Lead Opinion
OPINION
Appellant Brendan Scott Roberts appeals the seizure of his property pursuant to chapter 59 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 59.01-.14 (Vernon Supp.2010). In four points, Roberts challenges the validity and constitutionality of the seizure and the factual sufficiency of the evidence supporting the trial court’s conclusion that the seizure was proper. We affirm.
Background Facts
In March 2007, Carrollton Police Department Narcotics Officer Mai Tran received information from a confidential informant that Roberts was trafficking marihuana and alprazolam (also known as Xanax) from a house in The Colony, Texas, where Roberts lived with his girlfriend and some friends. Officer Tran obtained a search warrant from a City of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties) and executed the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone address), in Denton County.
At the Malone address, Carrollton police officers found 8.5 tablets of alprazolam, 2 tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash. Roberts was arrested.
After the arrest, Officer Tran received additional information that Roberts, fearing that the police would raid his home, had moved drugs and money to two separate places. Specifically, the information was that Roberts had moved drugs to the house of James Savoldi, a friend and alleged “runner” for Roberts, and had moved money to Roberts’s parents’ house. Carrollton Police Officer Jeremy Sanchez, a canine handler, and his dog, Bosko, performed a “sniff search” on Savoldi’s home at 4601 Freeman Drive, The Colony, Texas (the Freeman address), in Denton County. Bosko “alerted” to an odor at the front door of the house. Based on the information from the informant and the sniff search, Officer Tran obtained a search warrant for the Freeman address.
During the execution of the warrant, Savoldi admitted to the police that he was holding the drugs for Roberts. Savoldi had hidden a black gym bag with approximately two pounds of marihuana at the Freeman address. When he heard from Roberts’s girlfriend that the police had searched the Malone address, Savoldi took the bag of marihuana from his house to a hotel in Addison, Texas, where it was later confiscated by Carrollton police officers. Roberts pleaded guilty to the felony offense of possession of more than four ounces but less than five pounds of mari
While in jail, Roberts made a phone call and advised an unknown person that “the money” was in a bag under his brother’s bed at Roberts’s parents’ house, 4628 Archer Drive, The Colony, Texas (the Archer address), in Denton County. Officer Sanchez and Bosko conducted a sniff search around the exterior of the Archer address, and Bosko alerted at the bottom of the garage door. Officer Tran obtained a search warrant for the Archer address from the same magistrate in Carrollton as the previous two warrants and executed that warrant. There, the police found $23,020 under the brother’s bed, in bills of various denominations, tied with hair bands. In a written statement to the police, Roberts’s brother denied any knowledge or ownership of the money.
The money recovered from the Archer address was taken to the Carrollton Police Station, where Officer Sanchez conducted another sniff search. This time, he took three new paper bags and put the money in one of them. Each bag was closed by folding over the top and all three bags were placed in a hallway about six feet apart. Bosko sniffed all three bags and alerted on the sack containing the money.
In April 2007, the State filed its notice of seizure and intended forfeiture, alleging, among other things, that Roberts owned the money and that it was contraband as proceeds from the sale of narcotics. Roberts denied the allegations and asserted affirmative defenses, including illegal search and seizure.
After the asset forfeiture hearing, the trial court issued forty findings of fact and four conclusions of law in which it conelud-ed that the $28,020 seized from the Archer address “is the proceeds of Brendan Roberts’s illegal drug trafficking activities,” and is therefore contraband. The trial court ordered the money to be forfeited to the State under article 59.02 of the code of criminal procedure.
Standard of Review
Forfeiture proceedings are civil in nature. Tex.Code Crim. Proc. Ann. art. 59.05(b) (Vernon 2006). The State must prove by a preponderance of the evidence that the property is subject to forfeiture. Id. Money is subject to forfeiture if it is derived from manufacturing, delivering, selling, or possessing a controlled substance. Id. arts. 59.01(2), 59.02(a); State v. $11,014.00,
In forfeiture proceedings, the State must show probable cause for seizing a person’s property. Tex. Const. art. I, § 9; $11,011-00,
Discussion
I.
We address Roberts’s second issue first, as it is arguably dispositive. See Tex. R.App. P. 47.1. Roberts claims the search at the Archer address was unlawful because it was conducted by Carrollton police officers outside Carrollton city limits. Roberts directed the trial court to the local government code and to State v. Kurtz,
The local government code grants general-law municipalities the right to establish and regulate a municipal police force.
(e) A police officer has:
(1) the powers, rights, duties, and jurisdiction granted to or imposed on a peace officer by the Code of Criminal Procedure; and
(2) other powers and duties prescribed by the governing body.
(f) A police officer may serve in each county in which the municipality is located all process issued by a municipal court.
Id. Section 341.003 is entitled “Police Force of a Home-Rule Municipality” and says only that “[a] home-rule municipality may provide for a police department.” Id. § 341.003. Roberts argues that because the local government code specifically grants general-law municipal police departments countywide jurisdiction, but does not similarly grant it to home-rule municipalities, home-rule police departments must therefore have only citywide jurisdiction.
Home-rule municipalities are different from general-law municipalities because a “home rule city derives its power not from the Legislature but from Article XI, Section 5, of the Texas Constitution.” Lower Colo. River Auth. v. City of San Marcos,
The reason that section 341.003 does not grant home-rule police county
In Britt v. State,
Kurtz, which Roberts cites in support of a citywide limitation on jurisdiction, is inapplicable to the present case. Kurtz addresses the jurisdiction of officers making arrests without a warrant.
Further, it is the duty of every peace officer, when a search warrant is duly delivered to him, to “execute it without delay.” Tex.Code Crim. Proc. Ann. art. 18.06 (Vernon 2005). A search warrant is sufficient if it “command[s] any peace officer of the proper county to search forthwith the person, place, or thing named.” Id. art. 18.04. The search warrants in this case command “the Sheriff or any Peace Officer of DENTON County, Texas or any Peace Officer of the State of Texas.” City
We hold that a home-rule municipal police force’s jurisdiction for the execution of a valid search warrant is at least as broad as that of a general-law municipality, that is, at least countywide. See Brother,
As it is undisputed that Carrollton is located in the county in which the search warrant was issued and in which the search took place, the execution of the search warrant by Carrollton police officers on the Archer address in The Colony was lawful. As it was a lawful search, we need not address Roberts’s good-faith-exception argument. We overrule Roberts’s second point of error.
II.
In his first point, Roberts complains that the trial court’s determination that the money was contraband was not based on factually sufficient evidence.
Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points,
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co.,
At trial, it was the State’s burden to establish, by a preponderance of the evidence, a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity, which it may do by circumstantial evidence. $11,011.00,
7. Carrollton P.D. received ... information that Mr. Roberts had removed the marijuana and money from [the Malone address] and was hiding the marijuana and additional proceed money in two separate places to avoid said items from being seized by police.
[[Image here]]
10. Carrollton P.D. received additional information that Mr. Roberts’s drug money was possibly at [the Archer address] ....
[[Image here]]
12. K-9 Bosko alerted at ... the garage door at the Archer address.
[[Image here]]
22. At the Archer address, Carrollton P.D. officers located a black bag under the bed of Benjamin Roberts, brother of Brendan Roberts.
23. The black bag contained several rolls of U.S. currency wrapped with hair ties.
24. Benjamin Roberts provided a written statement to police that the money did not belong to him and that he did not know said bag of money was under his bed.
25. $23,020.00 was recovered from the black bag.
[[Image here]]
27. At the police station, K-9 Officer Sanchez used K-9 Bosko to conduct an open air sniff on the $23,020.00.
[[Image here]]
31. K-9 Bosko only alerted on the bag containing the U.S. currency which indicated that the money contained an odor of marijuana or some other illegal substance which Bosko is trained to detect.
32. The marijuana which Brendan Roberts gave to James Savoldi and which was recovered from the hotel weighed 2.20 pounds. The street value of two pounds of marijuana is approximately $7,000.
[[Image here]]
34. Carrollton P.D. conducted an employment history investigation through the Texas Workforce Commission which revealed that Brendan Roberts had not worked since 2001.
[[Image here]]
37. On October 16, 2007, in F-2007-1267-A in the 16th District Court of Denton County, Texas, Brendan Roberts plead guilty to the marijuana he gave James Savoldi and was convicted of the instant State Jail Felony Offense of Possession of Marijuana Greater than Four Ounces and Less than Five Pounds and sentenced to 180 days in jail.3
Roberts pleaded guilty to possession of marihuana for the drugs he had given James Savoldi to hide. Roberts hid that marihuana when he thought his house might be raided. At that same time, he hid the money in question. Roberts’s criminal history also included a 2000 felony conviction for manufacture and delivery of a controlled substance. Roberts also did not argue that the drugs and the money at the Malone address were not his. Roberts’s own statements in a phone call from jail alerted the authorities that he had hidden money. While the money and the drugs in this case were not found in close proximity to each other, the evidence is more than adequate to show that Roberts made a conscious effort to hide the two in different locations. Further, there was a positive alert by the narcotic-detecting canine on the money after it was recovered.
Considering all the evidence in this case, we cannot say that the foregoing evidence is so weak or the evidence to the contrary is so overwhelming that the judgment should be set aside. See Garza,
III.
In his third point, Roberts complains of the admission of expert testimony by Officer Sanchez, the Carrollton police officer who conducted the dog sniff searches on the Freeman and Archer addresses and on the money at issue. At the hearing, Roberts objected to Officer Sanchez’s testimony because the State “failed to give [him] any opinion, any certification, or any other information” and complained that the State did nothing more than “simply just name him as an expert.” On appeal, Roberts complains that the State failed to provide a complete response to his requests for disclosure. When Roberts objected at the trial, the judge asked if any objection or motion to compel had been filed. Roberts answered no and the court overruled the objection. Roberts argues that the trial judge abused his discretion by applying the wrong standard. Roberts does not specify what the State failed to provide, but it appears that he complains that he was not given the requested mental .impressions and opinions of Officer Sanchez.
The rule requiring disclosure of the expert’s testimony before trial is intended “to provide adequate information about the expert’s opinions to allow the opposing party the necessary information to prepare to cross-examine the expert and to rebut this testimony with its own experts.” Elhamad v. Quality Oil Trucking Serv., Inc., No. 02-02-00412-CV,
The admission or exclusion of evidence is within the trial court’s sound discretion. State v. Bristol Hotel Asset Co.,
Pursuant to Texas Rule of Civil Procedure 194.2, Roberts properly requested that the State disclose, for all testifying experts:
(1) The expert’s name, address and telephone number;
(2) The subject matter on which the expert will testify;
(3) The general substance of the expert’s impressions and opinions and a brief summary of the basis for them; and
(4) All documents, tangible things, reports, models or data compilations that have been provided to, reviewed by or prepared by or for the expert in anticipation of the expert’s testimony.
Tex.R. Civ. P. 194.2.
As to Officer Sanchez, the State responded, “Officer [Sanchez]
We have said before that failure to respond to a request for the mental impressions and opinions of the expert is a complete failure to respond, triggering the automatic exclusion under Rule 193.6, VingCard,
Unlike VingCard, the State in this ease did inform Roberts of the opinions of Officer Sanchez, and the bases thereof. Here, the State disclosed that Officer Sanchez would testify to “the detection of contraband, and the nexus connecting the res to the illegal activity.” The State attached to its response to Roberts’s requests for disclosure Officer Tran’s affidavit. The affidavit stated that Officer Sanchez’s K-9 partner was “trained and certified” in drug detection and described the three sniffs conducted. It detailed the open air sniffs of both the houses on Archer and Freeman as well as the procedure in the hallway of the police department. The affidavit described how Officer Sanchez used Bosko to conduct a sniff on the seized currency and that the K-9 alerted only to the bag containing the money. At trial, this is what Officer Sanchez testified to. We cannot say that the State completely failed to respond to Roberts’s requests for disclosure. Nor can we say that Roberts was surprised or prejudiced by Officer Sanchez’s testimony. The testimony was within the subject matter that the State declared, and the sniff procedures were described at trial just as they were in Officer Tran’s affidavit. Thus, Roberts was sufficiently informed so that he could prepare for meaningful cross-examination of the State’s expert witness.
The trial judge did not abuse his discretion by overruling Roberts’s objection. We overrule Roberts’s third point.
IV.
Roberts argues that the forfeiture of the $23,020 is an unconstitutionally excessive fine under the Eighth Amendment. For the reasons stated below, we disagree.
The Eighth Amendment prohibits the imposition of excessive fines. U.S. Const, amend. VIII. The United States Supreme Court has determined that the Eighth Amendment applies to forfeitures “if they constitute punishment for an offense.” United States v. Bajakajian,
Assuming without deciding that forfeiture of the $23,020 is subject to the Eighth Amendment’s excessive fines clause, and under the analysis set forth in Bajakajian, we do not believe the forfeiture in this case to be unconstitutionally excessive. Roberts’s offense is a serious one involving illegal drugs. The offense occurred in the context of other alleged illegal activities, including possession of
Roberts’s offense was a state jail felony with a maximum of two years’ imprisonment and a fíne not to exceed $10,000. Tex. Penal Code Ann. § 12.35(a), (b) (Vernon 2003). Thus, the proceeds to be forfeited are roughly 2.3 times the maximum statutory fíne. Courts have held that a forfeiture of twice the maximum fine is not grossly disproportionate. See, e.g., U.S. v. Wallace,
Conclusion
Having overruled all of Roberts’s points, we affirm the trial court’s judgment.
DAUPHINOT, J., filed a concurring and dissenting opinion.
Notes
. The trial court ordered the return of the $4,857 found at the Malone address because it was not listed on the search warrant return.
. Although section 341.001 applies to Type A municipalities, the other two types of general-law municipalities (Type B and Type C) look to grants of power given to Type A municipalities absent law specifically applying to Type B or Type C municipalities, respectively. Tex. Loc. Gov’t Code Ann. §§ 51.035, 51.051, 51.052 (Vernon 2008). Since there is no specific law regarding the jurisdiction of Type B or Type C municipal police officers to execute search warrants, the jurisdiction for all three types of general-law municipalities is that which is granted to Type A municipalities. Id. §§ 51.035, 51.051, 51.052.
. Roberts also argues that some of the findings of fact entered by the trial court are not supported by the record. In his brief, Roberts did not identify which findings were not supported by the evidence, but in an appendix, he did highlight findings (among others not transcribed above) 24 and 34. These findings are founded upon information in the affidavits supporting the search warrants, but the court stated it would not take judicial notice of the facts contained in those affidavits. However, additional bases for each finding complained of can be found in Roberts’s own evidence. Roberts offered in evidence the State's responses to Roberts's requests for disclosures, which included an affidavit by Officer Tran. Roberts did not request a limitation to their admission. See Poindexter v. State,
. The State’s response to Roberts’s first request for disclosure incorrectly refers to Officer Sanchez as ‘‘Officer Putnam” in this one sentence. This appears to be a “cut-and-paste” typo. Both Officer Sanchez and K-9 Bosko are correctly identified directly above the sentence. While Roberts draws attention to the typo in his brief, he does not seem to argue that it caused any confusion about who was identified as an expert, or as to what each expert would testily.
. Roberts was charged with misdemeanor possession of a controlled substance for the alprazolam found at the Malone address. The charge was dismissed after Roberts agreed to plead guilty to the possession of marihuana.
Concurrence Opinion
concurring and dissenting.
I agree with the majority that the seizure of the property was proper. I cannot agree, however, with the majority’s acceptance of Bosko’s amazing abilities and expertise.
Regarding the search of Savoldi’s house, the majority, in its thorough and otherwise scholarly opinion, treats Bosko’s “sniff search hit” on the front door of a drug runner’s house as evidence that Roberts’s marijuana, as opposed to all other drugs in the world, was inside the drug runner’s house. Of course, the record makes clear that the marijuana was not in the house, despite Bosko’s “hit.”
Regarding the search of Roberts’s parents’ house and the nexus between Roberts and the money found underneath his brother’s bed, Bosko conducted a sniff search and alerted at the bottom of the garage door. Somehow, that was evidence below and accepted as evidence by the majority that cash was located underneath a bed inside the house. The connection between a hit for drugs at the bottom of a garage door and money underneath a bed inside the house escapes me.
Miraculously, the Amazing Bosko alerted on the sack containing the money. Apparently, Bosko had solved the case and provided Officer Sanchez the provenance of the money. Bosko “proved” to the police that Roberts owned the money and that it was contraband as proceeds from the sale of narcotics.
The Texas Court of Criminal Appeals has recently dealt with the issue of dog-sniff lineups in Winfrey v. State.
Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members.7
The police, though, received a jailhouse tip that Winfrey had told his cellmate that he had heard some things about the murder, how it was committed, and what had been stolen. The Winfrey court then described the following procedure:
To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriffs office. Deputy Pikett testified about a “scent lineup” that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including [Winfrey]. The dogs were “pre-scented” on the scent samples obtained from the victim’s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing [Winfrey’s] scent sample.
Based on this, Deputy Pikett concluded that [Winfrey’s] scent was on the victim’s clothing. Deputy Pikett testified on cross-examination that an alert only establishes some relationship between the scent and objects and that scent detection does not necessarily indicate person-to-person contact. Deputy Pikett also testified on cross-examination that his understanding of the law was that convicting a person solely on a dog scent is illegal.8
The Winfrey court then discussed the validity of the science of dog sniffing:
... [T]he science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have beenemployed for detecting narcotics and explosives, for tracking trails, in search- and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that “[t]he infallible dog, however, is a creature of legal fiction.”
This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, “there is little distinction between a scent lineup and a situation where a dog is required to track an individual’s scent over an area traversed by multiple persons.” Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking.
Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held ... dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. And as recently as 1983, the Supreme Court of Washington agreed. In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.
Like our sister courts across the country, we now hold ... scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. “Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.” The FBI ágrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that “[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.” To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpato-ry evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive.9
As I understand the Winfrey court, a dog may be able to detect a scent, but not how or when the scent was placed on a person or on an inanimate object. With all appropriate respect to Bosko, the fact that he hit on a drug runner’s front door proves nothing, other than that at some time drugs or an object that had contacted drugs or a person or animal using drugs was at the front door. The hit does nothing to connect Roberts with the drugs not found in the house. Similarly, the fact
I also agree that the trial court did not abuse its discretion by overruling Roberts’s objection to Officer Sanchez’s testimony on the ground that he was not disclosed as an expert. My reason for agreeing, however, is that I cannot agree that Officer Sanchez is an expert. Had Roberts objected on the basis that any attempt to use Bosko to connect the cash or the physical locations to Roberts was junk science, we would have a different question before us.
The testimony regarding Bosko’s hits is no evidence of Roberts’s guilt, and I would so hold. I would also hold that none of Bosko’s hits justified any of the searches. And were the testimony regarding Bosko’s hits the only evidence of Roberts’s guilt, I would not concur in the result. But if we exclude testimony regarding Bosko’s hits, the evidence remains sufficient to support the trial court’s determination under the appropriate standard of proof.
For these reasons, I respectfully dissent from the majority’s deference to the explanation of Bosko’s actions and the imputation of Bosko’s conclusions but concur in the disposition of this appeal.
.
. Id. at 876.
.Id. át 877-78 (citations omitted).
. Id., at 882-84 (citations omitted).
. Madison Park, 90 Percent of U.S. Bills Carry Traces of Cocaine (Aug. 14, 2009), http//articles.cnn.com/2009-08-14/health/ cocaine.traces. money_l_cocaine-dollar-biIls-paper-bills?_s=PM:HEALTH (last visited December 21, 2010).