Opinion
No. 01-04-01221-CV
Opinion issued August 31, 2006.
On Appeal from the 165th District Court, Harris County, Texas, Trial Court Cause No. 0250227.
Panel consists of Justices JENNINGS, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Eric Moncevaiz Vasquez, challenges the trial court's rendition of summary judgment in favor of appellee, the State of Texas, in a civil forfeiture action resulting in the seizure of approximately $8,250.00. In his first and second issues, appellant contends that there was legally insufficient evidence to prove that the $8,250.00 was contraband as defined in Chapter 59 of the Texas Code of Criminal Procedure. In his third issue, appellant argues that the trial court violated the Eighth Amendment of the United States Constitution prohibiting excessive fines when it entered a judgment of forfeiture of $8,000.00 of the $8,250.00 seized as contraband. We affirm.
U.S. Const. amend. VIII.
Factual and Procedural Background
On September 30, 2002, the State filed a notice of seizure and intended forfeiture of approximately $8,250.00 that was seized from appellant on September 9, 2002. The State alleged that the $8,250.00 was "contraband" under the Texas Code of Criminal Procedure and subject to forfeiture.
See Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)(ii) (Vernon Supp. 2005) (defining "contraband" as property used in commission of offense under section 38.04 of Texas Penal Code).
See Tex. Code Crim. Proc. Ann. art. 59.03 (Vernon Supp. 2005).
In support of its notice of seizure, the State attached a sworn affidavit by J.P. Hall, an officer with the Houston Police Department. In his affidavit, Hall explained that Houston Narcotics officers conducted surveillance on a known narcotic trafficker identified as John Curtis Juneau. Officers observed Juneau hand a red gym bag to a suspect later identified as appellant at a gas station. After observing appellant commit several traffic infractions upon leaving the gas station, officers stopped his car. As officers approached appellant, they saw him reaching into the center console of the car and upon approaching the car, officers smelled a strong odor of marijuana emitting from inside.
After officers removed appellant from the car, they saw the red gym bag open and they smelled a strong odor of marijuana coming from the bag. Upon searching the bag, officers located a residual amount of marijuana inside the bag and also found a small vial on the floorboard that contained approximately 0.1 grams of cocaine. When the officers searched the center console of the car, they found approximately $8,250.00 in U.S. currency. The currency was in denominations that the officers believed was consistent with narcotics trafficking. Later, a narcotics canine alerted on the currency for the presence of an odor of narcotics. The officers arrested and charged appellant with possession of a controlled substance. The officers believed that the currency was proceeds from the trafficking of illegal narcotics and was thus, contraband.
Appellant filed his original answer, entering a general denial to the matters pleaded by the State. He attached a sworn affidavit to his answer explaining that he is entitled to possession of the $8,250.00 because it was not proceeds from any illegal activity and was not contraband.
Before trial, Muzik Unlimited Entertainment, Inc. filed a Plea in Intervention asserting an interest in the $8,250.00 at issue. Muzik claimed that its president, Adrian Falcon, gave appellant cash equaling $8,250.00 with specific instructions for disbursement. These instructions included paying bills, taking out $250.00 for appellant to keep, and depositing the rest in the bank.
The trial court held a bench trial and, after hearing the evidence, rendered a judgment that $8,000.00 of the $8,250.00 was contraband and granted that sum to the State. The trial court found that the remaining $250.00 was not contraband and granted that sum be to returned to appellant. In a separate instrument, the trial court entered findings of fact and conclusions of law. The trial court found as follows:
FINDINGS OF FACT
1. The Court has subject matter jurisdiction of the $8,250.00, Defendant, and personal jurisdiction on ERIC MONCEVAIZ VASQUEZ, Respondent, and as to sanctions, on Intervenor, MUZIK UNLIMITED ENTERTAINMENT, INC. and ADRIAN FALCON, its President. The court has recognized that Intervenor has given notice of non-suit as to its intervention.
2. $8,000 of the $8,250.00, is contraband as defined in Chapter 59 of the Texas Code of Criminal Procedure.
3. The balance, $250.00 is not contraband and shall be returned to ERIC MONCEVAIZ VASQUEZ subject to the sanctions hereinafter levied there against.
4. The NX Media, Inc. Invoice #0135, for the amount of $5,195.00, was fabricated by MUZIK UNLIMITED ENTERTAINMENT, INC., the Intervenor, by and through ADRIAN FALCON who tendered such invoice into evidence falsely vouching for its validity and authenticity.
5. ERIC MONCEVAIZ VASQUEZ likewise tendered the NX Media, Inc. Invoice #0135, for the amount of $5,195.00, to the court as evidence, falsely vouching for its validity and authenticity.
6. ERIC MONCEVAIZ VASQUEZ, has knowingly falsely testified in this cause in the form of: verified false answers to written discovery, false answers to deposition questions under oath, and false testimony in court under oath.
7. MUZIK UNLIMITED ENTERTAINMENT, INC. through ADRIAN FALCON, and ADRIAN FALCON, individually, have knowingly falsely testified in this cause in the form of: verified false answers to written discovery, false answers to deposition questions under oath, and false testimony in court under oath.
CONCLUSIONS OF LAW
A. The $8,000.00, being contraband as defined in Chapter 59 of the Texas Code of Criminal Procedure, shall be forthwith forfeited to the State of Texas.
B. The remainder of $250.00 not being contraband, shall be forthwith returned to ERIC MONCEVAIZ VASQUEZ subject to the sanctions there against.
C. ERIC MONCEVAIZ VASQUEZ, ADRIAN FALCON and MUZIK UNLIMITED ENTERTAINMENT, INC., shall be sanctioned $5,195.00 jointly and severally.
Legal Sufficiency
In his first two points of error, appellant contends that there was insufficient evidence to prove that the $8,250.00 was contraband as defined in Chapter 59 of the Texas Code of Criminal Procedure. Specifically, appellant argues that there was no evidence to demonstrate a nexus between the money and delivery or possession of a controlled substance offense to the extent of showing that the money was substantially connected to criminal activity. We disagree.
The State argues that appellant lacks standing because he testified that $8,000.00 of the $8,250.00 of the money seized belonged to his employer, Muzik, and Adrian Falcon, its president. For a party to maintain an action in court, he must show a justiciable interest in the subject matter in the litigation, either in his own right or in a representative capacity. See Barron v. State, 746 S.W.2d 528, 530 (Tex.App.-Austin 1988, no writ). In this case, appellant was found in possession of the $8,250.00 and has always maintained that the money was given to him by his employer with instructions to pay bills, take out $250.00 for himself, and deposit the remainder. We hold that this demonstrates a justiciable interest in the money through his representative capacity as an employee of Muzik.
Standard of Review
In an appeal from a bench trial, a trial court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). When there is a reporter's record, the trial court's findings of fact are binding only if supported by the evidence. Id. Appellant does not challenge specific findings of fact. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986) (holding unchallenged findings of fact are binding unless contrary is established as matter of law or there is no evidence to support finding); Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 265 (Tex.App.-Houston [1st Dist.] 2003, no pet.).
If the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which the party did not have the burden of proof, then the party must demonstrate on appeal that there is no evidence to support the finding. City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In such a review, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor, and disregard all evidence and inferences to the contrary. Id. at 692. If more than a scintilla of evidence supports the finding, the no-evidence challenge fails. Id. In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. S.W. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied).
Appellant does not challenge the factual sufficiency of the evidence.
Requisites of Forfeiture
Property, including currency, is subject to seizure and forfeiture if it is found to be contraband. Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon Supp. 2005). Contraband is property used or intended to be used in the commission of certain felonies, or proceeds derived from those felonies. Tex. Code Crim. Proc. Ann. art. 59.01(2)(A)-(D) (Vernon Supp. 2005). However, conviction of an underlying felony is not required under the forfeiture statute. Tex. Code Crim. Proc. Ann. art. 59.05(d) (Vernon Supp. 2005).
The State is required to show that probable cause exists for seizing the property. Tex. Const. art. I, § 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex.App.-Houston [1st Dist.] 1992, no writ). To do this, the State must prove that there is a substantial connection between the property and the illegal activity. See $11,014.00, 820 S.W.2d at 784. This is accomplished when the State proves that it is more reasonably probable than not that the seized currency was either intended for use in, or derived from, a violation of the offenses listed in the forfeiture statute. See Antrim v. State, 868 S.W.2d 809, 812 (Tex.App.-Austin, 1993 no writ).
The State may meet its burden of proof by presenting sufficient circumstantial evidence. Id. When relying on circumstantial evidence, the State must offer evidence that raises more than a mere surmise or suspicion regarding the source of the money. Id. However, the State is not required to exclude every possible means by which appellant might have acquired the money. Id. The court may draw any and all reasonable inferences from the circumstances shown by the evidence. Id.
In this case, the State alleged that the money was contraband because it was used or intended to be used in the commission of, or was proceeds derived from, a drug-related felony under Chapter 481 of the Health and Safety Code. See Tex. Code Crim. Proc. Ann. art. 59.01(2)(B) — (C). The majority of delivery and possession offenses in Chapter 481 are felonies. See, e.g., Tex. Health Safety Code Ann. § 481.112-481.118 (Vernon Supp. 2005) (manufacture, delivery, or possession of controlled substances in penalty groups one through four). Cocaine is a Penalty Group I controlled substance and possession of any quality thereof is a felony. See Tex. Health Safety Code Ann. § 481.102(3)(D), 481.115 (Vernon Supp. 2005). However, delivery or possession of certain quantities of marijuana is a misdemeanor. See Tex. Health Safety Code Ann. §§ 481.120(b)(1) — (2), 481.121(b)(1) — (2) (Vernon Supp. 2005). Therefore, to prove that the money was subject to forfeiture for delivery or possession of marijuana, the State must prove that the money was used or intended to be used in the commission of, or was proceeds derived from, the delivery or possession of a felonious quantity of marijuana.
Here, the only direct evidence connecting the money to the sale or possession of narcotics were trace amounts of marijuana found in the red gym bag and the unmeasurable amount of cocaine found on the floorboard of appellant's car. Therefore, the State was required to present sufficient circumstantial evidence showing that, under all the circumstances raised by the evidence, it is more reasonable than not that the money was used in or derived from the sale or possession of a controlled substance. See $7,058.84 in U.S. Currency v. State, 30 S.W.3d 580, 586 (Tex.App.-Texarkana 2000, no pet.).
In reviewing the sufficiency of the State's evidence, courts have reviewed at least five factors in assessing the sufficiency of the evidence in a forfeiture case: (1) the proximity of the money to the drugs and to the evidence of drug trafficking; (2) evidence that the money was previously in contact with drugs; (3) suspicious activity consistent with drug trafficking; (4) the amount of money at issue; and (5) the presence of expert testimony indicating that there was probable cause to seize the money subject to forfeiture, e.g., that a substantial connection exists between the property to be forfeited and the criminal activity. Antrim, 868 S.W.2d at 814.
In this case, there is sufficient evidence under each factor listed above. As to factor one, the proximity of the money to the drugs and evidence of drug trafficking, the $8,250.00 was in the console of appellant's car, near a vial containing trace amounts of cocaine and the red gym bag that contained marijuana residue. As to factor two, evidence that the money was previously in contact with drugs, a trained narcotics detection dog alerted on the money after it was hidden by a Houston Police Officer. There was expert testimony from the officer working with the dog that the animal alerted to the money. He testified that narcotics dogs are trained to give an aggressive alert by scratching and barking at the area where the odor of certain illegal narcotics are detected. As to factor three, suspicious activity consistent with drug trafficking, Officer Smith testified that he observed appellant and John Juneau engaged in behavior consistent with drug trafficking activities. He testified that he recognized the behavior because he had previously observed Juneau engage in similar activities at service stations, he had arrested Juneau for possession of a large quantity of cocaine, and he saw Juneau hand appellant the red gym bag at a Shell service station, in a matter consistent with Juneau's prior trafficking activities. Further, Officer Smith testified to smelling a strong odor of fresh-cut marijuana in appellant's vehicle. As to factor four, the amount of money at issue, $8,250.00 is beyond that which most ordinary people carry on or about their person. As to factor five, the presence of expert testimony indicating that there was probable cause to seize the property subject to forfeiture, e.g., that a substantial connection exists between the property to be forfeited and criminal activity, Officer Smith, a trained narcotics officer, testified that the money was contraband.
While evidence of any one of these factors standing alone might not be sufficient to support a determination that the money was contraband, we hold that evidence of all of the factors taken together amount to more than a scintilla of evidence from which the trial court could reasonably infer that $8,000.00 of the $8,250.00 was contraband and derived from a felony offense in violation of the Texas Controlled Substances Act, e.g. possession of cocaine. See Tex. Health Safety Code Ann. § 481.102(3)(D), 481.115 (Vernon Supp. 2005) (cocaine is a Penalty I controlled substance and possession of any quality thereof is a felony.).
We overrule appellant's first and second points of error.
Excessive Fines Clause
In his third point of error, appellant argues that the trial court violated the Eighth Amendment of the United States Constitution prohibiting excessive fines when it entered a judgment of forfeiture of $8,000.00 of the $8,250.00 seized as contraband. We disagree.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Eighth Amendment is applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 675, 82 S. Ct. 1417, 1425 (1962). The United States Supreme Court addressed the applicability of the Excessive Fines Clause to federal forfeiture statutes in Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801(1993).
Once it has been established that the property in question is contraband, a court must then apply a "proportionality" test as set forth in United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036 (1998). Bajakajian pertained to a forfeiture of currency under a federal statute making it a crime to carry more than $10,000 in currency out of the country without reporting it. Id. Respondent in that case, pleaded guilty to the criminal violation of failure to report. 524 U.S. at 325, 118 S. Ct. At 2032. The government also sought forfeiture of the entire amount of cash, $357,144, carried by respondent. Id. The district court ruled that, under the statute, the entire sum was subject to forfeiture, but declined to enter such a judgment, holding that such a result would violate the Excessive Fines Clause. 524 U.S. at 326-27, 118 S. Ct. at 2033. The Ninth Circuit affirmed. Id. The Supreme Court, reversing, held that: (1) forfeitures, i.e., payments in kind, are "fines" subject to the limitations of the Eighth Amendment if they constitute punishment for an offense; (2) forfeiture of currency under the subject statute is a form of punishment; it is an additional sanction available when imposing a sentence for violation of the criminal statute imposed at the culmination of criminal proceedings and cannot be imposed on an "innocent owner"; and (3) modern statutory forfeiture provisions are "fines" for Eighth Amendment purposes, if they constitute, even in part, punishment. 524 U.S. at 333-34, 118 S. Ct. at 2036. Therefore, the forfeiture of currency was subject to the Excessive Fines Clause. 524 U.S. at 334, 118 S. Ct. at 2036.
In determining whether the fine is excessive, a court must consider proportionality, i.e., the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. Id. In determining whether the forfeiture of the entire sum was "excessive" or "grossly disproportional," the Court examined (1) the nature of the offense (essentially, a reporting violation); (2) the relationship of the offense to other illegal activities (none); (3) the class of offenders addressed by the forfeiture (respondents did not fit the class); and (4) the harm caused (little or none). Id. The Court held that the forfeiture of the entire sum of money, $357,144, bore no correlation to any damages sustained by society or to the cost of enforcing the law. Id.
Texas courts have held that Chapter 59 forfeitures constitute punishment for purposes of the Excessive Fines Clause. See Tex. Code Crim. Proc. Ann. arts. 59.01(2)(A)(i) — (iii), 59.01(2)(B)(i) — (iii) (Vernon Supp. 2005) (seizure of contraband authorized; contraband defined in terms of violations of, inter alia, the Penal and Health and Safety Codes); see also One Car, 1996 Dodge X-Cab Truck White In Color 5YC-T17 VIN 3B7HC13Z5TG163723 v. State, 122 S.W.3d 422, 427 (Tex.App.-Beaumont 2003, no pet.) (applying the analysis of Austin and Bajakajian to find that Chapter 59 forfeiture is closely tied to the commission of underlying crimes.).
Having determined that Chapter 59 is subject to the Excessive Fines Clause, we then apply the Supreme Court's proportionality standard de novo to the evidence surrounding the State's forfeiture of the $8,000.00 to determine if such forfeiture is unconstitutionally excessive. See Bajakajian, 524 U.S. at 335-36, 118 S. Ct. at 2036-37. Here, as to the first two factors, the nature of the offense and the relationship of the offense to other illegal activities, appellant was arrested for possession of cocaine, which is a state jail felony, carrying a maximum sentence of two years and a maximum fine not exceeding $10,000. See Tex. Health Safety Code Ann. § 481.115; Tex. Pen. Code Ann. § 12.35(a) — (b) (Vernon Supp. 2005). Under the third factor, appellant fits the class of offender addressed by the forfeiture because he was in possession of the cocaine. Finally, as to the fourth factor, the harm caused was slight considering that the amount of cocaine involved in this case was an extremely small amount. Nevertheless, because appellant's fine could reach $10,000.00 for possession of cocaine in this case, we hold that forfeiture of $8,000.00 is not grossly disproportional to the offense under Bajakajian. We further hold that the forfeiture in this case does not violate the Excessive Fines Clause of the Eighth Amendment. Bajakajian, 524 U.S. at 337-41, 118 S. Ct. at 2038-39.
We overrule appellant's third issue.
Conclusion
We affirm the judgment of the trial court. All pending motions are overruled as moot.