*1 Accordingly, trial court as a bonus. summary judgment granting
did not err in appellant’s breach-of-eontraet claim.
on
Appellant’s second issue is overruled. trial part
We affirm that court’s granting summary judgment ap-
order on claim.
pellant’s breach of contract Be- appellees’
cause “no-evidence” motion
summary judgment legally insufficient produce appellees
and because failed regarding appellant’s misrep- evidence claim, part
resentation we reverse that summary granting
the trial court’s order misrep-
judgment appellant’s claim Accordingly, ap-
resentation. we remand misrepresentation claim to the
pellant’s proceedings.
trial court for further Texas, Appellant,
The STATE of
THIRTY THOUSAND SIX HUNDRED ($30,- AND
SIXTY DOLLARS NO/100
660.00) Currency, Appellee. in U.S.
No. 13-99-822-CV. Texas, Appeals of
Court of Christi-Edinburg.
Corpus
May *4 Gen., Duncan, Asst. and Kyle
S. Sol. Patterson, Attorney General’s Thomas J. Office,Austin, Appellant. for Law, Jr., Garza, Attorney At Rudolph G. Christi, Corpus Appellee. He took Tobin’s license were bloodshot. OPINION car, where he squad and returned to his Opinion Justice GARZA. Tobin a ticket for speeding wrote a from the dismissal of appeal This is discover- checked his criminal record. He $30,660in proceeding. civil forfeiture Unit- drug for a ed that Tobin had been arrested currency seized from the ed States that he was listed offense 1995 and by a Christopher Tobin Cor- possession possession in a having suspect been police following officer a rou- pus Christi of 1998. There marihuana case June subsequently stop. tine traffic The State outstanding warrants for his ar- were action. On Tobin’s filed this forfeiture Hullum returned to Tobin’s vehicle rest. motion, suppressed trial the cur- court ticket, him which speeding and issued Tobin, rency, ordered it returned to signed. Tobin case, concluding that dismissed the step Hullum then asked Tobin to out of jurisdiction pro- to hold a forfeiture lacked immediately Tobin the vehicle. He frisked subject of the forfei- ceeding without safety reasoning that his appeal, weapons, it. On the State raises ture before he was alone with a following jeopardy three issues: Did because bulge in the detain Tobin based on after dark. He felt properly suspect officer *5 and pocket pants that Tobin was driv- front of Tobin’s suspicion left reasonable explained in that it engaged drug intoxicated or asked what it was. Tobin ing while much properly money. asked how mon- activity? Did the officer When was, proba- it about a thou- ey automobile based on Tobin said was search Tobin’s continued his drugs were inside the sand dollars. As Hullum ble cause that there of burnt assuming that the he noticed the smell patdown, automobile? Even person. illegal, coming did the marihuana from Tobin’s detention and search were dismissing- trial court err in the State’s officer decided to check Tobin’s so- The jurisdiction? lack of forfeiture action for a lot of drunk briety were] because “[there reaching ruling the trial court’s Without just going of town part around that drivers to we overrule all suppress, the motion the different home or whatever from three and affirm the court’s order issues nys- gaze used the horizontal clubs.” He and returning currency to Tobin dis- test, passed. Tobin Accord- tagmus which missing the case. Hullum, to there was no reason ing any tests because he administer additional Background I. intoxicat- that Tobin was not was satisfied testimony was offered either No live ed. hearing on Tobin’s motion party at the any drugs if had Hullum he currency. of the asked Tobin and for return suppress in Tobin said no. weapons his vehicle. Instead, solely on the or parties relied requested permission Raymund The officer then testimony of Officer deposition vehicle, refused. Un- but Tobin Hullum, following undis- search which reveals the again the officer response, deterred September facts. On puted any drugs weapons if or asked there were p.m., 11:15 Hullum clocked approximately vehicle, said no. again, in and Tobin m.p.h. in a zone driving m.p.h. Tobin if why, there were The officer asked stop. pulled traffic Tobin and initiated a vehicle, in the Tobin drugs weapons the officer promptly over and showed just it. “I don’t not let him search of insur- would proof valid driver’s license there,” explained. in Tobin eyes you that Tobin’s want Hullum noticed ance. tion, search, illegal. arrest were point, placed At this Hullum Tobin police the back of his car. He believed the relief and dismissed granted trial court was a risk because the flight that Tobin appeal This followed. the case. exchange had caused Tobin to
foregoing agitated become and nervous. Hullum re- Applicability II. of the peered turned to Tobin’s vehicle and Exclusionary Rule through large its windows. He saw a matter, preliminary par As pas- the floor mat on the underneath lump exclusionary rule dispute ties whether Continuing senger side back seat. proceedings.1 applies civil leafy inspection, “green his he noticed a unsettled in Texas. See State This issue is substance” on the floor front of the $217,590 Currency, seat, “right driver’s where the driver’s feet (Tex.2000). However, n. 1 Believing be.” would substance this case need not address it decide marihuana, he entered the vehicle and forfei we conclude that the civil because searched it. illegal po ture statute does not authorize leafy Hullum “green collected the sub- Regardless lice conduct. of whether stance,” which was later sent to a laborato- applies, rule law enforcement It ry testing. weighed only five-tenths if ac agents cannot seize their gram of a and turned out not to be mari- leading up illegal. tions to the seizure are huana or other controlled substance. Thus, the trial court did not err evaluat large lump containing was a shoe box detention, legality of ing the Tobin’s thirty cash, close to thousand dollars search, and arrest. which Hullum seized. Chapter 59 of the Texas Code Crim- police Tobin was taken to the station on *6 specifies inal Procedure the circumstances charges possession of of marihuana and property subject in which to forfeiture illegal investment. charges No criminal may be seized. See Tex.CRim. PROC.Code him, against were ever filed and he was (Vernon Supp.2004). Ann. art. 59.03 Sei- subsequently Nevertheless, released. if proper zure of made seeking State filed an action forfeiture of art. authority of a search warrant. Id. currency. alleged currency It 59.03(a). warrant, seizure is Without subject because, was to forfeiture inter if: proper aha, proceeds gained it constituted from (1) owner, in operator, agent or felony the commission of a under the Tex- charge property knowingly Act. of the con- Controlled Substances See Tex. (2)(D) (Ver- sents; CRiM.PROc.Code Ann. art. 59.01 Supp.2004).
non (2) is incident to a search the seizure owner, in operator, agent or hearing, Before the forfeiture Tobin which the charge property knowingly a motion to of the con- suppress filed and for return sents; currency, claiming that his deten- rule, exclusionary Supp.2004). part, “No evi- 1. Under the evidence ob- non In it reads: by person an unreasonable search dence obtained an officer or other tained as result of any provisions the Constitu- and seizure is inadmissible as evidence in a in violation of $217,590.00 Texas, proceeding. State of or of the criminal See State v. tion or laws of the Currency, Constitution or laws of the United States in U.S. 632 n. Texas, America, (Tex.2000). admitted in evidence In rule is shall be against crimi- procedure. the code the accused on the trial of codified in of criminal (Ver- 38.23(a). art. 38.23 nal case.” Id. art. See TexCrim. Proc.Code Ann. (3) Legality of Police subject to seizure has III. Conduct subject judgment in prior been the appeal The State’s first two issues on proceed- favor of the state a forfeiture valid under claim that the seizure was ing chapter; under this prop- article 59.03 because Officer Hullum (1) on a rea- erly: detained Tobin based to a lawful the seizure was incident suspicion driving that Tobin was sonable arrest, search, or lawful search lawful drug ac- engaged intoxicated and while incident arrest. tivity; and searched Tobin’s automobile 59.03(b). art. Id. probable cause that there were based on automobile. drugs inside the case, Hul- undisputed In it is warrant, no consent lum had no search a. of Review Standard Tobin, in fa- prior judgment from and no underlying historical Where the Thus, for the seizure to vor the State. whether undisputed, facts are we decide 59.03, authorized article have been govern properly applied the trial court to have “incident to a lawful had been to the facts. principles constitutional ing arrest, search, or search inci- lawful lawful $217,590 Currency, U.S. dent to arrest.” See id. 634; accord Guzman v. deposition tes- reviewing After Hullum’s (ex (Tex.Crim.App.1997) timony arguments and the and authorities mixed plaining appellate courts review party, trial court presented each fact novo when questions of law and de illegal. ruled that Hullum’s conduct was credibility are and demeanor evaluations involved). the court’s words: agree on parties Because the case, decide the issues the facts of this being driv- occupied The automobile cause suspicion probable of reasonable (Tobin) by Respondent-Claimant en State, 122 S.W.3d Manns v. de novo. See all searched for each or illegally (following (Tex.Crim.App.2003) ille- foregoing reasons: Tobin was [sic] in Guz the standard of review articulated he was arrested gally arrested because man)', $217,590 Currency, Transportation of the Texas violation (citing Guzman and at 634 n. 3 Code, probable arrested without *7 princi that its standard of review noting cause, was arrested without a war- and cases). in civil similarly applied ples are Further, of the vehicle rant. the search egregiously illegal because it was was Suspicion to Detain b. Reasonable despite express Tobin’s denial and made Activity Drug for Driver searched, of consent for it to be refusal ac- contest Hullum’s do not parties The cause. probable and was made without speeding for Tobin over pulling tions Therefore, illegal and the search enough to do a detaining long him and legal to a arrest. was not incident a speeding and issue background check conclusions, infer that the From these However, dispute whether they do ticket. court concluded that the seizure was trial Tobin required to release the officer was arrest, lawful incident to a lawful issued. ticket had been speeding after the search, arrest search incident to Hullum was not argues or lawful The issuing 59.03. See id. Tobin after required required article to release reasonably suspect- Hullum unauthorized. See ticket because seizure was therefore drug activi- engaged ed that Tobin was id.
399 least, issuing suspicion activity of criminal before ty. very argues, At the the State suspicion Hullum had a reasonable ticket. speeding Tobin the Ac- driving Tobin was while intoxicated. State,
cording
just
Hullum had
to the
suspicion requires
Reasonable
stopped
speeding
Tobin for
in an area of
specific,
that the officer have
articulable
city frequented by
drunk drivers and facts, which,
light
experience
of his
had observed that Tobin had bloodshot
general knowledge, together with rational
eyes. Additionally, during Hullum’s war-
facts,
inferences from those
would reason
check,
rant
had a
he discovered that Tobin
freedom
ably warrant the intrusion
previous drug arrest and had been sus-
stopped
investigation.
of the citizen
pected in a marihuana possession case
State,
v.
See Gurrola
S.W.2d
three months
Hullum’s
earlier. Based on
articulable
(Tex.Crim.App.1994).
experience
traffic
as a
officer and on his
suspi
some
facts “must create
reasonable
observations,
firsthand
the State contends
activity
ordinary
cion that
out of the
some
reasonably
suspected
he
that Tobin
occurred,
occurring
sugges
is
or. has
some
was intoxicated
alcohol or marihuana
un
tion to connect the detainee with the
and that Hullum was therefore entitled to
activity,
usual
and some indication the un
long
detain
enough
Tobin
to confirm or
activity
usual
is related
crime.” Garza
dispel
suspicion.
his
(Tex.Crim.
State,
v.
S.W.2d
response,
argues
Tobin
that App.1989).
only
objec
There need
an
section
transportation
548.005
code
detention;
subjective
for the
tive basis
required
him
the officer to release
after
officer
intent
is irrelevant. Garcia
speeding
ticket was issued.
Tex.
(Tex.Crim.
State,
(Vernon
TRAnsp.
§
543.005
Code Ann.
App.2001). The determination of reason
Supp.2004).2
disagree.
We
After a bona
suspicion
by considering
able
is made
stop
speeding,
fide
may
officer
make
totality of the circumstances.
Id.
an arrest
if another offense is discovered
State,
during
investigation.
Little v.
Here,
things:
Hullum knew five
(Tex.App.-Corpus
(1)
(2)
eyes;
Tobin had bloodshot
he had
pet.);
Christi
Taylor
see also
(4)
speeding;
nighttime;
been
(Tex.Crim.App.
commonly by
the area was traversed
1967). Likewise, an officer can continue to
way
drunk drivers on their
to and from
suspect
concluding
detain a
after
his inves
alcohol;
dispense
establishments
tigation of the traffic violation if he has a
history involving
had
criminal
Tobin
suspicion
activity
reasonable
that criminal
tabulating
totality
drugs. Before
underway.
See Perales v.
circumstances,
we must determine
434, 439 (Tex.App.-Corpus
Christi
may
ref'd).
reasonably
what inferences
be drawn
Thus,
pet.
whether Hullum
*8
so,
knowledge.
from this
To do we consid
required
depends
release Tobin
together
developed
generally
whether he had
a reasonable
er these facts
with
transportation
copy
2. Section 543.005 of the
code
inal of the notice and deliver the
of
states:
person
officer
notice to the
arrested. The
release,
promptly
person
person
release the
from
To secure
arrested must
shall then
promise
appear
amake written
in court
custody.
by signing
prepared
the written notice
(Vernon Supp.
§
Tex. Tran.Code Ann. 543.005
arresting
arresting
officer.... The
offi-
2004).
paper
orig-
cer shall retain the
or electronic
justification for
sus-
personal
Hullum’s
sufficient
a reasonable
knowledge
available
(2)
us does
experience.
picion; and
the evidence before
eyes
that bloodshot
are a
not tend to show
argued that
The State has not
reasonably suspecting
rehable basis
the use of intoxi
eyes
bloodshot
establish
did
person
that a
is intoxicated. Hullum
a
cants or that such a condition warrants
knowledge or
testify
personal
all
rational inference to that effect. Of
eyes
that bloodshot
experience
establish
intoxication,
of
physical manifestations
we are al-
Although
indicate intoxication.
impaired motor
speech,
such as slurred
general knowledge
consider
lowed to
skills,
intoxicants, irritated or
and odors of
circum-
examining
totality
indication
eyes give
“bloodshot”
the least
stances,
knowledge
against
militates
such
system
functioning of the nervous
suspicion
reasonable
because bloodshot
by the use of intoxi
disrupted
has been
factors,
may
by variety
a
eyes
be caused
found rea
Appellate
cants.
courts have
the use of intoxicants.
only one of which is
on various combi
suspicion
sonable
based
eyes,
speech,
of bloodshot
slurred
nations
Next,
speed
we add the offense
skills,
motor
and odors of intoxi
impaired
cannot
inferred ra
ing.
Intoxication
cants,
up
no case
but we have uncovered
speeding
the offense of
alone.
tionally from
suspicion
an officer’s reasonable
holding
together with bloodshot
Although speeding
eyes.
solely
suspect’s
based
on a
bloodshot
suggestive
more
of intoxi
eyes may be
Perales,
(concluding
at 439
S.W.3d
alone, the
than either factor taken
cation
suspicion
had a reasonable
that officer
of these circumstances
logical combination
(1)
(2)
eyes;
appellant’s red
based on:
greater
aggrega
much
than the
is not so
emitting
appellant’s
from
car
alcohol odor
weights that it al
tion of their individual
breath;
bottle
and from his
beer
rational
inference of intoxi
lows for a
seat);
State v. Brab
plain view behind
cation.
son,
741,
(Tex.App.-Dallas
899 S.W.2d
(Tex.Crim.
1995), aff'd, 976
Now,
consider that the encoun
we
(holding
suspi
that a reasonable
App.1998)
itself,
factor
night. By
ter occurred
honked his
cion existed where defendant
v.
weight.
no
See Klare
virtually
is owed
alco
excessively and officer smelled
horn
State,
68,
(Tex.App.-Houston
breath);
hol on his
Townsend
ref'd) (“time
day
pet.
[14th Dist.]
(Tex.App.-Houston [14th
itself’) (citing
in and of
suspicious
is not
refd)
1991, pet.
(weaving back and
Dist.]
Texas,
Brown v.
443 U.S.
including
cases
lanes at
a.m. is suffi
forth across three
Natural
strain
conclude
c. Probable Cause
Search
likely
night.
at
therefore
We
Drugs
is
for
suspicion
that
case for reasonable
the Vehicle
not advanced
this factor.
that Hullum
Having concluded
after
to release Tobin
required
was not
Hul-
The next consideration is
ticket, must deter
issuing
speeding
knowledge that drunk driv
personal
lum’s
investigative
his
detention
mine whether
ing was not uncommon
the area where
search of Tobin’s vehicle.
factors
led to a lawful
stopped
he
Tobin. Like the three
above,
in a “bad”
of town is not An
detention must be reason
being
investigative
area
suspicion.
circumstances
enough
support
scope
a reasonable
to the
ably related
Gurrola,
(noting
at
ac
justified the inference of criminal
“high-crime reputation”
of the
place.
first
See Davis v.
tivity
may
area
not serve as the basis for
alone
(Tex.Crim.App.
detention).
It is also an
investigative
an
1997)
Ohio,
19-
(citing Terry v.
U.S.
insufficient basis for a rational inference
(1968)).
1868,
Nevertheless, the location of the encoun-
25-26,
Terry, 392
(citing
at 243
U.S.
significant
ter
more
com-
becomes
when
1868).
must
scope
The
of the search
S.Ct.
nighttime setting,
bined with the
Tobin’s
a search that is reason
be limited because
eyes,
speeding.
bloodshot
and his
may violate the
inception
able at
suspicion
strength-
case for reasonable
by virtue of its intoler
Fourth Amendment
com-
ened further when these factors are
Terry,
intensity
scope.
(citing
Id.
able
history
bined with Tobin’s criminal
involv-
1868).
An investi
Tobin’s
(1990);
State,
repeated
Worthey
L.Ed.2d 276
805
agitation following
and
Hullum’s
435,
(Tex.Crim.App.1991)
S.W.2d
438
requests
inqui-
to search the vehicle and
(“
ap
and
facts’ must
‘specific
articulable
drugs weapons
to whether
or
were
ries as
a
pear
the record which would warrant
inside;
“green leafy
substance”
self-protective
weapons”).
search for
view”;
large bulge un-
“plain
and
floor mat.
passenger
derneath the rear
case,
In
Hullum conducted
reaching
without
We decide this case
nighttime
it was
weapons
a
search because
these factors constitute
issue of whether
suspect.
he was alone with a
and because
search an automobile for
probable cause to
for his
He testified that he was concerned
contraband.
enough
safety. These facts are
suspicion that Tobin
warrant a reasonable
analysis begins
Our
with
Regardless of
dangerous.
was armed and
Hullum was authorized to search
whether
testifies that he was
whether an officer
In
of an
weapons.
Tobin for
the course
afraid,
validity of the
analyzes
a court
detention,
investigative
may
an officer
con
determining whether the facts
search
weapons
duct a limited search for
where
to the officer at the time of the
available
safety or
reasonably
is
warranted for his
reasonably cau
search would warrant a
State,
Ramirez v.
safety
others.
taken
person to believe the action
tious
480,
(Tex.Crim.App.1984);
482’
S.W.2d
State, 27
appropriate. See O’Hara v.
848,
see Horton v.
S.W.3d
548,
Al
(Tex.Crim.App.2000).
2000,
pet.).
weap
no
A
(Tex.App.-Austin
Supreme Court
though the United States
search is not authorized
all confron
ons
be
has noted that “roadside encounters
tational
situations.
See Carmouche v.
especially
are
police
suspects
tween
and
(Tex.Crim.App.
hazardous,”
Long,
463 U.S.
Michigan
2000)
weapons
that a
search is
(explaining
1032, 1049, 103
the seizure was suppress court the request that the trial court, Like the trial we of article 59.03. it never addressed Tobin’s re- currency, unau- that the seizure was have concluded currency that the be returned quest unlawfully. it was made thorized because of evidence and return Suppression him. Now, the consequences we address Thus, are not the same relief. property illegality. seizure’s challenge construe the we do not State’s currency’s challenge as a suppression single filing, requested In a Tobin return, currency’s except insofar as to the suppress currency court the trial continuously maintained that the State has him to return it to because order the State seizure was lawful. illegally. secondary As a it was seized matter, filing, asked the in the same he fundamentally, howev Even more the case for lack of trial court dismiss er, challenged never the State has jurisdiction. response In to Tobin’s re- of a motion to return procedural propriety currency argued quests, in a 59 unlawfully seized the exclu- suppressed not be because could Thus, procedure action. error this apply not to civil forfeiture sionary rule did Tex.R.App. P. 33.1. preserved. was not alternative, In it contended actions. addressing the State’s Consequently, exclusionary if rule were that even issue, deciding third we assume without currency sup- could not be applicable, the seized that a motion to return subject it was the matter pressed because by vehicle which the proper procedural suppression its would de- of the suit and are afforded article 59.03 protections jurisdiction. single In a feat the court’s $217,590 in U.S. Curren effectuated. Cf. order, all the relief granted the trial court (assuming n. 1 with cy, 18 at 632 S.W.3d requested Tobin. ap exclusionary rule deciding that the out proceedings because plies to maintains that the civil appeal,
On the State challenged application). party In the neither apply. rule does not has however, that because the State alternative, emphasize argues it now We pre-trial wholly challenge failed to this currency not of the did divest suppression mechanism, present does not appeal this jurisdiction. The State the trial court of proper. See of whether it is contradictory posi- the issue advanced two has thus Tex.R.App. 33.1(a) (“a prerequisite P. First, urged it the trial tions this case. appellate re complaint currency presenting because suppress court not error). We jurisdiction. preservation view” is defeat its On doing so would unlawfully return of must assume however, argues suppres- it appeal, pur remedy available property is a the trial seized currency did not defeat sion of the has the State to article 59.03 because addressing suant jurisdiction. court’s had to may have issue, any challenge reach the waived we do not third State’s Co. Prod. procedure. See Fortune inconsistency because such this consequences of (Tex. 671, Conoco, Inc., v. 52 S.W.3d applicability of the do not address the 554, State, 2000); is, 607 S.W.2d Nelson v. deciding That exclusionary rule. (Tex.1976) State, (Tex.Crim.App.1980) (“Appellant may Fant S.W.2d State, not, urge (Tex.Crim.App.1996); time error Bochas v. appeal, for the first trial.”); City (Tex.App.-Corpus Port Isabel v. n. 3 not raised Shiba, denied). (Tex.App. trial 860-61 writ Christi -Corpus pet.) (upholding jurisdiction depends Christi on its control court’s attorney’s the trial court’s award of fees property. over the Costello v.
despite statutory authority the absence of (Tex.App.-Corpus Christi for such an award the issue was denied); because Harley writ see also 1976 preserved by objection and was Motorcycle Davidson *13 waived). Furthermore, therefore even if 2003, 398, no (Tex.App.-Corpus 400 Christi indirectly the error preserved had been pet.); Approximately State through objection the State’s to the motion $2,000,000.00 Currency, 822 not, suppress, it which was the issue 721, (Tex.App.-Houston [1st S.W.2d inadequately would be deemed briefed writ). no The release re Dist.] therefore waived because the State has property moval of the from the control of presented arguments no au cited juris the court will terminate the court’s Tex.R.App. thorities on this issue. See P. property. Approximately diction over the 38.1(h); Barr, In re 13 S.W.3d 555 $2,000,000.00 Currency, in U.S. (Tex.Rev.Trib.1998) (“Failure to cite au Costello, (citing at 726 774 S.W.2d S.W.2d thority support of a point of error on 724). However, at if re appeal complaint.”). waives the accidentally, fraudulently, or im leased properly, the court will not be divested III, As Part supra, explained, Costello, jurisdiction. (citing Id. Hullum’s seizure of the un currency was 724). S.W.2d at lawful and therefore unauthorized arti cle 59.03. right The State thus had no already have concluded that the trial We currency chapter seize the under 59. See currency properly court ordered the re- (b) (list 59.03(a), § Tex. Penal Code Ann. turned to Tobin. This act divested the ing the limited under circumstances which jurisdiction court continue the State’s can chapter seize Thus, proceeding. forfeiture See id. 59). Consequently, the State could not in dismissing court did not err the case. proceed awith forfeiture action under arti It argues contrary. The State to the cle 59 because a valid seizure is a neces State, relies on Pine v. S.W.2d sary prerequisite for such an action. See (Tex.App.-Houston writ [14th Dist.] pleadings id. The State’s concede that the w.o.j.) proposition that dism’d Thus, Tobin, currency belongs to Tobin. may result in unlawful seizure “[w]hile and not present right had the evidence, suppression of it does de basis, possess currency. On this we jurisdiction.” In prive general, a court of conclude that the trial court did not err quarrel we have no with this statement of ordering it returned to him. the law. have not held that an unlaw We
Next, seizure, own, deprives ful a court of we must determine on its currency’s jurisdiction suppression whether the return divested the or that the of evi jurisdiction. jurisdiction. trial court of Civil forfeiture dence causes the court to lose $191,452.00 subject if proceedings. actions are in rem have concluded that We (Tex.App. prop action under 59 is 827 S.W.2d forfeiture owner, denied); -Corpus erly Christi writ see also ordered returned to its jurisdiction be Rumfolo, State v. 754 trial court’s terminates appeal,” we decline disposition final authority is based on control cause such as- questionable the dissent’s Approximately to address property. $2,000,000.00 of the exclu- Currency, application that 'the in U.S. sertion Costello, sionary have no deterrent effect (citing at 726 rule would 724). this, harmony with this the State’s Pine is such as where cases acknowledged that code of action under the criminal proposition, may entirely illegal po- after the initial seizure “events occur is based procedure Tex.R.App. jurisdiction of the destroy that can P. 47.1. lice conduct. See Pine, at 871. de court.” Nevertheless, emphasize that the dis- we of Pine the rationale ciding not stretch to account for Tobin’s analysis fails sent’s case, emphasize that Pine to reach this return, which is not based on motion to trial a situation where the did not address if, as the dissent exclusionary rule. Even subject matter of a for court ordered the ap- rule does not argues, the returned to its owner. proceeding feiture such proceedings, to civil forfeiture ply Instead, what effect the Pine addressed sup- only the motion to conclusion resolves have on a suppression of evidence would *14 not the merits press and does address Furthermore, Pine proceeding. forfeiture sug- return. The dissent the motion to under a civil forfeiture case did not involve for motion sum- gests that a no-evidence It the forfeiture chapter 59. involved “proper pre-trial mary judgment is the safety the health and code. animals under chapter to 59’s give to effect procedure id. at 870. See protections.” Fourth Amendment built-in suppression have not addressed We 166a(i). Although we P. See Tex.R. Civ. not relied on the of evidence. We have is nec- pre-trial procedure that some agree case. exclusionary rule to decide this We created protection essary to effectuate to proper property hold that the return 59.08, present not this case does by article deprives the trial court rightful owner is the of which mechanism most the issue jurisdiction proceedings to continue failed to Because the State appropriate. property. the forfeiture of the motion to object use of the to Tobin’s return, motion to re- that the we assume Dissenting Opinion Response to Y. procedural device. proper turn is the distinguish our a moment to We take so, by doing we argues The dissent dissenting opin- analysis from that of a new and sanctioned have both created address dissenting opinion would ion. The any equivalent without procedural device exclusionary applicability rule’s This mis procedure. of civil the rules It actions. chapter 59 civil forfeiture use of and the law. The opinion our states apply, rule does not hold that the would property illegally-seized a motion to return reason, it reverse and for that would than this Court. practice is a older and remand the case trial court’s order 538, State, 112 Tex.Crim. Machado v. the merits. a trial on (Tex.Crim.App.1929) a grant trial court’s refusal (reviewing analysis explains, As the above liquor). illegally seized the motion to return however, unnecessary to decide it is it, nor Tobin the not created was to We have rule applicability of a civil it in the context to use under first proceedings civil forfeiture 1985 Cadillac action. See One forfeiture hand down written we must 59. Because (Tex. State, Auto. v. practicable” that are “as brief opinions (reviewing pet.) no “necessary App.-Fort Worth only the issues and address any any precedent motion to return in a such from property seized aware of court, agree that though Texas we brought chap civil forfeiture action necessary any component should be a statutory predecessor ter 59’s and conclud Twenty-Four But see forfeiture case. ing properly forfeited to Eighty Hundred & Dollars Thousand One State). also it. We have not sanctioned By object failing to to the motion to return 187-88 denied) (overrul (Tex.App.-Corpus Christi writ by failing to raise or brief issues ing challenge legal appellant’s it, preserved any on the State has not sufficiency support factual of the evidence TexRApp. error for our review. See P. ing the trial court’s conclusion that a sei 38.1(h). 38.1(a), This does not mean we pursuant zure was made to 59.03 but not sanction the motion to return or recom neces stating that such a conclusion was parties mend that use it in the future. claim). sary for the to succeed on its State Rather, simply are constrained procedure, rules of which limit scope law, current to succeed in a Under our decision to the presented issues action, prove the State must appeal. The motion to return preponderance of the evidence that the trial, challenged at and no complaints subject property is to forfeiture. Tex. (Vernon 59.05(b) about it have been appeal. raised on Our Ann. art. CRiM.PROC.CODE $19,070.00 any potential role is not to defend Supp.2004); error see also object the State did not (Tex.App.-Houston at trial and 869 S.W.2d writ). failed to brief on does appeal. [14th Dist.] And we are by establishing certainly not charged creating with *15 59.01(2). by contraband as defined article procedural workable regime out of 59.01(2) art. unpreserved such error. Ann. Tex.Crim. PRoc.Code (Vernon Bochas, Supp.2004); see Although applaud we the dissent’s Although chapter speci S.W.2d willingness to potential consider safe evidentiary requirements fies no additional guards against seizures, illegal are un we beyond proof that prop forfeiture the certain that a no-evidence motion for sum contraband, erty supreme is the court has mary judgment a good given is candidate proba held that the State must also show the current law of civil forfeitures. A no- seizing person’s property. ble cause for a evidence motion summary judgment Fifty-Six Thousand Seven Hundred granted only can be ground on “the Currency Dollars in U.S. v. there is no evidence of one more essen (Tex.1987); see also State tial elements of a claim or defense on (Tex.1991). $11,014, which an party adverse would have the court, According supreme to the “Probable Thus, proof burden of at trial.” Id. for a cause in the context of forfeiture statutes summary judgment no-evidence motion for is a reasonable belief that ‘a substantial proposes, to as the dissent the work State property connection exists between the proving must bear the burden of activity be forfeited and the criminal de seizure was authorized under article 59.03 by Fifty-Six statute.’” Thou fined the is, part as case. That valid seizure sand Seven Hundred Dollars in U.S. Cur under article 59.03 must be an essential rency, (quoting 730 S.W.2d at U.S. $364,960.00 element of a forfeiture claim. The dissent Currency, in 661 F.2d U.S. (5th Cir.1981)). authority stating Thus, has cited no that a valid probable seizure under article is an the 59.03 essential cause to seize is not the same as case, probable necessary element of the State’s nor are we cause for the “lawful search, $217,590 arrest, in Currency adding lawful or lawful search inci read U.S. requirement to arrest” a third to the State’s eviden- required dent article 59.03(b)(4). tiary burden under 59. The su- Although we would hold that simply preme court did not discuss article probable cause seize cannot be $217,590 Currency. in search, 59.03 in U.S. It on an predicated unlawful unlawful rule, which, analyzed arrest, or unlawful incident to ar search in argues, apply not this case. dissent does rest, disposition our of this case renders Accordingly, we find the dissent’s reliance holding unnecessary. such a Rather than $217j590 Currency misplaced can police conclude that conduct unlawful that case applied because a rule seize, probable create we cause have argues applied dissent itself should not be held that the motion for return of in this case. properly granted because seizure " -illegal unauthorized article Although agree that the dissent’s we 59.03. protections would proposal effectuate 59.03, in article nonetheless de- found we dissent, contrast, would add a one device over procedural cline to elevate new, requirement third to the State’s evi- pre- another because the issue was neither dentiary burden when seizure made Instead, adequately nor served briefed. without a the State must warrant: pre- confine our to the issues decision to the prove exceptions one of warrant agree sented and with the dissent Thus, requirement listed in 59.03. article seizing property lawfully must act State a seizure is a warrant where made without illegal police conduct cannot lead because and none of the three exceptions other civil action. to a successful requirement applies, the warrant cause for probable would have show VI. Conclusion search, arrest, or lawful lawful lawful issues overrule three We State’s arrest, incident to in addition to search returning trial affirm the court’s order showing probable to seize. cause currency dismissing to Tobin and mistakenly upon The dissent relies State’s case. $217,590 supreme court’s decision *16 Currency position. as for its support U.S. Opinion Dissenting by Justice case, the supreme In that court assumed ERRLINDA CASTILLO. deciding exclusionary without rule Dissenting Opinion by Castillo. Justice $217,590 applied. Currency, in U.S. 18 proceeded at 632 n. 1. It then S.W.3d in procedural posture Because of the consent to within the con- discuss search which this civil forfeiture action reached chap- exclusionary text of the rule and Court, majority’s I our dissent from the so, doing id. at it ter 59. See 633-35. to address of the exclu- application refusal 59.03, and made no reference to article it in sionary proceedings rule civil forfeiture to search proving did not hold consent suppress Tobin a motion Texas. filed chapter part of the case under $36,660 illegal State’s deten- as the fruit of an the given This is the granted understandable court tion and search. The trial court’s decision did not concern State’s To- suppress the motion to on that basis. 59, proof of burden under also asked the court to return the bin trial The trial argues; dissent dealt with State’s and dismiss the case. money re- motion and proof agreed of to defeat a court ordered burden jurisdic- exclusionary Concluding that based on the rule. turned to Tobin. suppress dissent, action Thus, contrary of an in rem civil forfeiture to the we do not tion
409
res,
subject
requires
right
privacy.
it then dismissed Fourth Amendment’s
juris-
subject-matter
States,
the case for want of
383,
Weeks v. United
232 U.S.
393-
argues
appeal
diction. The State
that:
(1914).
94,
341,
34 S.Ct.
IN TEXAS 2. The Burdens of Proof squarely The issue before this Court is with the Associated exclusionary whether the applies rule
civil forfeiture cases brought chap Exclusionary Rule in Criminal Cases ter 59 of the code of criminal procedure. An seeking suppress accused evidence See Tex.Code art. 59.01 CRiM. PROC. Ann. illegal police on the conduct bears basis (Vernon .12 Supp.2004). approach proof presumption the burden of to rebut a par taken to date Texas courts and police proper conduct. See McGee ties alike is to assume that the exclusion State, (Tex.Crim.App. ary applies rule without analyzing whether 2003). The accused satisfies the burden See, it does or does not. e.g., State v. by proving police acted a war without $217,590, (Tex. n. 1 rant. Id. The burden then to the 2000) (“Because shifts parties both case produce prove State to either a warrant or presume exclusionary applica rule’s tion, challenged con we will assume the reasonableness deciding without warrant, applies.”); Dodge Pickup produces the rule If the duct. Id. (Tex. at 181-83 proof again shifts to the burden h.) (“We App.-Texarkana pet. as invalidity of accused to show the the war sume, as do parties, both rant. Russell v. 9-10 *17 applies proceed rule to civil forfeiture (Tex.Crim.App.1986) (op. reh’g). If the ings.”). exclusionary applica The rule’s warrant, produce State is unable to a in tion this case has been well briefed and of the prove must the reasonableness argued by parties. the I would address may search or seizure. Id. The State the issue. by proving demonstrate reasonableness statutory exception that a to the warrant Exclusionary
A. The Rule McGee, requirement was met. See Purpose Exclusionary 1. The of the prove S.W.3d at 613. The State must
Rule probable preponderance cause a of the 725, Porter v. evidence. judicially rule is a cre- 1996, remedy designed safeguard (Tex.App.-Houston ated the 727-28 [1st Dist.] ref'd).1 dy of the pet. background property provide attorney this basic shall With the state with a mind, representing sworn I turn to the would forfeiture statute a statement that contains schedule of under the authorities Tobin’s which seized seized, the an property acknowledgment $36,660. seized the property, the officer has and a officer’s the B. in Texas list the reasons for Forfeiture Contraband than 72 seizure. Not later hours after chapter 59 Forfeiture under is an in rem seizure, officer peace the shall: $191,452.00 State, civil proceeding. (1) seal; place property under (Tex.App.-Corpus Christi (2) property place remove the to a denied). The version of article writ court; or ordered 59.03 in at the time effect the seizure (3) require agen- a law enforcement provided: this case cy political of the state or a subdivi- (a) subject to un- Property forfeiture custody sion of the property to take may by any der chapter this seized property it to a move location. peace a search authority officer under 19,1989, C.S., Leg., Act of 71st 1st ch. July warrant. (eff. 1,§ Laws 1989 Tex. Gen. (b) property subject to for- Seizure 1989) (current Oet.18, version Tex.Code if: may feiture be made without warrant (Vernon Supp. Ann. art. 59.03 PRoc. Ceim. (1) owner, operator, agent or 2004)).2 for an underly- A “final conviction property con- charge knowingly of the ing requirement a forfei- offense is not sents; chapter ture” 59. Tex.Code Crim. under (2) 59.05(d). the seizure incident to a Proc. Ann. art. owner, operator, search to which 1. of a Civil Commencement agent charge or Proceeding Forfeiture consents; knowingly Once officer seizes contraband peace a subject to seizure “attorney under chapter represent- subject judg- of prior
has been a ing the commence forfeiture state” must in favor of the in a forfei- ment state proceeding. Tex.Code Crim. Proc. Ann. chapter; under proceeding ture 59.04(a). “attorney representing art. felony prosecutor with state” is the seizure was incident jurisdiction county in which the in the arrest, search, lawful lawful or lawful is to be filed. Tex. proceeding forfeiture arrest. search incident to 59.01(1). Ann. art. Code Crim. Proc. (c) peace proper- A officer who seizes Proof in a 2. The Burdens of Civil has ty chapter custody under this Proceeding Forfeiture subject only to under replevy property, circumstances, code or order of 59.02 of this prevail Article In all a civil peace proceeding A officer who has custo- court. (Tex.App. proving Similarly, son v. the State's standard for pet.). Corpus of an accused’s confession is Christi voluntariness *18 Zayas preponderance of the evidence. v. 779, State, (Tex.App.-Corpus S.W.2d 791 2. here occurred in 1998. 972 The at issue seizure 1998, ref'd). chapter 59 pet. The State’s standard Certain not relevant provisions Christi of my proving analysis to clear and to been amended. Citation consent search is have Ibarra, unless oth- convincing State 953 hereafter is to the current version evidence. v. 242, specified. erwise (Tex.Crim.App.1997); Hen S.W.2d 245
411 $217,590, (finding a satisfy two-part the must test. See see 18 634 State also (Tex. $11,014, 783, v. proved by State 820 S.W.2d that State consent search 1991) curiam). First, evidence).4 (per the State must convincing clear and probable seizing show prop cause the Moreover, a evidence of dismissal or 9). § erty. (citing I, Id. Tex. Const. art. any criminal acquittal underlying case forfeiture, probable the context of civil the presumption property “raises á that or a cause is belief ‘sub “reasonable that a that of subject hearing interest is the the stantial connection the exists between is nonforfeitable.” Tex.Code CRIM. PROC. to be property forfeited and the criminal 59.05(d). may Ann. art. The State rebut ” activity $56,700 by defined the statute.’ nonforfeitability presumption by the of evi (Tex.1987) 659, 730 S.W.2d that the owner or should dence knew have $364,960, (quoting United States v. property known that the was contraband. (5th Cir.1981)). Second, F.2d the Id.; Bochas prove must a preponderance State (Tex.App.-Corpus pet. Christi de evidence property the the seized is nied). subject contraband and therefore forfei Further, 59.02(c) provides article an af- ture. Tex.Code CRIM. PROC. Ann. arts. defense firmative for innocent owners. 59.01(2), 59.05(b).3 Further, property if is 59.02(c). Tex.Code Crim. Proc. Ann. art. warrant, under seized without a burdens, Once the has met the article 59.03 imposes evidentiary third to parties claiming burden shifts the inno- circumstance, burden. In that in addition they cent-owner defense to prove acquired proving probable cause and that the ownership interest in prior is subject contraband forfei to, during, giving or the act rise to forfei- ture, the State also bears the burden Id.; Bochas, ture. at 71. proving exceptions one of the war to the requirement rant Finally, Chapter subject listed article 59.03. 59 is to the 59.03(b); See Tex.Code CRIM.PROC.Ann. Application art. Excessive Fines Clause.5 However, Chapter 59.03(b). any 59 defines "contraband” as article the decision that 3. real, personal, tangible, intangible property proved the State to search consent clear is convincing uáed or intended be used and evidence is inconsistent with felony Chapter commission of a any under 481 of conclusion that the State does not bear (the Safety proof the Texas Health and Texas pro- Code civil burden in a Act). Controlled ceeding. Similarly, majority’s Substances insistence Crim. TexCode 59.01(2)(B)(I). $217,590 Proc. Ann. art. inapplicable is assumes that the proof owner bears the burden under article 59.03(b), support conclusion supreme without court did not address whether purpose evidentiary law inconsistent with the State’s burden article under 59.03(b) intent of civil forfeiture statute. "pre- convincing” is "clear and or a ponderance of the evidence.” State v. $217,590, (Tex.2000). ("Excessive 634 n. 4 5.See amend. VIII bail Const. Likewise, a quantum required, determination of the shall not nor excessive fines im proof required posed, punishments to meet the State’s burden nor cruel and unusual inflicted.”). unnecessary Eighth to a decision in De- appli this case. Amendment is spite supreme analysis through court’s cable to states Fourteenth $217,590, XIV; majority questions my conclu- Amendment. See U.S. Const. amend. 59.03(b) imposes California, sion that article an addition- see also Robinson v. 370 U.S. evidentiary al burden the State S.Ct. where 8 L.Ed.2d ("We seizure resulted I from warrantless search. are not unmindful that the vicious evils $217,590 agree that expressly does not hold of the narcotics traffic have occasioned the grave the State proof government."). bears the burden of concern of *19 412 638, 524; re a forfeiture. Id. at 6 S.Ct. see proportionality
constitutional
standards
judgment
Plymouth
Pennsylva
in
of nonforfeiture if
v.
sult
a
the One 1958
Sedan
Car,
nia,
693, 700-02,
1246, 14
forfeiture is excessive. See One
1996
U.S.
85
380
S.Ct.
Dodge
(holding exclusionary
Truck
in Color 5YC-
170
X-Cab
White
L.Ed.2d
T17 VIN
quasi-criminal
3B7HC13Z5TG163723
rule
forfeiture
applicable
422,
statute).
(Tex.App.-Beaumont
427
(“We
2003, no
hold
pet.)
that forfeiture
Nonetheless,
recently
Supreme
more
sufficiently punitive
sub
this ease is
to be
distinguished
has
civil forfeitures
Court
Clause.”).
ject
Fines
Excessive
person’s
tied to a
criminal actions from
proceed against
those that
Exclusionary
Application
C.
for a criminal conviction.
without
need
Rule in Other Civil
Cut
v. United
One Lot Emerald
Stones
Proceedings
232, 236-37,
States,
489,
409 U.S.
93 S.Ct.
Interpretation
1. Federal
(1972). Significantly, the
413
apply
in a
exclusionary
proceedings brought
whether
the
rule
rule in
forfeiture
civil
context,
particular
Supreme
re-
chapter
Hardy
Court
under
102
that
quires
outweigh
(Tex.2003)
the deterrent benefits
123, 129 n.
(citing
3
society
the substantial costs to
loss
of the
1);
$217,590,
n.
at
conclude that
59
chapter
provides
conclude that
producing
the burden of
would
State also bears
greater protection against
illegal police
proving
exceptions
or
one of the
warrant
in
or
requirement
article
than federal forfeiture statutes
to the warrant
conduct
$217,590,
at 634 n. 4.
59.03.
18
18.18.
See
S.W.3d
article
in
the
only
The
circumstance which
burden
agree
majority
I
Accordingly,
with the
the
is
an innocent
shifts from
State when
adequate
itself
provides
that
59
asserts
an affirmative defense.
owner
protec-
to law enforcement and
deterrence
59.02(c).
art.
CRiM. PROC. Ann.
Tex.Code
to the citizens of Texas. On
tion
then,
interpret
pro-
I
statute to
Even
the
however,
record,
go
I
and
would
further
the innocent
vide that the burden shifts to
grafting
it
onto
that
does so without
hold
only
the
has met its
owner
when
(1)
exclusionary
the
statutory scheme:
the
(1) to
produce evidence:
over-
burden to
(2)
rule;
procedure,
new pre-trial
or
nonforfeitability
any
of
presumption
come
proceedings,
to
forfeiture
unique
civil
underly-
from
of an
disposition
that arises
“motion to return” the
form of a
the
(2)
case;
ing
of a reasonable belief
criminal
majority
miscon-
property.
seized
exists be-
that a substantial connection
“ques-
my position when
labels as
strues
proscribed
property
tween the seized
the exclu-
my
tionable”
“conclusion
prop-
that the seized
activity;
criminal
no
sionary
would have
application
rule’s
contraband;
erty
prop-
My
effect.”
conclusion is
deterrent
to
erty
pursuant
a war-
was seized either
“significant protection” would
added
be
to
exception
under an
article
rant or
exclusionary
these
the
rule to
by applying
Finally,
requirement.
59.03’s warrant
468
Lopez-Mendoza,
proceedings.
each of these
even if the State satisfies
3479;
1045-46,
at
104
see also
S.Ct.
U.S.
burdens,
subject
the
still
forfeiture is
Jams,
I
96
428 U.S. at
S.Ct. 3021.
challenge
disproportion-
as
constitutional
any
find
additional deterrence
would
ate
Excessive Fines Clause.
under
the
rule
exclusionary
applying
achieved
Dodge, 122
at 427.
See 1996
Janis,
minimal. See
428 U.S.
would
in-
remedial nature and
Because
454,
judgment motion when there for lack proceeding missal of the forfeiture of one or more essential elements dence of affirming In the order be- jurisdiction. a claim or defense on which adverse low, effectively that dis- majority holds proof. party the burden of has Tex.R. Civ. jurisdiction cor- is the missal want 166a(i) 166a(i). in operate, P. Rule would disposition proceeding of a rect cases, put the State to its appropriate judgment that results in a of nonforfeiture. prove legality of statutory burden not. I it is would hold police the property conduct which judg- (reversing Dodge, If does meet was seized. trial remanding to of forfeiture and ment burden, judgment pro in the forfeiture judgment to enter court with instructions owner, just for the ceeding is rendered to order favor of owners and sum proceeding other civil which returned). mary granted, and the seized judgment is rightful to its owner. property returned III. CONCLUSION entirely pre-trial proce of an new Creation reach majority, I would not Unlike proceed civil forfeiture peculiar dure regarding .first two issues the State’s unnecessary. no event1would ings is and the search detention legality Tobin’s jurisdic dismissed want case be I Tex.R.App. P. 47.1. of his vehicle. See tion, challenged order is which what dismissal the trial court’s would reverse agree I with did this case. While and remand jurisdiction for want general rule of in rem majority that the proceedings consistent for further case jurisdiction jurisdiction is that the court’s opinion. with this res, I dependent on its control over return of the State’s agree do not compliance judg with a
seized the trial
ment of nonforfeiture divests majority, jurisdiction.
court Unlike