![3DFootnote](3D"")
=
In=20
support of its notice of seizure, the State attached a sworn =
affidavit by=20
J.P. Hall, an officer with the Houston Police Department. In his=20
affidavit, Hall explained that Houston Narcotics officers =
conducted=20
surveillance on a known narcotic trafficker identified as John =
Curtis=20
Juneau. Officers observed Juneau hand a red gym bag to a suspect =
later=20
identified as appellant at a gas station. After observing =
appellant commit=20
several traffic infractions upon leaving the gas station, officers =
stopped=20
his car. As officers approached appellant, they saw him reaching =
into the=20
center console of the car and upon approaching the car, officers =
smelled a=20
strong odor of marijuana emitting from inside.
=
After=20
officers removed appellant from the car, they saw the red gym bag =
open and=20
they smelled a strong odor of marijuana coming from the bag. Upon=20
searching the bag, officers located a residual amount of marijuana =
inside=20
the bag and also found a small vial on the floorboard that =
contained=20
approximately 0.1 grams of cocaine. When the officers searched the =
center=20
console of the car, they found approximately $8,250.00 in U.S. =
currency.=20
The currency was in denominations that the officers believed was=20
consistent with narcotics trafficking. Later, a narcotics canine =
alerted=20
on the currency for the presence of an odor of narcotics.=20
The officers arrested and charged =
appellant with=20
possession of a controlled substance. The officers =
believed that=20
the currency was proceeds from the trafficking of illegal =
narcotics and=20
was thus, contraband.
=
Appellant=20
filed his original answer, entering a general denial to the =
matters=20
pleaded by the State. He attached a sworn affidavit to his answer=20
explaining that he is entitled to possession of the $8,250.00 =
because it=20
was not proceeds from any illegal activity and was not contraband. =
=
Before=20
trial, Muzik Unlimited Entertainment, Inc. filed a Plea in =
Intervention=20
asserting an interest in the $8,250.00 at issue. Muzik claimed =
that its=20
president, Adrian Falcon, gave appellant cash equaling $8,250.00 =
with=20
specific instructions for disbursement. These instructions =
included paying=20
bills, taking out $250.00 for appellant to keep, and depositing =
the rest=20
in the bank.
<=
/SPAN>The=20
trial court held a bench trial and, after hearing the evidence, =
rendered a=20
judgment that $8,000.00 of the $8,250.00 was contraband and =
granted that=20
sum to the State. The trial court found that the remaining $250.00 =
was not=20
contraband and granted that sum be to returned to appellant. In a =
separate=20
instrument, the trial court entered findings of fact and =
conclusions of=20
law. The trial court found as follows:
FINDINGS=20
OF FACT
<=
/SPAN>1. The=20
Court has subject matter jurisdiction of the $8,250.00, Defendant, =
and=20
personal jurisdiction on ERIC MONCEVAIZ VASQUEZ, Respondent, and =
as to=20
sanctions, on Intervenor, MUZIK UNLIMITED ENTERTAINMENT, INC. and =
ADRIAN=20
FALCON, its President. The court has recognized that Intervenor =
has given=20
notice of non-suit as to its intervention.
<=
/SPAN>2. $8,000=20
of the $8,250.00, is contraband as defined in Chapter 59 of the =
Texas Code=20
of Criminal Procedure.
<=
/SPAN>3. The=20
balance, $250.00 is not contraband and shall be returned to ERIC =
MONCEVAIZ=20
VASQUEZ subject to the sanctions hereinafter levied there=20
against.
<=
/SPAN>4. The=20
NX Media, Inc. Invoice #0135, for the amount of $5,195.00, was =
fabricated=20
by MUZIK UNLIMITED ENTERTAINMENT, INC., the Intervenor, by and =
through=20
ADRIAN FALCON who tendered such invoice into evidence falsely =
vouching for=20
its validity and authenticity.
<=
/SPAN>5. ERIC=20
MONCEVAIZ VASQUEZ likewise tendered the NX Media, Inc. Invoice =
#0135, for=20
the amount of $5,195.00, to the court as evidence, falsely =
vouching for=20
its validity and authenticity.
<=
/SPAN>6. ERIC=20
MONCEVAIZ VASQUEZ, has knowingly falsely testified in this cause =
in the=20
form of: verified false answers to written discovery, false =
answers to=20
deposition questions under oath, and false testimony in court =
under=20
oath.
<=
/SPAN>7. MUZIK=20
UNLIMITED ENTERTAINMENT, INC. through ADRIAN FALCON, and ADRIAN =
FALCON,=20
individually, have knowingly falsely testified in this cause in =
the form=20
of: verified false answers to written discovery, false answers to=20
deposition questions under oath, and false testimony in court =
under=20
oath.
CONCLUSIONS OF =
LAW
<=
/SPAN>A. The=20
$8,000.00, being contraband as defined in Chapter 59 of the Texas =
Code of=20
Criminal Procedure, shall be forthwith forfeited to the State of=20
Texas.
<=
/SPAN>B. The=20
remainder of $250.00 not being contraband, shall be forthwith =
returned to=20
ERIC MONCEVAIZ VASQUEZ subject to the sanctions there =
against.
<=
/SPAN>C. ERIC=20
MONCEVAIZ VASQUEZ, ADRIAN FALCON and MUZIK UNLIMITED =
ENTERTAINMENT, INC.,=20
shall be sanctioned $5,195.00 jointly and =
severally.
Legal=20
Sufficiency
<=
/SPAN>In=20
his first two points of error, appellant contends that =
there was=20
insufficient evidence to prove that the $8,250.00 was contraband =
as=20
defined in Chapter 59 of the Texas Code of Criminal Procedure.=20
Specifically, appellant argues that there was no evidence to =
demonstrate a=20
nexus between the money and delivery or possession of a controlled =
substance offense to the extent of showing that the money was=20
substantially connected to criminal activity.
We =
disagree.
Standard of=20
Review
<=
/SPAN>In=20
an appeal from a bench trial, a trial court=E2=80=99s findings of =
fact have the=20
same weight as a jury=E2=80=99s verdict. Amador v. =
Berrospe, 961 S.W.2d=20
205, 207 (Tex. App.=E2=80=94Houston [1st Dist.] 1996, writ =
denied). When there is=20
a reporter=E2=80=99s record, the trial court=E2=80=99s findings of =
fact are binding only=20
if supported by the evidence. Id. Appellant does not =
challenge=20
specific findings of fact. See McGalliard v. Kuhlmann, 722 =
S.W.2d=20
694, 696 (Tex. 1986) (holding unchallenged findings of fact are =
binding=20
unless contrary is established as matter of law or there is no =
evidence to=20
support finding); Aldine Indep. Sch. Dist. v. Ogg, 122 =
S.W.3d 257,=20
265 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no =
pet.).
<=
/SPAN>If=20
the complaining party challenges the legal sufficiency
of the evidence underlying an =
adverse=20
finding on which the party did not have the burden of proof, then =
the=20
party must demonstrate on appeal that there is no evidence to =
support the=20
finding. City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, pet. denied). In such a =
review, we consider=20
all the evidence in the light most favorable to the prevailing =
party,=20
indulging every reasonable inference in that party=E2=80=99s =
favor, and disregard=20
all evidence and inferences to the contrary. Id. at 692. If =
more=20
than a scintilla of evidence supports the finding, the no-evidence =
challenge fails. Id. In a bench trial, the trial court, as =
fact=20
finder, is the sole judge of the credibility of the witnesses. =
S. W.=20
Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1992, writ denied).
Requisites of=20
Forfeiture
<=
/SPAN>Property,=20
including currency, is subject to seizure and forfeiture if it is =
found to=20
be contraband. Tex. Code =
Crim.=20
Proc. Ann. art. 59.02(a) (Vernon Supp. 2005). Contraband is =
property used or intended to be used in the commission of certain=20
felonies, or proceeds derived from those felonies. Tex. Code Crim. Proc. Ann. =
art.=20
59.01(2)(A)-(D) (Vernon Supp. 2005). However, conviction of an =
underlying=20
felony is not required under the forfeiture statute. Tex. Code Crim. Proc. =
Ann. art.=20
59.05(d) (Vernon Supp. 2005).
<=
/SPAN>The=20
State is required to show that probable cause exists for seizing =
the=20
property. Tex. =
Const. art.=20
I, =C2=A7 9; State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 1992, no writ). To do this, the State must prove that =
there is=20
a substantial connection between the property and the illegal =
activity.=20
See $11,014.00, 820 S.W.2d at 784. This is =
accomplished when=20
the State proves that it is more reasonably probable than not that =
the=20
seized currency was either intended for use in, or derived from, a =
violation of the offenses listed in the forfeiture statute. See =
Antrim=20
v. State, 868 S.W.2d 809, 812 (Tex. App.=E2=80=94Austin, 1993 =
no writ).=20
<=
/SPAN>The=20
State may meet its burden of proof by presenting sufficient =
circumstantial=20
evidence. Id. When relying on circumstantial evidence, the =
State=20
must offer evidence that raises more than a mere surmise or =
suspicion=20
regarding the source of the money. Id. However, the State =
is not=20
required to exclude every possible means by which appellant might =
have=20
acquired the money. Id. The court may draw any and all =
reasonable=20
inferences from the circumstances shown by the evidence.=20
Id.
<=
/SPAN>In=20
this case, the State alleged that the money was contraband because =
it was=20
used or intended to be used in the commission of, or was proceeds =
derived=20
from, a drug-related felony under Chapter 481 of the Health and =
Safety=20
Code. See Tex. =
Code Crim.=20
Proc. Ann. art. 59.01(2)(B)=E2=80=93(C). The majority of =
delivery and=20
possession offenses in Chapter 481 are felonies. See, =
e.g.,=20
Tex. Health & Safety =
Code=20
Ann. =C2=A7 481.112-481.118 (Vernon Supp. 2005) =
(manufacture, delivery,=20
or possession of controlled substances in penalty groups one =
through=20
four). Cocaine is a Penalty Group I controlled substance and =
possession of=20
any quality thereof is a felony. See Tex. Health & Safety Code =
Ann.=20
=C2=A7 481.102(3)(D), 481.115 (Vernon Supp. 2005). However, =
delivery or=20
possession of certain quantities of marijuana is a misdemeanor. =
See=20
Tex. Health & =
Safety Code=20
Ann. =C2=A7=C2=A7 481.120(b)(1)=E2=80=93(2), =
481.121(b)(1)=E2=80=93(2) (Vernon Supp. 2005).=20
Therefore, to prove that the money was subject to forfeiture for =
delivery=20
or possession of marijuana, the State must prove that the money =
was used=20
or intended to be used in the commission of, or was proceeds =
derived from,=20
the delivery or possession of a felonious quantity of=20
marijuana.
<=
/SPAN>Here,=20
the only direct evidence connecting the money to the sale or =
possession of=20
narcotics were trace amounts of marijuana found in the red gym bag =
and the=20
unmeasurable amount of cocaine found on the floorboard of =
appellant=E2=80=99s car.=20
Therefore, the State was required to present sufficient =
circumstantial=20
evidence showing that, under all the circumstances raised by the =
evidence,=20
it is more reasonable than not that the money was used in or =
derived from=20
the sale or possession of a controlled substance. See $7,058.84 =
in U.S.=20
Currency v. State, 30 S.W.3d 580, 586 (Tex. =
App.=E2=80=94Texarkana 2000, no=20
pet.).
<=
/SPAN>In=20
reviewing the sufficiency of the State=E2=80=99s evidence, courts =
have reviewed at=20
least five factors in assessing the sufficiency of the evidence in =
a=20
forfeiture case: (1) the proximity of the money to the drugs and =
to the=20
evidence of drug trafficking; (2) evidence that the money was =
previously=20
in contact with drugs; (3) suspicious activity consistent with =
drug=20
trafficking; (4) the amount of money at issue; and (5) the =
presence of=20
expert testimony indicating that there was probable cause to seize =
the=20
money subject to forfeiture, e.g., that a substantial connection =
exists=20
between the property to be forfeited and the criminal activity. =
Antrim,=20
868 S.W.2d at 814.
<=
/SPAN>In=20
this case, there is sufficient evidence under each factor listed =
above. As=20
to factor one, the proximity of the money to the drugs and =
evidence of=20
drug trafficking, the $8,250.00 was in the console of =
appellant=E2=80=99s car,=20
near a vial containing trace amounts of cocaine and the red gym =
bag that=20
contained marijuana residue. As to factor two, evidence that the =
money was=20
previously in contact with drugs, a trained narcotics detection =
dog=20
alerted on the money after it was hidden by a Houston Police =
Officer.=20
There was expert testimony from the officer working with the dog =
that the=20
animal alerted to the money. He testified that narcotics dogs are =
trained=20
to give an aggressive alert by scratching and barking at the area =
where=20
the odor of certain illegal narcotics are detected. As to factor three, suspicious =
activity=20
consistent with drug trafficking, Officer Smith testified that he =
observed=20
appellant and John Juneau engaged in behavior consistent with drug =
trafficking activities. He testified that he recognized the =
behavior=20
because he had previously observed Juneau engage in similar =
activities at=20
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=20
Shell service station, in a matter consistent with =
Juneau=E2=80=99s prior=20
trafficking activities. Further, Officer Smith testified to =
smelling a=20
strong odor of fresh-cut marijuana in appellant=E2=80=99s vehicle. =
As to factor=20
four, the amount of money at issue, $8,250.00 is beyond that which =
most=20
ordinary people carry on or about their person. As to factor five, =
the=20
presence of expert testimony indicating that there was probable =
cause to=20
seize the property subject to forfeiture, e.g., that a substantial =
connection exists between the property to be forfeited and =
criminal=20
activity, Officer Smith, a trained narcotics officer, testified =
that the=20
money was contraband.
<=
/SPAN>While=20
evidence of any one of these factors standing alone might not be=20
sufficient to support a determination that the money was =
contraband, we=20
hold that evidence of all of the factors taken together amount to =
more=20
than a scintilla of evidence from which the trial court could =
reasonably=20
infer that $8,000.00 of the $8,250.00 was contraband and derived =
from a=20
felony offense in violation of the Texas Controlled Substances =
Act, e.g.=20
possession of cocaine. See Tex. Health & Safety Code =
Ann.=20
=C2=A7 481.102(3)(D), 481.115 (Vernon Supp. 2005) (cocaine is a =
Penalty I=20
controlled substance and possession of any quality thereof is a =
felony.).=20
<=
/SPAN>We=20
overrule appellant=E2=80=99s first and second points of =
error.
Excessive Fines=20
Clause
<=
/SPAN>In=20
his third point of error, appellant argues that the trial =
court=20
violated the Eighth Amendment of the United States Constitution=20
prohibiting excessive fines when it entered a judgment of =
forfeiture of=20
$8,000.00 of the $8,250.00 seized as contraband. We disagree. =
<=
/SPAN>=E2=80=9CExcessive=20
bail shall not be required, nor excessive fines imposed, nor cruel =
and=20
unusual punishments inflicted.=E2=80=9D U.S. Const. amend. VIII. =
The=20
Eighth Amendment is applicable to the states through the =
Fourteenth=20
Amendment. Robinson v. California, 370 U.S. 660, 675, 82 S. =
Ct.=20
1417, 1425 (1962). The United States Supreme Court addressed the=20
applicability of the Excessive Fines Clause to federal forfeiture =
statutes=20
in Austin v. United States, 509 U.S. 602, 113 S. Ct. =
2801(1993).=20
<=
/SPAN>Once=20
it has been established that the property in question is =
contraband, a=20
court must then apply a =E2=80=9Cproportionality=E2=80=9D test as =
set forth in United=20
States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036 =
(1998).=20
Bajakajian pertained to a forfeiture of currency under a =
federal=20
statute making it a crime to carry more than $10,000 in currency =
out of=20
the country without reporting it. Id. Respondent in that =
case,=20
pleaded guilty to the criminal violation of failure to report. 524 =
U.S. at=20
325, 118 S. Ct. At 2032. The government also sought forfeiture of =
the=20
entire amount of cash, $357,144, carried by respondent. Id. =
The=20
district court ruled that, under the statute, the entire sum was =
subject=20
to forfeiture, but declined to enter such a judgment, holding that =
such a=20
result would violate the Excessive Fines Clause. 524 U.S. at =
326-27, 118=20
S. Ct. at 2033. The Ninth Circuit affirmed. Id. The Supreme =
Court,=20
reversing, held that: (1) forfeitures, i.e., payments in kind, are =
=E2=80=9Cfines=E2=80=9D=20
subject to the limitations of the Eighth Amendment if they =
constitute=20
punishment for an offense; (2) forfeiture of currency under the =
subject=20
statute is a form of punishment; it is an additional sanction =
available=20
when imposing a sentence for violation of the criminal statute =
imposed at=20
the culmination of criminal proceedings and cannot be imposed on =
an=20
=E2=80=9Cinnocent owner=E2=80=9D; and (3) modern statutory =
forfeiture provisions are=20
=E2=80=9Cfines=E2=80=9D for Eighth Amendment purposes, if they =
constitute, even in part,=20
punishment. 524 U.S. at 333-34, 118 S. Ct. at 2036. Therefore, the =
forfeiture of currency was subject to the Excessive Fines =
Clause.=20
524 U.S. at 334, 118 S. Ct. at 2036.
<=
/SPAN>In=20
determining whether the fine is excessive, a court must consider=20
proportionality, i.e., the amount of the forfeiture must bear some =
relationship to the gravity of the offense that it is designed to =
punish.=20
Id. In determining whether the forfeiture of the entire sum =
was=20
=E2=80=9Cexcessive=E2=80=9D or =E2=80=9Cgrossly =
disproportional,=E2=80=9D the Court examined (1) the=20
nature of the offense (essentially, a reporting violation); (2) =
the=20
relationship of the offense to other illegal activities (none); =
(3) the=20
class of offenders addressed by the forfeiture (respondents did =
not fit=20
the class); and (4) the harm caused (little or none). Id. =
The Court=20
held that the forfeiture of the entire sum of money, $357,144, =
bore no=20
correlation to any damages sustained by society or to the cost of=20
enforcing the law. Id.
<=
/SPAN>Texas=20
courts have held that Chapter 59 forfeitures constitute punishment =
for=20
purposes of the Excessive Fines Clause. See Tex. Code Crim. Proc. Ann. =
arts.=20
59.01(2)(A)(i)=E2=80=93(iii), 59.01(2)(B)(i)=E2=80=93(iii) (Vernon =
Supp. 2005) (seizure of=20
contraband authorized; contraband defined in terms of violations =
of,=20
inter alia, the Penal and Health and Safety Codes); see =
also One=20
Car, 1996 Dodge X-Cab Truck White In Color 5YC-T17 VIN =
3B7HC13Z5TG163723=20
v. State, 122 S.W.3d 422, 427 (Tex. App.=E2=80=94Beaumont =
2003, no pet.)=20
(applying the analysis of Austin and Bajakajian to =
find that=20
Chapter 59 forfeiture is closely tied to the commission of =
underlying=20
crimes.).
<=
/SPAN>Having=20
determined that Chapter 59 is subject to the Excessive Fines =
Clause, we=20
then apply the Supreme Court=E2=80=99s proportionality standard =
de novo to=20
the evidence surrounding the State=E2=80=99s forfeiture of the =
$8,000.00 to=20
determine if such forfeiture is unconstitutionally excessive. =
See=20
Bajakajian, 524 U.S. at 335-36, 118 S. Ct. at 2036=E2=80=9337. =
Here, as=20
to the first two factors, the nature of the offense and the =
relationship=20
of the offense to other illegal activities, appellant was arrested =
for=20
possession of cocaine, which is a state jail felony, carrying a =
maximum=20
sentence of two years and a maximum fine not exceeding $10,000. =
See=20
Tex. Health & =
Safety Code=20
Ann. =C2=A7 481.115; Tex. Pen.=20
Code Ann. =C2=A7 12.35(a)=E2=80=93(b) (Vernon Supp. 2005). =
Under the third=20
factor, appellant fits the class of offender addressed by the =
forfeiture=20
because he was in possession of the cocaine. Finally, as to the =
fourth=20
factor, the harm caused was slight considering that the amount of =
cocaine=20
involved in this case was an extremely small amount. Nevertheless, =
because=20
appellant=E2=80=99s fine could reach $10,000.00 for possession of =
cocaine in this=20
case, we hold that forfeiture of $8,000.00 is not grossly =
disproportional=20
to the offense under Bajakajian. We further hold that the=20
forfeiture in this case does not violate the Excessive Fines =
Clause of the=20
Eighth Amendment. Bajakajian, 524 U.S. at 337-41, 118 S. =
Ct. at=20
2038-39.
<=
/SPAN>We=20
overrule appellant=E2=80=99s third issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court. All pending =
motions are=20
overruled as moot.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Jennings, Hanks, and=20
Higley.