to as chapter 59), for these two McLennan County offenses as well as several Falls County theft offenses. The personal property seized includes a 1994 Ford pickup truck, a trailer (the trailer was not mentioned in the forfeiture order but it was seized together with the pickup truck), an acetylene torch, mechanical tools (including several tool boxes and an air compressor), and $5,000 in cash. Lopez contends that any criminal prosecution for the McLennan County offenses is barred by the Fifth Amendment prohibition against double jeopardy because he has already been punished for the McLennan County charges by virtue of the 82nd District Court's forfeiture order. See United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 (1989) (holding the Double Jeopardy Clause bars multiple punishments); U.S. Const. amend. V. We disagree.

We note initially that not all of the property ordered to be forfeited by the 82nd District Court's forfeiture order is related to the McLennan County offenses. The court in the order found that the 1994 Ford pickup truck was to be forfeited because it was used in connection with the commission of felony theft in Falls County on or about March 31, 1994. There was no finding that the pickup truck was in any way used in connection with any of the McLennan County offenses. On the other hand, the court did make specific findings that the torch, tools, and cash were all either used in or obtained from, at least in part, the McLennan County offenses. Because the 1994 Ford pickup truck, valued along with the trailer at approximately $14,450, was not ordered to be forfeited due to any relation to the McLennan County offenses, we will not consider its forfeiture as any way impeding the state's efforts to prosecute Lopez for the McLennan County offenses. See Ex parte Tomlinson, 886 S.W.2d 544, 547-48 (Tex. App. Austin 1994, no pet.).

There is presently a split among the intermediate courts of appeals in Texas on the issue of whether a forfeiture under chapter 59 constitutes punishment under the Double Jeopardy Clause. One view, represented by the Fourteenth Court of Appeals' decision in Fant v. State, 881 S.W.2d 830 (Tex. App. Houston [14th Dist.] 1994, pet. granted), has held that chapter 59 is punitive in nature and, therefore, constitutes punishment for the underlying offense under the Fifth Amendment. Id. at 834. Therefore, held the court, because the Double Jeopardy Clause bars multiple punishments, jeopardy attaches upon the issuance of the forfeiture order and the defendant may not thereafter be tried for offenses covered in the forfeiture order. Fant, 881 S.W.2d at 834.

The opposing view is represented by the First Court of Appeals' opinions in Ward v. State, 870 S.W.2d 659 (Tex. App. Houston[1st Dist.], pet. ref'd), vacated, U.S. , 115 S. Ct. 567 (1994), and Johnson v. State, 882 S.W.2d 17 (Tex. App. Houston[1st Dist.] 1994, pet. granted). The First Court in Ward held that chapter 59 is remedial and not punitive and, therefore, it does not necessarily implicate the Double Jeopardy Clause. Ward, 870 S.W.2d at 663. In Johnson the court acknowledged that chapter 59 may not be solely remedial but nevertheless held that civil forfeiture orders will only constitute punishment under the Double Jeopardy Clause if the value of the property ordered to be forfeited is overwhelmingly disproportionate to the damages incurred by the state due to the defendant. Johnson, 882 S.W.2d at 19. Citing the United States Supreme Court in Halper, 490 U.S. at 449, 109 S. Ct. at 1902, and Department of Revenue of Montana v. Kurth Ranch, U.S. , , 114 S. Ct. 1937, 1947-48 (1994), the court held that the forfeiture order does not constitute punishment if the forfeiture approximates the cost of investigating, apprehending, and prosecuting the defendant, or whether the forfeiture relates otherwise to any actual damages that the defendant caused the state. Johnson, 882 S.W.2d at 20. The Court of Criminal Appeals has granted petitions for discretionary review in Johnson and Fant.

This court in Elmore v. State, 905 S.W.2d 431 (Tex. App. Waco 1995, no pet.), recently decided to follow the First Court's line of cases in Ward and Johnson. Elmore, 905 S.W.2d at 433. Doing so, we held that "a forfeiture [under chapter 59] will not be considered 'punishment' unless the amount forfeited is unjustly disproportionate to the cost of investigating, apprehending, and prosecuting the defendant, or is not otherwise rationally related to the goal of making the state whole." Id.

An applicant for habeas relief has the burden of proving facts which would entitle the applicant to the relief sought. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993); State v. Romero, 907 S.W.2d 588, 860 (Tex. App Houston[1st Dist.] 1995, pet. filed). When the petitioner's habeas petition is based upon a claim of double jeopardy due to a prior civil forfeiture order, the petitioner is entitled to an accounting of the state's damages and costs to determine if the penalty sought from the petitioner bears a rational relationship to the state's expenses. See Ex parte Camara, 893 S.W.2d 553, 557 (Tex. App. Corpus Christi 1994, no pet.) (quoting Halper, 490 U.S. at 449-50, 109 S.Ct. at 1902). Upon demonstrating the lack of such a relationship, the burden then shifts to the State to prove that the civil forfeiture was not punitive but remedial. Id. The State can meet this burden by showing that the amount forfeited was not unjustly disproportionate to the state's expenses in investigating the petitioner's alleged offenses and in prosecuting him for the violations, or to making the state whole. Id. at 558.

The statement of facts from Lopez's habeas hearing reveals that Lopez failed to prove the lack of a rational relationship between the items ordered forfeited by the 82nd District Court and the expenses incurred by the state in investigating and prosecuting Lopez. Lopez made two arguments at the hearing. The substance of Lopez's first argument was that the mere fact that a civil forfeiture order had been entered against Lopez based, in part, on the McLennan County offenses meant that Lopez had been punished for those offenses and, consequently, the Double Jeopardy Clause prevented him from being punished for those offenses again. As indicated above, this court held in Elmore that the civil forfeiture does not necessarily constitute punishment for double jeopardy purposes. See Elmore, 905 S.W.2d at 433. The forfeiture order will constitute punishment only if the amount forfeited is unjustly disproportionate to the cost of investigating, apprehending, and prosecuting the defendant, or is not otherwise rationally related to the goal of making the state whole. Id.

In Lopez's second argument, he contended that the forfeiture order necessarily constituted punishment because the law enforcement officials in deciding which items should be forfeited did not try to determine how much property was needed to compensate the state but simply tried to forfeit everything that was involved in Lopez's alleged "chop shop" operation. The intention of the law enforcement officials, however, is irrelevant. What matters is whether the value of the property seized in the forfeiture order roughly approximates the expenses incurred by the state in investigating and prosecuting Lopez and in remedying the damages to the public domain resulting from Lopez's alleged criminal activities. See Ex parte Camara, 893 S.W.2d at 557; see also Ex parte Ariza, 913 S.W.2d 215, 221-22 (Tex. App. Austin 1995, no pet. h.) (following the Fourteenth Court in Fant, the court held that when there is a chapter 59 forfeiture jeopardy bars prosecution for the underlying offense because chapter 59 in no way ensures that the value of the property forfeited is somehow related to the amount of damages the state suffered in investigating and prosecuting the defendant).

Lopez bore the burden of initially demonstrating that there was no rational relationship between the value of property ordered to be forfeited and the state's interest in compensation for its efforts in investigating and prosecuting Lopez, or compensating the state for losses incurred as a result of Lopez's alleged criminal offenses. Lopez failed to meet this initial burden; therefore, he has failed to prove that the 82nd District Court's forfeiture order constituted punishment for the McLennan County offenses. We overrule Lopez's point and affirm the judgment denying the application for writ of habeas corpus.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed June 26, 1996

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