Opinion
NUMBER 13-13-00138-CV
02-04-2016
A TRACT OF LAND CONTAINING 5.19 ACRES, BEING THE SOUTH 203.33 FEET OF THE WEST 1111.15 FEET OUT OF LOT 44-9 WEST ADDITION TO SHARYLAND, HIDALGO COUNTY, TEXAS; AND ONE (1) MOBILE HOME LOCATED ON SAID PROPERTY, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
The State filed suit alleging that real property owned by Jesus Alaniz was contraband subject to civil forfeiture under Chapter 59 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. ch. 59 (West, Westlaw through 2015 R.S.). Following a jury trial, the trial court rendered judgment forfeiting Alaniz's property to the State. By his first three issues and his fifth issue, which we treat as one, Alaniz argues the evidence is factually and legally insufficient: (1) to establish probable cause for seizing the property; (2) to establish the property was contraband; (3) to establish Alaniz knew or should have known the property was contraband; and (5) to support the jury's adverse finding on Alaniz's innocent-owner defense. By his fourth issue, Alaniz argues the forfeiture of his property was "not remotely approximated" to the State's actual damages in violation of the Double Jeopardy Clause. We affirm.
I. BACKGROUND
The State filed an "Original Petition and Notice of Seizure and Intended Forfeiture" regarding a tract of land containing 5.19 acres and a mobile home located thereon. The petition alleges that the property, which is located in Hidalgo County and owned by Alaniz, is contraband and subject to seizure and forfeiture pursuant to Chapter 59 of the Texas Code of Criminal Procedure. See generally TEX. CODE CRIM. PROC. ANN. ch. 59.
A metes and bounds description of the property is included in both the State's petition and the final judgment entered in this cause.
At trial, Detective David Rogers with the McAllen Police Department testified regarding the subject property's connection to the kidnapping of Jesus Garza. Detective Rogers, who investigated the kidnapping, explained that four individuals in a light blue Mitsubishi kidnapped Garza at gun point from the location of Jesse's Star Muffler & Truck Accessories, a business owned by Garza in McAllen. Detective Rogers testified that Garza's wife delivered ransom in the amount of $125,000 to an agreed location in Houston. Law enforcement officials conducted surveillance of the location and "followed the money back to a residence in Houston." Detective Rogers stated that, following Garza's release, officers went to the Houston residence and arrested a suspect who was in possession of a portion of the ransom money. Officers later arrested three other suspects, one of whom disclosed the location of Alaniz's mobile home where Garza had been held captive.
Detective Rogers explained that officers visited the mobile home and discovered a light blue Mitsubishi matching the description of the vehicle used in the kidnapping. Detective Rogers testified that the vehicle was registered to Alaniz's mother, and that Alaniz was the owner of the mobile home and the property where Garza was held captive. Each of the suspects, including Alaniz, were charged in state court with aggravated kidnapping. See TEX. PENAL CODE ANN. § 20.04 (West, Westlaw through 2015 R.S.). Detective Rogers stated that the state charges against each defendant were later dismissed so they could be refiled in federal court. Alaniz later pleaded guilty to the federal offense of misprision of felony. See 18 U.S.C.A. § 4 (West, Westlaw through P.L. 114-112).
Alaniz admitted during cross-examination that he saw Garza while he was at the mobile home, and that he knew Garza was a kidnapping victim. Alaniz also acknowledged that he pleaded guilty "to the fact that [he] had knowledge that [his] property was being used for [the] kidnapping, and that [he] failed to report it." Alaniz testified he knew each of the suspects who were arrested for the kidnapping. Alaniz explained that, at the time of the kidnapping, he was renting his mobile home to one of the kidnapping suspects, while Alaniz resided elsewhere with his girlfriend. Alaniz stated that the light blue Mitsubishi found at the mobile home belonged to his mother, and that he was using the Mitsubishi because he did not have a vehicle. Alaniz testified that he did not report the kidnapping to authorities "[b]ecause I didn't want to be in a worse position than [Garza] was." Alaniz maintained that he did not take part in the kidnapping, and that he did not give anyone permission to use his mobile home in the kidnapping.
The jury rejected Alaniz's "innocent-owner" defense and returned a verdict finding that the property subject to this suit was "contraband." The trial court rendered final judgment forfeiting Alaniz's property to the State. This appeal followed.
See TEX. CODE CRIM. PROC. ANN. art. 59.02(c) (West, Westlaw through 2015 R.S.).
II. PRESERVATION
By his first three issues and his fifth issue, Alaniz argues that the "evidence presented is factually and legally insufficient" to support the civil forfeiture judgment. As a threshold matter, we must determine whether Alaniz preserved his issues for appellate review. A complaint challenging the factual sufficiency of the evidence to support a jury finding must be urged in a motion for new trial to preserve the issue for appeal. TEX. R. CIV. P. 324(b); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149 (Tex. App.—Corpus Christi 1996, no writ); see TEX. R. APP. P. 33.1(a)(1). Alaniz did not file a motion for new trial, and therefore he has waived his challenge to the factual sufficiency of the evidence.
To preserve a legal sufficiency or no-evidence issue when a jury trial was held, a party must use one of the following methods: (1) a motion for instructed verdict; (2) an objection to the submission of the issue to the jury; (3) a motion to disregard the jury's answer; (4) a motion for judgment notwithstanding the verdict; or (5) a motion for new trial specifically raising the complaint. Cecil, 804 S.W.2d at 510-11 (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985)); Arroyo Shrimp Farm, 927 S.W.2d at 148-49. Following the close of evidence, Alaniz moved for a directed verdict challenging the legal sufficiency of the evidence. Therefore, we will address Alaniz's issues to the extent that they raise a legal sufficiency challenge.
III. LEGAL SUFFICIENCY
By issues one through three, and issue five, Alaniz challenges the legal sufficiency of the evidence supporting civil forfeiture. Therefore, we address those issues together.
A. Standard of Review
"When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it." Bryan v. Gordon, 384 S.W.3d 908, 913 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). "We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not." Id. If more than a mere scintilla of evidence exists, the finding is legally sufficient and we will overrule that issue. Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex. 2001). There is more than a scintilla of evidence if the evidence rises to a level that would enable reasonable and fair-minded people to reach differing conclusions. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001); Coffman v. Melton, 448 S.W.3d 68, 71 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). "The fact finder is the sole judge of witness credibility and the weight to give their testimony." Bryan, 384 S.W.3d at 913. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. City of Keller, 168 S.W.3d at 822.
B. Applicable Law
Forfeiture proceedings are civil in rem proceedings. TEX. CODE CRIM. PROC. ANN. art. 59.05(b); State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex. 2004). To prevail in a forfeiture proceeding, the State must satisfy a two-part test. First, the State must show probable cause, or "a reasonable belief that 'a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.'" State v. $90,235.00 in U.S. Currency, 390 S.W.3d 289, 293 (Tex. 2013) (quoting $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987)). "It is that link, or nexus, between the property to be forfeited and the statutorily defined criminal activity that establishes probable cause, without which the State lacks authority to seize a person's property." $56,700 in U.S. Currency, 730 S.W.2d at 661. The substantial connection may be proved by circumstantial evidence. State v. $11,014.00, 820 S.W.2d 783, 785 (Tex. 1991); see Spurs v. State, 850 S.W.2d 611 (Tex. App.—Tyler 1993, writ denied) (noting that, in a contested forfeiture proceeding, the State, by direct or circumstantial evidence, must establish a link or nexus between the property and the criminal activity by a preponderance of the evidence).
Second, the State must prove by a preponderance of the evidence that the seized property is contraband and therefore subject to forfeiture. See TEX. CODE CRIM. PROC. ANN. art. 59.02(a); $18,800 in U.S. Currency v. State, 961 S.W.2d 257, 260 (Tex. App.—Houston [1st Dist.] 1997, no writ). "Contraband" is defined as property of any nature, including real, personal, tangible, or intangible that is used or intended to be used in the commission of certain felonies. TEX. CODE CRIM. PROC. ANN. art. 59.01(2)(A)-(D); see Silver Chevrolet Pickup, 140 S.W.3d at 692; $11,014.00, 820 S.W.2d at 784; $56,700 in U.S. Currency, 730 S.W.2d at 661.
After the State has proved the seized property is contraband, a person claiming an ownership interest in the property may raise an innocent-owner defense to prevent forfeiture. TEX. CODE CRIM. PROC. ANN. art. 59.02(c). A person asserting this defense bears the burden of proving, by a preponderance of the evidence, that he "did not know or should not reasonably have known of the [allegedly criminal] act or omission" that justified the seizure. Id.; see $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 163 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that claimant making the innocent-owner defense has the burden to prove it).
C. Analysis
1. Probable Cause
By his first issue, Alaniz argues the evidence is legally insufficient "to establish that probable cause existed for seizing the property and that there was a substantial connection or nexus between property and illegal activity." We disagree.
The evidence presented at trial established that Alaniz's mobile home, and the land on which it was located, were used in connection with Garza's kidnapping. Garza was held captive at Alaniz's mobile home until the time Garza's wife paid ransom for his release. Alaniz testified that he was the owner of the property subject to forfeiture, and that the kidnapping was in progress when he observed Garza at the mobile home. The automobile used to facilitate the kidnapping was also observed on Alaniz's property. Alaniz knew the individuals involved in the kidnapping, including the individual who was renting Alaniz's mobile home. Alaniz offered no contrary evidence concerning the property's connection to Garza's kidnapping.
The State presented sufficient evidence to enable a reasonable and fair-minded person to find by a preponderance of the evidence that a substantial connection exists between Alaniz's property and the kidnapping. See $90,235.00 in U.S. Currency, 390 S.W.3d at 293; Bryan, 384 S.W.3d at 913. Therefore, we conclude the evidence is legally sufficient to establish probable cause. We overrule Alaniz's first issue.
2. Contraband
By his second issue, Alaniz argues the evidence is legally insufficient "to establish that the tracts of real property . . . was contraband[.]" Specifically, Alaniz complains that "no testimony established that [the] property on which [the] kidnapping occurred was [the] same as [the] property in question." We disagree.
To support his argument, Alaniz relies on 1.70 Acres, .20 Acres, and .28 Acres of Real Property and Structures Thereon (Mizell) v. State, 935 S.W.2d 480 (Tex. App.—Beaumont 1996, no writ). In 1.70 Acres, the Beaumont Court of Appeals concluded that a property owner's admission of ownership of a house was not sufficient to establish that the properties referred to in the pleadings—three separate tracts of land—were used or intended to be used in the commission of a felony. Id. at 485. The court noted that a law enforcement officer executing a search warrant observed the property owner exit the house and discard marijuana nearby. Id. at 483. However, the court explained that the State presented no evidence "concerning whether the three tracts are contiguous or separate, no evidence as to which tract the house may be on, and no evidence as to whether one, two, or all three tracts were used or intended to be used in the commission of the alleged felony." Id. at 485. Therefore, the court held that the State did not "prove[] by a preponderance of the evidence that the property referred to in the pleadings is that which was used or intended to be used in the commission of a felony." Id.
Unlike 1.70 Acres, the State only sought forfeiture of one tract of land in this case. The undisputed evidence established that the mobile home where Garza was held captive was located on the 5.19 acres subject to forfeiture. Therefore, there is no question that the tract of land was the same property used in the commission of a felony. In addition, Alaniz testified he was the owner of the subject property, and that he was renting his mobile home located on the property to one of the individuals involved in the kidnapping. Alaniz also admitted he observed Garza being held captive at the mobile home.
The evidence is sufficient to enable a reasonable and fair-minded person to find by a preponderance of the evidence that the property was contraband used in the commission of a felony. See Bryan, 384 S.W.3d at 913. We overrule Alaniz's second issue.
3. Innocent-Owner Defense
By his fifth issue, Alaniz argues the evidence is legally insufficient to support the jury's adverse finding on Alaniz's innocent-owner defense. Similarly, by his third issue, Alaniz maintains that the evidence is legally insufficient to establish that Alaniz "knew or should have known that the property was contraband." Both issues address the elements of Alaniz's affirmative defense. Therefore, we address them together.
Alaniz bore the burden at trial to establish his innocent-owner defense. See $9,050.00 in U.S. Currency, 874 S.W.2d at 163. "When [a party] asserts that there is no evidence to support an adverse finding on which he had the burden of proof, we construe the issue as an assertion that the contrary was established as a matter of law." One Ford Mustang v. State, 231 S.W.3d 445, 449 (Tex. App.—Waco 2007, no pet.) (citing City of Keller, 168 S.W.3d at 827). In reviewing such an argument, we first search the record for evidence favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not. Id. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law. Id.
As stated above, Alaniz testified that he saw Garza at the mobile home while the kidnapping was in progress. Further, a vehicle owned by Alaniz's mother, which Alaniz was using, matched the description of the vehicle used to kidnap Garza. The same vehicle was later observed by law enforcement at the mobile home. Finally, Alaniz pleaded guilty to the offense of misprision of a felony in connection with the kidnapping. See 18 U.S.C.A. § 4; Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir. 2008) ("This court has set forth the following elements for a misprision of a felony conviction: (1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony."). While Alaniz denied involvement in the kidnapping, he did not present evidence establishing as a matter of law that he "did not know or should not reasonably have known of the [allegedly criminal] act or omission" that justified the seizure. See TEX. CODE CRIM. PROC. ANN. art. 59.02(c); One Ford Mustang, 231 S.W.3d at 449; $9,050.00 in U.S. Currency, 874 S.W.2d at 163. Furthermore, under a legal sufficiency review, we must disregard contrary evidence unless a reasonable fact finder could not. Bryan, 384 S.W.3d at 913.
We believe a reasonable and fair-minded juror could have concluded that Alaniz failed to establish by a preponderance of the evidence that he did not know or should not reasonably have known that his property was being used in connection with Garza's kidnapping. See $9,050.00 in U.S. Currency, 874 S.W.2d at 163. Therefore, we conclude that the evidence is legally sufficient to support the jury's adverse finding as to Alaniz's innocent-owner defense. See One Ford Mustang, 231 S.W.3d at 449. We overrule Alaniz's third and fifth issues.
IV. DOUBLE JEOPARDY
By his fourth issue, Alaniz argues that "[t]he evidence presented was factually and legally insufficient to establish that the seizure and forfeiture of 5.19 acres of land was remotely approximated to the government[']s actual damages or that its [sic] bears any rational relation to the goal of compensating government for its loss." Alaniz maintains that the forfeiture "is punishment and is barred by the Double Jeopardy Clause."
The United States Supreme Court and the Texas Court of Criminal Appeals have both held that civil forfeitures do not constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment.See United States v. Ursery, 518 U.S. 267, 291-91 (1996); Fant v. State, 931 S.W.2d 299, 306-09 (Tex. Crim. App. 1996) (echoing the court in Ursery in holding that forfeiture under Chapter 59 of the Texas Code of Criminal Procedure is a civil in rem proceeding, and is neither punitive nor criminal in nature for the purposes of the Double Jeopardy Clause of the Fifth Amendment). In Ursery, the United States Supreme Court distinguished civil forfeiture from civil penalties as follows:
Appellant does not identify whether he is arguing a violation of the double jeopardy clause of the Texas Constitution, the United States Constitution, or both. See U.S. CONST. amend. V; TEX. CONST. art. I, § 14. However, the Texas Court of Criminal Appeals has held that the double jeopardy protection provided by Article I, Section 14 of the Texas Constitution is conceptually identical to that provided by the Fifth Amendment. Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990). --------
Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. Though it may be possible to quantify the value of the property forfeited, it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture. Hence, it is practically difficult to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture. Quite simply, the case-by-case balancing test [applicable to civil penalties] in which a court must compare the harm suffered by the Government against the size of the penalty imposed, is inapplicable to civil forfeiture.518 U.S. at 284.
The State, when bringing a civil forfeiture action, is not required to demonstrate a relation between the value of the forfeited property and the State's damages in prosecuting the underlying offense. See id. We overrule Alaniz's fourth issue.
V. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice Delivered and filed the 4th day of February, 2016.