Fant v. State

drinking after the confession found to be true”. alcohol because it was confirmed State, (Tex.Cr. Romero v. However, 800 S.W.2d 539 results. when Red- blood test App.1990). questioned Appellant drinking, dic about his already Reddic had been told the other State, (Tex.Cr. In Port v. 791 S.W.2d 103 occupants Appellant of the car that had been 3(c). App.1990), this Court section addressed drinking, independently and he was able to held that Port’s We statements he shot Ap- confirm this when he smelled alcohol on gun the deceased twice in the head with his pellant. autopsy were found to be true when the gunshot revealed the victim suffered two laboratory testing Appellant’s wounds to the testing head and ballistics satisfy blood this case does not the re proved gun that Port’s fired the shots. quirement that the statement contain asser State, (Tex.Cr. In Santana v. 714 S.W.2d 1 true, tions of facts found to be as this Court App.1986), police questioned both Santana previously interpreted has that term. All the independently and his codefendant when in Appel facts which the State corroborated shortly robbery- were arrested both after a statements, except Appellant’s spe lant’s murder. The codefendant was interviewed concentration, cific alcohol were known be police weapons first and told the murder Thus, fore the interview. his statement was could be found a field. Santana also told 3(c) § exception. not admissible under the Later, police weapons. the location of the Accordingly, judgment we reverse the guns used the murder were found in Appeals and remand the cause the field both men had described. Santana to, among things to that court other consis- argued that his oral statement did not fit opinion, tent analy- with this conduct a harm 3(c) exception within the of section because 81(b)(2) pursuant Tex.RApp.Pro. sis police already weap knew the location of the allowing appellant’s the trial court’s action of they questioned him, ons having when oral statement into evidence. learned this prior information from their in rejected terview of the codefendant. We McCORMICK, P.J., MANSFIELD, claim, holding police that until actually found J., dissent. they weapons, verify were unable to truth of Santana’s and his eodefendant’s as KELLER, JJ., CLINTON and concur in sertions; thus, neither statement was “found the result. Id. discovery be true” until the occurred. at 14. hand, in Almanza v.

On the other (Tex.Cr.App.1992), S.W.2d the defen pointed piece

dant paper to a on a dress police table and told “personal was his

stuff.” Police found paper. heroin inside the

We held that statements that the contents of paper personal were Almanza’s effects Danny FANT, Appellant, were not assertions fact found to be true guilt which conduced to establish his because Texas, Appellee. STATE testing the chemical which showed the sub satisfy stance was heroin did not the “found No. 1047-94. 3(c). requirement to be true” of section We Texas, Court of Criminal only reasoned that Almanza’s assertions were En Banc. Id. guilt. admissions of conclude that We the facts the instant 16, 1996. Oct. Almanza, akin they case are more in that merely guilt. are assertions of

arguable segment Appellant’s statement

“found to be true” was that he had been Schneider,

Stanley 23, 1993, Troy McKinney, September appellant G. On W. filed Moran, Houston, Tom appellant. pre-trial application for for a writ of cor- habeas 656,133, pus upon based Cause Number Houston, Curry, Atty., Alan Asst. Dist. pos- wherein the State indicted Paul, Austin, Atty., Matthew States for the session with intent to deliver a controlled state. application, appellant substance. In his prosecut- claimed the State was barred from possession him for the with intent jeopardy deliver offense under the double OPINION ON STATE’SPETITION FOR provisions Amendment, Fifth DISCRETIONARY REVIEW ap- U.S.CONST. The trial court denied the plication stayed proceedings but further WHITE, Judge. pending appeal of the denial. County appel- Harris authorities arrested 2, 1993, The February Appeals lant on Fourteenth Court of reversed charged him the trial possession with of a court’s decision and rendered a controlled substance judgment granting appellant’s application with intent to deliver. for Pursuant to TEX. State, Fant v. corpus. writ habeas CODE CRIM.PROCANN. art. 59 the State (Tex.App S.W.2d 830 [14 then initiated against Dist.] . —Houston 1994). cash, pistols, telephone and cellular which appellant were seized from when he was only ground In its for review before this Original arrested. The Notice of Seizure and Court, argues the State the Fourteenth Intended Forfeiture set out that it was that, Appeals holding Court of “erred in “brought under and virtue of Texas, right against a narcotics defendant’s of the Texas Code of Criminal Procedure.” necessarily double violated when alleged The State that the United States prosecuted he is for a criminal narcotics of- currency property appellant seized from subjected fense after his has been at the time his arrest was “contraband as to an in separate, rem forfeiture but defined Article 59.01 of the Code of Crimi- related, civil proceeding.” willWe Procedure, ..., nal thereby subject and is reverse. forfeiture.” Appellant and the State entered into an I. THE DECISION OF THE agreed judgment on June 1993. This TRIAL COURT agreement $1,500.00 stipulated that in cur- rency pistols subject and the two were “not hearing appellant’s application At the to forfeiture.” agreement, Pursuant to this corpus, for writ appellant of habeas intro- appellant $3,823.00 forfeited Original United States duced into evidence the State’s No- currency and a Motorola telephone. cellular tice of Seizure and Intended Forfeiture and appellant The agreed State and Agreed Judgment this Final in that action.1 money thereby were origi- “forfeited The first document showed the State City Baytown, to the nally $5,323.00 trustee for Har- appellant seized from in U.S. County Organized ris currency, pistol, Crime Narcotics Task one .22 caliber one .45 cali- compliance Chp. Force pistol, Tex.R.Crim.P. ber phone. one Motorola cellular 59.” proved parties second document post-submission 1. In a brief submitted to this tbe instant case because that in. Court, appellant the State contends has never “taken as a result of the arrest in this case.” punished shown that he has been twice for the Counsel for also asked the trial court to charged. same offense with which he is now judicial take notice of the indictment in the in- argue position State failed to this in the trial During hearing stant case. court, before the trial present argu- court. State also failed to this disputed the State never contested or trial appeal ment Appeals. on direct to the Court of counsel's statement that the forfeited presenting application appellant pursuant When his for was taken writ of from to the arrest corpus, appellant argued appellant’s habeas counsel for which resulted in indictment in the prosecution the forfeiture of his barred instant case. Amendment, $1,500.00 Fifth agreed currency provisions both the forfeiture, I, pistols CONST., § were and Art. TEX. the two currency being appel- analyzed returned to with the CONST. The Court of being pistols returned to his lant and solely grounds claim on Federal because attorney of record. The second document jeop- double believed that and Federal “State $3,823.00 in proved remaining that the also ardy provisions Fant are identical.” currency telephone the Motorola cellular Therefore, we will 881 S.W.2d at 832.2 City Baytown, to the were “forfeited the instant forfeiture vio- determine whether County Organized Harris Trustee for the right appellant’s Amendment lated Fifth compliance Task Force in Crime Narcotics multiple protected receiving pun- (sic) Chp. with Tex.R.Crim.P. 59.” offense. ishment the same argued court Appellant before the trial analyzed Appeals The Court of whether punishment can that forfeitures constitute money appellant’s cellu- the forfeiture meaning Eighth of the Amend- within the only phone punitive or remedial lar was was ment, purposes for punishment and that opinions on three They in nature. relied Eighth applies also to the the Amendment Supreme analysis. their to conduct Court Appellant Fifth Amendment. cited United discussed v. Appeals- The Court of first U.S. 435, Halper, 490 U.S. 109 S.Ct. States v. 440-441, 490 109 at Halper, at S.Ct. (1989), 1892, v. L.Ed.2d 487 and Austin (1989). Appeals The Court of 1897-1898 2801, States, 509 U.S. 113 S.Ct. United ruling for the that a Halper viewed to stand (1993), contending that 125 L.Ed.2d sanction, civil, can as well a criminal con- as money phone forfeiture of his cellular punishment the sanction serves stitute when jeopardy prosecu- a bar caused majority goal of punishment. below responded that in his case. The State tion following language from Hal- relied on the proposition Halper and Austin stood per, was and ex- that the forfeiture unreasonable fairly “property involved not contra- civil that cannot be “[A] cessive and sanction band,” solely purpose, cases and that there were no Texas a remedial but said to serve Halper as also only explained which reached the same conclusion as serv rather can be argued also Austin. The State pur deterrent ing either retributive or against punishing restrictions some- jeopardy have come to poses, punishment, as we apply to 448, 109 did not civil forfeitures. one twice Halper, at understand the term.” that civil did argued forfeitures The State at S.Ct. 1902. elements a criminal

not involve the same as State, at 832.3 Fant v. 881 S.W.2d appli- trial court denied indictment. Appeals then discussed the The Court of corpus. of habeas cation for writ States, 509 decision Austin v. United THE OF THE II. DECISION (1993), 125 L.Ed.2d 488 S.Ct. COURT OF APPEALS Supreme determined wherein the Court Fines Clause whether the Excessive he appeal, appellant claimed that direct On applied to forfeitures jeopardy relief under Amendment4 entitled to was brought against defendant under the nor an action party has contested this conclusion 2. Neither Act, 3729-3731, §§ I, civil False Claims 31 U.S.C. § more argued Court that Art. 9 extends to this $130,000. seeking Halper, statutory penalty of against Fifth protection double than the 437-438, at 1895-1896. at Amendment. Act False Claims action under the civil This Halper. subject appeal in U.S.v. Halper, Appeals 3. noted that “in The Court totalling false Medicare claims filed defendant involves Halper, instant case Unlike terms of the False $585. Under the Federal was seized as con- property which forfeiture of $130,000.” Act, over Fant by appellant. he was fined Claims such to be traband and conceded at 832 n. 2. In U.S. 881 S.W.2d required, had nor ex- the defendant been convicted shall not be after 4."Excessive bail statute, imposed, nor cruel and unusual false-claims 18 U.S.C. cessive under the criminal fines Amend. years punishments U.S.CONST. resulting im- inflicted.” § in a sentence of two $5,000 fine; VIII. prisonment and a the Government provisions subjected under the forfeiture of the federal characteristics which it to the Dou Austin, controlled substances act.5 In ble Clause. U.S. CONST. government sought United States an in rem Appeals Amend. V.7 relied forfeiture of the defendant’s mobile home Supreme explanation Court’s that “crimi body shop pled auto after the defendant fines, forfeitures, penalties, nal civil guilty pos in a South Dakota state court to features,” citing taxes all share certain Aus distribute, session of cocaine with intent to States, 621-623, tin v. United 509 U.S. at 881(a)(4) (7).6 pursuant §§ to 21 U.S.C. “They generate government Appeals Supreme The Court of viewed the revenues, impose fiscal burdens on individu Court’s decision as critical of the forfeiture als, and deter certain behavior. All of these provisions because the value of the sanctions are to constitutional re vary dramatically, seized under them can so Ranch, U.S., at -, straints.” Kurth any relationship govern between the 1945. The Court of ment’s actual costs and the amount of the pointed out that the Court decided Ap coincidental. The Court of drug “fairly Montana’s tax was characterized peals believed the Austin Court concluded punishment, and thus could not im forfeiture under the statute did not posed in proceeding following a second serve purpose, remedial but instead first for the criminal offense.” “payment sovereign constituted pun to a State, However, Fant v. 881 at 833. S.W.2d ishment for the same offense.” Fant v. Appeals rely the Court of chose not to on State, 881 S.W.2d at 832. The Court of in making appel Kurth Ranch its decision in Appeals pointed Supreme out the Court de lant’s ease. cided Austin that forfeiture under the provisions of the federal controlled sub Appeals The Court of chose to the follow “subject stances act was to the limitations of States, decision Austin v. United the Amendment’s Excessive Fines 113 to determine “whether State, Clause.” Fant v. id. already punished by has been the

Lastly, forfeiture of his Appeals the Court of under TEX.CODE discussed the in Department decision CRIM.PROC.ANN. art. 59.02.” Fant v. Revenue Mon of of State, Ranch, 767, 114 tana v. Kurth 881 S.W.2d at 833. In the course of (1994). decision, making 128 L.Ed.2d Appeals In Kurth the Court of Ranch, Supreme sought Court decided whether to resolve whether 59 could tax, imposed the state’s possession on the punitive be characterized as or remedial. storage dangerous State, and of drugs, punitive had Fant v. 881 S.W.2d at 834. 881(a)(4) (7). U.S., §§ 5. See 21 U.S.C. & These stat- sold to the individual. Austin v. 509 U.S. at provide 603-606, utes for the forfeiture of: 113 S.Ct. at 2803. "(4) aircraft, conveyances, including All vehi- cles, vessels, used, which are or are intend- Ranch, 7.In Kurth six members the extended of use, transport, any ed for to or in manner to family charged conspiracy Kurth were to sale, transportation, receipt, pos- facilitate the possess drugs with the intent to sell for cultivat- session, or concealment [controlled of sub- selling marijuana. and All six defendants stances, materials, equipment their raw plea agreements charges. entered into on these used in their distribution]" manufacture and Next, county attorney filed a civil forfeiture “(7) property, including any right, All real ti- against seeking action the Kurths cash recover tle, (including any and interest leasehold inter- equipment marijuana oper- and farm used in the est) any in the whole of lot or tract of land and respondents ation. The settled ac- the forfeiture any appurtenances improvements, which is $18,016.63 agreement tion with an to forfeit used, used, or intended to be manner or equipment. Lastly, various items of after the commit, part, commission or to facilitate the pro- criminal and civil forfeiture of, subchapter punishable by a violation of this concluded, ceedings Department were year's imprisonment....” more than one attempted Revenue of Montana to collect almost $900,000 Austin, marijuana plants, hash tar 6. taxes In the defendant met an at individual oil, interest, penalties. body shop agreed and hash This last the defendant's auto to sell action was the cause before the Court in Kurth individual some cocaine. The defendant Ranch, U.S., at-, went back to his mobile home and returned to Ranch. Kurth shop grams with two of cocaine which he 114 S.Ct. at 1942-1943. First, Appeals granted application for of habeas adopted his writ Court State, corpus. at 834. Supreme conclusion of the Court in Austin Fant v. S.W.2d historically that “forfeiture has been under- State, punishment.” v. stood as Fant id. III. UNITED STATES V. URSERY Second, Appeals the Court of reviewed the Supreme Recently, the Court handed down Supreme Court’s “focus” on innocent — Ursery,8 its States decision United v. owner defense in federal stat- -, L.Ed.2d 881(a)(4)(C) utes, (a)(7), §§ 21U.S.C. & 549(1996), forfei in which it decided that civil finding their that the inclusion an innocent tures, “punish generally, do not constitute congressional owner defense revealed a in- purposes ment” of the Double punish only drug tent those involved Clause of the Fifth Amendment. The Court State, trafficking. Fant v. 881 S.W.2d at 833. Appeals not have the of this did benefit Because the in- Texas statute also decision when it decided instant case. defense, cluded an TEX. owner innocent light Ursery, Appeals’ the Court of 59.02(c)(2), CODE CRIM.PROC.ANN. art. upon reliance Austin v. United States Appeals Leg- Court decided Texas misplaced. impose penalty islature intended to forfeiture on those involved criminal activi- began Ursery with a ty, look “which makes the statute more like governing review of “in rem civil decisions punishment, less.” Fant v. prosecutions forfeiture actions S.W.2d underlying based on same events.” U.S. — S.Ct., U.S., -, The Court of also found the inclu-

sion forfeiture statute the Code of support Criminal Procedure lent further long pointed The Court out “in a line purpose their conclusion that the of the for- cases, applica- this Court has considered the punish drug feiture statute was to traffick- Jeopardy to civil tion of Double Clause State, ers. Fant v. at 881 S.W.2d 834. forfeitures, consistently concluding that the apply to actions be- Clause does not such conceding After the Texas forfeiture stat- they impose punishment.” cause Ur- do not goals, ute has remedial as codified in Art. sery, decisions ibid. The Court reviewed its 59.06(c), (h), Appeals stated the Court prior three cases. forfeiture statute must be characterized as “punitive, factors based on the delineated Property v. In Items Personal Various Fant, Appeals Austin.” id. The Court of 577, 282, States, 75 United 282 U.S. 51 S.Ct. appellant already had then concluded been (1931), unanimously held L.Ed. 558 the Court punished by for his criminal conduct inapplicable Jeopardy Clause was Double telephone, forfeiture of and cellular his cash to civil actions: forfeiture punishment further his proceeding ... is in rem. [This] forfeiture “by criminal conduct was barred the Double proceeded It which is Jeopardy Clause of the United States Consti- fiction, and, against, legal resort tution.” 881 at Fant v. S.W.2d 834. though it guilty held and condemned as carefully pointed instead of inanimate and Appeals

The Court of out were conscious prosecution In a criminal it is holding it the Texas forfeiture stat- insentient. explained wrongdoer person proceeded It that if the who ute unconstitutional. convicted, punished. The for- against, an prosecute wished to both individual State part of the for the criminally proceedings feiture is no pursue provision individual, against that “it must do in the criminal offense. so Fifth proceeding.” The Court of Amendment Constitution same apply. respect jeopardy does not appellant’s point first of error and of double sustained single Ursery opinion, hereafter companion rari Court in a 8. The case to was United $405,089.23 Currency States et States v. in United Ursery. referred to as together al. Both cases were decided on certio-

305 — at -, Ursery, U.S. 116 at 2140. intention to a civil S.Ct. establish remedial mecha concluded, The Court “for the Various Items petitioner nism.” The found the in “89 Court Court to have held that the forfeiture was Congress Firearms failed to establish that prohibited by prior proceeding provided punitive had a sanction so directly contrary would have been to- the transformed what was intended as a civil rule, common-law and would have called into remedy penalty.” into a criminal U.S. v. — question constitutionality of forfeiture at -, Ursery, U. at 2142. S. S.Ct. thought statutes constitutional for over a cases, Ursery From its review of these — century.” -, Ursery, at U.S. that “in Court concluded rem civil forfeiture 2141; S.Ct. at and cases cited therein. sanction, is a civil remedial distinct from Next, holding set out Court its One potentially punitive personam penal civil States, Lot Emerald Cut Stones United fines, ties such does not constitute a U.S. S.Ct. 34 L.Ed.2d 438 punishment the Double curiam), (1972)(per wherein it reaffirmed the — at -, Ursery, Clause.” U.S. rule of Various Items. The Court held “the 116 S.Ct. at 2142. punishments forfeitures were not criminal Next, reviewed they impose because did not a second in Ranch, decisions Kurth and Aus- personam penalty for the criminal defen- — tin. The Court held “none of these decisions wrongdoing.” Ursery, dant’s at purported to overrule the well-established -, Items, teaching” of Various Emerald Cut Lastly, upon the Court relied United Stones, and 89 Firearms. Firearms, States v. One Assortment forfeiture, Halper involved not a civil but 79 L.Ed.2d 361 penalty.... civil The narrow focus of (1984). reviewing the forfeiture statute in Halper followed from the distinction that Firearms, to determine whether it was historically we have drawn between civil remedial, punitive or the Court first looked penalties. forfeiture and civil Since Congress. to the intent of The Court con- Items, distinguished least Various we have cluded the statute was intended to be reme- fines, penalties, such as from civil dial findings. based several that are in rem. First, noting proceed- that the forfeiture rem, — significant was in we found it at -, in traditionally ‘actions rem have been Ursery explained that in an in proceedings, jurisdic- viewed as civil with proceeding property rem forfeiture “it is the dependent upon tion physi- the seizure of a proceeded against, by which is and resort to object.’ Second, cal ... we found that the fiction, legal guilty a held and condemned.” provision, forfeiture because it reached — at -, Ursery, U.S. 116 S.Ct. at 2145. weapons both used in violation of federal case-by-case “the Court concluded bal law and those ‘intended to be used’ in such ancing Halper, forth in in test set which a manner, a range reached a broader of con- compare by Court must the harm suffered Third, analogue. duct than its criminal we against penalty the Government the size of concluded that the civil ‘fur- forfeiture imposed inapplicable is to civil forfeiture.” thered including broad remedial aims’ both — at -, Ursery, at 2145. U.S. S.Ct. ‘discouraging unregulated commerce in they pointed recognized The Court out this ‘removing firearms’ and from circulation Ursery, in Kurth Ranch. ibid. firearms that have been used or intended regulated for use outside com- channels of Lastly, emphasized the Court that “Austin merce’. solely was decided under the Excessive Fines — at -, Ursery, at 2142. S.Ct. Amendment, Eighth Clause to the a constitu stage inquiry provision The second of the Court’s in tional which we under never have to, to, parallel 89 Firearms was to determine whether the stood as or even related the statutory punitive scheme was so either in Double Clause of Fifth Amend the — at -, purpose negate Congress’ Ursery, or effect “as to ment.” (C), (D). 59.01(2)(B), and

at Because under 21 U.S.C. violence. Art. 2146. forfeitures 881(a)(4) (a)(7) Therefore, subject property §§ when are to review is contraband it is instrument, under Amend for excessiveness used as an or is intended be “Austin, mean, instrument, not how ment after does used as an in the commission of a crime, ever, punitive as specified that those forfeitures are so as which well as is punishment purposes proceeds, pro- with gained acquired constitute for as or Therefore, speci- de jeopardy.” gained, double the Court commission of a ceeds impart analysis Austin into clined “to crime. fied Jeopardy jurisprudence.” our Double Ur 59.02(a) Art. commands — -, sery, U.S. at above, contraband, which is as defined “nothing concluded The Court subject to seizure forfeiture. Art. 59.04 Ranch, Austin, purported to re Kurth out the rules notice in a forfeiture sets for place understanding our traditional that civil 59.04(b) proceeding.- Art. a forfeiture states for does not forfeiture constitute proceeding notice of commences when purpose of the double clause.” place. takes seizure intended forfeiture — at -, Ursery, on the owner of the Service per- must be interest holder THE TEXAS FORFEITURE IV. provided as formed “the same manner for STATUTE process by citation civil the service light begin anal Ursery, In we our Any owner holder cases.” or interest ysis argument of the State’s with an exami party property shall be as a named provisions nation of the of the TEX.CODE provided with citation the Tex- “served Chp. 59 to determine CRIM.PROCAJSTN. 59.04(i). of Civil Art. as Rules Procedure.” is reme whether the Texas forfeiture statute governing Art. 59.05 sets out the rules analy punitive. step in our dial or first hearings. hearing, In a forfeiture Ursery sis is to whether the determine parties comply of the “must rules all Legislature proceedings intended for un pleading required in suits.” Art. civil Secondly, der Art. 59 to be civil criminal. 59.05(a). Moreover, pro- ... shall “all cases we must determine whether the trial in the manner as other ceed to same in fact punitive persuade as to us are so eases. The state has the burden of proceedings may legitimately preponderance proving a evidence spite civil in viewed as nature forfeiture.” Art. Legislature’s intent. 59 Cr.L. 59.05(b). 2196-2197. Lastly, underly- “final for an conviction definitions, Chapter 59 sets out requirement is not a forfei- offense guidelines, procedures the State for fact, if chapter.” under this ture de of contraband.” The statute “forfeiture underlying criminal offense results dis- any nature” “property contraband as fines acquittal an acquittal, or missal evidence any in used that has been the commission merely presumption prop- a that the “raises degree felony the PE or second under first subject of erty or interest that is the CODE, any felony Chap in NAL set down presumption hearing is nonforfeitable. This CODE, 30, 31, 29, or 32 of the PENAL ters by that the can be rebutted evidence owner Act, felony art. any or under The Securities should have interest holder knew or or 59.01(2)(A); property used or that has been property that was contraband.” known commission or intended to be used in the 59.05(d). Art. felony Controlled under The Texas statutory light Act, among pro provisions shed statutes or These other Substances felony Legislature that intended forfei- from the of a whether gained commission ceeds (A) (B) puni- or from a under our statute be remedial and or ture set out in subsections Ursery and violence; As was the case in acquired proceeds or tive. crime Firearms, Legisla- is doubt the gained felony a listed there little from the commission of (A) (B) Art. to be reme- crime of intended 59 forfeitures in or a ture subsections underlying criminal offense by conviction for an Legislature’s dial. The intent is shown proceeding pro- procedural which it estab in order for a forfeiture mechanisms statute, acquittal an govern proceedings. lished to forfeiture the Texas ceed. Under appears Legislature underlying nothing more From the statute it for an offense does proceedings in presumption intended forfeitures to be civil the State can than raise a which proceedings forfeiture are by rem. The Texas and still obtain a suc- overcome rebuttal 59.05(d). targeted against prop impersonal actions Art. From cessful forfeiture. erty Ursery, itself. As 89 Firearms and that it is not provisions, these it is evident jurisdiction proceeding, of a forfeiture as necessary holder that the owner interest rem, proceedings dependent is with other person charged with the commission be the object. upon physical of the Art. offense, seizure long as underlying criminal so of an 59.03; U.S. at -, Ursery, - un- to be contraband is shown S.Ct. at statutory property, der the definitions. The uses, uses, point origin as its intended proceedings to be described above are proceeds, target is the of the Texas forfeiture governed by at all times the rules out to set may, at provisions. The fact that the State govern- govern proceedings. civil The rules proffer of- proceeding, the civil in rem process by notice and service of citation prop- committed the holder of the fenses governed by governing are rules punish- erty not make the forfeiture a 59.04(b) (i). does gov- eases. Art. The rules Ursery, J. ment for those offenses. See erning pleadings in forfeitures are those set Kennedy, concurring, 59.05(a). out for civil cases. Art. bur- proof preponderance den of These factors lead to the conclusion that 59.05(b). Art. evidence. statutory provi forfeitures under the Texas proceed sions were meant to be civil rem property, It is evident that the and not an ings. individual, The Courts of and the Texas target is the of forfeiture when Supreme Court have also reached this con provide the statutes that a forfeiture can hearing appeals of civil forfei owner, clusion place even take of an the absence al., Rumfolo, v. et tures. State 545 S.W.2d possessor. interest holder or See Art. (Tex.1977); $191,452.00 State, 59.04(k). v. As with the federal forfeiture stat ute, (Tex.App.Corpus S.W.2d Christi requirement there is no in the Texas 1992); Fleming 704 S.W.2d statute that “the State demonstrate scienter 1986). In (Tex.App.-Houston [14 Dist.] order to establish that light of the decisions of the Court Various provision, to forfeiture.” Under this Firearms, Rems, Stones, 89 Emerald Cut it is conceivable that for could be long Ursery, “and the tradition of federal feited if no owner or interest holder files a providing proceeding statutes forfeiture claim it and the State fails to demonstrate following prosecution, it is a criminal abso a connection between the and a — lutely has at -, clear that rem civil forfeiture particular person. Ursery, historically regarded punish 2149; also, been see, 116 S.Ct. at U.S. McCas — at -, (9th lin, Cir.1992), Ursery, ment.” 959 F.2d 786 cert. denied Legislature Texas 942, 113 at 2149. We hold 121 L.Ed.2d 292 (1992)(wherein, intended the Ninth Circuit found the Art. 59 be civil and not criminal. instru was the of, mentality “independent of a crime was stage of Under the second wholly by any pro unaffected analysis of our forfeiture statute involves Palmyra, ceeding personam,” quoting in (by “clearest whether there is evidence (12 Wheat.) 1, 14-15, 6 L.Ed. 531 proof’) suggest to that Art. 59 forfeiture (1827).). punitive are “so in form and despite property, per that as to render them criminal”

The idea and not effect sons, contrary. Ursery, target pro Legislature’s of intent to the are Texas forfeiture — at -, at 2148. As in ceedings Legislature’s is also reflected in the 116 S.Ct. U.S. in statutes require decision to not that there be a final the case of the Federal forfeiture launching illegal This is appears prior to his scheme. Ursery, forfeiture statute the Texas meaning plain of nonpunitive goals.” not ‘within the “important Ur to serve ” — -, Tilley, the word.’ ibid. sery, at 116 S.Ct. at 2148. U.S. of Chapter provides for the forfeiture cases, goal will be In some a remedial “used, or “property of nature” that property that the forfeiture of served where used, of’ in the commission intended be in to be used the commis is used or intended any felony Substances under the Controlled Texas Controlled sion of a violation Act, proceeds gained from the commission of nui abating in Act succeeds Substances “acquired proceeds” felony, or with said — at -, Ursery, 116 S.Ct. sance. U.S. felony. of that gained from the commission 2148; therein. We hold the and cases cited (D). (2)(B), (C), By requiring Art. 59.01 not been statutes have Texas forfeiture used, in property gained, or the forfeiture of proof’ puni “so by the “clearest shown statute, property manner set out in the render them and effect as to tive form “encouraged take care in owners will be criminal.” also managing property.” their There will the in rem civil Consequently, we hold permit “they will not that be some assurance prescribed by Chapter 59 are nei- forfeitures illegal purposes.” Ur be used — purposes nor criminal for “punishment” ther at -, 2148; sery, 116 S.Ct. Fifth Jeopardy Clause of the of the Double cited therein. cases Amendment. Also, requiring the forfeiture of activity, proceed illegal or ac is a activity, quired proceeds of that with the CASE Y. FACTS OF INSTANT “ensuring that nonpunitive goal of serves the Original In its Notice of Seizure profit illegal acts.” persons do not from their alleged the Forfeiture the State Intended — at -, 116 S.Ct. telephone currency, pistols and cellular (5th Cir.1994), Tilley, 18 F.3d 295 In U.S. v. contraband as appellant were all seized from — U.S. -, 574, 130 cert. denied subject thereby Chapter 59 and defined (1994), sought L.Ed.2d 490 the Government statute, By the terms of forfeiture. $650,000.00in approximately the forfeiture of currency, pistols and allegation means the illegal proceeds. The 5th Circuit Court proceeds telephone were either the cellular forfeiting party Appeals explained how the activity. of criminal from or the instruments nothing “to which the law ever entitled lost him.” above, appel- pointed out the State As $650,000.00 approximately the forfeiture instant case. agreed to a forfeiture lant proceeds punish not illegal does $1,500.00 in agreed that parties further price in it exacts no defendant because currency pistols two were and the from liberty lawfully derived or presume from this can to forfeiture. We proceeds from ille- possessor him. $1,500.00 pistols and the that the agreement honest labor

gal drug sales never invested parties Both also contraband. were not lawfully property to ob- or other derived $3,823.00 tele- and the cellular agreed that proceeds. subsequently forfeited tain the City Baytown to the phone were forfeited expec- Consequently, he has no reasonable pre- We can compliance condone, protect, that the law will tation agreement, the terms both from this sume allow, possession of his continued even Original of Seizure Notice the State’s they then- proceeds have such because Forfeiture, Chap- and the terms of Intended activity. very illegal genesis $3,823.00 currency and the ter 59 that as de- telephone were contraband cellular Tilley, at 300. For 18 F.3d words, cur- 59.01. In other fined Art. reason, the forfei- Fifth concluded Circuit telephone were rency and cellular “much like the con- illegal proceeds, ture of in the to be used robber, used or intended that were money a bank fiscation of stolen crime, specified lawfully pro- commission of merely places party of, with acquired proceeds enjoyed that were the quo status that he tected financial

309 analysis of the bill from, Organization’s speci- of a Research proceeds the commission 14, supporters’ its July 1989 describes crime. fied position as follows. holding of erred Court punishment HB 65 would increase punitive. explained As forfeiture statute was by allowing the state to confis- criminals above, provides in rem Chapter 59 for civil any almost property connected with cate punitive are not in nature. felony, limited crimes cov- rather than the Therefore, hold that forfeiture of we bill, by This similar current law. ered property pursuant Chapter appellant’s during regular ses- introduced the bill proceeding that was nei- was a civil rem Speaker anti-crime part as Lewis’ sion pur- punitive nor criminal in nature for ther economic package, hit hard at the would poses the Double Clause of the expanding the by for crime incentives Fifth Amendment. We sustain the State’s property sub- amount of crime-connected judgment ground for review and reverse pow- ject being The economic forfeited. Appeals.9 The instant case is of the Court organization could be crushed er of a crime to the trial court for the defendant remanded by the confiscation of its assets. to answer the indictment. by eventually passed both

This bill was CLINTON, J., a bouncing around for while concurs result. houses after 1989, Leg., 1st Acts 71st between them. See MEYERS, Judge, concurring. 1, 18, C.S., 12, § eff. 1989. Since ch. Oct. analysis legislative times, intent is The Court’s several none then it has been amended respects. Certainly, accurate most significant is to the of which amendments last, forfeiture statute issue this case has present inquiry except the which the pro- (e) many characteristics of a civil in rem of article Legislature added to subdivision ceeding nonpunitive objectives. Tex. following “It the in- 59.05 the statement: is example, ch. For a Code Crim Proe. legislature that asset forfeiture tention of the pursuant evidently lawsuit filed to the statute a form of is in nature and not remedial depend upon the trial history does its success ac- punishment.” legislative Had the obtaining personal jurisdiction court’s a tually reflected an intent to create remedial being. owner or of other human place, no such amendment statute the first Eligible property may thought necessary. be taken the State It have been would ever person punished thereby. no legislative even when the few sources of because contrary And there are other unmistakable earmarks support a conclu- purpose tend to nominally through- of a civil cause of action intervening case law sion and because out the statute. Supreme Court raises the the United States reinterpreta- specter of a bar legislative But the record of its enactment legislative purpose now seems tion of the entirely tending is not devoid of evidence desirable. See United States suggest really that this statute was meant 442-444, 1892, 1898-1900, 435, Legislature as a for criminal (1989); Austin v. United 104 L.Ed.2d 487 provisions conduct. The core States, 509 U.S. evidently beginning had House Bill 8 their (1993); Department Montana L.Ed.2d Legisla- Regular in the Session of the 71st Ranch, 767, 114 Revenue v. Kurth that, however, ture. After the bill received (1994). 128 L.Ed.2d significant left no further attention and was Nevertheless, very opinion in a recent ex- pending Regular came to a when the Session amining jeopardy implications Bill of forfei- But it resurrected as House close. remarkably statute simi- virtually at the 1st ture under federal the same form issue, the one here in the United States Legislature of the same lar to Called Session time, held that the seems to have month or so later. At that the House dispositive analysis pursuant separate to the Fifth Amendment is appellant advanced no 9. As argument before this Court of a claim under the us. the issue before infra, Constitution, holding see our Texas Note 310 added). Court, necessarily (emphasis Supreme rem character of a civil lawsuit VIII States,

places beyond the reach of in Austin v. the Double United 113 2801, 125 (1993), Jeopardy United S.Ct. L.Ed.2d 488 addressed Clause. States v. -, applied 518 whether the Excessive Fines Clause 135 L.Ed.2d 881(a)(4) (1996). § 21 Although Supreme 549 forfeitures under U.S.C. the Court did (a)(7), emphasize analysis of the federal Controlled Substances jeopardy com- Austin, pled guilty Act. In plaints involving the defendant successive rem forfeiture court prosecutions possession state of cocaine with in proceedings and criminal should begin tent to inquiry legislature an distribute and was sentenced seven whether the years imprisonment. Subsequently the penal- to be an fed intended forfeiture additional government ty crime, eral filed an in rem action in commission of the the Court seeking federal district court forfeiture of willing seemed to conclude that the intrinsi- cally body shop defendant’s and mobile pro- noncriminal character of auto home. such a Evidence sold was introduced defendant two ceeding was sufficient itself the to settle grams Engebretson question cocaine to a Keith recourse to an without examination body shop. subsequent his auto A search underlying actual motives the enactment my view, In defendant’s home uncovered small the forfeiture law. ratio- mobile cocaine, gun, amounts of nale that of the marihuana is at odds with in its Court drug paraphernalia in cash. Sum opinions general $4700 other on the recent same Austin, judgment subject. mary government for the See and Kurth granted Appeals and the Court of affirmed. persuaded But I am Ranch. balance that Cir.1992). (8th 964 F.2d Supreme would not Court hold a succes- sive under forfeiture judgment reversing the Court of prosecution generally after criminal based on Appeals, held that Court versa, conduct, jeopar- same vice to be apply to Excessive Fines Clause does dy barred under the United States Constitu- 881(a)(4) § forfeitures U.S.C. tion, given holding Ursery. its recent Ac- (a)(7). The further held such join cordingly, opinion I this Court properly “pun- forfeitures considered as are the instant cause. ishment,” history noting legislative which characterizes forfeitures of real as MANSFIELD, Judge, concurring. deterrent,” powerful “a the inclusion of an join opinion I of the Court write language innocent owner defense separately only supplement the well-writ- the statute itself which states is majority opinion. ten directly forfeitable if tied to the commis- Austin, drug sion of U.S. at offenses. A civil forfeiture under Texas Code 620, 113 “We therefore con- S.Ct. at 2811. potentially Criminal Procedure Article 59.02 provisions clude forfeiture under these implicates provisions of two the United sovereign ‘payment pun- constitutes to a as States Constitution: Excessive Fines offense,’ Browning-Ferris ishment for some Eighth Clause of the Amendment and the Inc., Disposal, Industries v. Kelco Double of the Fifth Amend- Clause 257, 265, 2909, 2915, 106 L.Ed.2d Additionally, it must be ment. determined (1989), and, such, subject to as is pro- whether the to be forfeited limitations of Amendment’s Ex- activity ceeds instru- Austin, 509 cessive Fines Clause.” activity, mentality of criminal 621-623, 113 categories falling under one of those two enjoys protection. greater constitutional and remanded The Court reversed if cause to the court of to determine The Excessive Fines

I. Clause Excessive violated the Fines and Civil Forfeitures not establish Clause. The Court did guidelines to in the determination of required, shall not be nor be used “Excessive bail particular rem imposed, nor cruel and unusu- whether excessive fines Const, concurring opin- excessive. al inflicted.” U.S. amend. Justice Scalia’s Const, In rem limb ...” amend. V. states that the sole measure of an in of life or ion relationship supra, forfeiture’s excessiveness is the Halper, Halper was convicted U.S. v. the forfeited and the of between claims, filing 65 false and was of Medicare Austin, 625-627, 113 S.Ct. fense. U.S. at years’ imprisonment to two a sentenced 2814, 2815. $5,000. evidence showed the fine of The clear, government however, loss to the was $585. It that forfeiture total does seem $30,000 approximate- a vehicle as of an individual prosecuting Halper of result cost of being convicted of a B misdemeanor of $16,000. Class ly possession single of a marihuana because government brought a then civil action cigarette in marihuana was found the vehi- Act, under the False Claims 31 U.S.C. ashtray would barred cle’s be excessive and 3729-3731, Halper §§ under was sub- which by such the A as Excessive Fines Clause. ject claim, penalty to a for each false $2000 may if different result indicated well be $130,000. for a total The district court transport signifi- vehicle was same used to concluded, light previous in crimi- Halper’s amounts of cant controlled substances. Such proportionality punishment, penalty an a review is to be conducted nal additional review, is, by appellate the trial court and on large Jeopardy would violate Double the subject an abuse of discretion standard. pun- prohibition multiple criminal Clause’s for the offense. ishments same

However, Austin to the is not relevant present Chapter case. a 59 forfeitures are Supreme unanimously held that Court forfeitures, category of limited as a forfeiture criminally “government may prose- the not may Chapter only if occur the State defendant, penalty a impose cute a criminal forfeited, proves the a to be him, upon bring separate and then a civil evidence, preponderance of the to be contra- on the action based same conduct and receive band, i.e., proceeds activity criminal judgment rationally a that is related not which was used to facilitate commission making goal government whole.” the the crimes. Such thus should be ana- forfeitures Halper, 490 U.S. lyzed using the standards established the in Supreme Halper, Court acknowledged The Court that a civil sanc- (1989).1 L.Ed.2d following a that com- tion criminal conviction the addressed government its costs of pensates the for may whether a civil sanction be considered as prosecution damages and actual is remedial punishment, thereby implicate the Fifth punishment. and is not a civil nature Such jeopardy Amendment’s double so as to clause Jeop- implicate Double sanction does subsequent prosecution bar a ardy Clause. “We hold that under therefore person whose has been forfeited. Jeopardy a the Double Clause defendant who alleges appellant present As case a already punished pros- has been in a criminal claim, Austin, jeopardy supra, double which may subjected not be an additional ecution only im- Eighth addressed Amendment to the that the extent second sanction forfeitures, plications point, of civil not on may sanction not be characterized as remedi- case, appellant, in present as did not al, but as deterrent or retribu- allege an Amendment claim. The previously tion. .. .Where defendant has appeals relying court of erred in on Austin and the civil penalty sustained a criminal present case. The correct standard sought proceeding penalty subsequent in Halper, supra. is found review goal of com- bears no rational relation to the The Double II. Clause loss, government pensating for its but and Civil Forfeitures appears qualify ‘punishment’ rather word, meaning plain then the “... person nor shall be accounting of put offence to is entitled to an the same be twice defendant however, say, This is not to the Excessive Fines Clause. forfeitures, instances, may in some not violate proceeds from the government’s damages proven and costs to deter- to be the penalty sought if a criminal act mine fact constitutes instruments of enumerated 59.01(2)(A) (2)(B). In punishment. pres- a second must leave to the Article We case, cash, alleged pistols trial court the discretion to determine on the ent the State accounting phone of such an the size of and cellular seized from basis contraband, i.e., may proceeds government civil sanction the receive were either the activity. crossing remedy from or the instruments of criminal without line between 450, punishment.” Halper, Appellant allega- 490 U.S. at never contested the State’s and, property in 109 S.Ct. at 1902. tion the was contraband effect, allegation by agreed with the State’s Halper, with it is clear that Consistent agreeing to the forfeiture of and the $3823 subsequently a where the State files phone. appeals erred in cellular The court sanction, or, forfeiture, in my opinion, a civil property it if the was that never determined against against action an individual whom it contraband. conviction, already has obtained a criminal must demonstrate to the trial court that the Using Halper, in the standards established amount of the forfeiture or sanction it seeks property proven forfeitures of to be contra- “remedial,” i.e., rationally the amount is Chapter in band as that term is defined prosecution dam- related to the costs of always appeals are The court of remedial. ages it a individu- sustained as result effect, ruling, in in could result conduct, a al’s criminal the case of civil having against a conviction a after obtained forfeiture, property sought to be forfeited robbery, being aggravated for defendant activity proceeds is the of criminal or used in grounds barred on double from i.e., crime, the commission of a “contraband.” bringing subsequent civil forfeiture action Any of such forfeiture or sanction excess effect, robbery proceeds. to In recover the an amount or that is not “contraband” is Chapter merely pre- allows the State punishment by Double and is barred retaining property vent individuals Jeopardy Clause.2 proven unlawfully used or ob- to have been tained, is, Denying that contraband. convict-

III. The Present Case proceeds ed criminals of the retention of the case, activity property or of used present charged In the was of their criminal possession activity to facilitate their criminal via civil of a controlled substance property remedial as with intent to deliver. The State then initi- forfeitures of such Chapter property legitimately such not obtained ated forfeiture Therefore, 59, alleging or used. forfeitures of that cash and other contraband, proven as that term is appellant at the time of his ar- to be seized from 59, Chapter punishment are not contraband as defined in Article defined rest was protec- thereby subject Ap- Jeopardy the Double Clause’s 59.01 and to forfeiture. agree- implicated. not pellant and the entered into an tions are State agreed to forfeit ment which he $3823 majority Tilley, 18 F.3d The cites U.S. stipulated phone. agreement a cellular Cir.1994) (5th McCaslin, and U.S. weapons an and two that additional $1500 (9th Cir.), denied, cert. F.2d 786 Appellant “not to forfeiture.” were (1992) 121 L.Ed.2d 292 Jeopardy contends the Double Clause bars support holding Chapter 59 forfei of its pending drug charge be- prosecution of the not for tures of contraband are proceeding constitutes cause the forfeiture In Jeopardy Clause. purposes of the Double “punishment.” the sub Tilley, supra, the defendants were ject proceedings com majority correctly Chapter of civil forfeiture convicted, Halper Tilley, su- whereas in Chapter alleging property of the under 59 $650,000 pra, represented the forfeiture instrumentality the individual was the portion of from defen- the revenue derived commission of a crime. As the Ninth Circuit large-scale drug operation. dants’ The court McCaslin, v. 959 F.2d held United States Halper classify we the stated “under must (9th Cir.), denied, 942, 506 113 786 cert. proceeds civil forfeiture of the unlawful 382, (1992), 121 292 S.Ct. L.Ed.2d double 881(a)(6) illegal drug § pun- as a sales jeopardy application has no to forfeiture the Jeopardy Double ishment under the Clause proven to the property which is have been if, case, particular in this amount of the McCaslin, instrumentality crime. of a proceeds great so it forfeited was that bore supra, government sought no rational to the relation costs incurred property of defendant he had real which government society resulting grow Subsequently, the used to marihuana.3 Tilley, criminal the defendant’s conduct.” government grow- indicted the defendant for added). supra, (emphasis at 299 ing marihuana. The district court denied compared, correctly, pro The Fifth Circuit to dismiss defendant’s motion the indictment drug proceeds ceeds of to the sales derived grounds jeopardy of double and he was robbery from a bank and their forfeiture affirmed, hold- convicted. Ninth Circuit “merely places party lawfully- in the necessary “there no relation between protected quo status he en financial the value of forfeited and the joyed prior launching illegal to his government, to the nor loss is there possessor proceeds scheme... .The from necessary proportion between the value drug illegal sales never invested honest labor and the criminal use of forfeited lawfully or other derived to obtain property... no .Double has subsequently proceeds. McCaslin, forfeited Conse supra, application.” at 788. See quently, expectation he no also, has reasonable 89 United States One Assortment of condone, Firearms, protect, 354, 362-365, that the law will or even 465 allow, (1984); 1099, 1105-1106, possession pro his L.Ed.2d 361 Ca continued of such Co., they Leasing v. Pearson Yacht very genesis ceeds have their lero-Toledo because 663, 2092, 683-685, 2080, illegal Tilley, supra, 416 U.S. S.Ct. activity.” at 300. See (1974); also, L.Ed.2d 452 United States v. A Par Lucas v. South Carolina Coastal Coun Thereon, Building Land cil, 2886, cel with a 1003, 1016-1018, 112 (1st Cir.1989). F.2d 41 2894, (1992); Caplin 120 L.Ed.2d 798 & States, Drysdale, Chartered United Conclusion 617, 2652-53, (1989). individual Fifth Jeopardy L.Ed.2d 528 Because an The Double Clause of the application civil for- legally possess property never was entitled to Amendment has no to a property alleged proven govemment of a dollar 3. A seeks forfeiture million may, instrumentality instrumentality some as an of crime because be the crime home cases, plant growing back Excessive finds one marihuana in the violate the Fines Clause case, However, Eighth yard. present example, Amendment. For an Excessive may present Fines be where did not raise an Amendment claim. Clause violation property proven feiture of to have been an

instrumentality of crime based on the hold- McCaslin, supra,

ings and the other cases preceding

cited paragraph. Accord-

ingly, an individual who forfeits

pursuant Chapter proven to be an

instrumentality may subsequently of crime prosecuted for crimes related to the use of subsequent and the

proceeding jeopardy. is not barred double

The Double Clause also is not

implicated prop- where an individual forfeits

erty, pursuant proven to be proceeds activity, of criminal and then is

subsequently prosecuted for crimes related acquisition property. Appellant, of that case, present did not contest the forfei- indeed,

ture phone; of the cash and the Thus,

appellant agreed to the forfeiture. allegation phone

State’s cash said disputed by

were contraband was ap- never

pellant.4 comments, join

With these I opinion

the Court.5 Schneider, Stanley Troy McKinney, G. parte JOHNSON, Appellant,

Ex Kendall Moran, Houston, Tom appellant. Curry, Attorney, Alan Assistant District Texas, Appellee. The STATE of Houston, Paul, Attorney, Matthew State’s Austin, for State. No. 865-94. OPINION ON APPELLANTS AND

Court of Criminal of Texas. STATES PETITIONS FOB DIS- Oct. 1996. CRETIONARYREVIEW WHITE, Judge. County appel-

Harris authorities arrested 26, 1993, January charged lant on him Although parties implicate Jeopardy not raised in their tures do not the Double briefs, whether, open question an as to they Clause of the United States Constitution as entering agreed judgment into the of forfeiture however, "punishment.” open, are not Left 21, 1993, appellant right dated June waived his possibility may, that an in rem forfeiture to claim that the Double Clause bars instances, some run afoul of the Excessive Fines any subsequent proceeding. holding Clause of the Amendment. The Ursery, my opinion, appellant's defeats dou- Court, 5. The in United States present ble claim in the case. (June 24, 1995) 95-345 held that in rem forfei- notes 1992, they In were indicted allege prove that menced requires the State to committed between may drug for- for various offenses before it is contraband contraband, February In property must 1986 and 1991. To be feited. case, activity proceeds or instrumen- Halper, present of criminal unlike the either 2. We note that in activity. alleged to be talities of criminal there was no forfeiture of illegal drugs sale of ap- from the agreed, writing, to forfeit derived defendants activity, the Double $650,000 other in cash and proximately State, pur- implicated is not when the Clause government. April the defen- 59, successfully Chapter institutes suant pending dants moved for dismissal of the alleg- against action an individual charges, alleging, of the drug as a result ing property that individual is the owned proceedings, they prior civil forfeiture were activity proceeds of criminal enumerated subjected being multiple punishments by a proves, preponderance 59 and the same crimes in violation of the Double evidence, allegation Ac- is true. of the Jeopardy Clause. may subsequently prose- cordingly, the State Fifth noted Circuit criminally. cute said individual $130,000 supra, repre- sanction did Halper applies also where the insti State proceeds for which sent crime against tutes a forfeiture action an individual

Case Details

Case Name: Fant v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 16, 1996

Citation: 931 S.W.2d 299

Docket Number: 1047-94

Court Abbreviation: Tex. Crim. App.