State of Texas v. Steven Michael Liscum--Appeal from 33rd District Court of Llano County

CV4-607 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00607-CV
State of Texas, Appellant
v.
Steven Michael Liscum, Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 10,204, HONORABLE CLAYTON D. EVANS, JUDGE PRESIDING

PER CURIAM

 

Appellant State of Texas sought forfeiture of a savings account containing $11,172.40. Tex. Code Crim. Proc. Ann. art. 59.02 (West Supp. 1996). The trial court denied forfeiture and awarded the account to appellee, Steven Michael Liscum. (1) The State brings two points of error, contending that the evidence was legally and factually insufficient to support the trial-court judgment. We will affirm the trial-court judgment.

Factual Background

This cause was tried on stipulated facts. On January 2, 1994, agents of the 33rd Judicial District Narcotics Enforcement Task Force executed a search and arrest warrant on appellee's residence and found methamphetamine. The next day, agents of the same task force executed a search and seizure warrant on a savings account of appellee located at Lake Buchanan State Bank in account number 105006564 and seized the $11,172.40 that is the subject of this appeal. On May 19, 1996, appellee plead guilty to possession of methamphetamine on May 19, 1994 in Cause number 4546 in the 33rd District Court of Llano County.

Appellee had opened the savings account with $20,000 out of a $30,000 loan from his mother. (2) The State does not allege that the money that funded the loan was in any way connected with illegal activity. Appellee transferred $7000.00 from this savings account to checking account number 0102010676. He later withdrew that $7,000. The methamphetamine purchase was made out of the $7,000. The September 22, 1994 judgment denied forfeiture and awarded the savings account to appellee. (3)

Double Jeopardy

The State argues that the evidence is legally and factually insufficient to support the court's award of the savings account to appellee. Appellee responds that allowing the forfeiture would constitute double jeopardy, specifically, that it would punish appellee twice for the same offense. We agree. See Ex parte Ariza, 913 S.W.2d 215, 223 (Tex. App.--Austin 1995, pet. filed). (4) In Ariza, the court extensively discussed the Double Jeopardy clause and this opinion will not repeat that discussion. The court, after reviewing the history of the Texas forfeiture statute, its innocent owner defense, and its lack of any formula to correlate the value of the forfeited property with the government's damages, (5) concluded that the Texas statute does not serve the wholly remedial purpose of compensating the government but serves at least in part to punish the owner of the forfeited property. (6) Id. Ariza barred a prosecution that occurred subsequent to the forfeiture on the basis that the forfeiture had already punished the defendant. Id.

In this cause, the State has already punished appellee by his conviction and cannot punish him a second time by forfeiture. Even if Ariza did not bar the forfeiture, we would nevertheless overrule appellant's points of error and affirm the trial-court judgment based on the sufficiency of the evidence.

Legal and Factual Insufficiency

Standard of Review

When attacking the legal sufficiency of an adverse finding on which it had the burden of proof, the appellant must, as a matter of law, demonstrate two things. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991). First, the reviewing court examines the record for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact-finder's answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

When reviewing a verdict to determine the factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence, and should set aside the verdict only if it is contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex 1986); In re King's Estate, 244 S.W.2d 660 (Tex. 1957).

 

Forfeiture Actions

In a forfeiture action, the State must prove its case by a preponderance of the evidence. The State must do more than raise a mere surmise or suspicion concerning the source or intended use of the money. Valles v. State, 646 S.W.2d 636, 638 (Tex. App.--Houston [1st Dist.] 1983, no writ). If there is no direct evidence linking the money to possessing a controlled substance the State must produce sufficient circumstantial evidence to meet its burden of proof. See Id.; One 1984 Ford v. State, 698 S.W.2d 279, 285 (Tex. App.--Fort Worth 1985, no writ). The State must prove that, considering all the evidence, it was more reasonably probable than not that the seized property was either intended for use in or derived from a violation of one of the offenses enumerated in the forfeiture statute. $22,922.00 v. State, 853 S.W.2d 99, 101 (Tex. App.--Houston [14th Dist.] 1993, writ denied).

Money may be forfeited if it is derived from manufacturing, delivering, selling, or possessing a controlled substance. Tex. Code Crim. Proc. Ann. art. 59.01(2)(a); State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). In a forfeiture proceeding the State must show that a substantial connection exists between the property to be forfeited and the criminal activity prohibited by the statute. Id.

The cause was tried on stipulated facts. The State did not claim that appellee engaged in criminal activity other than buying and possessing the particular methamphetamine seized from the premises. The State stipulated that the methamphetamine was purchased out of the money that appellee had withdrawn from his checking account, a separate account from the savings account. Appellant has shown the source of the funds in the savings account. Cf. Antrim v. State, 868 S.W.2d 809, 813 (Tex. App.--Austin 1993, no writ) (appellant provided no credible explanation for possession of $325,000 in cash). The State does not claim that the original money placed in the savings account was in any way tainted. The State stipulated that appellee's mother "called the loan" and demanded re-payment of any amounts remaining in the savings account at the time appellee was released on bail, but that the State had already seized the account.

The State has failed to show a substantial connection between the amount remaining in the savings account and the criminal activity on which the forfeiture is based. The evidence is sufficient to support the judgment. We overrule points of error one and two.

We affirm the trial-court judgment.

 

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: June 12, 1996

Do Not Publish

1. Fern Liscum intervened at the trial court, advancing the theory that a constructive trust or a resulting trust in her favor had been imposed on the money in the savings account as the proceeds of a loan that she made to appellee. The court denied her claim to the money. She did not perfect an appeal from the adverse ruling. She is, therefore, only a party to the judgment. See Tex. R. App. P. 91.

2. The unsecured loan, whose purpose was for appellee to start a computer business, was evidenced by a promissory note.

3. Appellee did not appeal that portion of the judgment that awarded to the State $1,386.00 and other personal property seized from his residence along with the methamphetamine. The State did not appeal that portion of the judgment that awarded two vehicles to appellee.

4. At the time the parties filed briefs in this cause and the cause was submitted, this Court had not yet handed down its opinion in Ariza.

5. See Montana Dep't of Rev. v. Kurth Ranch, 128 L. Ed. 2d 767, 781 (1994) (tax imposed on possession of drugs constitutes punishment because it is a fixed penalty that does not attempt to approximate the government's damages).

6. Austin v. United States, 125 L. Ed. 2d 488, 498 (1993).

.W.2d 660 (Tex. 1957).

Forfeiture Actions

In a forfeiture action, the State must prove its case by a preponderance of the evidence. The State must do more than raise a mere surmise or suspicion concerning the source or intended use of the money. Valles v. State, 646 S.W.2d 636, 638 (Tex. App.--Houston [1st Dist.] 1983, no writ). If there is no direct evidence linking the money to possessing a controlled substance the State must produce sufficient circumstantial evidence to meet its burden of proof. See Id.; One 1984 Ford v. State, 698 S.W.2d 279, 285 (Tex. App.--Fort Worth 1985, no writ). The State must prove that, considering all the evidence, it was more reasonably probable than not that the seized property was either intended for use in or derived from a violation of one of the offenses enumerated in the forfeiture statute. $22,922.00 v. State, 853 S.W.2d 99, 101 (Tex. App.--Houston [14th Dist.] 1993, writ denied).

Money may be forfeited if it is derived from manufacturing, delivering, selling, or possessing a controlled substance. Tex. Code Crim. Proc. Ann. art. 59.01(2)(a); State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). In a forfeiture proceeding the State must show that a substantial connection exists between the property to be forfeited and the criminal activity prohibited by the statute. Id.

The cause was tried on stipulated facts. The State did not claim that appellee engaged in criminal activity other than buying and possessing the particular methamphetamine seized from the premises. The State stipulated that the methamphetamine was purchased out of the money that appellee had withdrawn from his checking account, a separate account from the savings account. Appellant has shown the source of the funds in the savings account. Cf. Antrim v. State, 868 S.W.2d 809, 813 (Tex. App.--Austin 1993, no writ) (appellant provided no credible explanation for possession of $325,000 in cash). The State does not claim that the original money placed in the savings account was in any way tainted. The State stipulated that appellee's mother "called the loan" and demanded re-payment of any amounts remaining in the savings account at the time appellee was released on bail, but that the State had already seized the account.

The State has failed to show a substantial connection between the amount remaining in the savings account and the criminal activity on which the forfeiture is based. The evidence is sufficient to support the judgment. We overrule points of error one and two.