Michael Don Watkins and $1937.00 v. The State of Texas--Appeal from 414th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00001-CV

Michael Don Watkins and $1937.00,

Appellant

v.

The State of Texas,

Appellee

From the 414th District Court

McLennan County, Texas

Trial Court No. 2002-390-5

memorandum Opinion

Michael Don Watkins, pro se, appeals the forfeiture of $1,937.00 (actually $1,837.00, because $50.00 of it was found to be counterfeit and $50.00 was effectively nonsuited in a pleading error). We glean two issues from Watkins s briefing: (1) the State s original notice of seizure and intended forfeiture was defective and the trial court thus lacked jurisdiction to order the currency s forfeiture; and (2) Watkins was denied due process because the trial court s forfeiture order was a post-answer default judgment against him. We will affirm.

The record reflects that Watkins is in federal prison following his convictions of manufacture of methamphetamine, theft of anhydrous ammonia with intent to manufacture methamphetamine, and possession of pseudoephedrine with intent to manufacture methamphetamine. When arrested, Watkins possessed the above currency, pseudoephedrine, starter fluid, and marijuana.

Chapter 59 of the Code of Criminal Procedure authorizes the forfeiture of contraband, which is defined as property used in the commission of various enumerated felonies and misdemeanors, including any felony under Chapter 481 of the Health and Safety Code (commonly known as the Texas Controlled Substances Act). See Tex. Code Crim. Proc. Ann. art. 59.01(2)(B)(i) (Vernon 2006), art. 59.02(a) (Vernon Supp. 2007). Chapter 59 provides that the State can seize property used in the commission of, among others, a drug-related crime and can also seize the monetary proceeds from the crime. Id. art. 59.03 (Vernon 2006). The State can then commence forfeiture proceedings by filing a notice of seizure and intended forfeiture. Id. art. 59.04.

To effect forfeiture, the State must commence a forfeiture proceeding within thirty days after seizure of the contraband. Id. art. 59.04(a). Article 59.04(b) provides that a forfeiture proceeding commences when the attorney representing the State files a notice of the seizure and intended forfeiture in the name of the State with the clerk of the district court in the county in which the seizure is made. Id. art. 59.04(b). That article further requires that the attorney representing the State must attach to the notice of seizure the peace officer s sworn statement as described in Article 59.03. Id.

Watkins first contends that the trial court lacked jurisdiction because the seizing officer s affidavit that was attached to the State s original notice of seizure and intended forfeiture was defective in that it was unsigned. However, the State s failure to attach the peace officer s sworn statement to the notice of seizure, as required by statute, is curable by amendment and does not deprive the trial court of jurisdiction of the forfeiture proceeding. State v. Park, 820 S.W.2d 948, 951 (Tex. App. Texarkana 1991, no writ). In this case, the State filed an amended notice of seizure and intended forfeiture that includes the seizing officer s affidavit supplement, which clarified that $50 was counterfeit but lacked the seizure details that the unsigned affidavit contains. In any event, the trial court did not lack jurisdiction over the proceeding.[1] See id. We overrule the first issue.

Watkins also complains that he was not afforded due process because he did not attend the trial. Watkins does not complain that he did not receive notice of the trial; in fact, he filed a summary-judgment motion in which he admits that he had received notice of the trial. This fact was noted at the trial, and the trial court stated that Watkins had made no arrangement to attend or participate in the trial. Cf. In re R.C.R., 230 S.W.3d 423, 426 (Tex. App. Fort Worth 2007, no pet.) ( if a court determines that a pro se inmate in a civil action is not entitled to leave prison to appear personally in court, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other means ). There thus was no due-process violation. See $429.30 v. State, 896 S.W.2d 363, 366 (Tex. App. Houston [1st Dist.] 1995, no writ). We overrule the second issue.[2]

Having overruled both of Watkins s identifiable issues, we affirm the trial court s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 30, 2008

[CV06]

[1] Furthermore, a forfeiture proceeding under Chapter 59 is a civil in rem proceeding governed by the procedural rules applicable to civil trials and appeals generally. See State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004); see also Tex. Code Crim. Proc. Ann. art. 59.05(a), (b) (Vernon 2006). Article 59.05(a) of the Texas Code of Criminal Procedure provides that in forfeiture proceedings, all parties must comply with the rules of pleadings as required in civil suits. Tex. Code Crim. Proc. Ann. art. 59.05(a); see Park, 820 S.W.2d at 951. The trial proceeds as in other civil cases, and the State must prove that the property is subject to forfeiture by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 59.05(b). Because Watkins answered but then did not appear at trial, the State was still required to put on evidence and prove its case. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Flores v. Brimex Ltd., 5 S.W.3d 816, 820 (Tex. App. San Antonio 1999, no pet.). Because the State did this and Watkins does not challenge the sufficiency of the evidence to support the trial court s post-answer default judgment, whether the affidavits are defective or inadequate is ultimately irrelevant.

[2] We will not address Watkins s due-process complaint relating to the seizing officer s credibility and Watkins s inability to cross-examine the officer; that complaint relies solely on matters (evidence apparently from Watkins s federal criminal trial that is attached to Watkins s reply brief) outside of our record and were not before the trial court. See Tex. R. App. P. 34.1, 34.6; Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App. Houston [1st Dist.] 1999, no pet.) ( We cannot consider documents attached to an appellate brief that do not appear in the record. $429.30 v. State, 896 S.W.2d 363, 365 (Tex. App. Houston [1st Dist.] 1995, no writ). This Court must hear and determine a case on the record as filed, and may not consider documents attached as exhibits to briefs. RWL Const., Inc. v. Erickson, 877 S.W.2d 449, 451 (Tex. App. Houston [1st Dist.] 1994, no writ). ).